U.S. v. Encarnacion

56 F.Supp.2d 151

UNITED STATES of America, Plaintiff, v. Ernesto Jose ENCARNACION, Defendant.

No. Crim. 99-33(SEC).

United States District Court, D. Puerto Rico.

June 22, 1999.

Thomas F. Klumper, U.S. Attorney's Office District of P.R., San Juan, P.R., for plaintiff.

Joseph C. Laws, Federal Public Defender, San Juan, Puerto Rico, for defendant.

OPINION AND ORDER

CASELLAS, District Judge.

Pending before the Court is a motion filed by defendant Ernesto Jose Encarnación to dismiss the indictment due to a violation of Federal Rule of Criminal Procedure 5(a). (Docket # 16)

Factual Background

On January 24, 1999, the defendant Ernesto Jose Encarnación a/k/a Victor Melo, ("Encarnación") arrived on American Airlines Flight No. 5411 at the Luis Muñoz Marín International Airport, in Carolina, Puerto Rico from Santo Domingo, Dominican Republic. Defendant Encarnación is a citizen of the Dominican Republic. While applying for admission into the United States, the defendant presented to the U.S. Immigration and Naturalization Service Inspectors a Dominican passport and an Alien Registration Receipt Card (Form I-551). Upon review by the INS Inspectors, they determined that defendant Encarnación was an alien who had been previously arrested and deported from the United States on June 6, 1996.

Defendant had been deported subsequent to his conviction for the commission of an aggravated felony to wit: criminal possession and sale of a controlled substance. Pursuant to that information, the INS detained defendant on January 24, 1999, the date of his arrival. On January 25, 1999, defendant Encarnación was interviewed by Senior INS Inspector, Fernando Ruz, to which defendant informed of his previous arrest and deportation.

On February 2, 1999, eight (8) days after Mr. Encarnación's detention, the Government brought him before Magistrate Judge Jesús A. Castellanos for an initial appearance. On February 5, 1999, the Magistrate held a preliminary hearing and found probable cause against defendant pursuant to 8 U.S.C. 1326(b)(2). On February 10, 1999, sixteen (16) days after his initial detention, a federal grand jury returned a one-count indictment against defendant charging him with a violation of 8 U.S.C. 1326(b)(2).

On April 5, 1999, defendant filed his motion to dismiss. In essence, he claims that he is entitled to a dismissal of the criminal complaint with prejudice due to the failure to provide him with a "probable cause" determination within 48 hours of his arrest.

Rule 5(a) of the Federal Rules of Criminal Procedure reads as follows:

Except as otherwise provided in this rule, an officer making an arrest under a warrant issued upon a complaint or any person making an arrest without a warrant shall take the arrested person without unnecessary delay before the nearest available federal magistrate judge or, if a federal magistrate judge is not reasonably available, before a state or local judicial officer authorized by 18 U.S.C. 3041. If a person arrested without a warrant is brought before a magistrate judge, a complaint, satisfying the probable cause requirements of Rule 4(a), shall be promptly filed ...

Pursuant to this rule, arrested individuals must be brought before a federal magistrate without "unnecessary delay." In U.S. v. Forde, 30 F.3d 127 (1st Cir.1994) (unpublished opinion), the Court explained the Rule 5(a) doctrine as follows:

In Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), the Court held that the Fourth Amendment requires a prompt judicial determination of probable cause as a prerequisite to extended detention following a warrant-less arrest. In County of Riverside v. McLaughlin, 500 U.S. 44, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991), the Court established that "prompt" generally means within 48 hours of the warrant-less arrest. Absent extraordinary circumstances (and intervening weekends do not qualify as such), a longer delay presumptively violates the Fourth Amendment. Id. at 57, 111 S.Ct. 1661. In Powell v. Nevada, 511 U.S. 79, 114 S.Ct. 1280, 128 L.Ed.2d 1 (1994), the Court held that McLaughlin applied retroactively to all cases pending on direct review or not yet final. The Court left open the issue of the appropriate remedy for an unreasonable delay in determining probable cause. Powell v. Nevada, 114 S.Ct. at 1283-84.

The Government argues that Rule 5(a) applies in very limited circumstances to aliens, specifically when the alien is charged with a non-status offense. Such was the case in United States v. Sotoj-López, 603 F.2d 789 (9th Cir.1979), one of the cases cited by defendant to support his argument. In Sotoj-López, the Court reversed an alien's conviction for assault on an immigration officer, when the alien was not taken without unnecessary delay before a magistrate for an initial appearance. The Court ruled that 5(a) applied where the defendant was charged with a non-status offense, that is, an offense that did not require the accused to be an alien to the United States. In United States v. Valente, 155 F.Supp. 577 (D.Mass.1957), the trial court set aside a verdict after the Government presented evidence of an alien's confession for a felony of false claim of citizenship, when the Government did not secure defendant's appearance before a magistrate, pursuant to Rule 5(a). The Valente district court held that the proper remedy pursuant to a Rule 5(a) violation was the suppression of any evidence obtained through unnecessary delay in bringing the alien defendant to a magistrate for initial appearance, not dismissal of the indictment. We note that the Court of Appeals in Sotoj-López cited Valente as an example where a non-status offense triggers application of Rule 5(a).

The Government argues, and this Court agrees, that an offense for illegal entry after deportation is, by definition, a status offense, that is, an offense requiring as one of its elements that defendant be an alien to the United States. On the other hand, an offense such as assault, as in Sotoj-López, and false claim of citizenship, as in Valente, does not require as an element of the crime that the accused person be an alien to the United States. This distinction seems bolstered by the dual nature of the statute which grants immigration officers the power to arrest without warrants.

It is important to note that the term "unnecessary delay" is included in the statute which authorizes the immigration officers to arrest aliens. 8 U.S.C.A. 1357. The statute reads, in pertinent part:

1357. Powers of immigration officers and employees

(a) Powers without warrant

Any officer or employee of the Service authorized under regulations prescribed by the Attorney General shall have power without warrant —

(1) to interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States;

(2) to arrest any alien who in his presence or view is entering or attempting to enter the United States in violation of any law or regulation made in pursuance of law regulating the admission, exclusion, expulsion, or removal of aliens, or to arrest any alien in the United States, if he has reason to believe that the alien so arrested is in the United States in violation of any such law or regulation and is likely to escape before a warrant can be obtained for his arrest, but the alien arrested shall be taken without unnecessary delay for examination before an officer of the Service having authority to examine aliens as to their right to enter or remain in the United States;

...

(4) to make arrests for felonies which have been committed and which are cognizable under any law of the United States regulating the admission, exclusion, expulsion, or removal of aliens, if he has reason to believe that the person so arrested is guilty of such felony and if there is likelihood of the person escaping before a warrant can be obtained for his arrest, but the person arrested shall be taken without unnecessary delay before the nearest available officer empowered to commit persons charged with offenses against the laws of the United States; ... (Emphasis added)

This statute makes a clear distinction between the procedure to follow pursuant to an alien's arrest for a status offense, such as unlawful entry into the United States, or, as in the present case, where he is being charged for an unlawful re-entry, and an alien's arrest for a felony unrelated to his illegal entry into the United States (also known as a non-status offense). Although sections 1357(a)(2) and 1357(a)(4) both use the term "unnecessary delay", they apply to markedly different scenarios. Section 1357(a)(2) applies to aliens "entering or attempting to enter the United States in violation of laws which regulate the admission, exclusion, expulsion, or removal of aliens." Commentators and the courts have emphasized the civil nature of this section. Pursuant to this section, "an alien arrested under the authority of 8 U.S.C.A. 1357(a)(2) need not be given Miranda warnings, but must be taken without unnecessary delay for examination before an officer of the INS having authority, to examine aliens as to their right to enter or remain in the United States." 3A American Jurisprudence 2d, Aliens and Citizens 149 (1998). See also Navia-Duran v. INS, 568 F.2d 803 (1st Cir.1977). (Emphasis ours)

The application of Section 1357(a)(4) is distinctly criminal in nature. The section applies to all persons, whether they are aliens or not, who are arrested for a felony cognizable under any law of the United States regulating the admission, exclusion, expulsion, or removal of aliens. The section incorporates the language of Fed. R.Crim.P. 5(a) when it states: "the person arrested shall be taken without unnecessary delay before the nearest available officer empowered to commit persons charged with offenses against the laws of the United States."

This statute explains the immigration officers' actions in the present case when, upon finding out...