U.S. v. Melendez

55 F.Supp.2d 104

UNITED STATES of America, Plaintiff, v. Confesor MELENDEZ, Defendant.

No. Crim. 99-116(JAF).

United States District Court, D. Puerto Rico.

July 14, 1999.

Asst. U.S. Attorney Desiree Laborde-Sanfiorenzo, Guillermo Gil, U.S. Attorney, San Juan, PR, for plaintiff.

Asst. Federal Public Defender Carlos A. Vazquez-Alvarez, Joseph C. Laws, Jr., Federal Public Defender, San Juan, PR, for defendant.

OPINION AND ORDER

FUSTE, District Judge.

Defendant, Confesor Meléndez, moves to dismiss the indictment against him because of an alleged violation of Fed. R.Crim.P. 5(a).

I.

On or about April 14, 1999, Immigration and Naturalization Service ("INS") officials detained Defendant for allegedly attempting to enter the United States in violation of 8 U.S.C. § 1326(a)(2)(A), (b)(2).¹ The day of Defendant's detention, Special (Border) Patrol Agent Martin Santiago interviewed Defendant. Defendant informed Agent Santiago that he was a national of the Dominican Republic. An immigration check revealed that Defendant had been deported from the United States on July 27, 1997 after his conviction of burglary, assault, possession with intent to distribute cocaine, and possession of a weapon in New York state court. Although INS officials had arrested Defendant, they did not bring him before a magistrate for an initial appearance within forty-eight hours of his arrest.

On April 29, 1999, a federal grand jury for the District of Puerto Rico indicted Defendant for violating 8 U.S.C. § 1326(b)(2). On April 30, 1999, sixteen days after his arrest, officials brought Defendant before Magistrate Castellanos for an initial appearance.

II.

Following arrest, the government is obliged to take a defendant before the nearest federal magistrate without unnecessary delay. Fed.R.Crim.P. 5(a); see also United States v. Alvarez-Sanchez, 511 U.S. 350, 357, 114 S.Ct. 1599, 128 L.Ed.2d 319 (1994); County of Riverside v. McLaughlin, 500 U.S. 44, 57, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991); Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) (stating that the Fourth Amendment requires a prompt judicial determination of probable cause as a prerequisite to extended detention following a warrantless arrest); United States v. David Forde, 30 F.3d 127 (1st Cir.1994). Rule 5(a) of the Federal Rules of Criminal Procedure provides, in relevant part:

(a) In General. 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.

Fed.R.Crim.P. 5(a). The express language of Rule 5(a) mandates the prompt presentment of an arrestee before a magistrate only in two situations: (1) where the arrest is made "upon a complaint;" and (2) where the arrest is made "without a warrant." We must first decide if Rule 5(a) is applicable to a defendant charged with a violation of 8 U.S.C. § 1326; and then, if it is applicable, determine whether the INS officers here abided by the contours of Rule 5(a).

"Federal officers must comply with Rule 5(a) if the alien is being charged with a non-status offense." United States v. Sotoj Lopez, 603 F.2d 789 (9th Cir.1979) (holding that pending immigration proceedings could not deprive defendant of his Rule 5(a) rights with respect to an additional assault charge). Therefore, if section 1326 is a non-status offense, the federal INS officers here should have complied with Rule 5(a). The question then is whether section 1326 is a non-status offense. The government takes the position that "an offense for illegal entry after deportation [§ 1326] is, by definition, a status offense," and that Rule 5(a), therefore, is inapplicable to such a violation. See Docket Document No. 10, p. 3.

We disagree. The definition of a status crime is "[a] class of crime which consists not in proscribed action or inaction, but in the accused's having a certain personal condition or being a person of a specified character," such as the crime of vagrancy. See BLACK'S LAW DICTIONARY 1410 (6th ed.1990). In order to prove a violation of 8 U.S.C. § 1326, the government must prove arrest, deportation, and reentry. United States v. DeLeon-Rodriguez, 70 F.3d 764, 766 (3d Cir.1995); United States v. Asibor, 109 F.3d 1023, 1031 (5th Cir.1997). Therefore, section 1326 requires more than that the offender be an alien. It requires that the previously-deported alien commit the act of entering or attempting to enter the United States. Section 1326 is a crime of action, not of status. Therefore, we reject the government's contention and find that section 1326 is a non-status offense. As a nonstatus offense, section 1326 requires Rule 5(a) protection.

The government makes a special effort to point out that Fed.R.Crim.P. 5 does not apply to civil deportation arrests of excludable aliens. This is correct, but irrelevant. Had INS officials arrested Defendant for civil deportation, Rule 5(a) would be inapplicable. United States v. Cepeda-Luna, 989 F.2d 353, 358 (9th Cir.1993) (stating that the "provisions of Rule 5 ... are inapplicable to civil deportation arrests"). But, in this case, the record shows that Defendant was arrested for a criminal offense, a violation of 8 U.S.C. § 1326. While a deportation proceeding is civil in nature, Defendant was arrested for a violation of 8 U.S.C. § 1326, which provides for "criminal prosecution for illegal re-entry following deportation." See United States v. Martinez-Amaya, 67 F.3d 678, 682 n. 5 (8th Cir.1995) (emphasis provided). The plain language of section 1326 provides for "[c]riminal penalties for reentry of certain removed aliens...." See 8 U.S.C. § 1326(b) (emphasis provided). Accordingly, we find that Fed.R.Crim.P. 5(a) is applicable to a defendant arrested for a violation of 8 U.S.C. § 1326.²

III.

Next, we decide whether INS officials violated the terms of Rule 5(a) There is no question that INS officials arrested Defendant Meléndez without a warrant and failed to bring him before a magistrate without undue delay.³ Thus, we find that INS officials violated Defendant's rights under Rule 5(a). Our inquiry now turns to the proper remedy for a violation of Fed. R.Crim.P. 5(a).

The vast majority of courts find that the purpose of Rule 5(a) is to prevent officers from using the period of delay to extract a confession. See e.g., Upshaw v. United States, 335 U.S. 410, 412, 69 S.Ct. 170, 93 L.Ed. 100 (stating that "the plain purpose of the requirement that prisoners should promptly be taken before committing magistrates was to check resort by officers to `secret interrogation of persons accused of crime'") (citing McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943)); United States v. Purvis, 768 F.2d 1237, 1238 (11th Cir.1985) (stating that the purpose of Rule 5(a) is to prevent oppressive police interrogations and other "third-degree" tactics before bringing the accused in front of an officer of the court) (citing Mallory v. United States, 354 U.S. 449, 451-54, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957)); United States v. Mendoza, 473 F.2d 697, 702 (5th Cir.1973) (stating that purpose of Rule 5(a) "is to have a judicial officer advise the defendant of his constitutional rights and thereby to prevent administrative detection without probable cause and to reduce the opportunity for third-degree practices") (citing Culombe v. Connecticut, 367 U.S. 568, 584-585, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961)). These courts use Rule 5(a) as an evidentiary or procedural tool to suppress statements made by arrested individuals who were not brought before a magistrate in a timely fashion.

In Bayless v. United States, 381 F.2d 67 (9th Cir.1967), the defendant unsuccessfully sought to have the court dismiss the indictment against him because of the government's violation of Rule 5(a). The defendant in Bayless was a prisoner who was charged with, inter alia, escape. After his recapture, authorities returned him to prison, where he remained until his indictment for escape four months later. The Ninth Circuit found that Rule 5(a) had no application where the defendant sought only dismissal of the indictment and not exclusion of a statement he made during the period before he was brought before a magistrate. The court did not mention that the prejudice the defendant suffered by the Rule 5(a) violation was minimal since he still would have been in prison but for the Rule 5(a) violation. Rather, the Ninth Circuit rested its analysis on the fact that the only remedy for a Rule 5(a) violation was exclusion of evidence. In other words, the Ninth Circuit found that the only remedy provided by Rule 5(a) is evidentiary suppression, not dismissal of an indictment. Id. at 70-71. Since there was no evidence to exclude, the court denied the Bayless defendant's motion to dismiss the indictment on the basis of the Rule 5(a) violation.

Therefore, we are faced with the inquiry of whether Rule 5(a) provides a substantive right, in addition to providing a procedural/evidentiary right, whose remedy is dismissal. The record in this case does not show that Defendant made any statement before his arraignment which he wishes to suppress. Evidentiary exclusion, the typical remedy for a Rule 5(a) violation, is thus not an option here, just as it was not an option in Bayless. However, unlike the defendant in Bayless, Defendant here remained incarcerated for sixteen days when he might have been freed on bail had he been brought before a magistrate in a timely fashion. While there is no statement to exclude, Defendant did suffer the prejudice of sixteen days of incarceration as a result of the Rule 5(a) violation. Defendant maintains that the proper remedy for this is dismissal of the indictment.

We...