A Return to McNabb and Mallory

August 30, 2013
By Hanging Out with Carl Gunn



  • Two defense attorneys in LA have recently made McNabb-Mallory/18 U.S.C. § 3501(c) collusion arguments where civil immigration holds or detentions were used to detain defendants during parallel criminal investigations.
  • One judge found an immigration hold placed at the request of one of the criminal investigators made the time count under McNabb-Mallory and 18 U.S.C. § 3501(c) .
  • These cases are examples of how we might look for the sort of collusion that makes non-federal and/or non-criminal custody nonetheless count against the McNabb-Mallory/18 U.S.C. § 3501(c) limits.



Today we go back to Fifth Amendment, or at least Fifth-Amendment-related, issues. Some time back, I put up three posts on the McNabb-Mallory rule, codified in a qualified form in 18 U.S.C. § 3501(c). (See “If You Don’t Have Miranda or Misconduct, Think About McNabb and Mallory,” “When Do State Cops Count as Federal Cops Under McNabb-Mallory?,” and “More on State Cops Counting as Federal Cops Under McNabb-Mallory” in the November 2012 and December 2012 links at the right.) I reminded you of the McNabb-Mallory rule, which requires suppression of statements obtained during unreasonable pre-arraignment delay, and the rule’s codification in § 3501(c), albeit in a limited form with a 6-hour “safe harbor” rule. I also noted the rule applies only to pre-arraignment delay in federal custody and not to delay in state custody before the defendant is handed over to the feds, but noted arguments can be made that state custody counts when there was collusion between the state and federal authorities. I also suggested such collusion might be more common than the Supreme Court majority inUnited States v. Alvarez-Sanchez, 511 U.S. 350 (1994) seemed to think, noted a Justice Stevens concurrence suggesting precisely that, urged you to look for such arguments, and in the third post offered some briefs from one of our local DFPDs making the argument on some interesting circumstances in her case.

I come back to this issue because one current DFPD in our district, Jill Ginstling, and one ex-DFPD, Craig Wilke, have had the issue come up recently in a somewhat, though not completely, similar context. That’s in the context of an individual purportedly being held for civil immigration purposes. In Craig’s case, immigration agents arrested the defendant and began processing him administratively for removal (the not so new technical legal term for deportation) while other agents in a criminal investigation group questioned him for purposes of deciding whether to request that criminal charges be filed. In Jill’s case, the facts were a little more sinister; the defendant was a target in a federal racketeering investigation of the shooting of a local sheriff’s deputy and was held in a local jail on an immigration detainer that a DEA task force officer requested be lodged while the agent prepared to charge the defendant with a criminal immigration offense. Local police officers cooperating with the task force officers and the racketeering investigation interrogated the defendant while he was being held on this detainer and before he was arraigned on the criminal immigration charge. The federal government then wanted to use the defendant’s statements about the murder in the federal racketeering case which was subsequently filed.

The motion in Craig’s case was denied by Judge Selna in Orange County, without any explanation of note, on the theory that the custody during processing for administrative removal didn’t count under McNabb-Mallory because it wasn’t custody on a federal criminal charge. (Watch for Craig’s appeal in this one.) But the judge in Jill’s case, Judge Wu in Los Angeles, issued a tentative ruling that McNabb-Mallory was violated in that case, which I’m attaching here. Though the ruling wasn’t ever formalized because the case was settled, it provides at least some fodder for potential arguments about collusion where there’s these joint state-federal task force investigations – and maybe in other circumstances as well.

First, in a footnote, Judge Wu specifically spoke of collaboration.

In other contexts, courts are willing to find McNabb-Mallory violated when authorities “collaborate[ ] to deny [a defendant his federal procedural rights.” See United States v. Doe (“Doe I“), 155 F.3d 1070, 1078 (9th Cir. 1998) (en banc). Here, the federally lodged detainer, the LASD [Los Angeles Sheriff’s Department] detention, and the delayed filing of criminal charges cumulatively allowed the LAPD [Los Angeles Police Department] to interrogate defendant at length about a crime on which he would later be federally charged – all before Defendant was presented to a federal magistrate. Although these actions were not necessarily perpetrated for the purpose of denying his federal procedural rights, they give the Court pause in evaluating the reasonableness of Defendant’s prolonged detention. Such pause is especially justified in light of remarks detectives made to Defendant during his interrogation that evince his detention was the product of federal-state collaboration to hold and interrogate him.

Tentative Ruling, at 9 n.1.

Judge Wu also explained that the McNabb-Mallory concerns were clearly implicated by the detention there.

The result the Court reaches today is not only in accord with [United States v.] Garcia-Hernandez[, 569 F.3d 1100 (9th Cir. 2009)], it also makes common sense and adheres to the purpose of McNabb-Mallory. If the Court were to find that McNabb-Mallory and § 3501 were not triggered until Defendant was charged with a crime, it could give law enforcement the perverse incentive to hold defendants on civil immigration offenses before filing criminal charges, in order to interrogate them at length. This danger would be particularly prone to abuse in the context of immigration detentions, as individuals are often held for prolonged periods. Such an effect would turn McNabb-Mallory’s concerns about secret, extended interrogations on its head.Corley [v. United States], 556 U.S. [303,] 308 [(2009)].

Tentative Ruling, at 9.

So pushing the envelope in this area does have some potential. Watch for this sort of more obvious evidence of collusion and collaboration between the state or local and federal authorities (or federal non-criminal and federal criminal authorities), and watch for more nuanced, implicit collusion and collaboration as well.