United States v. Dhawndric McDowell , 687 F.3d 904 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2543
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
D HAWNDRIC M C D OWELL,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 CR 999—John F. Grady, Judge.
A RGUED S EPTEMBER 29, 2011—D ECIDED A UGUST 7, 2012
Before R IPPLE, M ANION, and SYKES, Circuit Judges.
S YKES, Circuit Judge. Dhawndric McDowell occasionally
worked for the Chicago Police Department (“CPD”) as a
confidential informant, but his primary job was selling
cocaine for a Mexican drug cartel. One of his suppliers,
known to him only as “Jose,” agreed to assist the Drug
Enforcement Administration (“DEA”) with a sting.
Under the direction of federal agents, “Jose” arranged to
deliver ten kilograms of cocaine to McDowell at a drop
2 No. 10-2543
point in Chicago. McDowell was arrested at the point
of delivery.
Once in federal custody, McDowell announced to the
agents that he was an informant for the Chicago police.
Because it was after hours and they needed to sort out
this claim, the agents asked him if he would be
willing to waive his right to prompt presentment before
a magistrate judge. See F ED. R. C RIM. P. 5(a). McDowell
agreed, signed a written Rule 5(a) waiver, and spent the
night in jail. The next morning he signed a Miranda
waiver and confessed his involvement in cocaine traffick-
ing. He was taken before a magistrate judge early that
afternoon. Based on his confession and other evidence, a
jury convicted McDowell of conspiracy and attempted
possession of cocaine with intent to distribute.
McDowell argues that the district court should have
suppressed his confession under 18 U.S.C. § 3501(c) and
the McNabb-Mallory rule because of the delay in his
presentment before a magistrate judge. See McNabb v.
United States, 318 U.S. 332 (1943); Mallory v. United
States, 354 U.S. 449 (1957). He also claims the court
should have ordered the government to identify and
produce Jose at trial. Finally, he claims he was entitled
to a jury instruction regarding the requirement of evi-
dence corroborating his confession.
We reject these arguments and affirm. McDowell know-
ingly waived his right to prompt presentment under
Rule 5(a), so the exclusionary rule of McNabb-Mallory, as
modified by § 3501(c), does not apply. We also conclude
that the district court did not abuse its discretion by
No. 10-2543 3
maintaining the confidentiality of the DEA’s cooperating
source. And the court was well within its discretion to
deny McDowell’s request for a corroboration instruction.
I. Background
McDowell became a confidential informant for the
CPD in 2008, but unbeknownst to his “handler,” continued
to sell cocaine on the side. In the fall of that year, in
an independent investigation, the DEA developed a co-
operating source—a high-ranking member of a Mexican
cartel who supplied cocaine to Chicago-area dealers,
including McDowell. Federal agents thereafter arranged
a series of stings using this source. On December 1, 2008,
the supplier—known to McDowell only as “Jose” and
whom he had never met—called McDowell to collect on
a drug debt. The next day Jose called again and
offered McDowell a large quantity of cocaine at $28,500 a
kilogram. In this conversation (all these calls were re-
corded), Jose asked McDowell, “How many [kilograms]
do you want me to send you?” McDowell replied, “What-
ever you can.” Jose promised ten kilos, and McDowell
agreed to meet Jose’s runner that evening to take de-
livery. Jose directed him to a parking lot next to a
Dollar Bazaar store on the west side of Chicago.
At the appointed hour—6 p.m.—McDowell pulled into
the Dollar Bazaar parking lot driving a Porsche SUV.
An undercover officer approached and asked if he
needed “ten,” to which McDowell replied, “Yeah.” (This
transaction was audio- and video-recorded.) McDowell
popped his trunk and the runner placed a bag containing
4 No. 10-2543
sham cocaine inside. The runner then sought payment,
asking McDowell if he had “something for me.” McDowell
replied that he had been told by Jose that “he can get me
on the next one.” When McDowell got back in his SUV,
officers converged on the scene. McDowell threw the
SUV in gear, driving wildly in an attempt to escape. He
hit an unmarked police car and took his vehicle over a
curb and down a hill, smashing it into a fence. DEA
agents arrested McDowell as he tried to climb out of
the driver-side window of the crashed SUV. It was ap-
proximately 6:30 p.m.
The agents took McDowell to a local police precinct
and made him wait in a conference room while they
verified his surprising claim that “I work for you.” At
10 p.m. McDowell’s CPD handler arrived and con-
firmed that McDowell was indeed a CPD informant. But
the Chicago officer also told the agents that McDowell
was not working under the direction of the CPD at the
time of the transaction that led to his arrest. Because it
was after normal business hours, the federal agents
asked McDowell if he would waive his right to prompt
presentment before a magistrate judge. See F ED. R. C RIM .
P. 5(a) (“A person making an arrest . . . must take the
defendant without unnecessary delay before a magistrate
judge . . . .”). He agreed and signed a written Rule 5(a)
waiver consenting to forgo his right to be taken before
a federal magistrate for a period of up to 72 hours.
McDowell then spent the night in jail. The next
morning he was taken to the DEA’s Chicago headquar-
ters. At about 10:50 a.m., he signed a Miranda waiver and
No. 10-2543 5
began a two-hour interview with federal agents. He
admitted that he went to the Dollar Bazaar parking lot
to take delivery of ten kilos of cocaine and that he
had purchased large quantities of cocaine on 15 to 20
previous occasions from the same supplier, whom he
knew as “Jose.” This interview was the first time the
agents engaged McDowell in a substantive discussion of
his drug-related activities, and it began a little over
16 hours after his arrest. Around 1:30 p.m., approxi-
mately 19 hours after his arrest, McDowell was brought
before a magistrate judge for his initial appearance.
McDowell was indicted on charges of conspiracy and
attempted possession with intent to distribute more
than five kilograms of cocaine in violation of 21 U.S.C.
§§ 846, 841(a)(1) and (b)(1)(A)(ii). He moved to
suppress his statement, arguing that under 18 U.S.C.
§ 3501(c), the delay in bringing him before a federal
magistrate was unreasonable and the McNabb-Mallory
exclusionary rule required suppression. The district
judge determined that the statute, read in conjunction
with Rule 5(a) and the Supreme Court’s recent decision
in Corley v. United States, 556 U.S. 303 (2009), required
findings on two distinct questions: (1) whether the delay
in presentment was unnecessary; and (2) whether the
delay was unreasonable. The judge first concluded that
because McDowell voluntarily waived his right to pre-
sentment by signing a written Rule 5(a) waiver
soon after his arrest, there was no unnecessary delay.
The judge then held a separate hearing to determine
whether the delay was unreasonable and concluded
that it was not.
6 No. 10-2543
Based on these findings, the judge denied McDowell’s
suppression motion. The case was tried to a jury, and
McDowell was convicted on both counts. The judge
sentenced him to 360 months in prison. This appeal
followed.
II. Discussion
McDowell raises three arguments on appeal. First, he
argues that the district court should have suppressed
his statement under § 3501(c) and the rule of McNabb-
Mallory. He also contends that the government was re-
quired to identify and produce its cooperating source
at trial. Finally, he argues that the court erroneously
denied his request for a corroboration instruction.
A. Prompt Presentment
McDowell challenges the district court’s denial of his
motion to suppress his statement under § 3501(c) and the
McNabb-Mallory rule. We review the court’s findings of
fact for clear error and its legal conclusions de novo.
United States v. Gibson, 530 F.3d 606, 613 (7th Cir. 2008).
The common-law rule of “prompt presentment” required
a law-enforcement officer to take an arrested person
before a magistrate “as soon as he reasonably could.”
Corley, 556 U.S. at 306. This requirement is codified at
Rule 5(a) of the Federal Rules of Criminal Procedure,
which provides that “[a] person making an arrest
within the United States must take the defendant
No. 10-2543 7
without unnecessary delay before a magistrate judge . . .
unless a statute provides otherwise.” In McNabb the
Supreme Court established an exclusionary remedy
for confessions taken in violation of the common-law
prompt-presentment requirement; the Court reaffirmed
its McNabb holding in Mallory. Thus, under the rule
known as McNabb-Mallory, “an arrested person’s con-
fession is inadmissible if given after an unreasonable
delay in bringing him before a judge.” Corley, 556 U.S.
at 306.
Congress modified the McNabb-Mallory rule in 1968
with legislation that also responded to the Court’s deci-
sion in Miranda v. Arizona, 384 U.S. 436 (1966). Corley, 556
U.S. at 309. Congress enacted 18 U.S.C. § 3501 in an
effort to override Miranda and mitigate the effects of the
McNabb-Mallory rule. Id. Subsections (a) and (b) of the
statute address Miranda and are not at issue here. Id.Subsection (c) addresses the McNabb-Mallory exclu-
sionary rule:
[A] confession made or given by a person . . . while
such person was under arrest or other detention in
the custody of any law-enforcement officer or law-
enforcement agency, shall not be inadmissible solely
because of delay in bringing such person before a
magistrate judge . . . if such confession is found by
the trial judge to have been made voluntarily . . . and
if such confession was made or given by such
person within six hours immediately following his
arrest or other detention: Provided, That the time
limitation contained in this subsection shall not
8 No. 10-2543
apply in any case in which the delay in bringing
such person before such magistrate judge . . .
beyond such six-hour period is found by the trial
judge to be reasonable considering the means of
transportation and the distance to be traveled to
the nearest available such magistrate judge . . . .
18 U.S.C. § 3501(c).
Subsection (c) thus provides a six-hour “safe harbor”
for confessions given before presentment: A confession
given within six hours of arrest is admissible notwith-
standing a delay in presentment if the judge finds it
was voluntary. A confession given outside the six-hour
period is also admissible under § 3501(c) if the court
finds the confession was voluntary and the delay in pre-
sentment was reasonable.
In Corley the Supreme Court explained that in enacting
§ 3501(c), Congress limited but did not eliminate
the McNabb-Mallory exclusionary rule for statements
obtained in violation of the Rule 5(a) prompt-present-
ment requirement. 556 U.S. at 322. The limitation on the
rule of McNabb-Mallory is the six-hour safe harbor;
beyond that, however, McNabb-Mallory remains intact.
Thus, “[i]f the confession occurred before presentment
and beyond six hours, . . . the court must decide whether
delaying that long was unreasonable or unnecessary
under the McNabb-Mallory cases, and if it was, the con-
fession is to be suppressed.” Id. In other words, McNabb-
Mallory survived § 3501(c) and continues to apply
to confessions given before presentment and outside
the six-hour statutory window.
No. 10-2543 9
We have summarized the legal standards contained
in Rule 5(a), § 3501(c), McNabb-Mallory, and Corley as
follows:
Rule 5(a) of the Federal Rules of Criminal Procedure
requires that a person arrested on a federal charge
be presented to a magistrate judge “without unneces-
sary delay.” Even given a delay in presentment,
however, a voluntary confession made within six
hours of arrest remains admissible. 18 U.S.C. § 3501(c).
On the other hand, a voluntary confession made
after the six-hour safe-harbor period may be inadmis-
sible as a Rule 5(a) violation and pursuant to
McNabb v. United States, 318 U.S. 332, 344-47 . . . (1943),
and Mallory v. United States, 354 U.S. 449, 455-56 . . .
(1957). Corley v. United States, . . . 129 S. Ct. 1558,
1571 . . . (2009) (holding that § 3501 did not sup-
plant McNabb-Mallory and that “[i]f the confession
occurred before presentment and beyond six hours, . . .
the court must decide whether delaying that long
was unreasonable or unnecessary under the McNabb-
Mallory cases”).
United States v. Kirkland, 567 F.3d 316, 320 (7th Cir. 2009).
McDowell’s confession occurred well beyond § 3501(c)’s
six-hour safe harbor. The DEA agents interviewed
him more than 16 hours after his arrest and before
he was presented to a magistrate judge. Absent a
waiver of prompt presentment, this would ordinarily
mean that the district court had to “decide whether
delaying that long was unreasonable or unnecessary
under the McNabb-Mallory cases.” Corley, 556 U.S. at 322.
10 No. 10-2543
We have said that this inquiry depends on “ ‘a congeries
of factors, including such elements as the deterrent pur-
pose of the exclusionary rule, the importance of judicial
integrity, and the likelihood that admission of evidence
would encourage violations of the Fourth Amendment.’ ”
United States v. Mansoori, 304 F.3d 635, 660-61 (7th Cir.
2002) (quoting United States v. Gaines, 555 F.2d 618, 623-
24 (7th Cir. 1977)); United States v. Spruill, 296 F.3d 580,
590 (7th Cir. 2002).
Here, however, the government took the position that
the McNabb-Mallory inquiry was unnecessary because
McDowell signed a written waiver of his Rule 5(a) right
to prompt presentment. The judge rejected this argu-
ment, treating the question whether the delay was “unrea-
sonable” under § 3501(c) as separate and distinct
from whether the delay was “unnecessary” under Rule 5(a)
and McNabb-Mallory. The judge held that McDowell’s
waiver applied only to his right under Rule 5(a) and
did not apply to § 3501(c).
This reasoning misunderstands the relationship be-
tween Rule 5(a), § 3501(c), and the McNabb-Mallory rule. As
we have explained, under Rule 5(a), an arrested person
has a right to prompt presentment before a magis-
trate without unnecessary delay. Under McNabb-
Mallory a confession obtained in violation of the right
to prompt presentment must be suppressed if the delay
was unreasonable or unnecessary. Finally, under § 3501(c)
law-enforcement officers have a six-hour safe harbor
within which to question a suspect before presentment,
but the court must apply McNabb-Mallory to a confession
No. 10-2543 11
made outside the six-hour time limit and before present-
ment. In other words, the prompt-presentment right is
found in Rule 5(a); § 3501(c) and McNabb-Mallory estab-
lish the remedial framework for assessing violations of
the right.
And like other important rights, the right to prompt
presentment may be waived. Here, McDowell signed
a written Rule 5(a) stating in part as follows:
I have been informed and understand that I have
a right under Rule 5(a) of the Federal Rules of
Criminal Procedure to be brought without unneces-
sary delay before the nearest available federal magis-
trate judge or other judicial officer . . . .
At this time, I waive my right to appear before
the nearest available federal magistrate judge or
other judicial officer without unnecessary delay . . . .
I agree that my appearance may be delayed for a
period not to exceed 72 hours from the time I sign this
waiver.
I do so knowingly and voluntarily, understanding
that I have been arrested and will remain in custody
until I am arraigned before a United States Magistrate
Judge or other judicial officer.
By signing this waiver, McDowell gave up his right to
prompt presentment for the length of time specified in
the waiver. By giving up the right to prompt present-
ment, McDowell necessarily gave up the corresponding
remedy of McNabb-Mallory, as modified by § 3501(c).
12 No. 10-2543
There is no dispute that McDowell signed the Rule 5(a)
waiver knowingly and voluntarily.
McDowell’s voluntary waiver of his Rule 5(a) right
therefore eliminated any need for the district court
to address the remedial framework of § 3501(c) and
McNabb-Mallory. McDowell’s confession was admissible
without regard to the delay in presentment. 1 Where, as
here, the defendant waives his Rule 5(a) right, there is
no reason for judicial inquiry into whether the delay in
presentment was unreasonable or unnecessary under
§ 3501(c) and McNabb-Mallory. Although much of its
analysis was unnecessary, the district court properly
denied McDowell’s suppression motion.
1
McDowell does not argue that his confession was otherwise
inadmissible. That is, everyone agrees that the agents
complied with Miranda and that McDowell confessed volun-
tarily. Indeed, the government argues that McDowell’s
Miranda waiver makes suppression under McNabb-Mallory
“inappropriate,” noting that some circuits have held that a
valid Miranda waiver also suffices to waive McNabb-Mallory. See
Corley v. United States, 556 U.S. 303, 328-29 (2009) (Alito, J.,
dissenting) (“More than a few courts of appeals have gone as
far as to hold that a waiver of Miranda rights also constitutes
a waiver under McNabb-Mallory.”). We need not decide
whether a valid Miranda waiver also waives McNabb-Mallory.
As we have explained, McDowell’s written waiver of his
Rule 5(a) right to prompt presentment waived the remedy of
McNabb-Mallory.
No. 10-2543 13
B. Production of the Cooperating Source
McDowell next argues that the district judge erred in
denying his request for production of “Jose,” the govern-
ment’s cooperating source. The government relied on its
limited privilege to withhold the identity of a con-
fidential informant under Roviaro v. United States, 353
U.S. 53, 59 (1957). This privilege gives way if the de-
fendant establishes that the disclosure of the informant’s
identity “ ‘is relevant and helpful’ to his defense ‘or is
essential to a fair determination of a cause.’ ” United
States v. Harris, 531 F.3d 507, 514 (7th Cir. 2008) (quoting
Roviaro, 353 U.S. at 60-61). “We review a district court’s
denial of a motion for disclosure of the identify of a
confidential informant for abuse of discretion and will
affirm if any reasonable person could agree with the
district court’s decision.” Id. (citing United States v.
Jefferson, 252 F.3d 937, 940 (7th Cir. 2001)).
We have held that “the role of the confidential
informant is an important factor to consider when deter-
mining whether that informant’s identity need be dis-
closed.” Id. at 515. In this context our cases describe two
types of informants: a “mere ‘tipster’—someone whose
only role was to provide the police with the relevant
information that served as the foundation for obtaining
a search warrant” and a “ ‘transactional witness’ who
participated in the crime charged against the defendant
or witnessed the event in question.” Id. For informants
falling in the first category, the rationale for the
privilege is stronger and the case for overriding it is
generally weak. However, for informants who per-
14 No. 10-2543
formed a transactional role in an investigation, the case
for overriding the privilege and requiring disclosure
may be stronger.
Jose was hardly a “mere tipster.” He was a high-
ranking drug trafficker in a Mexican cartel who re-
peatedly provided McDowell (and other distributors)
with shipments of large quantities of cocaine worth
millions of dollars. He also helped the DEA set up the
sting that led to McDowell’s arrest, participating at
least to the extent of placing the phone calls that lured
McDowell in. Jose cooperated with the agents on other
investigations and himself was arrested and later
indicted for drug crimes. He has little in common with
the “concerned citizens” who report suspected drug
crimes in their neighborhoods and require confiden-
tiality. See, e.g., United States v. Wilburn, 581 F.3d 618, 622-
24 (7th Cir. 2009). Moreover, Jose did far more than
“provide the police with the relevant information that
served as the foundation for obtaining a search war-
rant.” Harris, 531 F.3d at 515.
On the other hand, the reason McDowell wanted the
cooperating source produced for trial was flimsy.
McDowell argued that Jose would have supported a
duress defense because he could testify about the drug
debt McDowell owed. He claimed that Jose was known
for using threats and violence against those who failed
to pay. Setting aside the likelihood that the witness
would have asserted his Fifth Amendment right not to
testify if the examination proceeded in this manner, a
duress defense would not have been viable under the
No. 10-2543 15
circumstances of this case. A defense of duress or
coercion requires evidence of “present, immediate, or
impending” violence. United States v. Sawyer, 558 F.3d
705, 711 (7th Cir. 2009). At most, McDowell asserted a
claim of only “potential future violence,” which is an
insufficient evidentiary foundation for a duress defense.
United States v. Tokash, 282 F.3d 962, 970 (7th Cir. 2002).
Apart from his argument about a putative duress
defense, McDowell does not contend the cooperating
source’s testimony would have undercut the govern-
ment’s case in any meaningful way. Indeed, the
evidence of McDowell’s guilt was overwhelming and
included recorded phone calls, law-enforcement wit-
nesses, a recorded delivery of sham cocaine, and the
defendant’s own confession. The district court did not
abuse its discretion in denying McDowell’s motion
for production of the government’s cooperating source
at trial.
C. Corroboration Instruction
Finally, McDowell challenges the district court’s rejec-
tion of his request for a special jury instruction
regarding the requirement that his confession be cor-
roborated. We review this decision for abuse of
discretion, United States v. Tanner, 628 F.3d 890, 904 (7th
Cir. 2010), deferring to the broad discretion of the
district court to accept or reject a proposed jury instruc-
tion “ ‘so long as the essential points are covered by the
instructions given.’ ” United States v. Prude, 489 F.3d 873,
16 No. 10-2543
882 (7th Cir. 2007) (quoting United States v. Koster, 163
F.3d 1008, 1011 (7th Cir. 1998)).
McDowell asked the court to instruct the jury that it
could not convict him based on his confession alone
and that corroboration was required. It is well estab-
lished that a defendant cannot be convicted based solely
on his own uncorroborated statement; the government
must present independent evidence to corroborate a
confession. Opper v. United States, 348 U.S. 84, 91 (1954);
United States v. Dalhouse, 534 F.3d 803, 806 (7th Cir.
2008); United States v. Jackson, 103 F.3d 561, 567 (7th Cir.
1996). The corroboration principle sometimes comes
into play in the trial court’s decision to admit the defen-
dant’s confession and also if he later challenges the suf-
ficiency of the evidence. But we have held that the
district court is not obligated to instruct the jury on the
requirement of corroboration. United States v. Howard, 179
F.3d 539, 543 (7th Cir. 1999). Following the lead of two
other circuits, we concluded in Howard that the matter
was better left to the trial judge, and that the standard
instructions regarding the government’s burden of
proof and the presumption of innocence are generally
sufficient. Id. at 544 (citing United States v. Dickerson, 163
F.3d 639 (D.C. Cir. 1999), and United States v. Singleterry,
29 F.3d 733 (1st Cir. 1994)); but see United States v. Adams,
583 F.3d 457, 469-70 (6th Cir. 2009) (distinguishing
Howard and following the Sixth Circuit’s rule that an
instruction must be given even when corroborating
evidence is presented).
Howard thus forecloses McDowell’s argument. Here, the
district court gave the same pattern instructions as the
No. 10-2543 17
district court did in Howard. McDowell attempts to
avoid Howard by distinguishing between the particular
instruction at issue in that case—the defendant argued
for an instruction requiring the jury to make a specific
finding of corroboration—and the more general instruc-
tion requested here. This is a distinction without a differ-
ence. We held in Howard that the standard reasonable-
doubt and presumption-of-innocence jury instructions
are usually enough, and the corroboration issue is for
the court to decide. The district court did not abuse
its discretion in denying McDowell’s request for a cor-
roboration instruction.
A FFIRMED.
8-7-12