Casey v. United States

100 F.4th 34

• Court: Court of Appeals for the First Circuit
• Decided: April 25, 2024
• Docket: 21-1414
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 21-1414

LASHAUN CASEY,

Petitioner, Appellant,

v.

UNITED STATES OF AMERICA,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

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

Before

Kayatta, Lipez, and Rikelman, Circuit Judges.

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.

April 25, 2024 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. Galindo-Serrano, 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.

- 2 - I.

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

- 3 - 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 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

- 4 - 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 search of Casey's bedroom at the home

they shared in Luquillo. There, agents recovered, among other

items, a loaded firearm, Lizardi's cellphone, 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.

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).

- 5 - 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? Marrero: We remained silent and later he was asked something else, but he didn't answer anything else.3

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 (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

- 6 - 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

developed argument on the Mosley claim in his pro se application to us for a certificate of appealability, and we 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.

- 7 - 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 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, 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

- 8 - 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 grounds5 the two sets of statements that he made in the

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.

- 9 - 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 (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

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."

- 10 - days in February and March 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 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

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

- 11 - 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 (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

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 (1984), trial counsel rendered ineffective assistance by not moving to suppress statements by Casey made after the expiration of the 'safe harbor' recognized at 18 U.S.C. § 3501(c)." We explain the safe-harbor provision in Section II.B.

- 12 - (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. 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 (1986).

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). 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).

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

- 13 - persons accused of crime," McNabb v. United States, 318 U.S. 332,

344 (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

(1957)).9 Under "the rule known simply as McNabb-Mallory," Corley

v. United States, 556 U.S. 303, 309 (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 (1994)).

However, "the McNabb-Mallory exclusionary rule" has been

qualified in two ways. Galindo-Serrano, 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

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 (2009).

- 14 - 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

(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 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). 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

- 15 - 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)).

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; 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, in turn quoting Mallory, 354 U.S. at 455-56)); 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

- 16 - 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 without first showing an actual

We note that Casey's current attorney did not represent him 10

during the pretrial and trial proceedings.

- 17 - 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

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.

- 18 - Rule 5's requirement of prompt presentment applies only

to a period of federal detention. See Alvarez-Sanchez, 511 U.S.

at 358. 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

- 19 - 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 (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 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

11In 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. 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 (citing Anderson v. United States, 318 U.S. 350, 356 (1943)). Such an "improper collaboration

- 20 - 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 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

between federal and state or local officers" would require suppression of a confession obtained during that contrived period of state detention. Id. at 359. 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 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.

- 21 - 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 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

We think it important to note that an evidentiary hearing 13

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.

- 22 - 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

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

- 23 - 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 (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

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.

The timing of Casey's formal arrest by the FBI is not 16

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 law-enforcement agency." 18 U.S.C. § 3501(c) (emphasis added).

- 24 - 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 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).

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 --

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."

- 25 - began at 6 AM on August 2.18 We therefore consider noon the

endpoint of the six-hour safe-harbor 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

18We 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. 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.

- 26 - 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 336-37).

The government's argument fails, however, because the

district court's rejection of Casey's claim of improper

presentment delay was premised in substantial part on reasoning

that is incompatible with McNabb-Mallory and § 3501(c). As we

have described, delay beyond the six-hour 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.

- 27 - 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)).

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

- 28 - 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 safe-harbor 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, 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

- 29 - 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.

- 30 - 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 McNabb-

Mallory error occurred because the questioning beyond the safe-

harbor period lacked "all the evil implications of secret

interrogation." McNabb, 318 U.S. at 344. 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 (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

- 31 - 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 308-09 ("'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 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 (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.,

20As 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.

- 32 - 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 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 (1987) (concluding that officers did not interrogate

a suspect when they "allowed him to speak with his wife in the

- 33 - 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 (quoting Upshaw v. United States, 335 U.S.

410, 412 (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 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

- 34 - 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; 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 (Scalia, J., dissenting))); id. at

321 (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, 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 (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

- 35 - that we may not 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 (2003); see also Harrington v.

Richter, 562 U.S. 86, 109 (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)).

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 in

jurisdiction at that time.21 But such lack of knowledge would only

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.

- 36 - 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 Alvarez-

Sanchez, 511 U.S. at 359 (describing the possibility of an improper

state-federal collaboration); Strickland, 466 U.S. at 690 (noting

that "strategic choices made after thorough investigation of law

and facts relevant to plausible options are virtually

unchallengeable" (emphasis added)); id. at 691 (noting counsel's

"duty to make reasonable investigations or to make a reasonable

decision that makes particular investigations unnecessary");

- 37 - 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

(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 (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 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

- 38 - 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 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

688.22 We thus turn to Strickland's prejudice prong.

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.

- 39 - 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

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-

- 40 - repeatedly invoked Casey's "confession" to Marrero when arguing to

the jury that it had proven its case.24

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. 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

Cartagena, 612 F.3d 69, 76 (2010) (quoting Chiarella v. United States, 445 U.S. 222, 236 (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).

- 41 - 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

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

25As 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.

- 42 - 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 -- 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

- 43 - 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.

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

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.

- 44 - 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 part, adduced evidence that agents

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.

- 45 - 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.

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 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.

- 46 - 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 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

- 47 - 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 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

- 48 - 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. 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:

- 49 - 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," 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

- 50 - 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:

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

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

- 51 - 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

"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

the evidence he considered most significant at the time of the Marrero interrogation.

- 52 - 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. 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

29That 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.

- 53 - 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).

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

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."

- 54 - Marrero's testimony would have changed the jury's calculus in

evaluating Casey's guilt.

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

- 55 - 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.

Indeed, the physical evidence against him was damning.

- 56 - 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.

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

- 57 - 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). 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. We

therefore affirm the judgment of the district court denying Casey's

petition for habeas relief.

So ordered.

- 58 -