United States of America v. Robert Vincent Mendez

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT VINCENT MENDEZ,
Defendant - Appellant.
No. 13-30064
D.C. No. 3:07-cr-00492-HZ-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Marco A. Hernandez, District Judge, Presiding
Argued and Submitted July 8, 2014
Portland, Oregon
Before: PREGERSON, PAEZ, and WATFORD, Circuit Judges.
Defendant Robert Vincent Mendez appeals his conviction of four counts of
bank robbery, in violation of 18 U.S.C. § 2113(a). Mr. Mendez argues that his
conviction should be reversed due to: (1) violation of the Speedy Trial Act; (2)
violation of the Sixth Amendment’s Speedy Trial Clause; and (3) violations of the
FILED
JUL 18 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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Miranda rule, the McNabb-Mallory rule, and due process. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
1. The Speedy Trial Act of 1974, 18 U.S.C. § 3161 et seq., provides that a
trial “shall commence within seventy days from the filing date . . . of the
information or indictment, or from the date the defendant has appeared before a
judicial officer of the court in which such charge is pending, whichever date last
occurs.” 18 U.S.C. § 3161(c)(1). “[T]he 70-day time period d[oes] not begin
running until [the defendant] first appear[s] before a judicial officer of the charging
district.” United States v. Wilson, 720 F.2d 608, 609 (9th Cir. 1983).
Mr. Mendez did not make his first appearance before a judicial officer in the
District of Oregon — the charging district — until November 7, 2011.
Defendant’s trial was set for January 10, 2012, and his October 2012 trial took
place within 70 non-excludable days from the date of his first appearance in
Oregon. The district court therefore correctly denied Defendant’s motion to
dismiss for violation of the Speedy Trial Act.
2. The Sixth Amendment guarantees that, “[i]n all criminal prosecutions,
the accused shall enjoy the right to a speedy . . . trial . . .” U.S. Const. amend. VI.
To determine whether a defendant’s Speedy Trial Clause right has been violated,
the district court balances the four Barker factors: “[1] whether delay before trial
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was uncommonly long, [2] whether the government or the criminal defendant is
more to blame for that delay, [3] whether, in due course, the defendant asserted his
right to a speedy trial, and [4] whether he suffered prejudice as the delay’s result.”
Doggett v. United States, 505 U.S. 647, 651 (1992) (citing Barker v. Wingo, 407
U.S. 514, 530 (1972)).
The district court considered and properly balanced the Barker factors and
found Mr. Mendez’s Sixth Amendment Speedy Trial Clause right was not violated.
Reviewing de novo, see United States v. Beamon, 992 F.2d 1009, 1012 (9th Cir.
1993), we agree that the Barker factors do not weigh in Mr. Mendez’s favor.
3. Under the rule set out in Miranda, “[i]f the accused indicates that he
wishes to remain silent, ‘the interrogation must cease.’ If he requests counsel, ‘the
interrogation must cease until an attorney is present.’” Edwards v. Arizona, 451
U.S. 477, 482 (1981) (quoting Miranda v. Arizona, 384 U.S. 436, 474 (1966)).
The district court found Mr. Mendez’s testimony that he requested an
attorney and asserted his right to remain silent not credible, and found the
testimony of law enforcement officers that Mr. Mendez remained silent throughout
his arrest both credible and consistent with the evidence. The district court did not
err in its resolution of these conflicting accounts, especially considering the
“special deference” paid to the court’s credibility determinations. United States v.
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Nelson, 137 F.3d 1094, 1110 (9th Cir. 1998); see also United States v. Wolf, 813
F.2d 970, 975 (9th Cir. 1987) (“Deference to the district court’s factual finding is
especially warranted here when the critical evidence is testimonial.”). There was
therefore no Miranda violation.
Under the rule set out in 18 U.S.C. § 3501(c), McNabb v. United States, 318
U.S. 332 (1943), and Mallory v. United States, 354 U.S. 449 (1957), any
statements made by a defendant more than six-hours after arrest and before the
defendant is presented to a magistrate (the “safe harbor” period) are presumptively
inadmissible. See United States v. Valenzuela-Espinoza, 697 F.3d 742, 749 (9th
Cir. 2011). The McNabb-Mallory rule applies only to suspects being held on
federal charges. See United States v. Alvarez-Sanchez, 511 U.S. 350, 358 (1994).
A delay in bringing an arrestee before a magistrate may be calculated from the time
of a state arrest “if state or local authorities, acting in collusion with federal
officers,” delay presentment. Id. at 359.
Mr. Mendez was arrested on state charges, and was not detained on federal
charges until after he confessed. There is also no evidence of collusion between
state and federal officers. Moreover, federal agents were not notified of Mr.
Mendez’s arrest until a little more than three hours before Mr. Mendez confessed,
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thus putting the confession within the six-hour “safe harbor” period. Thus, Mr.
Mendez’s confession did not violate the McNabb-Mallory rule.
An involuntary confession gained through police coercion violates due
process and requires the reversal of a conviction. See Gallegos v. State of Neb.,
342 U.S. 55, 63, 65 (1951).
The district court properly held that Mr. Mendez voluntarily confessed and
was not coerced by law enforcement officers. After hearing the testimony of both
Mr. Mendez and the interrogating officers, the court credited the law enforcement
officers’ version of events — the officers explained to Mr. Mendez that they were
concerned about possible accomplices, and would need to search his family’s
homes if they believed his family members had aided in the bank robberies. This
statement had a legitimate investigative purpose, and was not coercive.
We also reject Mr. Mendez’s argument that the district court failed to hold a
“formal voluntariness hearing.” The district court held an extensive hearing on the
motion to suppress, and multiple witnesses testified.
AFFIRMED.
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