UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey Howard VAN POYCK, Defendant-Appellant

Opinion by Judge HALL; Concurrence by Judge NOONAN.

I.

Jeffrey Van Poyck was suspected of robbing three San Bernardino and Riverside County banks in early 1993. 1 Through a series of superseding indictments, he was eventually charged with three counts of armed robbery in violation of 18 U.S.C. § 2113 (a), (d) and one count of conspiracy to commit armed bank robbery under 18 U.S.C. § 371 .

Van Poyck was originally arrested on Friday afternoon, May 21, 1993, by California state officers. On Monday morning, May 24, he was transferred to federal custody and made his initial appearance before a federal magistrate. On the way to his initial appearance, Van Poyck made several incriminating statements to the federal officer driving with him. No federal magistrates were available over the weekend to arraign him.

Upon his arrival at the Metropolitan Detention Center (“MDC”) in Los Angeles on May 25, Van Poyck called a number of his friends and made more incriminating statements. MDC routinely tapes and selectively monitors all inmate telephone conversations. When Van Poyck first arrived at MDC, he was required to sign a form in which he consented to the routine monitoring and taping.…

concurring:

I concur in the opinion of the court except as to the failure to arraign Van Poyck promptly.

The relevant statute lists a variety of officers before whom he could have been arraigned. The statute reads:

For any offense against the United States, the offender may, by any justice or judge of the United States, or by any United States magistrate, or by any chancellor, judge of a supreme or superior court, chief or first judge of common pleas, mayor of a city, justice of the peace, or other magistrate, of any state where the offender may be found ... be arrested and imprisoned ... 18 U.S.C. § 3041 .

Federal Rule of Criminal Procedure 5(a) is premised on the statute. It reads:

Van Poyck was arrested at 4:00 p.m. on a Friday afternoon. The arrest was made by local police, executing a federal warrant. It is reasonable to suppose that a federal magistrate or some other judicial officer was available all of Friday afternoon, unless one supposes that all such officers begin the weekend a little early.

*293 It will be noted that “reasonably” only qualifies the availability of the federal magistrate. Rule 5(a) makes no such allowance for the convenience of the other judicial…

77 F.3d 285 96 Cal. Daily Op. Serv. 1091 , 96 Daily Journal D.A.R. 1850 UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey Howard VAN POYCK, Defendant-Appellant. No. 94-50318. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 13, 1995. Decided Feb. 20, 1996. Benjamin A. Brin, Law Offices of Benjamin A. Brin, Los Angeles, California, for defendant-appellant. Daniel P. Collins, Assistant United States Attorney, Los Angeles, California, for plaintiff-appellee. Appeal from the United States District Court for the Central District of California; A. Andrew Hauk, District Judge, Presiding. Before: HALL and JOHN T. NOONAN, Jr., Circuit Judges, SHUBB, District Judge. * Opinion by Judge HALL; Concurrence by Judge NOONAN. CYNTHIA HOLCOMB HALL, Circuit Judge: I. 1 Jeffrey Van Poyck was suspected of robbing three San Bernardino and Riverside County banks in early 1993. 1 Through a series of superseding indictments, he was eventually charged with three counts of armed robbery in violation of 18 U.S.C. § 2113 (a), (d) and one count of conspiracy to commit armed bank robbery under 18 U.S.C. § 371 . 2 Van Poyck was originally arrested on Friday afternoon, May…