Petition for Writ of Certiorari — Lashaun Casey, Petitioner v. United States

No.

In the

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2024

LASHAUN CASEY,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

APPENDICES TO

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Virginia G. Villa

Attorney of Record

2689 230th Avenue

St. Croix Falls, WI 54024

(207) 745-6156

villa_virginia@hotmail.com

Attorney for Petitioner

Index to Appendices to Petition for Writ of Certiorari

A.

Opinion of the First Circuit entered April 25, 2024

B.

Order and Opinion denying Petition filed pursuant to 28 U.S.C. § 2255

C.

Denial of Rehearing and Rehearing En Banc

100 F.4th 34 (2024)

Lashaun CASEY, Petitioner, Appellant,

v.

UNITED STATES of America, Respondent, Appellee.

No. 21-1414.

United States Court of Appeals, First Circuit.

April 25, 2024.

37*37 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF

PUERTO RICO, [Hon. Aida M. Delgado-Colón, U.S. District Judge].

Virginia G. Villa for appellant.

Ricardo A. Imbert-Fernández, with whom W. Stephen Muldrow, United States Attorney, and

Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were

on brief, for appellee.

38*38 Before Kayatta, Lipez, and Rikelman, Circuit Judges.

LIPEZ, Circuit Judge.

Lashaun Casey was sentenced to life imprisonment after he was found guilty by a jury of

carjacking and murdering an undercover police officer. See United States v. Casey ("Casey I"),

825 F.3d 1, 7-8 (1st Cir. 2016). Casey now seeks a writ of habeas corpus based on a violation of

his Sixth Amendment right to effective assistance of counsel. See 28 U.S.C. § 2255. As relevant

here, he claims that his trial attorney unreasonably failed to seek exclusion of inculpatory

statements he made during a period of improper delay in bringing him before a magistrate judge

following his arrest and detention. See Fed. R. Crim. P. 5(a)(1)(A); United States v. GalindoSerrano, 925 F.3d 40, 45-46 (1st Cir. 2019). The district court rejected this "prompt presentment"

claim, concluding that delay occurred but that it "was reasonable and necessary for legitimate

law enforcement purposes." Casey v. United States ("Casey II"), 530 F. Supp. 3d 176, 188

(D.P.R. 2021).

We disagree that Casey's presentment was justifiably delayed, and we agree with Casey that

admission at trial of one of the two contested sets of statements was therefore improper. We

conclude, however, that Casey has not demonstrated that his trial counsel's failure to press that

error constituted ineffective assistance of counsel because his showing of prejudice falls short of

the Sixth Amendment standard. We therefore affirm the district court's judgment denying the

writ of habeas corpus.

I.

Appendix A

1

The factual and procedural details that underlie Casey's conviction and petition for habeas relief

were recounted in both our opinion in Casey's direct appeal, see Casey I, 825 F.3d at 7-9, and the

district court's opinion denying habeas relief, see Casey II, 530 F. Supp. 3d at 180-82. We set

forth here the facts pertinent to the habeas appeal, drawing liberally from those prior opinions.

A. Factual Background

1. The Planned Drug Deal and Aftermath

On August 1, 2005, Casey and undercover Agent Jesús Lizardi-Espada ("Lizardi") of the Puerto

Rico Police Department ("PRPD") set off together for a drug buy that Casey had arranged with a

supplier, Alexander Hernández. Lizardi and Casey, who was a target of a PRPD undercover

drug-trafficking investigation, had interacted previously without incident, including for the

purchase of a pound of marijuana earlier that same year. The August 1 plan called for the two

men to meet Hernández in Culebra, an island off Puerto Rico's coast, traveling there by ferry

from Fajardo. A team of PRPD agents, including Lizardi's supervisor, José Agosto-Rivera

("Agosto"), flew to Culebra in advance of the planned drug deal, for which Lizardi carried about

$3,600 in cash. Agosto received three check-in calls from Lizardi that morning, including a final

call that occurred after Lizardi picked up Casey at his home and while Casey was making a

restroom stop during their drive to the ferry terminal.

Agosto was waiting at the ferry terminal in Culebra and, when Lizardi and Casey failed to arrive

as planned, Agosto called Lizardi's cellphone multiple times. Receiving no answer, he took a

ferry back to Fajardo and began searching for the two men with other officers. Hours later,

Agosto found Casey at the Holiday Inn where he worked and spotted Lizardi's truck in 39*39 the

employee parking lot. The vehicle was missing the driver's side window, and bloodstains and

broken glass were visible inside. Casey was arrested at about 11:30 PM as he was driving off in

Lizardi's truck.

2. Casey's Arrest and PRPD Custody

Officers first brought Casey to PRPD headquarters in Hato Rey, where he was read his rights and

signed a Miranda waiver. Beginning at about 12:50 AM — now August 2 — he was questioned

by PRPD Agent Diana Marrero. Casey told Marrero that he had gone with a friend named Jesus

the previous morning to buy marijuana from people Casey knew, and Casey then fabricated a

story about a shooting related to the drug purchase that led officers on an unproductive search for

the missing agent at "the homes of individuals in the drug trafficking world." Casey II, 530 F.

Supp. 3d at 180.

At about 6 AM, agents brought Casey to the PRPD police station in Canóvanas. Although he

would remain in the physical custody of the PRPD until approximately 12:45 PM, it is

undisputed that the FBI "assumed jurisdiction" over the case when Casey was relocated to

Canóvanas at 6 AM. Id. While at Canóvanas, Casey told Marrero that he no longer wished to

speak with law enforcement and asked to see his grandfather, with whom he lived. At roughly

7:30 AM, Casey's grandfather, who had arrived at the Canóvanas station, gave consent for a

Appendix A

2

search of Casey's bedroom at the home they shared in Luquillo. There, agents recovered, among

other items, a loaded firearm, Lizardi's cell-phone, and a pair of bloodstained sandals.

3. Casey's Statements While in FBI Custody

In the early afternoon, after a stop at a PRPD station in Luquillo, Casey was moved to FBI

premises in Ceiba.[1] At about 12:45 PM,[2] Casey was again read his rights and, according to FBI

Agent Luis Moulier, chose to remain silent.

At about 2 PM, PRPD Agent Marrero again questioned Casey, this time in the presence of an

FBI agent who, early in the interview, told Casey about the evidence that had been found in his

bedroom. Marrero testified at trial as follows when asked by government counsel what Casey

told her during this interview:

Marrero: It was already in the afternoon and he was asked again if he had any knowledge of

where Mr. Jesus Lizardi was, and he said Mr. Jesus was maybe alive or maybe he was dead.

Government: Did he say anything else?

Marrero: He was asked why he was saying that, and he said that he was not going to talk any

more, because he was already sunk because of the evidence and that if he would get an attorney

then he could continue talking to us.

Government: After he asked for an attorney did you continue to interview him?

40*40 Marrero: We remained silent and later he was asked something else, but he didn't answer

anything else.[3]

At about 4:15 PM, Casey met with his wife in an interview room in the Ceiba location, in the

presence of a PRPD agent who was at that time assigned to the FBI. The agent overheard the

couple's conversation and testified at trial that Casey said to his wife, among other things, that

"in the house they seized a lot of evidence but that they weren't going to find the body." The

agent reported that Casey also assured his wife "that he was going to come out of this case well,"

while referencing a prior drug case "they had come out of ... okay."[4]

4. Casey's Presentment and Criminal Charges

Casey was taken to the Metropolitan Detention Center in Guaynabo, arriving at about 11:30 PM

on August 2, and he made his initial appearance before a federal magistrate judge the next day,

August 3, at 11:35 AM. The criminal complaint filed against him asserted federal drug and

firearms violations, including unlawful possession of a firearm by a felon and possession of a

firearm in furtherance of a drug trafficking offense. The affidavit submitted with the complaint,

signed by FBI Agent Moulier, reported that Casey was arrested by the PRPD when he was found

driving the vehicle of an undercover agent with whom authorities had lost contact and who had

been conducting a drug transaction with Casey.

Lizardi's body was found a few days later in a wooded area behind an abandoned building in

Luquillo. He had been shot twice in the head. The evidence gathered by authorities during the

Appendix A

3

investigation and eventually presented at Casey's 2013 trial established decisively that Casey

was, at the very least, present when Lizardi was shot. The government's case included

compelling physical evidence and related testimony showing that Casey drove Lizardi's truck out

of the parking lot at the ferry terminal in Fajardo and paid the parking fee with a $20 bill that

contained traces of Lizardi's blood. Further, a vehicle window found in this same parking lot,

41*41 with what appeared to be a bullet hole in the middle, was identified as likely the window

that was missing from Lizardi's truck — the vehicle Casey was driving when he was arrested.

Authorities also retrieved a bullet from the parking lot that matched the ammunition in the gun

found in Casey's bedroom. Lizardi's backpack was found about a mile from Casey's home and

down the street from the home of Hernández, the drug dealer whom Casey and Lizardi had been

planning to meet. FBI analysis concluded that the bloodstain on the sandals seized from Casey's

home likely contained Lizardi's DNA.

B. Procedural Background

Casey was charged with federal crimes in an indictment filed in August 2005, shortly after

Lizardi's body was found. In early 2007, a superseding federal indictment containing three

counts charged Casey with: (1) carjacking with the intent to cause death or serious bodily injury,

in violation of 18 U.S.C. § 2119(3); (2) possession, use, discharge, and carrying of a firearm

during a crime of violence — the carjacking — and, in the course of that crime, shooting Lizardi,

"thus causing his death," in violation of 18 U.S.C. § 924(j); and (3) being a felon in possession of

a firearm, in violation of 18 U.S.C. § 922(g)(1). The superseding indictment also contained a

"Notice of Special Findings" rendering Casey eligible for the death penalty. See 18 U.S.C. §§

3591(a), 3592(c).

Pretrial proceedings, including the litigation of issues concerning the death penalty and

suppression motions, continued through early 2013. As relevant here, Casey moved to suppress

on various grounds[5] the two sets of statements that he made in the afternoon of August 2 at the

Ceiba FBI location: his comments to Agent Marrero in response to questions about Lizardi's

whereabouts and his overheard conversation with his wife shortly thereafter. See United States v.

Casey ("Casey III"), No. 05-277, 2013 WL 12190563, at *2 (D.P.R. Jan. 23, 2013). The district

court, as noted above, suppressed comments elicited by Marrero after Casey invoked his right to

counsel during the interview at Ceiba but otherwise denied the motions. The court rejected

Casey's claim of coercion based on an "alleged physical assault by police officers," id. at *8, and

it refused to suppress Casey's overheard comments to his wife on the ground that their

conversation was not "the `functional equivalent' of a custodial interrogation." Id. at *10 (quoting

Arizona v. Mauro, 481 U.S. 520, 527, 107 S.Ct. 1931, 95 L.Ed.2d 458 (1987)).[6] Casey did not

seek suppression based on undue delay in bringing him before a magistrate judge.

The guilt phase of Casey's trial spanned twenty-four days in February and March 42*42 2013.

The carjacking charges, as presented to the jury, required the government to establish beyond a

reasonable doubt that Casey not only was present at the scene of the murder but also that he took

the truck from Lizardi with the intent to seriously injure or kill him, and that he did the shooting.

The core of Casey's defense was that he had no such intent and that the murder was committed

unexpectedly by Hernández, the drug dealer whom he had arranged to meet with Lizardi. The

jury found Casey guilty on all three counts, but it subsequently rejected the death penalty. The

Appendix A

4

district court thereafter sentenced Casey to life imprisonment on Counts 1 and 2 — the counts

based on the carjacking and Lizardi's death — and to a ten-year term of imprisonment on the

felon-in-possession count.[7]

Casey appealed and, among his arguments, he claimed for the first time that his statements to

Marrero and his wife should have been suppressed because the government failed to bring him

promptly before a magistrate judge. See Casey I, 825 F.3d at 20-21. In a single paragraph, we

deemed that claim waived and declined to consider it. Id. at 21. After the Supreme Court denied

certiorari, Casey submitted a timely habeas petition pursuant to 28 U.S.C. § 2255 asserting

ineffective assistance of counsel on multiple grounds, including his attorneys' failure to seek

suppression of his statements based on the violation of his right to prompt presentment. We

ultimately granted a Certificate of Appealability ("COA") solely on the prompt presentment

issue.[8]

II.

A. Applicable Law

1. Ineffective Assistance of Counsel

To succeed with an ineffective assistance of counsel claim under 28 U.S.C. § 2255, a petitioner

must show both that his "counsel's representation fell below an objective standard of

reasonableness" (the performance prong) and that "there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been different" (the

prejudice prong). Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984). The petitioner bears a heavy burden on each prong.

We will find deficient performance "[o]nly when counsel's strategy was `so patently

unreasonable that no competent attorney would have made it.'" Watson v. United States, 37 F.4th

22, 28 (1st Cir. 2022) (quoting Tevlin v. Spencer, 621 F.3d 59, 66 (1st Cir. 2010)). To give the

required deference to counsel's choices, we "strongly presume[]" that the attorney "[has]

rendered adequate assistance and made all significant decisions in the exercise of reasonable

professional judgment." Strickland, 466 U.S. at 690, 104 S.Ct. 2052, Nonetheless, "the right to

effective assistance of counsel ... may in a particular case be violated by even an isolated error of

counsel if that error is sufficiently egregious and prejudicial." Murray v. Carrier, 477 U.S. 478,

496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986).

43*43 With respect to the prejudice requirement, although the petitioner does not need to show

that any asserted errors more likely than not affected the jury's verdict, it is not enough "to show

that the errors had `some conceivable effect on the outcome.'" González-Soberal v. United

States, 244 F.3d 273, 278 (1st Cir. 2001) (quoting Strickland, 466 U.S. at 693, 104 S.Ct. 2052).

Instead, the petitioner must show a "reasonable probability" of a different result at trial — that is,

"one `sufficient to undermine confidence'" in the verdict. Id. (quoting Strickland, 466 U.S. at

694, 104 S.Ct. 2052).

Appendix A

5

2. The Right to Prompt Presentment

Federal Rule of Criminal Procedure 5(a)(1)(A) provides that a defendant who has been

"arrest[ed] within the United States must [be] taken ... without unnecessary delay before a

magistrate judge." This right to prompt presentment is designed to "avoid all the evil

implications of secret interrogation of persons accused of crime," McNabb v. United States, 318

U.S. 332, 344, 63 S.Ct. 608, 87 L.Ed. 819 (1943), and "ensure[] that the defendant `may be

advised of his rights' `as quickly as possible' and that `the issue of probable cause may be

promptly determined,'" Galindo-Serrano, 925 F.3d at 46 (quoting Mallory v. United States, 354

U.S. 449, 454, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957)).[9] Under "the rule known simply as

McNabb-Mallory," Corley v. United States, 556 U.S. 303, 309, 129 S.Ct. 1558, 173 L.Ed.2d 443

(2009), "confessions made during periods of detention that violat[e] the prompt presentment

requirement of Rule 5(a)" are inadmissible in evidence, id. (alteration in original) (quoting

United States v. Alvarez-Sanchez, 511 U.S. 350, 354, 114 S.Ct. 1599, 128 L.Ed.2d 319 (1994)).

However, "the McNabb-Mallory exclusionary rule" has been qualified in two ways. GalindoSerrano, 925 F.3d at 46. First, 18 U.S.C. § 3501 establishes a safe-harbor period for certain

voluntary confessions obtained "within six hours immediately following ... arrest or other

detention," stating that they are not "inadmissible solely because of delay in bringing such person

before a magistrate judge or other officer." 18 U.S.C. § 3501(c); see also United States v.

Jacques, 744 F.3d 804, 813 (1st Cir. 2014). Section 3501 further provides that a confession made

outside the six-hour safe-harbor period may be admitted into evidence if the trial judge finds that

the defendant's statements were voluntary and the delay beyond six hours was "reasonable

considering the means of transportation and the distance to be traveled to the nearest available ...

magistrate judge or other officer." 18 U.S.C. § 3501(c); see also Corley, 556 U.S. at 322, 129

S.Ct. 1558 (describing revision of the McNabb-Mallory rule by § 3501(c)).

We have recognized that the reasonableness inquiry may encompass factors other than "the

means of transportation and the distance to be traveled." 18 U.S.C. § 3501(c). See Jacques, 744

F.3d at 814-15. The question is whether "th[e] delay is based on reasonable or legitimate

grounds." Id. at 814. We previously have 44*44 summarized some of the relevant

considerations:

A delay "is unreasonable and unnecessary when it is `of a nature to give opportunity for the

extraction of a confession.'" United States v. García-Hernández, 569 F.3d 1100, 1106 (9th Cir.

2009) (quoting Mallory, 354 U.S. at 455, 77 S.Ct. 1356). However, a delay may be reasonable if

caused by administrative concerns, such as the unavailability of a magistrate following an arrest,

or by a shortage of personnel[.]

Id. (citations omitted); see also Fed. R. Crim. P. 5 advisory committee's note to 2002 amendment

(recognizing the occasional need for delay in presentment, "for example, due to weather

conditions or other natural causes"); United States v. Boche-Perez, 755 F.3d 327, 337 (5th Cir.

2014) (noting that "[d]elays so that the arrestee can receive medical care and/or sober up have

also long been sanctioned" (citing cases)).

Appendix A

6

As we have emphasized, however, the "administrative concerns" that are claimed to justify a

delay must in fact support a legitimate need for additional time to bring a defendant before a

magistrate judge. See generally Galindo-Serrano, 925 F.3d at 48-49. Otherwise, an extended

interval between detention and presentment will amount to the unacceptable delay prohibited by

Rule 5 and McNabb-Mallory: delay that is "of a nature to give opportunity for the extraction of a

confession." Mallory, 354 U.S. at 455, 77 S.Ct. 1356; see also Galindo-Serrano, 925 F.3d at 48

("Delay for the purpose of interrogation is the epitome of unnecessary delay." (internal quotation

marks omitted) (quoting Corley, 556 U.S. at 308, 129 S.Ct. 1558, in turn quoting Mallory, 354

U.S. at 455-56, 77 S.Ct. 1356)); Boche-Perez, 755 F.3d at 336 ("A non-existent explanation (i.e.,

delay for delay's sake) is unacceptable under McNabb-Mallory because a delay for delay's sake

is, by definition, unnecessary to any legitimate law enforcement purpose.").

III.

A. Standard of Review

In reviewing a district court's denial of a § 2255 petition, we evaluate its legal conclusions de

novo and its factual findings for clear error. See Thompson v. United States, 64 F.4th 412, 418

(1st Cir. 2023). We may start our analysis with either prong of the ineffective assistance inquiry.

Because we ultimately conclude that Casey cannot show the requisite prejudice, we could bypass

any discussion of the performance prong. See, e.g., United States v. Carrigan, 724 F.3d 39, 45

(1st Cir. 2013). However, such avoidance here would leave in place an untenable view of the

prompt presentment requirement, reflected in the reasoning of both the district court in its

decision on Casey's habeas petition and the government in its defense of that ruling. We are

concerned that those errors may reflect a broad misapprehension of the prompt presentment

requirement. We therefore deem it important to address Casey's argument that the court erred in

its treatment of his McNabb-Mallory claim. See Galindo-Serrano, 925 F.3d at 47-49 (rejecting

prompt-presentment claim as waived but discussing the district court's finding of reasonable

delay "to clarify the law in this area"). We thus begin with the performance prong of Casey's

ineffective assistance claim.

B. Was Counsel's Performance Deficient?[10]

As the district court observed, a petitioner cannot establish deficient performance 45*45 without

first showing an actual trial error. See Casey II, 530 F. Supp. 3d at 186; Johnston v. Mitchell, 871

F.3d 52, 60 (1st Cir. 2017). In rejecting Casey's Sixth Amendment claim, the court found that he

failed to make such a showing. The performance inquiry in this case thus requires us to first

review the district court's ruling that no Rule 5 violation occurred. Because we disagree with that

conclusion, we must go on to determine whether counsel's failure to seek suppression based on

the prompt presentment violation was representation that fell below an objective standard of

reasonableness.

1. The McNabb-Mallory Violation

Appendix A

7

Despite the span of thirty-six hours between Casey's arrest and his appearance before the

magistrate judge — and roughly fifteen hours between his detention and the statements he

challenges — the district court held that Casey's prompt presentment claim lacked merit because

the delay was "reasonable and necessary for legitimate law enforcement purposes, namely, to

locate Agent Lizardi." Casey II, 530 F. Supp. 3d at 188. Hence, according to the court, the failure

of Casey's attorney to move for suppression of his statements based on McNabb-Mallory and §

3501(c) was not unreasonable, and Casey thus could not satisfy the deficient performance prong

of his ineffective assistance claim. Id.

Rule 5's requirement of prompt presentment applies only to a period of federal detention. See

Alvarez-Sanchez, 511 U.S. at 358, 114 S.Ct. 1599. There is no factual dispute concerning the

length of Casey's detention, and it is likewise uncontested that the FBI assumed jurisdiction over

the case at 6 AM on August 2. The question whether a prompt presentment violation occurred is

thus an issue of law subject to de novo review. See Thompson, 64 F.4th at 418. That issue

encompasses two subsidiary questions: (1) at what point did the six-hour safe-harbor period

provided in § 3501(c) begin, and, (2) if that period was exceeded before Casey made the remarks

he claims should have been suppressed, was the delay reasonable?

(a) The Prompt Presentment Clock

Casey asserts that the prompt presentment clock began running when the FBI assumed

jurisdiction at 6 AM, with the safe-harbor period thus ending at noon. The government disagrees,

maintaining that the six-hour period did not begin until about 12:45 PM, when the FBI took

physical custody of Casey from the PRPD. The government, however, offers no support for the

proposition that Casey's physical location is the determining factor. The cases cited by the

government in its brief, involving defendants who were in state custody based solely on state

charges, are inapposite. Although the federal and state authorities in those cases had overlapping

interests — as did the PRPD and FBI in this case — the defendants remained under state

jurisdiction when they made the statements they sought to suppress. See, e.g., United States v.

Hall, 152 F.3d 381, 426 (5th Cir. 1998) (defendant was in custody solely on state charges,

though a separate warrant had been issued based on a federal complaint), abrogated on other

grounds by United States v. Martinez-Salazar, 528 U.S. 304, 310-11, 120 S.Ct. 774, 145 L.Ed.2d

792 (2000); United States v. Barlow, 693 F.2d 954, 957-59 (6th Cir. 1982) (defendant's interview

by the FBI occurred while he was in state custody following arrest on a state charge); United

States v. Watson, 591 F.2d 1058, 1062 (5th 46*46 Cir. 1979) (per curiam) (confession to FBI

agent who had obtained a federal arrest warrant occurred while defendant was in state custody on

state charges). Indeed, if federal authorities could escape Rule 5's obligation based solely on the

delay in transferring physical custody of the individual from state authorities, the protection

afforded by the prompt presentment requirement would be severely diminished.[11]

At oral argument before this court, the government offered two related rationales to support its

contention that the transfer of jurisdiction to the FBI at 6 AM was not the relevant timing for §

3501(c). First, the government stated that the FBI assumed only "investigatory jurisdiction" at

that time and not jurisdiction over the prosecution, suggesting that only the latter would include

responsibility for Casey's detention. Second, the government pointed out that the crimes charged

in the federal complaint — most notably, that Casey was a felon in possession of a firearm, in

Appendix A

8

violation of 18 U.S.C. § 922(g)(1)[12]— only became available when agents discovered the gun

during their search of Casey's bedroom sometime after 7:30 AM on the morning of August 2.

Hence, according to the government, the obligation to meet the timeline set by § 3501(c) could

not have arisen until after the FBI had completed the search and obtained the evidence to support

the crimes alleged in the complaint. In essence, this second argument is a variation of the

government's position that it took over the investigation at 6 AM, but not the prosecution.

These arguments are unpersuasive on the record before us.[13] Beginning with the second point,

the fact that the criminal complaint charged crimes that depended on the evidence obtained in the

search does not determine whether the prompt presentment clock started with the transfer of

jurisdiction at 6 AM. Although the discovery of the gun gave federal authorities an irrefutable

and straightforward basis 47*47 for justifying Casey's detention, the question is whether federal

authorities had in fact assumed responsibility for Casey's detention earlier in the day. In other

words, the FBI's choice to use the firearm for the criminal complaint does not tell us whether

Casey was being held in connection with federal crimes even before the search took place.

The government's position that the FBI took over only "investigatory" responsibility for the case

at 6 AM — leaving Casey detained under the authority of the PRPD as well as in its custody —

is at odds with the circumstances reflected in the record. The PRPD and the FBI were

investigating the same criminal activity — the disappearance of, and apparent harm to, an

undercover officer, along with the presumably unauthorized taking of his vehicle. The facts

known early in the investigation not only indicated criminal activity chargeable under

Commonwealth law but also a violent carjacking chargeable under 18 U.S.C. § 2119 even

without the later-discovered gun.[14] It thus appears that the two agencies concluded, as of 6 AM

on August 2, that the crime or crimes should be prosecuted under federal law. Indeed, no

Commonwealth charges were ever filed.[15]

None of the facts cited by the government suggest that the shift in jurisdiction changed the

justification for detaining Casey that had prompted his arrest and detention by the PRPD —

namely, probable cause to believe that he had committed a violent crime, possibly murder, and

had stolen the victim's vehicle. The only apparent change was that Casey was now being

detained for the federal crimes associated with that conduct — and, consequently, the prompt

presentment clock began to run. See Alvarez-Sanchez, 511 U.S. at 358, 114 S.Ct. 1599 (stating

that the duty to bring a person before a judicial officer arises when "a person is arrested or

detained for a federal crime" (emphasis added)). It does not matter that Casey remained

physically in the custody of the PRPD until later in the day. See id. ("If a person is arrested and

held on a federal charge by `any' law enforcement officer — federal, state, or local — that person

is under `arrest or other detention' for purposes of § 3501(c) and its 6-hour safe harbor

period.").[16]

48*48 Put simply, the government has provided no support for its proposition that Casey

remained a Commonwealth arrestee for purposes of § 3501(c) — that he was "held only on state

charges by state or local authorities," id. — after jurisdiction over his case had shifted to federal

authorities. Rather, the record reflects that the PRPD and FBI anticipated as of 6 AM on August

2 that only federal charges would be forthcoming. Although the FBI later obtained evidence to

support the firearms and drug charges alleged in the complaint,[17] the clock at that point was

Appendix A

9

already ticking. Delaying presentment beyond the safe-harbor period to continue building a case

against a detained individual is directly at odds with McNabb-Mallory and the goal of ensuring

that "`the issue of probable cause ... be promptly determined.'" Galindo-Serrano, 925 F.3d at 46

(quoting Mallory, 354 U.S. at 454, 77 S.Ct. 1356).

In sum, based on the facts presented by the government, we can only conclude that the FBI's

responsibility for Casey's detention — and the running of the prompt-presentment clock —

began at 6 AM on August 2.[18] We therefore consider noon the endpoint of the six-hour safeharbor period provided by § 3501(c). As described above, the comments Casey claims should

have been suppressed were made between two and roughly four hours later.[19]

(b) The Reasonableness of the Presentment Delay

In its brief, the government argues that, even if the clock started at 6 AM for purposes of §

3501(c), the two-hour delay that exceeded the safe-harbor period and preceded Casey's

comments to Marrero was reasonable because "the priority for both the FBI and the PRPD was

to find Lizardi alive." In support of its view, the government invokes the district court's finding

that the investigative actions taken by authorities throughout the day on August 2 had "legitimate

law enforcement purposes," Casey II, 530 F. Supp. 3d at 188, and were "unrelated to any [effort

at] prolonged interrogation." Id. (alteration in original) (quoting Boche-Perez, 755 F.3d at 33637).

The government's argument fails, however, because the district court's rejection of Casey's claim

of improper presentment 49*49 delay was premised in substantial part on reasoning that is

incompatible with McNabb-Mallory and § 3501(c). As we have described, delay beyond the sixhour safe-harbor period must be justified by administrative or other logistical factors that would

make timely presentment infeasible. The district court instead deemed the delay in presentment

reasonable throughout the morning and early afternoon of August 2 — while Casey was detained

in Canóvanas and Luquillo before being brought to Ceiba — because the agents were engaged in

"legitimate" law enforcement tasks, including the search of Casey's grandfather's home. Id. The

court further stated that Marrero's "brief period of questioning" that afternoon — i.e., after

expiration of the safe-harbor period — "served the primary purpose of ensuring public safety and

[was] not an attempt at prolonging an interrogation to obtain a confession." Id. The court reached

that conclusion "[d]ue to the gravity of the circumstances regarding Agent Lizardi's whereabouts

and unknown physical condition." Id.

The district court's reasoning suggests that it believed any "legitimate law enforcement

purpose[]" could extend the prompt-presentment clock regardless of the feasibility of

simultaneously bringing Casey to a magistrate judge. The court noted the various measures

identified by the Fifth Circuit in Boche-Perez as "permitted, within reasonable limits," to justify

a delay in presentment, including "to investigate whether the crime occurred; search and secure a

premises; and secure, confiscate, or destroy contraband." Casey II, 530 F. Supp. 3d at 187

(quoting Boche-Perez, 755 F.3d at 337). The district court also cited a Second Circuit decision

holding that a presentment delay was "necessary when moving [an] arrestee through [the]

complexities of [a] combined federal-state system." Id. at 188 (citing United States v. Collins,

462 F.2d 792, 796 (2d Cir. 1972)).

Appendix A

10

As our discussion in Galindo-Serrano makes clear, however, such "permitted" law enforcement

activities do not justify delayed presentment unless they in fact impact law enforcement's ability

to meet § 3501(c)'s timing requirement. We noted in Galindo-Serrano the absence of evidence

showing that the FBI agents in that case were unable to accomplish their other objectives —

including assisting the PRPD in containing a possible riot — while also timely bringing the

defendant to the magistrate judge. See 925 F.3d at 49.

We have no doubt that the officers involved in the investigation in this case were intensely and

rightfully concerned about Lizardi's condition and wanted to do whatever they could to find him

before it was too late. Likewise, the time spent by agents to search Casey's grandparents' home

unquestionably was proper. But despite the limited scope of the exceptions to the six-hour safeharbor period, the district court identified no practical considerations preventing the federal

agents from meeting the prompt presentment requirement while also continuing to search for

Lizardi and further investigate what happened. Nor does the government indicate any barriers to

bringing Casey to a magistrate judge within the six-hour window. Notably, there was no

"shortage of personnel." Jacques, 744 F.3d at 814. More than one hundred PRPD officers were

involved in the ongoing search for Lizardi, and the lead FBI agent on the case reported that ten to

fifteen agents from the federal agency's Fajardo area office, as well as agents from the San Juan

office, also were involved. Although some officers were conducting the search of Casey's home,

there is no explanation for why two or three agents could not have been spared to bring Casey to

a judicial officer. See Galindo-Serrano, 50*50 925 F.3d at 48-49 (questioning a delay in

presentment where "approximately[] seven to 10 people" were involved in an investigation and

the record failed to show how many FBI agents were needed to secure a search warrant and help

contain a riot); id. at 49 (quoting United States v. Perez, 733 F.2d 1026, 1035 (2d Cir. 1984),

where the court found "no `shortage of manpower' because `more than six agents were assigned

to the case, and... one of them could have taken [the defendant] to the then available magistrate"

(alteration in original)).

In addition, the safe-harbor period — between 6 AM and noon on a Tuesday — was largely

during regular business hours, presumably making access to a judicial officer feasible. Plainly,

transportation was not a problem. To the contrary, as described above, Casey was moved

multiple times during his thirty-six hours of custody before his appearance before the magistrate

judge.

The district court's finding that Marrero's questioning of Casey at Ceiba was permissible for

public safety reasons is also seriously flawed. The court stated that "Marrero confronted [Casey]

with the evidence found in his bedroom and pleaded with him to reveal Lizardi's whereabouts."

Casey II, 530 F. Supp. 3d at 188. In other words, the court itself recognized that Marrero's

purpose was to extract more information about the crime from Casey after the safe-harbor period

had expired — an objective directly at odds with the prompt presentment requirement. In these

circumstances, excusing the post-noon delay in bringing Casey to the magistrate judge would

plainly undermine the prophylactic deadline for presentment that is meant to stop such ongoing

questioning of detainees and ensure that they are apprised of their rights by a judicial officer as

soon as feasible.

Appendix A

11

The district court, and the government on appeal, appear to be suggesting that the presentment

delay was simply an innocuous by-product of the unfolding investigation and that no McNabbMallory error occurred because the questioning beyond the safe-harbor period lacked "all the evil

implications of secret interrogation." McNabb, 318 U.S. at 344, 63 S.Ct. 608. It is enough,

however, if the delay was "of a nature to give opportunity for the extraction of a confession."

Mallory, 354 U.S. at 455, 77 S.Ct. 1356 (emphasis added). And, indeed, Casey's prolonged

detention presented Agent Marrero with just such an opportunity to interrogate Casey a second

time before he was apprised of his rights by the magistrate judge. It was only during that second

interview — at least eight hours after the FBI assumed jurisdiction — that Marrero elicited the

first set of inculpatory statements from Casey. Moreover, those statements came only after Casey

was presented with the newly discovered, highly incriminating evidence from his bedroom.

Although the government undoubtedly is correct when it observes in its brief that the "more than

100 law enforcement officers looking for Lizardi ... were not focused on Casey," that is not an

acceptable justification for ignoring Casey's right to prompt presentment. Section 3501(c)

"tolerates delays" that affect the ability of authorities to get an arrestee to a judicial officer on

time, Boche-Perez, 755 F.3d at 337, but the statute's specific reference to issues related to "the

means of transportation and the distance to be traveled" cannot be broadened to generally include

the ongoing investigative process itself, 18 U.S.C. § 3501(c). See also Corley, 556 U.S. at 30809, 129 S.Ct. 1558 ("`It was clear' at common law `that the only element bearing upon the

reasonableness of delay was not such circumstances as the pressing need to 51*51 conduct

further investigation, but the arresting officer's ability, once the prisoner had been secured, to

reach a magistrate.'" (quoting Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 61, 111 S.Ct.

1661, 114 L.Ed.2d 49 (1991) (Scalia, J., dissenting))). Courts have construed § 3501(c)

pragmatically to allow flexibility for "legitimate" law enforcement activities, but the need for

more time must be real. Here, none of the rationales offered by the government explain why,

given the number of PRPD and FBI agents involved, Casey's presentment was necessarily and

reasonably delayed.[20]

We thus think it beyond debate that Casey was improperly denied his right to prompt

presentment. Accordingly, we must consider whether the failure of Casey's attorneys to seek

suppression based on the Rule 5 violation was so egregious that no competent attorney would

have committed that mistake. See, e.g., Watson, 37 F.4th at 28.

Before examining counsel's performance, however, we pause to note that the prompt

presentment violation affects only Casey's first set of inculpatory statements — the comments to

Marrero. Even though Casey's overheard comments to his wife were made later in time than the

comments to Marrero, they were not inadmissible, under either § 3501 or the McNabb-Mallory

rule itself, based on the FBI's delay in bringing Casey to the magistrate judge. Section 3501(d)

permits "the admission in evidence of any confession made or given voluntarily by any person to

any other person without interrogation by anyone." 18 U.S.C. § 3501(d) (emphasis added); see,

e.g., United States v. Colon, 835 F.2d 27, 30-31 (2d Cir. 1987) (holding that the defendant's

incriminating statement was not excludible under § 3501 "even if the delay in arraignment was

unreasonable" because the "statement was spontaneous and not the product of interrogation or its

functional equivalent"). In our decision on Casey's direct appeal, we upheld the district court's

finding that Casey's comments to his wife, although made in the presence of an FBI agent, did

Appendix A

12

not involve interrogation. See Casey I, 825 F.3d at 21 (noting that "Casey offer[ed] no evidence

that the FBI brought [his wife] in for interrogation purposes"); see also Arizona v. Mauro, 481

U.S. 520, 521, 530, 107 S.Ct. 1931, 95 L.Ed.2d 458 (1987) (concluding that officers did not

interrogate a suspect when they "allowed him to speak with his wife in the presence of a police

officer"). Section 3501 therefore does not "bar [their] admission in evidence." 18 U.S.C. §

3501(d).

Nor have we found a case in which a statement made spontaneously during a period of

unnecessary delay was excluded under McNabb-Mallory. As the Supreme Court has explained,

the McNabb-Mallory doctrine was primarily designed "to check resort by officers to `secret

interrogation of persons accused of crime.'" Corley, 556 U.S. at 308, 129 S.Ct. 1558 (quoting

Upshaw v. United States, 335 U.S. 410, 412, 69 S.Ct. 170, 93 L.Ed. 100 (1948)). Consistent with

that rationale, and as reflected in § 3501(d), a voluntary confession given in circumstances that

do not implicate the concern about improper interrogation — the circumstances that exist on the

record 52*52 before us with respect to Casey's statement to his wife — is not excludable.

Accordingly, Casey's comments to his wife were properly admitted into evidence, and counsel's

failure to seek their suppression based on Rule 5 and § 3501(c) could not have denied Casey the

effective assistance of counsel.

2. Defense Counsel's § 3501(c) Suppression Error

As we have noted, the relevant timing — the shift to FBI jurisdiction (at 6 AM), Marrero's

initiation of questioning in Ceiba (no earlier than 1:55 PM), and Casey's eventual presentment

before the magistrate judge — is essentially uncontested. A reasonably competent criminal

defense attorney would be aware of the prompt presentment requirement of Rule 5 and §

3501(c). As the Supreme Court has observed, the requirement is not "just some administrative

nicety, but in fact the rule has always mattered in very practical ways and still does." Corley, 556

U.S. at 320, 129 S.Ct. 1558; see also id. (noting that the prompt presentment requirement

"stretches back to the common law, when it was `one of the most important' protections `against

unlawful arrest'" (quoting McLaughlin, 500 U.S. at 60-61, 111 S.Ct. 1661 (Scalia, J.,

dissenting))); id. at 321, 129 S.Ct. 1558 (noting Justice Frankfurter's observation in McNabb that

"[t]he history of liberty has largely been the history of observance of procedural safeguards," 318

U.S. at 347, 63 S.Ct. 608, and stating that "McNabb-Mallory is one of them"). The thirty-six

hours that Casey was in custody post-arrest and pre-presentment would alert any competent

attorney to a possible violation of that requirement.

Moreover, trial counsel plainly recognized the harm to Casey presented by the statements he

made while in FBI custody in Ceiba and argued for their suppression on other grounds. See

Casey I, 825 F.3d at 19-21. Indeed, it is not an overstatement to say that self-inculpatory

comments can be the most consequential evidence offered against an accused. See Arizona v.

Fulminante, 499 U.S. 279, 296, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) ("A confession is like

no other evidence.").

In its brief, the government suggests that Casey's attorneys made a "tactical decision[]" to bypass

the prompt presentment violation as a ground for suppression, and it asserts that we may not

Appendix A

13

second-guess that choice with the advantage of hindsight. But the government offers no tactical

reason for defense counsel to have forgone that rationale for excluding Casey's comments,

particularly in a capital case. To the contrary, the undisputed timing gave the prompt presentment

claim more potential than the claim that Casey had been assaulted when arrested. See Casey III,

2013 WL 12190563, at *7-8 (rejecting Casey's assault-based suppression claim after reviewing

the evidence and questioning whether "any assault ... actually took place"). Hence, the failure to

pursue the prompt presentment issue suggests "inattention, not reasoned strategic judgment."

Wiggins v. Smith, 539 U.S. 510, 526-27, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003); see also

Harrington v. Richter, 562 U.S. 86, 109, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) (observing that

"courts may not indulge `post hoc rationalization' for counsel's decisionmaking that contradicts

the available evidence of counsel's actions" (quoting Wiggins, 539 U.S. at 526, 123 S.Ct. 2527)).

Although we can conceive of no strategic reason to bypass a prompt presentment argument for

suppression given the undisputed federal authority over Casey's case as of 6 AM on August 2, it

is possible that defense counsel was unaware of the shift 53*53 in jurisdiction at that time.[21] But

such lack of knowledge would only reinforce the appearance of deficient performance. Casey's

motion to suppress his statements on other grounds included the observation that "the FBI had

been involved since the outset of this investigation," Motion to Suppress at 3 n.2, Casey III, 2013

WL 12190563 (No. 3:05-cr-00277-ADC) — a fact that would have alerted any reasonable

attorney to a potential McNabb-Mallory claim and the importance of probing the FBI's specific

role and authority throughout the thirty-six hours of detention. Particularly because no

Commonwealth criminal charges were filed against Casey, the details of the PRPD-FBI

interaction warranted a close look to determine when the prompt presentment clock began to run.

See United States v. Chadwick, 415 F.2d 167, 171 (10th Cir. 1969) ("Though the working

arrangement [between state and federal authorities] be proper, the mere fact of state custody

should not in and of itself excuse compliance with Rule 5(a).... Rule 5(a) should surely be

honored, unless for some reason compliance is prevented by state custody."); see also AlvarezSanchez, 511 U.S. at 359, 114 S.Ct. 1599 (describing the possibility of an improper state-federal

collaboration); Strickland, 466 U.S. at 690, 104 S.Ct. 2052 (noting that "strategic choices made

after thorough investigation of law and facts relevant to plausible options are virtually

unchallengeable" (emphasis added)); id. at 691, 104 S.Ct. 2052 (noting counsel's "duty to make

reasonable investigations or to make a reasonable decision that makes particular investigations

unnecessary"); United States v. Coppola, 281 F.2d 340, 344 (2d Cir. 1960) (en banc) (rejecting a

Rule 5(a) claim where "the apprehension and detention were exclusively for state crimes"), aff'd,

365 U.S. 762, 81 S.Ct. 884, 6 L.Ed.2d 79 (1961) (per curiam).

To be sure, counsel's failure to rely on one basis for suppression while asserting others seems a

less extreme instance of incompetence than other deficiencies that have supported successful

Sixth Amendment claims. See, e.g., Kimmelman v. Morrison, 477 U.S. 365, 385, 106 S.Ct.

2574, 91 L.Ed.2d 305 (1986) (involving "a complete lack of pretrial preparation"); United States

v. Mercedes-De La Cruz, 787 F.3d 61, 66 (1st Cir. 2015) (involving counsel's failure to file any

timely motion to suppress inculpatory post-arrest statements). Yet, on the facts of this case,

where the government had no direct evidence that Casey was the shooter, the failure to invoke

such an obvious rationale for excluding his comments is an inexcusable omission of considerable

magnitude. See United States v. Miller, 911 F.3d 638, 641 (1st Cir. 2018) ("[W]hen an attorney

fails to raise an important, obvious defense without any imaginable strategic or tactical reason

Appendix A

14

for the omission, his performance falls below the standard of proficient representation that the

Constitution demands." (internal quotation marks omitted) (quoting Prou v. United States, 199

F.3d 37, 48 (1st Cir. 1999))). The importance of the prompt presentment requirement and the

accessibility of the facts needed to establish the violation distinguish this case from those in

which we have declined to second-guess a defense attorney's litigation choices. See Thompson,

64 F.4th at 423 ("Defense counsel could reasonably have concluded ... that [defendant]'s interests

were best served by keeping the court's attention on th[e] potentially stronger arguments.");

Vargas-De 54*54 Jesús v. United States, 813 F.3d 414, 418-19 (1st Cir. 2016) (describing the

uncertain precedent and the risks of adverse consequences that made defense counsel's

challenged strategy "a quite reasonable calculation of risk vs. reward").

In sum, because defense counsel plainly understood the prejudice inherent in Casey's comments

to Marrero — that Lizardi "was maybe alive or maybe he was dead" and that Casey was "sunk

because of the evidence" — and nonetheless neglected an obvious and viable rationale for

suppressing them, we conclude that the failure to seek suppression of those comments based on

the prompt presentment violation was representation that "fell below an objective standard of

reasonableness." Strickland, 466 U.S. at 688, 104 S.Ct. 2052.[22] We thus turn to Strickland's

prejudice prong.

C. Did Counsel's Deficient Performance Prejudice Casey at

Trial?

We note at the outset that Casey's claim would be hopeless on the prejudice prong if the answer

hinged on the evidence of his presence at the scene when Lizardi was murdered. As recounted

above, the physical and testimonial evidence establishing that he was there was so overwhelming

that the impact of any statements confirming his presence that should have been suppressed

could only reasonably be described as minimal. But Casey's presence was not the evidentiary

question before the jury. The convictions at issue were each premised on Casey's intent to

seriously injure or kill Lizardi. And Casey's prejudice argument has some force in part because

of the way the case was presented to the jury. First, although the government argued in its brief

on appeal that the convictions would survive even if Casey was not the triggerman, the

alternative theory the government offers — liability as an aider and abettor — is not viable on

the record before us.[23] Second, as we shall describe, the government repeatedly invoked Casey's

"confession" to Marrero when arguing to the jury that it had proven its case.[24]

55*55 Yet, Casey still faces a significant challenge in showing a "reasonable probability" that the

government's use of the Marrero interview made the difference in the jury's finding of guilt. See

Strickland, 466 U.S. at 693-94, 104 S.Ct. 2052. Although Casey's improperly admitted

observation to Marrero about his situation was more self-focused ("I am sunk with the evidence,"

as paraphrased by the government) than the properly admitted comment to his wife ("in the

house they seized a lot of evidence but ... they weren't going to find the body"), the two

comments overlap. To Marrero, Casey admitted the obvious fact that the physical evidence was

against him. To his wife, he effectively reiterated that the evidence was damning while

attempting to reassure her that, without the body, he would be absolved of criminal

responsibility.[25]

Appendix A

15

This overlap is critical to the prejudice inquiry, which requires us to examine how the

government used the Marrero testimony and Casey's comment to his wife, and to consider any

other indicators of the impact of Casey's statement to Marrero on the jury's deliberations. In

making that assessment, we necessarily must speculate about how the jury would have responded

to the government's case without the wrongly admitted statement. See, e.g., Rivera v. Thompson,

879 F.3d 7, 18-19 (1st Cir. 2018). We thus think it useful and important to review the

prosecution and defense theories, including the extent to which the government relied

specifically on the exchange between Casey and Marrero in its efforts to prove its case.

1. The Criminal Charges and the Competing Theories of

Casey's Role in the Carjacking and Murder

The district court instructed the jurors that, to find Casey guilty on Count I (carjacking), they

needed to find that the government proved the following beyond a reasonable doubt: (1) that

Casey knowingly took the vehicle from Lizardi, (2) that he did so by force and violence, (3) that

the vehicle had traveled in interstate commerce, (4) that Casey "intended to cause death or

serious bodily injury at the time he demanded or took the control of the motor vehicle," and (5)

"that death resulted." For Count II (using a firearm during a crime of violence), the court told the

jurors they had to find:

First, that Lashaun Casey committed the crime of carjacking described in Count 1[;] Second, that

Lashaun Casey... knowingly used, possessed, brandished, carried or discharged a firearm during

and in relation to or in furtherance of the commission of that crime[;] Third, that Lashaun Casey

knowingly, willfully, deliberately, maliciously or with premeditation caused the death of Jesus

Lizardi Espada through the use of a firearm.

Because Casey effectively conceded that he was present when Lizardi was killed — 56*56 a

scenario that was corroborated, among other evidence, by his possession of Lizardi's truck and

the highly incriminating items found at his home — the only contested elements at trial were

intent and causation. In other words, Casey's guilt turned on whether he had the intent to harm

Lizardi and whether he was the person who shot the agent while taking the truck from him.

The government's theory at trial was that Casey killed Lizardi to steal the vehicle and the $3,600

in drug-buy money Lizardi was carrying.[26] However, despite Casey's undeniable presence at the

crime scene, the government had no direct evidence to prove that he was in fact the shooter, such

as gunpowder found on his person or clothing. Taking advantage of that gap, the defense sought

to create reasonable doubt concerning Casey's role by suggesting that the actual shooter was

more likely Hernández — the individual from whom Lizardi planned to purchase drugs. The

defense elicited testimony that Casey had interacted with Lizardi multiple times in the past and

that Lizardi's supervisor, Agosto, felt that Lizardi was not in danger when he was with Casey. As

described above, see supra Section I.B, the defense theory was that Casey merely helped

Hernández cover up a murder Casey had not anticipated, and he therefore lacked the intent

required to find him guilty of the crimes as charged.

Appendix A

16

The trial record thus includes not only the incontrovertible evidence of Casey's involvement in

the carjacking and murder but also evidence designed to both raise and alleviate doubts about

whether he was the sole actor. The prosecution and defense each presented expert testimony on

the direction of the bullets that struck Lizardi, as well as testimony on whether one person could

have transported Lizardi's body to the location where it was found. The government, for

example, attempted to show that Casey shot Lizardi from the front passenger seat of Lizardi's

truck, while the defense attempted to show that Lizardi was likely hit from behind — consistent

with the defense suggestion that Hernández shot him from the back while Casey was sitting in

the front. Similarly, the government elicited testimony suggesting that one person could have

dragged Lizardi's body from room to room through a small building before pushing it out a

window and down the hillside beyond the structure. A defense expert said two people likely were

needed to move the body in those circumstances.

The prosecution and defense also sparred through witness testimony on the adequacy of the

government's investigation, particularly concerning Hernández. As one example, defense counsel

elicited testimony that no DNA testing was done on hairs recovered from a towel found in

Lizardi's truck, even though other testing failed to associate the hairs with either Lizardi or

Casey.[27] The government, for its 57*57 part, adduced evidence that agents had interviewed

Hernández and searched his home, but found no credible evidence of his involvement in

Lizardi's death.

Given the defense effort to create reasonable doubt that Casey acted alone, it is unsurprising that

the government's closing and rebuttal arguments emphasized the overwhelming nature of the

evidence against him and the lack of evidence that Hernández was the shooter. As we describe

below, Casey's "sunk with the evidence" comment to Marrero also was a centerpiece of those

arguments.

2. The Government's Closing Argument

In its initial argument to the jury, the government reviewed the evidence of Casey's interaction

with Lizardi on the morning of August 1, 2005, as well as the evidence of Casey's presence at the

scene of the murder. Responding to the defense's alternative-suspect theory, the prosecutor stated

that "[t]here is no evidence at all that anyone else was ever in the vehicle except Officer Lizardi

and the defendant." The government also pointed out that Casey did not name Hernández as the

actual perpetrator at any time during his lengthy detention before he appeared before the

magistrate judge.

Asserting that "[t]he government has proven this case beyond a reasonable doubt," the prosecutor

suggested that the government had done so in part based on Casey's "confession":

We have given you the murder weapon, the projectile, we have him driving the vehicle, we have

Officer Lizardi's blood on the money, on his clothes. Officer Lizardi's cellphone in his house. We

have his confession, his confession to Diana Marrero when confronted with the evidence he says

I am sunk with the evidence. He could not say it was not me. He does not say it was Alexander

[Hernández]. He says I am sunk with the evidence. He admits it right then and there. And later

Appendix A

17

on when he is talking to his wife the mother of his child what does he say? They have a lot of

evidence but they haven't found the body.

Shortly thereafter, suggesting that the prosecution could not have produced "any stronger"

evidence to prove that Casey was the killer, the government again referred to both his statement

to Marrero and his comment to his wife:

What other evidence could there possibly be aside from maybe a video that we could present to

you to prove this case any stronger? He confessed, "I am sunk with the evidence." They haven't

found the body. He used that weapon, he brandished that weapon, he pulled the trigger and sent

that projectile through the head of Officer Lizardi.

The government's closing also deflected the defense's critique of the investigation and the

suggestion that authorities had failed to seriously pursue Hernández as a suspect. Emphasizing

that the case had been solved in only nine days, the government recounted the events of the first

three days as follows: "Officer Lizardi was murdered on August 1, August 2 the defendant is

arrested[;] the same day, August 2 he confesses." The prosecutor went on to describe the

discovery of the various items of physical evidence and the recovery of Lizardi's body during the

nine-day period, and he advised the jurors "to decide 58*58 the case on the evidence presented ...

[n]ot conjecture."

Near the conclusion of the closing argument, the prosecutor urged the jurors to listen to what the

defense would say in its own closing about why Casey possessed the murder weapon and was

driving Lizardi's bloodstained vehicle. He then urged them to "Listen as they try to explain the

confession to Diana Marrero. Listen as they try to explain the confession to the wife, they haven't

found the body. Listen to whether or not they can explain all that and decide whether or not that

explanation is reasonable."

3. The Defense Closing Argument

As the prosecutor's argument had anticipated, the defense's closing emphasized the government's

"tunnel vision" in prosecuting the case and particularly the failure to pursue leads that could have

proven Hernández's involvement. Near the outset of her argument, defense counsel recounted the

evidence indicating that Casey and Lizardi had planned a drug deal with Hernández for August

1, and she asserted that "[t]here is no doubt that a person by the name of Alexander [Hernández's

first name] had dealings with Mr. Lizardi." Counsel emphasized the failure to do a DNA analysis

of the hairs recovered from Lizardi's truck, and she suggested that the hairs were visually more

consistent with Hernández's appearance — as shown to the jury by means of a photograph —

than with Casey's physical makeup. The defense argument also highlighted the absence of direct

evidence that Casey was the shooter: "Was there any evidence that fingerprints were lifted from

the weapon? Any evidence that fingerprints were lifted from the magazine? Any evidence that

fingerprints were lifted from the bullets? Was there any evidence that Mr. Casey was tested for

gunpowder?"

Counsel cited the expert opinions favorable to the defense view that two people were involved in

the crime, and she noted that the money Lizardi had been carrying for the drug deal was missing.

Appendix A

18

She further emphasized that the evidence offered by the government — including the bloody

sandals and murder weapon found in Casey's bedroom — showed only that Casey was connected

to the crime, not that "he is the one that fired the shots." The defense closing argument did not

refer to Casey's comments to Marrero and his wife.

In summing up, counsel argued that the government's evidence fell short of proving beyond a

reasonable doubt that Casey did the shooting or intended to kill Lizardi at the time he took

control of Lizardi's vehicle. In part, she said:

The government must prove beyond a reasonable doubt that Mr. Casey committed a carjacking

with the intent to kill Mr. Lizardi. There was no evidence during trial that Mr. Casey knew that

Mr. Lizardi was an undercover cop. No evidence to prove that Mr. Casey planned or

premeditated to kill Mr. Lizardi.... [T]he evidence suggests that when he left his house that

morning ... he had no idea that Mr. Lizardi was going to die. There is no evidence to infer that

Mr. Casey was carrying a weapon when he was picked up by Mr. Lizardi that morning. And the

evidence shows he was in the truck with Mr. Lizardi. There is evidence to infer there was more

th[a]n one participant. Just because Mr. Casey was there, which is the government theory, does

not mean he was the one who shot.

4. The Government's Rebuttal Argument

Near the beginning of the government's response to the defense argument, the prosecutor again

highlighted Casey's "confessions," 59*59 emphasizing that the defense could not square its

alternative-suspect theory with Casey's statements to Marrero and his wife:

They didn't touch his confession. They didn't explain to you why he would tell Diana Marrero I

am sunk with the evidence. They don't touch the statement he said to his wife they haven't found

the body. They just come in here and said [the expert witness] said it was an intruder in the

backseat.

In attempting to discredit the defense theory, the government referred to "[t]his magic killer that

appears out of thin air and shoots him in the head and leaves [Casey] with all of the evidence."

The government criticized "this theory of another shooter" as newly developed.

The government also responded again to the accusation that law enforcement had investigated

the crime with "tunnel vision" and again relied, in part, on Casey's "confession":

Trained law enforcement agents who do this for a living[] investigated Alexander Hernandez and

there is no evidence. Contrast that with the defendant. He gets interviewed and confesses. His

grandparents get interviewed. They search the house. They have a confession, all the evidence[.]

... So, same investigation two different people, the only problem is all of the evidence is against

Lashaun Casey.

The government's rebuttal also included a lengthy critique of the defense's expert opinion on the

direction of the shots that killed Lizardi. Near the end of the rebuttal, the government gave

particular attention to Casey's statement to Marrero:

Appendix A

19

We can investigate this case for ten years, what else are we going to find? What other evidence

exists out there. If we have the murder weapon, his confession, let's talk about that confession.

Now that we have shown that the [defense expert's] testimony is all over the place. We have

shown there is no shooter in the backseat so let's go to his confession. When he is confronted on

August 2, 2005 by Agent Marrero, the only evidence, the only evidence that the FBI had

collected at that moment were the cellphone of Officer Lizardi and the truck that he was caught

driving.[[28]] Everything else that we found was found after he made the statement. Three pieces

of evidence. The police don't even know that that gun is the murder weapon because they don't

test it until when? Seven days later, which means at the time that he said I am sunk with the

evidence he is the only person who knows the gun they found is the murder weapon. And he

confesses. We haven't tested the money, or the gun yet, we haven't talked to the parking lot

attendant, we haven't found the window, and he is confessing with three pieces of evidence, one

of which he knows is the murder weapon. That is a confession of a guilty killer.

In total, throughout its initial and rebuttal closing arguments, the government used the word

"confession" or a derivative ("confessing," "confessed") sixteen times. Nine of the sixteen uses

of confession terminology — including all six uses near the end of the government's rebuttal —

either specifically invoked the interview with Marrero or relied more generally on his 60*60

"confession" without any reference to his comment to his wife. Whenever the government

invoked both of Casey's challenged statements, it referred first to the "confession" to Marrero

and secondarily noted his comment to his wife. On other occasions, the government mentioned

only the comment to Marrero or referred more generally to his "confession" without

specification.

5. The Likelihood of Prejudice

The overwhelming evidence of Casey's presence when Lizardi was shot is plainly a significant

factor in assessing whether there is a "reasonable probability" that the jury would have found him

not guilty if his statement to Marrero had not been erroneously admitted. Strickland, 466 U.S. at

694, 104 S.Ct. 2052. Nonetheless, as we have described, the absence of direct evidence that

Casey shot Lizardi left open the possibility of a shooter other than Casey.

The record belies any notion that the evidence of Casey's involvement alone was decisive in the

jury's finding of guilt on Counts 1 and 2. After deliberating for roughly four hours, beginning at

1:15 PM, the jurors asked for "a copy of the transcript relating to the testimony of Agent[] Diana

Marrero." Shortly thereafter, Marrero's testimony was read to the jury. The jurors then continued

deliberating and, at about 7 PM, advised the court that they wanted to resume deliberations the

next day. The jury was then excused until 9 AM. It was not until 12:25 PM the following day

that the jurors reported reaching a unanimous verdict. Although we do not know specifically

what prompted the jurors to ask to review Agent Marrero's testimony,[29] it is a fair inference that

they viewed Marrero's testimony as important to their deliberations.[30] Cf., e.g., Rivera, 879 F.3d

at 18-19 (finding prejudice based on improper admission of statements obtained in violation of

the Miranda rules where, even with those statements, the jury had difficulty deciding issues

related to the charged crime, including the defendant's specific intent).

Appendix A

20

Moreover, our summary of the government's closing arguments shows that Marrero's improperly

admitted testimony played a more prominent role in the government's efforts to eliminate doubts

about Casey's guilt than did Casey's properly admitted comments to his wife. The government's

closing and rebuttal arguments more frequently referred to Casey's "sunk with the evidence"

comment to Marrero as a "confession," and, as we have described, the government more

frequently referenced that comment when relying on the "fact" that Casey had admitted guilt.

Thus, as noted above, Casey's claim that the prompt presentment violation impacted his trial has

some force. Ultimately, however, we fail to see a reasonable probability that exclusion of the

challenged "sunk with the evidence" portion of Marrero's testimony would have changed the

jury's calculus in evaluating Casey's guilt.

61*61 The prosecutor on multiple occasions invoked both inculpatory comments when asserting

in closing arguments that Casey had confessed. As recounted above, the government supported

its declaration that "[w]e have his confession" by first quoting the "sunk with the evidence"

statement and then quoting Casey's report to his wife that "[t]hey have a lot of evidence but they

haven't found the body." Shortly thereafter, the prosecutor reiterated: "He confessed, `I am sunk

with the evidence.' They haven't found the body." The government urged the jurors in its initial

argument to "[l]isten" to the defense explanations for both comments and pointed out in rebuttal

that neither statement had been explained.

The government thus repeatedly drew both comments to the jury's attention as elements of

Casey's "confession," and it insinuated that each statement was a separate admission of guilt.

Although the government more frequently emphasized the "sunk with the evidence" comment to

Marrero, the equivalent acknowledgment to his wife that the authorities had "a lot of evidence"

against him reduces the likelihood that the jury's verdict depended on the statement to Marrero.

Moreover, the portion of Casey's conversation with his wife that was highlighted by the

government — "they haven't found the body" — was particularly damaging. While the

government emphasized in its closing that Casey "could not say it was not me" when he was

confronted by Marrero, he did not deny even to his wife that he committed the murder — as one

would expect from an innocent person to a loved one — but he instead acknowledged that Casey

was dead and focused on whether the authorities had enough evidence against him. The more

telling context of an exchange between husband and wife, and the content of that exchange, thus

significantly offset the government's greater emphasis on Marrero's testimony, further reducing

the probability that Casey's comment to Marrero was decisive for the jury in finding that Casey

was guilty as charged.

More likely, the jury rejected Casey's alternative-suspect defense because of the overall strength

of the evidence against him and the complete absence of evidence placing Hernández at the

crime scene. The prosecutor's closing arguments repeatedly targeted Casey's failure to identify

Hernández as the shooter when he was arrested and reminded the jurors that, in contrast to the

late-arriving theory that Hernández was the primary actor, Casey had initially told Marrero the

fabricated story about a shootout. The government also heavily, and properly, contrasted the

substantial evidence of Casey's involvement in the crime with the absence of evidence that

anyone else was involved.

Appendix A

21

Indeed, the physical evidence against him was damning. He had Lizardi's truck in his possession

and the murder weapon (among other items) was found in his bedroom. At the same time, the

defense's efforts to introduce doubt into the factfinding depended primarily on circumstantial

evidence — such as Lizardi's uneventful earlier interactions with Casey — and the government's

failure to produce other evidence — such as DNA testing of the hairs found in Lizardi's truck.

The defense expert who opined on the direction of the bullets and the movement of Lizardi's

body was challenged on cross-examination and matched by the testimony of the government's

own witnesses suggesting that Lizardi was shot from the passenger seat and that one person

could have disposed of his body. The defense claim of a flawed investigation was met with the

government's insistence that no evidence resulted from law enforcement's questioning of

Hernández and a search of his home.

62*62 In sum, the similarity between Casey's two "confession" comments diminishes the

likelihood that the jurors' deliberations would have concluded differently if they had heard only

the comments Casey made to his wife. Moreover, the overall strength of the government's case,

and the weaknesses in Casey's alternative-suspect theory, further reduce the probability that

exclusion of the Marrero statement would have changed the jury's judgment on Casey's guilt.

Put simply, the likelihood that the error here affected the jury's decision-making is not "sufficient

to undermine [our] confidence in the outcome" of the trial. González-Soberal, 244 F.3d at 278

(quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). Accordingly, we conclude that Casey has

not shown a "reasonable probability" that the jury would have reached a different verdict if

counsel had successfully moved to suppress the comments to Marrero based on Rule 5(a) and §

3501(c). Strickland, 466 U.S. at 694, 104 S.Ct. 2052. We therefore affirm the judgment of the

district court denying Casey's petition for habeas relief.

So ordered.

[1] Marrero testified at the suppression hearing that she "went along with [the FBI] to drop him off in Ceiba."

[2] The record is not entirely consistent on the timing of Casey's movement from one location to another, including

his arrival in Ceiba. Although the district court reported that "FBI agents transported Casey to its premises in Ceiba"

"[s]hortly after 12:00 p.m.," Casey II, 530 F. Supp. 3d at 180-81, Marrero testified that she arrived in Ceiba with

Casey and the FBI agents at 1:55 PM. Some differences are likely attributable to travel times. In any event, despite

the variations, we can reasonably conclude that Casey arrived at Ceiba no earlier than 12:45 (and probably closer to

1:55 PM).

[3] This is the first set of comments that Casey challenges here on presentment grounds as improperly admitted into

evidence. Marrero also reported some additional comments by Casey that the district court suppressed because they

were made after he invoked his right to counsel. See Casey II, 530 F. Supp. 3d at 181 & n.3; see also Casey I, 825

F.3d at 19-21. Those suppressed statements are not at issue in this appeal, and we therefore do not quote them here.

We note, relatedly, that Casey did not argue to the district court that his statements to Marrero should be suppressed

based on his invocation of his right to remain silent, which he first asserted at Canóvanas and later repeated to Agent

Moulier at Ceiba. See Casey I, 825 F.3d at 19-21 (noting Casey's failure to raise a claim based on Michigan v.

Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975)); United States v. Casey ("Casey III"), No. 05-277, 2013

WL 12190563, at *6 n.15, *8 n.18 (D.P.R. Jan. 23, 2013). Although he raised the Mosley argument in his direct

appeal, we deemed it waived. See Casey I, 825 F.3d at 21. The district court found no merit to the claim in its

decision on Casey's motion for relief under 28 U.S.C. § 2255. See Casey II, 530 F. Supp. 3d at 184-86. Casey made

no developed argument on the Mosley claim in his pro se application to us for a certificate of appealability, and we

Appendix A

22

therefore do not address it. See, e.g., United States v. Nishnianidze, 342 F.3d 6, 18 (1st Cir. 2003) (finding pro se

argument waived for failure to develop argument on appeal).

[4] This is the second set of comments that Casey asserts here were improperly admitted at trial in violation of his

right to prompt presentment. At a suppression hearing, the same agent testified to additional overheard statements,

see Casey I, 825 F.3d at 20, but those statements were not repeated at trial, and we therefore do not consider them

here.

[5] Casey argued, inter alia, that all of his post-arrest statements were involuntary because he had been assaulted at

the time of his arrest, "causing him to involuntarily waive his Miranda rights," Casey III, 2013 WL 12190563, at *5,

and he alternatively argued that all statements should be suppressed based "upon his invocation of the Miranda right

to counsel," id. at *6.

[6] To briefly reiterate, the comments made by Casey that the district court refused to suppress, and which are

challenged here on presentment grounds, include the following:

(1) To PRPD Agent Marrero: that Lizardi "was maybe alive or maybe he was dead," followed by his statement "that

he was not going to talk any more[] because he was already sunk because of the evidence." In its closing and

rebuttal arguments, the government paraphrased the second quoted comment as "I am sunk with the evidence." See

infra.

(2) To his wife: that "in the house they seized a lot of evidence but ... they weren't going to find the body."

[7] Casey does not challenge his conviction for being a felon in possession of a firearm or the sentence imposed on

that count.

[8] Specifically, we granted the COA limited to the following question: "[W]hether, under the framework set out in

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), trial counsel rendered

ineffective assistance by not moving to suppress statements by Casey made after the expiration of the `safe harbo'

recognized at 18 U.S.C. § 3501(c)." We explain the safe-harbor provision in Section II.B.

[9] The Supreme Court has elaborated on the importance of presentment, explaining that it is

the point at which the judge is required to take several key steps to foreclose Government overreaching: informing

the defendant of the charges against him, his right to remain silent, his right to counsel, the availability of bail, and

any right to a preliminary hearing; giving the defendant a chance to consult with counsel; and deciding between

detention or release.

Corley v. United States, 556 U.S. 303, 320, 129 S.Ct. 1558, 173 L.Ed.2d 443 (2009).

[10] We note that Casey's current attorney did not represent him during the pretrial and trial proceedings.

[11] In Alvarez-Sanchez, the Supreme Court noted the likelihood of contemporaneous federal and state interest in a

detainee and emphasized that § 3501(c) is not triggered simply because a federal crime is lurking in the background;

the provision does not apply if the person is "held only on state charges by state or local authorities." 511 U.S. at

358, 114 S.Ct. 1599. Relatedly, the Supreme Court noted the "presumably rare scenario" in which "state or local

authorities, acting in collusion with federal officers, ... arrest and detain someone in order to allow the federal agents

to interrogate him in violation of his right to a prompt federal presentment." Id. at 359 & n.4, 114 S.Ct. 1599 (citing

Anderson v. United States, 318 U.S. 350, 356, 63 S.Ct. 599, 87 L.Ed. 829 (1943)). Such an "improper collaboration

between federal and state or local officers" would require suppression of a confession obtained during that contrived

period of state detention. Id. at 359, 114 S.Ct. 1599. We need not delve into the motivation for holding Casey in

state custody until midday on August 2 because of our conclusion that the prompt presentment clock was triggered

when federal authorities assumed jurisdiction at 6 AM. See infra. Hence, unlike circumstances in which state or

Appendix A

23

local authorities may have detained an arrestee — or prolonged such detention — to avoid the prompt presentment

requirement, we have determined that the clock was running while Casey remained in PRPD custody throughout the

morning.

[12] The other two crimes asserted in the initial complaint, both involving marijuana possession, were later replaced

in the indictment by the carjacking crimes.

[13] We think it important to note that an evidentiary hearing on Casey's § 2255 petition likely would have provided

helpful details on the decision to shift jurisdiction to the FBI. Casey requested a hearing, but the government argued

that it was unnecessary, and the district court denied Casey's request. The government thus bears some responsibility

for the absence of any information in the record that might have been helpful to it on the jurisdiction issue.

[14] As noted above, when Casey was apprehended in Lizardi's truck, the vehicle was missing the driver's side

window, and bloodstains and broken glass were visible inside. The federal carjacking statute provides, in relevant

part:

Whoever, with the intent to cause death or serious bodily harm[,] takes a motor vehicle that has been transported,

shipped, or received in interstate or foreign commerce shall—

(1) be fined under this title or imprisoned not more than 15 years, or both....

18 U.S.C. § 2119. Subsection (3) provides that, "if death results," the person charged may "be fined under this title

or imprisoned for any number of years up to life, or both, or sentenced to death." The authorities also knew that

Casey had fabricated a story about a shootout shortly after his arrest by the PRPD.

[15] Neither the district court in its opinions nor the government in its brief on appeal specify the Commonwealth

crimes for which Casey was arrested by the PRPD, although it appears that authorities were considering the

possibility that he had murdered Lizardi. Agent Marrero acknowledged in her testimony at trial that she was asked to

extend her shift on the night of August 1 so that she could interview Casey "at least in part based on [her] experience

interviewing homicide suspects." Her superiors told her that Casey was being questioned because he was found in

possession of a vehicle belonging to a missing undercover agent from the drug division.

[16] The timing of Casey's formal arrest by the FBI is not pertinent to the prompt presentment issue in this case

because § 3501(c) covers "arrest or other detention in the custody of any law-enforcement officer or lawenforcement agency." 18 U.S.C. § 3501(c) (emphasis added).

[17] The FBI's control of the case by the time Casey's grandparents' home was searched is confirmed by Agent

Marrero's testimony at the suppression hearing, where she reported that she and other PRPD officers who went to

the house merely secured the premises and then waited for the FBI to perform the search. More specifically, Marrero

stated that, when she arrived at the house, she closed off the bedroom with tape and "then waited for the fellow

officers from the FBI to arrive, and they took charge of everything else."

[18] We recognize that Luis Moulier, the FBI case agent, gave testimony suggestive of a later timeframe for federal

jurisdiction. Moulier stated that he was given the case at about noon on August 2, and he said that "[a]t the

beginning[,] ... what I knew was that they had a person detained and then they explained to me what happened the

day before, on the 1st, August 1. From there on and in consultation with the [Assistant United States Attorney] we

decided to assume jurisdiction in the case." Moulier also stated, when asked when he had arrested Casey, that Casey

"was placed under arrest on August 2." Given other timing inconsistencies in the record, we adhere to the district

court's finding (accepted by the government in its briefing) that jurisdiction shifted at 6 AM. See Casey II, 530 F.

Supp. 3d at 180.

[19] The district court appeared to assume that the relevant timeframe for assessing Casey's prompt presentment

claim was the full thirty-six hours from Casey's arrest by the PRPD to his appearance before the magistrate judge.

Appendix A

24

We need not review that assumption because of our determination that the safe-harbor period expired at noon on

August 2 — at least two hours before Casey made the first set of challenged statements.

[20] As noted above, the government stated at oral argument that the federal complaint depended on the discovery of

the gun during the search of his room. We have explained why the record does not demonstrate such a limitation.

Moreover, neither the district court in its opinion nor the government in its brief suggested that Casey was not

brought to the magistrate judge sooner because federal authorities lacked probable cause to detain him for a federal

crime until after they found the gun.

[21] Again, we note that the district court denied Casey's request for an evidentiary hearing on his habeas claims,

and we have no explanation from trial counsel for the failure to rely on the prompt presentment violation.

[22] The fact that the district court rejected Casey's prompt presentment claim in disposing of his habeas petition

does not diminish his attorneys' error in failing to seek suppression of the statements to Marrero. As we have

explained, the district court erred as a matter of law when it found no McNabb-Mallory violation. Hence, if Casey's

counsel had invoked that violation as a basis for suppressing Casey's comments, it would have been legal error to

deny suppression.

[23] As the government acknowledged at oral argument, it did not rely on an aiding and abetting theory at trial. To

the contrary, the government asked the jury to find that Casey used the weapon found in his bedroom "to fire [the]

projectile through the head of Officer Lizardi." And, at another point in its closing, the government told the jurors

they needed to decide whether the government had proven "that Lashaun Casey did it. That is what this trial is

about. No one else, nothing else." As we previously have observed, "we cannot affirm a criminal conviction on the

basis of a theory not presented to the jury." United States v. Figueroa-Cartagena, 612 F.3d 69, 76 (1st Cir. 2010)

(quoting Chiarella v. United States, 445 U.S. 222, 236, 100 S.Ct. 1108, 63 L.Ed.2d 348 (1980)).

[24] As Casey points out, his inculpatory statements were technically not "confessions" because "they do not admit

to the ultimate act of having killed Lizardi." See "Confession,"

https://thelawdictionary.org/confession/[https://perma.cc/NLZ3-PQ8J] (captured April 24, 2024) ("In criminal law.

A voluntary statement made by a person charged with the commission of a crime or misdemeanor, communicated to

another person, wherein he acknowledges himself to be guilty of the offense charged, and discloses the

circumstances of the act or the share and participation which he had in it."). In that respect, Casey's situation

resembles the observation by two researchers that, "[i]n the eyes of police and prosecutors, ... a confession ...

encompass[es] any statements which tend to incriminate a suspect or a defendant in a crime." Steven A. Drizin &

Richard A. Leo, The Problem of False Confessions in the Post-DNA World, 82 N.C. L. Rev. 891, 892 n.1 (2004);

see also id. (noting that "statements placing a defendant at a crime scene are often treated as `confessions'"). That

broader notion of a confession is reflected in § 3501, which states that, "[a]s used in this section, the term

`confession'" includes "any self-incriminating statement made or given orally or in writing." 18 U.S.C. § 3501(e).

[25] As recounted above, Casey was more evasive with Marrero about what happened to Lizardi, telling her only

that the agent "was maybe alive or maybe he was dead." Casey's admission to his wife that Lizardi was dead likely

explains why the government highlighted that part of their conversation in its closing arguments. See infra.

[26] The money apparently was never found. The FBI's case agent, Moulier, testified at trial that he was "not aware"

whether the money was found on Lizardi's person when his body was recovered. In an affidavit attached to the

complaint filed on August 3, 2005, Moulier reported that $2,960 in cash was seized in the search of Casey's

bedroom, but no link was drawn in the affidavit between that sum and the money Lizardi carried for the drug buy.

Nor was any evidence about the seized cash introduced at trial.

[27] As defense counsel later acknowledged in her argument to the jury, the expert report that excluded Casey as the

source of the hairs contained the caveat that the samples could have been affected by the passage of time.

Relatedly, the government asked the court to instruct the jury that it did not have a DNA sample from Hernández

because it did not have probable cause to charge him and, hence, could not demand a sample. The court did not

Appendix A

25

immediately rule on the request, and, though we found no explicit denial in the record, it appears the court decided

against giving such an instruction.

[28] It appears that, in describing the truck and the cellphone as "the only evidence," the prosecutor was relying on

his prior and subsequent references to the gun to complete his assertion about the "[t]hree pieces of evidence."

Although other items also were seized at Casey's home, the prosecutor was likely highlighting the evidence he

considered most significant at the time of the Marrero interrogation.

[29] That testimony was wide-ranging. In addition to recounting the comments by Casey at issue here, Marrero

described her initial interview with Casey, the investigation of his fabricated shootout story, the interview with his

grandfather, and her visual search of Casey's bedroom.

[30] The jury also had posed questions to the court earlier, after the government completed its presentation of

evidence. At that time, they submitted notes asking for "a true definition of what the court meant as: `Beyond

Reasonable Doubt'" and whether "the presumption of innocence goes above the reasonable doubt." In response, the

court summarized both principles, reminded the jurors that "evidence is still being presented," and told them they

would "be receiving further instructions on all of these matters."

Appendix A

26

530 F.Supp.3d 176 (2021)

Leshaun CASEY, Petitioner,

v.

UNITED STATES of America, Respondent.

Civil No. 18-1049 (ADC) Related to Crim. No. 05-277-1 (ADC).

United States District Court, D. Puerto Rico.

Signed March 30, 2021.

180*180 Lashaun Casey, Waymart, PA, Pro Se.

Mariana E. Bauza, Thomas F. Klumper, United States Attorney's Office, San Juan, PR, for

Respondent.

OPINION AND ORDER

AIDA M. DELGADO-COLÓN, United States District Judge.

Lashaun Casey ("Casey") moves to vacate, set aside, or correct his sentence pursuant to 28

U.S.C. § 2255. ECF No. 1. The government responded. ECF No. 6. Petitioner replied. ECF No.

10. For the reasons set forth below, petitioner's § 2255 motion is DENIED.

I. FACTUAL AND PROCEDURAL BACKGROUND[1]

In 2005, the Puerto Rico Police Department ("PRPD") assigned Agent Jesús Lizardi-Espada

("Lizardi") to investigate Casey in an undercover role. On August 1, 2005, Lizardi arranged to

take a ferry to Culebra with Casey to purchase four pounds of marijuana from drug supplier

Alexander Hernández ("Alexander"). A PRPD team travelled to Culebra by plane to await

Lizardi and Casey's arrival. Lizardi and Casey, however, did not arrive on the ferry as planned

and a search for the pair ensued. Later that day, agent José Agosto-Rivera ("Agosto") found

Casey at his workplace, a Holiday Inn hotel, and recognized Lizardi's grey Ford pickup truck in

the hotel parking lot. After agents witnessed Casey leave the hotel in Lizardi's truck, Casey was

arrested and taken to PRPD general headquarters where he was read his rights, signed a Miranda

waiver, and began being questioned at about 12:50 a.m. on August 2nd by PRPD agent Diana

Marrero ("Marrero"). Over the next few hours, Casey indicated his willingness to help officers in

their search for Lizardi, leading officers to the homes of individuals in the drug trafficking world.

These leads, however, produced no results.

At about 6:00 a.m. on August 2nd, Casey was brought to another PRPD station in Canóvanas,

where the FBI assumed jurisdiction. At this point, Casey indicated to agent Marrero that he no

longer wished to speak with law enforcement and asked to see his grandfather. Casey's

grandfather, with whom Casey lived, arrived at the station and gave consent for the agents to

Appendix B

1

search Casey's bedroom at their home. Shortly after 12:00 p.m. on August 2nd, FBI agents

transported Casey to its premises 181*181 in Ceiba. Upon arrival, FBI agent Luis Moulier

("Moulier") read Casey his Miranda rights again and he exercised his right to remain silent.

No further questioning ensued until around 2:00 p.m. when agent Marrero approached Casey

without repeating his Miranda rights and confronted him with the evidence that was found in his

bedroom.[2] Casey responded with the statements: "maybe he is alive, maybe he is dead" and that

he was "sunk with the evidence." Agent Marrero then pressed for Casey to reveal more details

but he refused and, at some point in the exchange, Casey asserted his right to an attorney.

Around 4:00 p.m., agents allowed Casey's wife into the interview room to speak with him while

a PRPD agent remained in close proximity. The agent overheard Casey make statements

including "killing a cop is a federal case," and "they seized a lot of evidence at the house but they

don't have the body, anyway, he was an undercover cop and he knew he was on his way to do a

drug deal with me and could come out dead or alive." Casey made his initial appearance before a

U.S. Magistrate Judge on August 3, 2005. A few days later, following further investigation,

Lizardi's deceased body was found in a wooded area behind an abandoned structure in Luquillo

with two gunshot wounds in his head.

In February 2007, a grand jury indicted Casey on three counts: (1) carjacking with the intent to

cause death or serious bodily injury under 18 U.S.C. § 2119(3); (2) possession, use, discharge

carrying of firearms during a crime of violence resulting in another's death under 18 U.S.C. §

924(j); and (3) being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1). In July

2007, the government filed its notice to seek the death penalty and pretrial proceedings took

place over the next six years. In 2011, Casey moved to suppress all statements elicited from him

while in police custody as well as the contents of the overheard conversation he had with his

wife allegedly in violation of his Miranda rights. Casey's counsel, however, did not address the

so-called Mosley concern that arose during his time in custody as Casey initially invoked his

right to remain silent while in custody at Canóvanas and that right was not "scrupulously

honored" while he was in custody at Ceiba. See Michigan v. Mosley, 423 U.S. at 104, 96 S.Ct.

321.

In 2013, this Court denied his motion apart from certain statements he made after invoking his

Miranda protections in the 2:00 p.m. encounter at Ceiba.[3] See United States v. Casey, No. 3:05cr-00277-ADC-1, ECF No. 793 (D.P.R. Jan. 23, 2013) (Delgado, J., Opinion and Order). Later,

on the eve of trial, the government designated two DNA reports authored by Carna Meyer and a

third authored by Brendan Shea. The government then called Meyer to testify to introduce all

three reports. Casey's trial counsel made no objection to the reports nor did he object to Meyer's

endorsement of Shea's report despite her lack of involvement in the report's preparation.

Following a nine-day trial, a jury convicted Casey of all counts but rejected the death penalty.

Crim. No. 05-277-1, ECF No. 965. On June 13, 2013, Casey was sentenced to life in prison.

Crim. No. 05-277-1, ECF No. 1093. Casey then filed a timely direct appeal in the First Circuit

challenging a wide array of the district 182*182 court's decisions made before and during his

trial. Crim. No. 05-277-1, ECF No. 1096. On June 3, 2016, the court of appeals affirmed his

conviction. United States v. Casey, 825 F.3d 1 (1st Cir. 2016). On January 23, 2017, the Supreme

Appendix B

2

Court denied certiorari. See id., cert. denied, ___ U.S. ___, 137 S. Ct. 839, 197 L.Ed.2d 77

(2017). The parties do not dispute that Casey's § 2255 petition was timely filed.

II. STANDARD OF REVIEW

"Section 2255 is not a surrogate for a direct appeal." David v. United States, 134 F.3d 470, 474

(1st Cir. 1998). "Rather, the statute provides for post-conviction relief in four instances, namely,

if the petitioner's sentence (1) was imposed in violation of the Constitution, or (2) was imposed

by a court that lacked jurisdiction, or (3) exceeded the statutory maximum, or (4) was otherwise

subject to collateral attack." Id. The "catch-all" fourth category includes only errors that reveal

"fundamental defects" which, if uncorrected, will "result in a complete miscarriage of justice."

Id. (quoting Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962)).

Accordingly, the burden is on the petitioner to make out a case for § 2255 relief because his

claim "must reveal exceptional circumstances that make the need for redress evident." Id. To this

end, we may deny Casey's petition without an evidentiary hearing if the "motion and the files and

records of the case do not conclusively show that [he] is entitled to relief." United States v.

Giardino, 797 F.2d 30, 32 (1st Cir. 1986) (internal citation and quotations omitted).

The Sixth Amendment's guarantee of the right to counsel "is the right to effective assistance of

counsel." Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

To succeed on an ineffective assistance of counsel claim, a defendant must demonstrate both: (1)

"that his counsel's performance was deficient," and (2) "that the deficient performance prejudiced

the defense." Rossetti v. United States, 773 F.3d 322, 327 (1st Cir. 2014) (quoting Strickland v.

Washington, 466 U.S. at 687, 104 S.Ct. 2052). Under the first prong, "we indulge a strong

presumption that counsel's conduct falls within the wide range of reasonable professional

assistance, finding deficiency only `where, given the facts known to counsel at the time,

counsel's choice was so patently unreasonable that no competent attorney would have made it.'"

Rossetti, 773 F.3d at 327 (quoting Knight v. Spencer, 447 F.3d 6, 15 (1st Cir. 2006)). Under the

prejudice prong, a defendant must demonstrate "a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different." Id. (quoting

Strickland, 466 U.S. at 694, 104 S.Ct. 2052).

III. ANALYSIS

Casey brings a host of ineffective assistance of counsel claims.[4] His petition challenges his

counsel's conduct before and during trial on three main grounds: (1) that his counsel failed to

object to the testimony of a surrogate witness who testified to introduce three DNA reports; (2)

that his counsel failed to argue, under Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 46

L.Ed.2d 313 (1975), that certain statements he made while in police custody should be

suppressed; and (3) that his counsel failed to argue that all statements 183*183 he made while in

police custody should have been suppressed as they were obtained in violation of the prompt

presentment rule. ECF No. 1.

A. Surrogate Witness Testimony

Appendix B

3

Casey claims that he received ineffective assistance because counsel failed to object to the

introduction of forensic evidence reports through Carna Meyer, a purported "surrogate witness."

It is well-established that a forensic laboratory report, created specifically to serve as evidence in

a criminal proceeding, is "testimonial" for Confrontation Clause purposes. See Meléndez-Díaz v.

Massachusetts, 557 U.S. 305, 310, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). "Absent

stipulation... the prosecution may not introduce such a report without offering a live witness

competent to testify to the truth of the report's statements." Bullcoming v. New Mexico, 564 U.S.

647, 651, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011). In Bullcoming, the Court found that the

scientist who certifies a forensic report is the only witness "competent" to testify as to the

veracity of that report. Id. at 661, 131 S.Ct. 2705 (finding that analysts who write reports must be

available for confrontation). The Court went on to state that, like other rules of evidence, a

forensic report prepared by one witness can only be entered into evidence through the in-court

testimony of a second witness "who did not sign the certification or perform or observe the test

reported in the certification" if the witness who prepared the report is unavailable. Id. at 657, 131

S.Ct. 2705. Moreover, a Confrontation Clause violation of this nature can be deemed harmless if

the "uncertified" report being introduced is merely "cumulative" and "the properly admitted

evidence against [the defendant] is overwhelming." See Barbosa v. Mitchell, 812 F.3d 62, 68 (1st

Cir. 2016) (finding no error where surrogate witness based her opinion on DNA testing she did

not perform because report was cumulative and defendant had fair opportunity to confront

surrogate as to basis of her opinion).

Casey contends that the government's use of Meyer as the live witness to introduce Shea's report

violates the Supreme Court's rule espoused in Bullcoming and violates the Confrontation Clause.

Accordingly, his counsel's failure to object to the introduction of this report was constitutionally

deficient and fell outside the wide "range of reasonable professional assistance." Knight, 447

F.3d at 15 (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). However, even if we assume

that counsel's failure to object "was so patently unreasonable that no competent attorney would

have made" such an error, Casey has not demonstrated how he was prejudiced by this deficiency.

Id. That is, he has not demonstrated, with any reasonable probability, that the disqualification of

Shea's report would have altered the result of his trial. Knight, 447 F.3d at 15.

The record shows that the prosecution introduced three DNA reports through Meyer: two of

which she authored and the third authored by Shea. Crim. No. 05-277-1, ECF No. 860. As the

government correctly notes, Meyer testified that she reviewed the underlying data and conducted

the same statistical analysis as Shea to produce her own reports. Id. Her testimony, including her

expert opinion regarding the results of Shea's report, was subject to vigorous cross-examination

by Casey's counsel. Id. Thus, the introduction of Shea's report was merely cumulative to the

DNA evidence introduced at trial and had no "substantial and injurious effect on the verdict."

Barbosa, 812 F.3d at 69.

This Court is not persuaded that counsel's failure to object to the introduction of this particular

forensic report constituted 184*184 an error "so serious as to deprive" Casey of a fair trial or

result in a "complete miscarriage of justice." Strickland, 466 U.S. at 687, 104 S.Ct. 2052; David,

134 F.3d at 474. Consequently, Casey's ineffective assistance claims on this front fail.

B. Statements Admitted in Violation of Mosley

Appendix B

4

Next, Casey claims that certain statements he made while in police custody were adduced from

questioning that occurred after he invoked his Miranda rights. It follows, according to Casey,

that his counsel's performance was constitutionally deficient by failing to argue in favor of

suppressing these statements under Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d

313 (1975). "Where an ineffectiveness claim is based on counsel's decision not to file a

suppression motion, the petitioner must demonstrate that a meritorious claim formed the basis of

the proposed motion in order to establish deficient performance." Johnston v. Mitchell, 871 F.3d

52, 60 (1st Cir. 2017) (citing Lockhart v. Fretwell, 506 U.S. 364, 374, 113 S.Ct. 838, 122

L.Ed.2d 180 (1993) (O'Connor, J., concurring)). Accordingly, we turn our attention to the merits

of Casey's Mosley claim.

In Mosley, the Supreme Court found that "the admissibility of statements obtained after the

person in custody has decided to remain silent depends under Miranda on whether his `right to

cut off questioning' was `scrupulously honored.'" Id. at 104, 96 S.Ct. 321 (quoting Miranda v.

Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)). In analyzing whether it was

proper for police to resume questioning, the Miranda right being invoked by the defendant is

noteworthy. See United States v. Oquendo-Rivas, 750 F.3d 12, 17-18 (1st Cir. 2014). If the

defendant invokes his right to counsel, "questioning must invariably cease until a lawyer is

provided." Id. at 17. Conversely, if the defendant invokes his right to remain silent, the police are

not automatically barred from resuming questioning at a later time. Id. Rather, a court will

balance four factors to determine whether the right to remain silent was "scrupulously honored"

under Mosley: (1) whether a reasonable period of time passed prior to the resumption, (2)

whether the same officer resumed questioning, (3) whether the suspect received refreshed

Miranda warnings, and (4) whether questioning concerned the same alleged crime. OquendoRivas, 750 F.3d at 17-18. Our "ultimate review," however, must account for the totality of the

circumstances "with an eye on determining whether the suspect retained the ability to choose

whether and when to speak." Id. at 18.

In his petition, Casey does not distinguish which specific statements he is referring to or whether

he invoked his right to an attorney or to remain silent under Miranda. The record, however,

shows that he invoked his right to remain silent around 12:00 p.m. upon arriving at Ceiba, and

after he received refreshed Miranda warnings from agent Moulier.[5] Casey, 825 F.3d at 19.

Around 2:00 p.m., agent Marrero began questioning Casey without repeating his Miranda rights.

Id. At some point during this questioning, Casey asserted his right to an attorney. Id. at 20. While

subsequent questioning produced some statements after the invocation of this right, this Court

suppressed those statements before trial. See United States 185*185 v. Casey, No. 3:05-cr00277-ADC-1, ECF No. 793, at 16 (D.P.R. Jan. 23, 2013) (Delgado, J., Opinion and Order).

Thus, presumably at issue here are the statements Casey made to agent Marrero prior to invoking

his right to an attorney—that he was going down with the evidence and that "maybe [Lizardi] is

alive, maybe he is dead." Crim. No. 05-277-1, ECF No. 739 at 41; see also Casey, 825 F.3d at

20.

Under the first factor, the reasonableness of the time between the two rounds of questioning, the

record shows that approximately two hours passed from the time Casey initially invoked his right

to remain silent to when agent Marrero resumed questioning. While it is "unwise and

unworkable... to try to demarcate a one-time-fits-all limit for assessing reasonableness,"

Appendix B

5

Oquendo-Rivas, 750 F.3d at 18, the Court in Mosley found the passage of "more than two hours"

to be reasonable. Mosley, 423 U.S. at 104, 96 S.Ct. 321; United States v. Andrade, 135 F.3d 104,

106 (1st Cir. 1998) (finding two hours to be reasonable interval); Contra United States v.

Barone, 968 F.2d 1378, 1383 (1st Cir. 1992) (finding that statement obtained after "momentary

cessation" in interrogation must be suppressed); Oquendo-Rivas, 750 F.3d at 18 (suggesting that

twenty minutes may be unreasonable period between rounds of questioning). Even if we assume

that this nearly two-hour lapse in questioning was reasonable, this factor is not dispositive and

may be offset by other circumstances. Barone, 968 F.2d at 1385; see also Oquendo-Rivas, 750

F.3d at 18 (finding that defendant's rights were scrupulously honored despite twenty-minute

lapse in questioning).

Under the totality of the circumstances, a review of the second, third, and fourth factors against

the two-hour time lapse compels us to conclude that Casey's Mosley claim was highly likely to

fail. With respect to the second factor, Casey received a fresh round of Miranda rights at Ceiba

from agent Moulier and was questioned later on by agent Marrero. Our analysis, however,

cannot be constrained to this two-hour interval. After all, this was not Casey's first interaction

with agent Marrero while in custody.

Notably, upon Casey's arrest on August 1, agent Marrero presented Casey with a form

acknowledging that he had been informed of his Miranda rights. Casey, 825 F.3d at 19. The

parties do not dispute that Casey voluntarily signed the form, knowingly waived his rights, and

indicated his willingness to speak to agent Marrero about Lizardi's whereabouts. Id. Casey was

later transferred to Canóvanas, where he indicated to agent Marrero that he no longer wished to

speak with law enforcement shortly after 6:00 a.m. on August 2. Id. Agent Marrero did not

pursue further questioning at Canóvanas. Id.

The record is devoid of any evidence suggesting that agent Marrero, or any other officer,

engaged in coercive tactics from the time of Casey's arrest to the time the relevant statements

were made. Compare Barone, 968 F.2d at 1384 (suppressing statements where police threatened

defendant with physical danger to "pressure" him into changing his mind about remaining silent),

with Andrade, 135 F.3d at 107 (admitting statements where there was no "repeated attempt to

reverse" defendant's refusal to talk through "undue pressure"). In fact, agent Marrero

scrupulously honored Casey's right to remain silent when he invoked it shortly after 6:00 a.m. at

Canóvanas and she did not resume questioning until 2:00 p.m. at Ceiba. The only other

interaction during this interval occurred when Casey received a fresh round of Miranda warnings

upon arriving at Ceiba. See Westover v. United States, 384 U.S. 436, 496-97, 86 S.Ct. 1602, 16

L.Ed.2d 694 186*186 (1966) (suggesting that suspect taken into custody by "second authority,

removed from time and place from his original surroundings, and then adequately advised of his

rights" may be questioned).

Still, perhaps the most significant factor weighing against the admissibility of Casey's statements

is the fact that agent Marrero did not remind him of his Miranda rights immediately prior to the

2:00 p.m. questioning. See Oquendo-Rivas, 750 F.3d at 17-18 (assessing whether suspect

received "fresh" Miranda warnings); Andrade, 135 F.3d at 107 (finding "no doubt" suspect

retained ability to choose when to speak where police reminded him of warnings immediately

prior to second interrogation). Any concerns regarding this fact, however, are assuaged by

Appendix B

6

Casey's invocation of his right to an attorney at some point during the exchange with agent

Marrero. This fact, coupled with Casey's decision to remain silent with agent Moulier but to

answer agent Marrero, suggests that Casey was fully aware of his Miranda rights and "was in

charge of the decision whether and to whom he would speak." Andrade, 135 F.3d at 107 (finding

rebuff of one agent was not "couched as a refusal to talk with anyone"). In sum, Casey's

voluntary waiver of rights upon arrest, subsequent choice to remain silent at Canóvanas, and

reminder of his Miranda rights at Ceiba all suggest that there is "no reason to doubt" that Casey

was fully aware of his right to remain silent and was not unduly pressured into speaking with

agent Marrero in the second round of questioning. Andrade, 135 F.3d at 107.

Accordingly, Casey's Mosley argument lacks merit and his counsel's failure to address it does not

amount to deficient performance under the first prong of Strickland. Johnston, 871 F.3d at 60. It

is well settled that "a lawyer's performance does not fall to the level of a Sixth Amendment

violation under Strickland simply because the lawyer fails to pursue any and all nonfrivolous

strategies." Johnston, 871 F.3d at 63. "Counsel also is not required to have a tactical reason—

above and beyond a reasonable appraisal of a claim's dismal prospects for success—for

recommending that a weak claim be dropped altogether." Knowles v. Mirzayance, 556 U.S. 111,

127, 129 S.Ct. 1411, 173 L.Ed.2d 251 (2009).

C. Suppression of Statements in Violation of Prompt

Presentment Rule

Lastly, Casey claims that all his statements made while in police custody should have been

suppressed because they were obtained in violation of the prompt presentment rule. ECF No. 1,

at 21. As such, Casey argues that he received ineffective assistance because counsel failed to

bring this argument at his suppression hearing. Like his Mosley claim, "the petitioner must

demonstrate that a meritorious claim formed the basis of the proposed motion in order to

establish deficient performance." Johnston v. Mitchell, 871 F.3d 52, 60 (1st Cir. 2017) (citing

Lockhart v. Fretwell, 506 U.S. 364, 374, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993) (O'Connor, J.,

concurring)).

Under Federal Rule of Criminal Procedure 5(a)(1)(A), "a defendant who has been arrested within

the United States is entitled to be brought `without unnecessary delay before a magistrate judge.'"

United States v. Jacques, 744 F.3d 804, 813 (1st Cir. 2014) (quoting Fed. R. Crim. P.

5(a)(1)(A)). "The right to speedy presentment not only checks the likelihood of coercive

questioning, but also avoids `all the evil implications of secret interrogation of persons accused

of crime.'" Id. (quoting Corley v. United States, 556 U.S. 303, 307, 129 S.Ct. 1558, 173 L.Ed.2d

443 (2009)).

To protect this right, the Supreme Court promulgated the McNabb v. United States, 187*187 318

U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943)-Mallory rule, which "stipulates that confessions

made during a period of detention that violates the prompt presentment requirement of Rule 5(a)

are generally inadmissible in federal courts." Id. (citing Corley, 556 U.S. at 309, 129 S.Ct. 1558).

In response to the McNabb-Mallory rule, however, Congress enacted 18 U.S.C. § 3501 to create

a safe harbor period for certain voluntary confessions. Corley, 556 U.S. at 309, 129 S.Ct. 1558.

Appendix B

7

Section 3501(c) provides that "a confession ... shall not be admissible solely because of delay in

bringing such person before a magistrate judge or other officer ... if ... such confession was made

or given by such person within six hours immediately following his arrest or other detention."

Thus, section 3501(c) sets up a two-part inquiry when determining whether statements made to

law enforcement violate the right to prompt presentment. Jacques, 744 F.3d at 814. "First, the

section creates a safe-harbor for voluntary statements that are received either within six hours of

a defendant's detention, or within a longer period deemed reasonable in light of travel or

transportation difficulties." Id. If the statements fall within that period, and were made

voluntarily, they are admissible. Corley, 556 U.S. at 322, 129 S.Ct. 1558. Where a voluntary

statement falls beyond a safe harbor, "section 3501(c) then requires a court to determine whether

the delay was nevertheless reasonable or necessary under McNabb-Mallory." Jacques, 744 F.3d

at 814. If the delay was unreasonable and unnecessary under McNabb-Mallory, the statements

are to be suppressed. Corley, 556 U.S. at 322, 129 S.Ct. 1558.

"What explains the delay at issue" is the critical question for determining whether a delay in

presentment was reasonable or necessary under McNabb-Mallory. United States v. GalindoSerrano, 925 F.3d 40, 49 (1st Cir. 2019). "The McNabb-Mallory rule was designed to deter

police from engaging in lengthy pre-arraignment detentions for the purpose of further

interrogating a defendant." United States v. Garcia-Hernandez, 569 F.3d 1100, 1106 (9th Cir.

2009). Thus, "delay is unreasonable and unnecessary when it is `of a nature to give opportunity

for the extraction of a confession.'" Id. (quoting Mallory v. United States, 354 U.S. 449, 455, 77

S.Ct. 1356, 1 L.Ed.2d 1479 (1957)). Conversely, a reasonable delay could be attributed to

"legitimate administrative concerns" or "any other legitimate law enforcement purpose."

Galindo-Serrano, 925 F.3d at 49; see also Jacques, 744 F.3d at 814 ("delay may be reasonable if

caused by administrative concerns, such as unavailability of a magistrate following an arrest, or

by a shortage of personnel.").

In United States v. Boche-Perez, 755 F.3d 327, 337 (5th Cir. 2014), the Fifth Circuit found that,

under McNabb-Mallory, "law enforcement personnel are permitted, within reasonable limits, to

investigate whether the crime occurred; search and secure a premises; and secure, confiscate, or

destroy contraband before taking an arrestee to a magistrate." Boche-Perez, 755 F.3d at 337

(collecting cases). In other words, McNabb-Mallory does not require law enforcement officers

"to drop everything and rush to the magistrate when doing so would imperil public safety." Id.

We find that, while Casey's statements fell outside of the six-hour "safe haven" articulated in

section 3501(c), the approximate 36-hour delay in his presentment before a magistrate was

reasonable and necessary as the entirety of the delay can be attributed to legitimate law

enforcement purposes.

188*188 First, upon Casey's arrest, Agent Lizardi was still missing and the investigating officers

had no indication as to whether he was alive or dead. Casey was brought into custody at PRPD

headquarters, waived his Miranda rights, and offered to help law enforcement find Lizardi. This

initial portion of Casey's detention clearly constitutes a period where agents were investigating

whether a crime occurred—a legitimate law enforcement purpose recognized by federal courts.

Appendix B

8

See Boche-Perez, 755 F.3d at 337-38. Moreover, Casey's waiver of his rights indicates that any

statements he made during this period were voluntary.

During the second portion of Casey's detention following his transfer to Canóvanas, the

investigating agents still had not found Lizardi, but were able to question Casey's grandfather

when he arrived at the station. Casey's grandfather consented to a search of Casey's bedroom at

his home. Agents then conducted said search in an effort to find evidence related to Lizardi's

whereabouts and did not continue questioning Casey during the time it took to complete the

search. This period did not constitute an unreasonable delay for two reasons. First, the delay can

be attributed to law enforcement's conversation with Casey's grandfather and subsequent search

of his home, which are both "unrelated to any [effort at] prolonged interrogation." Boche-Perez,

755 F.3d at 336-37. Further, courts have recognized that a lawful search of a premises is a

legitimate law enforcement purpose that can reasonably and necessarily delay an arrestee's right

to presentment. See Boche-Perez, 755 F.3d at 337 (collecting cases).

Casey was then transferred to the FBI's facility at Ceiba. See, e.g., United States v. Collins, 462

F.2d 792, 796 (2d Cir. 1972) (finding delay necessary when moving arrestee through

complexities of combined federal-state system). During this last portion of Casey's prearraignment detention, agent Marrero confronted him with the evidence found in his bedroom

and pleaded with him to reveal Lizardi's whereabouts. Here, the initial portion of this questioning

is the only relevant conduct as Casey's statements made after invoking his right to an attorney

were suppressed prior to trial.

Due to the gravity of the circumstances regarding Agent Lizardi's whereabouts and unknown

physical condition, we find that this brief period of questioning, cut off by Casey's request for

counsel, served the primary purpose of ensuring public safety and not an attempt at prolonging

an interrogation to obtain a confession. See, e.g., United States v. Carter, 484 F. App'x. 449, 45758 (11th Cir. 2012) (finding delay in presentment reasonable where officers attempted, with

arrestee's assistance, to locate weapon because purpose was to collect and preserve evidence and

eliminate a potential danger to the public); see also United States v. Sophoan Oung, 490 F. Supp.

2d 21, 32 (D. Mass. 2007) (noting that "public safety exception" to Miranda applies "so long as

questioning relates to an objectively reasonable need to protect the police ... from any immediate

danger") (emphasis in original).

Because the delay in Casey's presentment was reasonable and necessary for legitimate law

enforcement purposes, namely, to locate Agent Lizardi, his prompt presentment claim lacks

merit. Accordingly, his ineffective assistance claim fails under the deficiency prong and we need

not address the prejudice prong under Strickland. See Johnston, 871 F.3d at 60.

IV. CERTIFICATE OF APPEALABILITY

Pursuant to Rule 11(a) of the Rules Governing § 2255 Proceedings, a 189*189 "district court

must issue or deny a certificate of appealability ("COA") when it enters a final order adverse to

the applicant." Rules Governing § 2255 Proceedings, Rule 11, 28 U.S.C.A. foll. § 2255. To merit

a COA, an applicant must make "a substantial showing of the denial of a constitutional right." 28

U.S.C. § 2253(c)(2). The applicant must demonstrate that "reasonable jurists would find the

Appendix B

9

district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel,

529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Petitioner made no such showing

here. Thus, the Court will not issue him a certificate. Therefore, a COA is DENIED.

V. CONCLUSION

For the reasons stated above, Casey's § 2255 petition is DENIED, and his request for an

evidentiary hearing is DENIED. The case is DISMISSED WITH PREJUDICE. He is also

DENIED a COA.

SO ORDERED.

[1] As Casey does not claim that any newly discovered evidence is implicated in his § 2255 motion, the facts in this

section are summarized from the First Circuit's opinion following Casey's direct appeal. United States v. Casey, 825

F.3d 1 (1st Cir. 2016).

[2] The search of Casey's room yielded a loaded firearm, Lizardi's cell phone, and a pair of blood-stained flip flops.

[3] This Court's opinion and order refers to Casey's statement "I don't know what you're talking about," which he

made after he invoked his right to an attorney.

[4] It is well-established that a defendant can assert ineffective assistance of counsel claims for the first time in a

collateral motion made under § 2255. Massaro v. United States, 538 U.S. 500, 504-05, 123 S.Ct. 1690, 155 L.Ed.2d

714 (2003); Rossetti v. United States, 773 F.3d 322, 326 n.2 (1st Cir. 2014).

[5] In his reply to the government's opposition, Casey refutes this fact and claims that he invoked his right to an

attorney upon being Mirandized by agent Moulier. ECF No. 10 at 4-5. He provides no support for this assertion and

the record plainly contradicts his current position.

Appendix B

10

Case: 21-1414

Document: 00118164534

Page: 1

Date Filed: 07/10/2024

Entry ID: 6653431

United States Court of Appeals

For the First Circuit

_____________________

No. 21-1414

LASHAUN CASEY,

Petitioner - Appellant,

v.

UNITED STATES,

Respondent - Appellee.

__________________

Before

Barron, Chief Judge,

Lipez, Kayatta, Montecalvo, Rikelman, and Aframe

Circuit Judges.

__________________

ORDER OF COURT

Entered: July 10, 2024

The petition for rehearing having been denied by the panel of judges who decided the case,

and the petition for rehearing en banc having been submitted to the active judges of this court and

a majority of the judges not having voted that the case be heard en banc, it is ordered that the

petition for rehearing and the petition for rehearing en banc be denied.

By the Court:

Maria R. Hamilton, Clerk

cc:

Virginia G. Villa

Lashaun Casey

Thomas F. Klumper

Mariana E. Bauzá-Almonte

Ricardo A. Imbert-Fernández

Appendix C

1