Opinion
CASE NO. 5:06CR239, 5:10 CV 1580.
July 21, 2010
MEMORANDUM OPINION
I. INTRODUCTION
The petitioner, Jaime Del Rio, also known as Eduardo Burgos-Del Rio, filed an action on July 16, 2010 under the provisions of 28 U.S.C. § 2255 in which he contends that he was denied the effective assistance of counsel, and as a consequence, his guilty plea and sentence to a term of 46 months in prison should be vacated. The defendant was indicted on May 10, 2006 and subsequently arraigned on the 16th day of July, 2007. On September 13, 2007 the defendant entered a plea of guilty to a count of conspiracy with the intent to distribute and distribute 100 kilograms or more of marijuana.
Rule 4 regarding Section 2255 proceedings calls for the initial consideration by the judge of the petition and provides that where the court finds that the petitioner is not entitled to relief, the court is directed to dismiss the petition and direct the clerk to notify the moving party. After the review of the documents in this case the court finds that the petitioner is not entitled to relief based on the foregoing analysis.
II. THE BASIS OF THE PETITIONER'S CLAIM THAT HE IS ENTITLED TO RELIEF
The petitioner contends that he was denied the effective assistance of counsel in connection with his plea of guilty and ensuing sentence. The petitioner's contention appears anchored in the proposition that the action against him was first dismissed following an identity hearing conducted in California. In sentencing the defendant the court reviewed the petitioner's claim regarding his correct name and his success at the first identity hearing in the following passage:
The defendant has constantly maintained that his name is not Jaime Del Rio, but rather is Eduardo Burgos, and as a consequence, should not be the named defendant in this case. Notwithstanding the defendant's position, he entered a plea of guilty to the crime of conspiracy with respect to intent to distribute and distribute 100 kilograms or more of marijuana. On the occasion of the sentencing hearing, the defendant again insisted on claiming that he was not the defendant charged in count 1 of the indictment, even though he had previously entered the plea of guilty. The Court had previously considered this issue and had been advised that the defendant had initially denied that he was the person named in the indictment while he remained in the state of California. The first identity hearing resulted in a denial of the government's request to transport the defendant from California to Ohio. A second identity hearing was conducted after FBI Special Agent Todd DeKatch traveled to California for the purpose of the identity hearing. during the sentencing hearing conducted on December 12, 2007, Special Agent Todd DeKatch was requested to appear at the sentencing hearing, and did so. He identified the defendant as the person identified in the indictment as Jaime Del Rio and further testified that after he traveled to California for the identity hearing, the defendant waived the hearing. It developed during the sentencing hearing conducted on December 12, 2007, that the defendant was of the belief that the government was collaterally estopped from requesting a second identity hearing. In support of his position, the defendant, acting in a pro se capacity, despite the presence of his counsel, tendered to the Court a document attached hereto as Appendix I, which constituted the government's position in California that it was entitled to a second identity hearing. Following the testimony of Special Agent Todd DeKatch, the Court concluded that the defendant's continuing contention that he was in some manner the wrong person, was totally without merit and proceeded to conduct the sentencing.
(ECF No. 243, pg. 1-2.)
III. THE WRITTEN GUILTY PLEA
The defendant entered a plea of guilty in a lengthy proceeding on September 13, 2007. During the court's colloquy with the defendant, the following exchange took place:
THE COURT: Now, I understand from the dialog that you and I had a week or so ago that the name under which you've been prosecuted, Jaime Del Rio, is really not your true name; is that correct?
THE DEFENDANT: Yes, Your Honor.
THE COURT: This plea agreement says Eduardo Burgos-Del Rio. Is that your true name?
THE DEFENDANT: Your Honor.
(ECF No. 271, pg. 7-8.)
The caption on the written plea agreement stated:
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION UNITED STATES OF AMERICA, ) Case No. 5:06 CR 0239 ) Plaintiff, ) Judge David D. Dowd, Jr. ) vs. ) ) JAIME DEL RIO, ) (True Name: EDUARDO BURGOS-DEL RIO) ) ) PLEA AGREEMENT Defendant. ) (ECF No. 241, pg. 1.)The signature block for the defendant in the written plea agreement identifies him as "Eduardo Burgos-Del Rio."
Paragraph 17 of the Plea Agreement contains a Statement of Counsel which follows:
17. As attorney(s) for the defendant, I have discussed in detail this case with client, EDUARDO BURGOS-DEL RIO, including all plea offers — and the within plea agreement — and have advised him of all matters within the scope of Rule 11, Federal Rules of Criminal Procedure, the constitutional and other rights of an accused, the factual basis for and the nature of the offense to which the guilty plea will be entered, possible defenses, and the consequences of the guilty plea, including sentencing ramifications. No assurances, promises, or representations have been given to me or to the defendant by the United States or by any of its representatives which are not contained in the written agreement. This agreement sets forth the full and complete terms and conditions of the agreement between EDUARDO BURGOS-DEL RIO and the government.
(ECF No. 241, pg. 12-13.)
The Factual Basis for Guilty Plea is set forth at paragraph 13 beginning on page 7 and continuing through page 10 and states as follows:
13. The defendant, JAMIE DEL RIO (True Name: EDUARDO BURGOS-DEL RIO) agrees that if this matter were to proceed to trial, the United States through a court authorized Title III wiretap, witness testimony, and other evidence could prove facts beyond a reasonable doubt establishing each of the essential elements of the crime to which he is pleading guilty, including, but not limited to the following:
A. During a period beginning at least as early as approximately April 2005, to January 2006, in the Northern District of Ohio, Eastern Division, and elsewhere, the defendant, along with Michael Lashawn Spragling and others, did knowingly and intentionally combine, conspire, confederate and agree to possess with the intent to distribute and to distribute 100 kilograms (220 pounds) or more of marijuana, a Schedule I controlled substance.
B. It was part of the conspiracy that the defendant used inter-state freight companies to ship marijuana from California to Michael Lashawn Spragling in Northeast Ohio, for further distribution in Northeast Ohio.
C. In furtherance thereof, and to effect the goals and conceal the existence of the conspiracy, the defendant and others performed overt acts including, but not limited to, the following:
(1) In late March 2005, the defendant caused 4 crates, weighing a total of 1,340 pounds, to be shipped in the name of "Decorative Pottery Statuary, 1255 Morena Blvd., Chula Vista, CA" to "Bensein Pottery Ceramics, C/O ABF Service Center, 1835 Coventry Road, Parma, Ohio."
(2) On or about April 4, 2005, at 1613 Maxen, Akron, Ohio, Michael Lashawn Spragling possessed the following: approximately 13 pounds of marijuana in a 55 gallon steel drum (the marijuana consisted of 1 bale of marijuana and a number of packaged marijuana in 1 gallon storage bags): three other empty 55 gallon drums; scales; and packaging material (1 gallon storage bags). The 55 gallon steel drum containing the marijuana was within a wooden crate with a label noting the shipper as "Decorative Pottery Statuary, 1255 Morena Blvd. Chula Vista, CA" and the destination as "Bensein Pottery Ceramics, C/O ABF Service Center, 1835 Coventry Road, Parma, Ohio."
(3) On or about October 23, 2005, at approximately 7:51 p.m., in a telephone conversation, Jonathan foreman and JAMIE DEL RIO (EDUARDO BURGOS-DEL RIO) referenced Michael Lashawn Spragling. DEL RIO (BURGOS) indicated that a shipment of marijuana would be forthcoming in about two weeks.
(4) On or about December 21, 2005, at approximately 6:32 p.m., in a telephone conversation, JAMIE DEL RIO (EDUARDO BURGOS-DEL RIO), and Michael Lashawn Spragling discussed a shipment of marijuana that DEL RIO (BURGOS-DEL RIO) would send for arrival in Ohio a day or two after New Years.
(4) [sic] On or about January 1 2006, at approximately 7:58 p.m., in a telephone conversation, JAMIE DEL RIO (EDUARDO BURGOS) informed Michael Lashawn Spragling that "the girls" (marijuana) would be sent on Monday, and would be in Ohio on Friday or Monday at the latest.
(5) On or about January 7, 2006, at approximately 9:31 p.m., in a telephone conversation, JAMIE DEL RIO (EDUARDO BURGOS-DEL RIO) told Michael Lashawn Spragling he explained the details of the marijuana shipment to Jonathan Foreman. DEL RIO (BURGOS-DEL RIO) added that his people have a California Drivers License and they needed someone to rent a U-Haul truck in Ohio.
(6) On or about January 9, 2006, JAMIE DEL RIO (EDUARDO BURGOS-DEL RIO) and an associate were present at the Baymont Inn, Interstate 71 and 150th Street, Cuyahoga County, Ohio.
(7) On or about January 9, 2006, at approximately 11:42 a.m., in a telephone conversation, JAMIE DEL RIO (EDUARDO BURGOS-DEL RIO) and Michael Lashawn Spragling discussed giving the DEL RIO (BURGOS-DEL RIO) associate $2,000 to rent a U-Haul truck so that the marijuana could be picked up and delivered to Spragling and/or his associates.
(8) On or about January 10, 2006, JAMIE DEL RIO (EDUARDO BURGOS-DEL RIO) caused approximately 455 pounds of marijuana to be present at Watkins Motor Freight Lines, Garfield Heights, Ohio, for delivery to Michael Lashawn Spragling. The marijuana was within steel drums within wooden crates. The four crates weighed a total of 1,135 pounds. The purported shipper was "The Potters Wheel Ceramics, 835 N. Vulcan Avenue, Encinitas, CA" and the purported destination was "The Pottery Garden World" 928 Som Center Rd, Cleveland, Ohio).
D. The government's evidence shows that the defendant's personal, jointly undertaken, and reasonably foreseeable relevant criminal conduct within the scope of the conspiracy involved at least 400 kilograms (880) pounds) of marijuana.
The defendant, JAMIE DEL RIO (True Name: EDUARDO BURGOSDEL RIO), acknowledges that the above outline of his conduct does not set forth each and every act committed in furtherance of the offense to which he is pleading GUILTY, and that the government could prove other acts evidencing criminal conduct.
(ECF No. 241, pg. 7-10.)
IV. THE DECISION OF THE SIXTH CIRCUIT COURT OF APPEALS
The Sixth Circuit affirmed the defendant's conviction and sentence and, in the process, referred to the identity hearings in the following passage:
In May 2006, the government charged Del Rio in the Northern District of Ohio in a four-count indictment, also naming seven others, with conspiracy to possess with intent to distribute and to distribute one hundred kilograms or more of marijuana. After Del Rio was arrested in California, a magistrate judge held an identity and removal hearing. The magistrate judge concluded that the United States failed to meet its burden of demonstrating that the person detained in California was Del Rio, refused to issue a warrant of removal, and ordered Del Rio released from custody.
The district court in the Northern District of Ohio subsequently issued another arrest warrant for Del Ro, based on the same underlying indictment. Del Rio was rearrested in June 2007. Del Rio waived a second identity and removal hearing and a magistrate judge ordered that Del Rio be delivered to the Northern District of Ohio.
Thereafter, Del Rio entered a written plea of guilty to the charged offense, which included a waiver of his right to appeal or collaterally attack his conviction and sentence except in certain limited circumstances. After conducting a hearing, the district court accepted Del Rio's plea of guilty.
(ECF No. 293, pg. 1-2.)
However, the court of appeals indicated that it would not consider the petitioner's claim that he had been denied the effective assistance of counsel as such claims are not normally considered on direct appeal.
V. THE BASIS OF THE PETITIONER'S CONTENTION THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL BY HIS TRIAL LAWYERS
The petitioner continues to advance the proposition that because he was successful in contesting his identification at the initial identity hearing, the second identification hearing and the subsequent prosecution constituted double jeopardy. The petitioner also appears to contend that the government was collaterally estopped from requesting and proceeding with a second identity hearing.
As indicated in the court's sentencing Memorandum Opinion Analyzing the Sentencing Factors Set Forth in 18 U.S.C. Section 3553(a) (Docket No. 243) during the sentencing hearing the defendant, in a pro se manner, even though he was represented by counsel, tendered to the court what the court listed as Appendix 1 and which constituted the government's argument in support of the proposition that it was entitled to a second identity hearing. For the purposes of this opinion what was identified as Appendix 1 in the Court's sentencing memorandum is attached hereto, again, as Appendix 1. It is apparent from a reading of Appendix 1 that the government was providing a detailed explanation as to why the government was not precluded from arresting the defendant on a "new out-of-district arrest warrant."
The court agrees with the argument set forth in Appendix 1 and concludes that the petitioner's continuing claim that the government's failure to identify him in the first identity hearing does not give rise to either a double jeopardy claim or an estoppel claim.
Consequently the fact that the petitioner's trial counsel failed to advance such an argument does not constitute the ineffective assistance of counsel.
As a result the petition is dismissed and the clerk is directed to so notify the petitioner.
IT IS SO ORDERED.
APPENDIX I
I STATEMENT OF FACTS
On April 5, 2007, Eduardo Burgos Del Rio, a.k.a. Jaime Del Rio ("Defendant"), applied for admission to the United States at the Otay Mesa Port of Entry Pedestrian lane. The primary officer queried his name using the Treasury Enforcement Communications System (TECS) and found that Burgos Del Rio had an active felony warrant. He was arrested on an active warrant (WNO: 060051522017) charging him as Jaime Del Rio. The warrant was based on an indictment issued out of the Northern District of Ohio charging him with conspiracy to distribute marijuana in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(B), Case No. 06CR0239. Defendant was charged in an out-of-district complaint in the Southern District of California (Case No. 07MJ0766-POR) and was booked by the United States Marshal's Service.
A removal and identity hearing was scheduled for April 19, 2007. On that date, Defendant requested a continuance. The removal and identity hearing was re-scheduled for May 17, 2007. On that date, Defendant requested another continuance. The removal and identity hearing was re-scheduled again for June 7, 2007. On that date, Defense counsel requested a third continuance, and the identity and removal hearing was scheduled for June 19, 2007.
On June 19, 2007, an identity and removal hearing was held before Louisa S. Porter. At that hearing, the Court found that the United States failed to meet its burden to demonstrate by adequate proof that the Defendant was the individual named in the indictment issued in the Northern District of Ohio. Specifically, the Court found that the United States did not provide adequate testimony regarding how the Ohio case agents, after viewing the booking photographs from this district, identified the Defendant as the individual indicted in Ohio. The Court concluded that it was insufficient for the Deputy United States Marshal ("DUSM") to testify that the agents in Ohio reviewed the booking photographs and told the DUSM that the person in the photographs was the same individual indicted in Ohio. The Court refused to issue a warrant of removal and ordered the Defendant released from custody. As a result of the Court's finding, the complaint in Case No. 07MJ0766-POR was dismissed.
On June 20, 2007, a new arrest warrant was issued in the Northern District of Ohio by District Court Judge David D. Dowd, Jr. based on the same underlying indictment in Ohio (06CR0239.) Defendant was arrested on June 20, 2007, at approximately 12:00 p.m. on the new arrest warrant originating out of the Northern District of Ohio (WNO: 076006203979Z.) A new out-of-district complaint was filed on June 20, 2007, at 3:05 p.m. (07CRMJ1435-LSP). Defendant appeared before Magistrate Judge Leo S. Papas and was arraigned on June 21, 2007 at 1:30 p.m.
II ARGUMENT
A. FAILURE TO ESTABLISH IDENTITY DOES NOT PRECLUDE THE GOVERNMENT FROM ARRESTING AN INDIVIDUAL ON A NEW OUT-OF-DISTRICT ARREST WARRANT
The Defendant contends that the United States is precluded from executing a new arrest warrant on an out-of-district indictment naming the Defendant because Magistrate Judge Louisa S. Porter previously found that the United States did not prove that the Defendant was the person named in the indictment on a prior arrest, resulting in the Defendant's release from custody and dismissal of the out-of-district complaint. This contention is without merit and is contrary to existing case law.
Rule 40 of the Federal Rules of Criminal Procedure, which addressed arrests on out-of-district charging documents, was relocated in part to Rule 5(c) as part of the 2002 Amendments to the Federal Rules of Criminal Procedure. See Fed.R.Crim.Pro. 40, Advisory Comm. Notes (Amend. 2002) (noting that these changes were stylistic only, not substantive). Certain subsections of Rule 40, including Rule 40(b), were relocated to Rule 5(c). See id. Rule 5(c)(3) states, in relevant part, that:
If the initial appearance occurs in a district other than where the offense was allegedly committed . . . the magistrate judge must transfer the defendant to the district where the offense was allegedly committed if (i) the government produces the warrant . . .; and (ii) the judge finds that the defendant is the same person named in the indictment, information, or warrant . . .
It is undisputed that the magistrate judge is authorized to issue a warrant of removal under Rule 5(c). See 28 U.S.C. § 636(b); see also United States v. Canada, 440 F. Supp. 22 (N.D. Ill, 1977) (referring to Rule 40(b)(5), which is now contained within Rule 5(c) after the 2002 amendments). Not only is the magistrate court now authorized to make such determinations, the magistrate court " must transfer the defendant to the district where the offense was allegedly committed if the judge finds that the defendant is the same person named in the indictment." Fed.R.Crim.Pro. Rule 5(c)(3)(D)(ii) (emphasis added). Because removal is mandatory, this rule, by extension, requires the magistrate judge to conduct a removal and identity hearing. Id. Rule 5(c)(3)(D) does not contain exceptions or circumstances in which a magistrate court can choose not to hold the hearing.
This interpretation of Rule 5(c) is also supported by case law. In United States v. Sherriffs, a removal hearing was held in which the magistrate judge determined that the defendant had "not been properly identified" as the individual named in the indictment. 64 F.R.D. 729, 729 (E.D. Wis. 1974). On the basis of this finding, the magistrate judge refused to issue a warrant of removal and ordered the defendant discharged from custody. Id. The United States appealed the magistrate judge's decision to the district court. Id. The district court stated: "The denial of a warrant of removal is not res judicata. A permissible remedy for the government, therefore, would be to request a second arrest of the defendant and a new removal hearing." Id. (citing United States v. Levy, 268 U.S. 390 (1924)) (emphasis added).
Similarly, in this case, Magistrate Judge Porter determined that the Defendant had not been properly identified by the United States as the individual named in the indictment. Judge Porter's denial of the warrant of removal is not res judicata and does not prevent the United States from arresting the Defendant on a second arrest warrant. When the United States failed to show by adequate proof that the Defendant was the individual named in the indictment in Ohio, the complaint was dismissed. At that point, neither the warrant — which was already returned — not the complaint were active. The indictment, however, still lives and an individual indicted thereon remaineda fugitive. Ergo, the District Court judge assigned to underlying indictment issued a new warrant for Defendant's arrest. In fact, "if the complaint . . . establish(es) probable cause to believe that an offense has been committed and that defendant committed it, a judge must issue an arrest warrant." Fed.R.Crim.Pro. Rule 4 (emphasis added). Because an indictment is necessarily proof that probable cause has been found, a judge must issue an arrest warrant on the basis of that indictment if the defendant is a fugitive.
When Defendant was arrested on the new warrant at approximately 12:00 p.m. on June 20, 2007, an out-of-district complaint was filed immediately at 3:05 p.m. that same day. Notwithstanding the preceding events, this Court, having been presented with a Defendant arrested on a properly issued arrest warrant, is now obligated to make a finding regarding identity. See. Fed.R.Crim.Pro. Rule 5(c)(3)(D). As such, the Court should apply the procedures set forth in Rule 5 of the Federal Rules of Criminal Procedure and set a date for a new removal hearing.
Not only is this a permissible remedy for the United States' failure to sufficiently identity the Defendant as the individual charged in the out-of-district indictment pursuant to the first arrest, it is the only appropriate course of action. When the authority to make identity and removal determinations was granted to the magistrate judges by Congress in September 1972, one of the primary goals of redistributing this authority from the district judge to the magistrate judge was to "cull from the evergrowing workload of the U.S. district courts' matters that are more desirably performed by a lower tier of judicial officers." United States v. Richardson, 57 F.R.D. 196 (E.D.N.Y. 1972); see also Canada, 440 F.Supp. at 22 (noting that prior to 1972, this authority belonged solely to the district court and that "removal questions are of the type which Congress believed could more efficiently be handled by magistrates."). Consistent with this, courts have found that a removal order is not appealable and cannot be reviewed in the district where the defendant is arrested. United States v. McCray, 458 F.2d 389 (9th Cir. 1972); United States v. Sherriffs, 64 F.R.D. 729 (E.D. Wis. 1974); United States v. Woodring, 446 F.2d 733, 737 n. 3 (10th Cir. 1971); United States v. Perkins, 433 F.2d 1182 (D.C. 1970);Galloway v. United States, 302 F.2d 457 (10th Cir. 1962);Richardson, 57 F.R.D. at 196; Canada, 440 F. Supp. at 22. A review of removal orders by a district judge would be a direct contradiction of Congressional intent to expeditiously resolve removal questions. Canada, 440 F. Supp. at 22; Sherriffs, 64 F.R.D. at 729.
The United States cannot appeal Judge Porter's finding to the district court because such a finding is not appealable. Therefore, the only remedy, as explained succinctly in Sheriffs, is for the United States to proceed precisely as it has in this case — to obtain a new arrest warrant and attempt to put forth sufficient evidence to satisfy the "adequate proof" standard.
Although there is no limitation on the United States' ability to proceed in this manner, this course of action is particularly appropriate where the United States has even a scintilla of additional evidence to put forth on the matter of identity. In this case, the United States intends to present the testimony of the case agent from the originating district that returned the indictment in order to establish that the Defendant is the individual charged in Ohio with distribution of marijuana.
B. DEFENDANT'S ARREST AND DETENTION PENDING ARRAIGNMENT DID NOT VIOLATE COUNTY OF RIVERSIDE V. MCLAUGHLIN
Insofar as Defendant's objection is that his detention following his arrest violated County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991), his argument is flawed because the rule of County of Riverside is inapplicable in a case such as this where Defendant was arrested based on an arrest warrant. Insofar as Defendant's concern is based on Rule 5's requirement that the arresting officer bring the accused before a federal magistrate judge "without unnceessary delay," his argument also fails because Defendant was brought before the magistrate judge within 24 hours of his arrest.
1. County of Riverside v. McLaughlin Does Not Apply Where Defendant Was Arrested Based On An Arrest Warrant
In Gerstein v. Pugh, the Supreme Court held that "the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest." 420 U.S. 103, 123-24 (1973); see also Fed.R.Crim.Pro. 5(b) ("If a defendant is arrested without a warrant, a complaint meeting Rule 4(a)'s requirement of probable cause must be promptly filed in the district where the offense was allegedly commited.") The Supreme Court clarified in County of Riverside v. McLaughlin that probable cause hearings should be held within 48 hours of arrest. 500 U.S. 44, 567 (1991). If an individual is detained for more than 48 hours without a Gerstein hearing, the delay is presumed to be excessive and may only be justified by an emergency or exceptional circumstances. Id. at 57.
Gerstein makes it clear, however, that this rule only applies to warrantless arrests. Gerstein and County of Riverside do not apply if the arrest is supported by a warrant because a warrant constitutes a prior judicial determination of probable cause.Gerstein, 420 U.S. at 116 n. 18; see also Baker v. McCollan, 443 U.S. 137, 143 (1979) (same); see, e.g., Jones v. City of Santa Monica, 382 F.3d 1052, 1056 (9th Cir. 2004) ("[a]post-arrest probably cause determination performs the same function for those arrested without warrants as a pre-arrest probable cause determination does for suspects arrested with warrants.")
Because Defendant was arrested based on an arrest warrant, he has no right to a probable cause hearing. The indictment out of Ohio on which the arrest warrant is based constitutes a finding of probable cause. Because Defendant was not entitled to a probable cause hearing, it is impossible for there to be a violation of County of Riverside's rule that such a hearing must be conducted within 48 hours.
2. Rule 5 Was Complied With Because Defendant Was Brought Before A Magistrate Judge Within 24 Hours
Rule 5 of the Federal Rules of Criminal Procedure requires that the arresting officer to bring the accused before a federal magistrate judge without unnecessary delay. At this hearing, the magistrate judge must advise the defendant of his rights, give him an opportunity to consult with an attorney, and set bail. Fed.R.Crim.Pro. 5(d). In a case where the initial appearance is in a district other than where the offense was allegedly committed, the magistrate judge must also inform the defendant of the provisions of Rule 20. Fed.R.Crim.Pro. 5(c)(3).
In this case, Defendant was arrested on June 20, 2007. He was brought before the Court at the next opportunity for arraignment on June 21, 2007, approximately 24 hours after his arrest. This clearly does not constitute "unnecessary delay." See, e.g, Baker v. McCollan, 443 U.S. 137, 145 (1979) (3-day delay over a long weekend did not violate due process because the "Fourteenth Amendment does not protect against all deprivations of liberty.")
III CONCLUSION
For the foregoing reasons, the United States respectfully requests that the Court conduct an identity and removal hearing.