Opinion
Nos. 1:05-CR-0360 OWW, 6:04-MJ-0219.
November 15, 2006
MEMORANDUM DECISION AND ORDER RE: APPEAL
I. INTRODUCTION
Devin W. Means appeals Magistrate Judge William M. Wunderlich's denial of his motion to dismiss citations issued to him by the National Park Service ("NPS") for driving under the influence, 36 C.F.R. § 4.23 (a)(1); driving while under the influence of alcohol with a blood alcohol content in excess of.08%, 36 C.F.R. § 4.23(a)(2); and speeding, 36 C.F.R. § 4.21. (Doc. 21.)
Means was arrested on a Friday evening, October 22, 2004, and held overnight in NPS custody. The next morning, without having been arraigned, he was released from federal custody pursuant to an "order setting conditions of release and appearance bond" which imposed certain conditions on Defendant, including the requirement that he appear before the magistrate judge a few weeks later. It appears that the order was "pre-signed" by the Magistrate Judge, executed by Means in the presence of an NPS employee, and that Means did not appear before a judicial officer with respect to the conditions of his release. Overnight, however, Madera County Parole officials issued a parole detainer against Means. Based on that detainer, NPS took Means into custody again (immediately after his release on the federal charges) and transported him to Mariposa County Jail, where he remained for six days until Madera County picked him up on the state parole hold.
For various reasons, further outlined below, Means did not make his initial appearance before Judge Wunderlich until 173 days after his arrest. Means moved to dismiss the federal citations, arguing, among other things, that his transfer to Mariposa County Jail violated the Interstate Agreement on Detainers, and that the 173 day delay between his arrest and his arraignment violated Federal Rule of Civil Procedure 5, his Fourth Amendment and due process rights, his rights under the Local Civil Justice Reform Act Plan, and his Sixth Amendment right to a speedy trial. Judge Wunderlich denied the motion. Means conditionally pled guilty to one count of driving under the influence in exchange for the voluntary dismissal of the speeding citation and an additional driving under the influence citation. His sentence, twenty four months probation and a $1,500.00 fine, has been stayed pending this appeal.
Means timely noticed his intent to appeal the magistrate's denial of his motion to dismiss. He filed his opening brief on December 5, 2005. (Doc. 21.) The government filed its response brief on September 18, 2006. (Doc. 26.) Means replied on September 25, 2006. (Doc. 27.)
II. BACKGROUND
On Friday, October 22, 2004, at approximately 4:00 p.m., National Park Ranger Gayeski-Peters observed a vehicle driving in excess of the speed limit within Yosemite National Park. the ranger pulled the vehicle over and identified the driver as Devin W. Means. The Ranger noticed a strong odor of alcohol and observed that Means had red, watery eyes and was slurring his speech. Upon further questioning, Means admitted that he had been drinking. The Ranger administered field sobriety tests, during which Means exhibited signs of impairment. A field breath test given to Means indicated the presence of alcohol in his system. The Ranger placed Means under arrest at 4:20 p.m. for Driving Under the Influence of Alcohol.Defendant was taken to the Yosemite holding facility, where two additional breath tests were administered. The first test indicated that Means' blood alcohol content was .21%; a second, administered at 4:47 p.m., indicated a blood alcohol content of.19%. Means was then formally charged with Driving Under the Influence, a violation of 36 C.F.R. § 4.23 (a)(1); Driving While Under the Influence of Alcohol with a Blood Alcohol Content in excess of .08%, a violation of 36 C.F.R. § 4.23(a)(2); and speeding, a violation of 36 C.F.R. § 4.21.
All of these are misdemeanor offenses.
The Rangers discovered, upon reviewing Means' criminal history, that he was on California state parole. (ER 17.) The State was notified that Means had been arrested. Id. The next morning, at approximately 10:15 a.m., NPS received by fax a "Request for Detainer to be Placed on a Prisoner" from California State Parole Agent E. Muro. Id. at 28, 32. The detainer indicated that Means should be held under Penal Code § 3056.
California Penal Code § 3056 (Legal custody; reimprisonment) provides that "Prisoners on parole shall remain under the legal custody of the department and shall be subject at any time to be taken back within the inclosure of the prison."
That same morning, Means was released from federal custody on the DUI/speeding violation and signed a Standing Order of Release and Appearance Bond, issued by the magistrate court, but presented to Means by an NPS employee, setting forth certain conditions of release and scheduling an initial appearance for November 16, 2004. However, NPS took Means into custody on the California detainer and delivered him to the Mariposa County Adult Detention Center at approximately 2:00 p.m. on Saturday October 23, 2004. Means was held at Mariposa for six days. He was then transferred to the custody of the Madera County Department of Corrections, where he was held on the ground that his DUI arrest in Yosemite constituted a violation of his state parole administered in Madera County. The Madera County Superior Court imposed a ten month sentence — five months in state custody; five months on house arrest — on Means for his parole violation.
While Means was in state custody, he failed to appear before the magistrate judge in Yosemite on November 16, 2004, his scheduled appearance date, required by the Order Setting Conditions of Release and Appearance Bond. (CR 3.) A federal warrant was thereafter issued for his arrest for his failure to appear. On March 20, 2005, the California State Corrections, Madera Unit, notified NPS that defendant was serving time on state charges. (ER 19.) On that same day, NPS faxed a copy of the federal arrest warrant to Madera County to serve as a detainer upon the release of defendant from state custody. (ER 33.)
On or about March 30, 2005, Means was transferred from state custody to home electronic monitoring. (ER 33.) On April 5, 2005, Means contacted the Yosemite Legal Office and set a date, April 12, 2005, for his initial appearance. (ER 19.) Means made his rescheduled initial appearance, approximately 173 days after his arrest. He entered a plea of not guilty and was assigned a federal public defender.
On May 27, 2005, Means filed a motion to dismiss the charges against him, on the grounds that his continued custody by the NPS the morning after his arrest violated the Interstate Agreements on Detainers ("IAD"), as well as the Fourth and Fifth Amendments. In addition, Means maintained that the delay in presenting him before a magistrate violated Federal Rule of Criminal Procedure 5, the local Criminal Justice Act Plan of the Eastern District of California, and the Fourth Amendment. Finally, Means argued that the delay between filing of the charging documents and his arraignment violated his Sixth Amendment right to a speedy trial. (ER 1-2.)
On June 29, 2005, the magistrate judge denied the motion to dismiss, finding that the IAD did not apply to Means's incarceration, the 173 days between the arrest and presentment did not violate Rule 5 or the Fourth Amendment, and the delay between the filing of the charging documents and the arraignment was not unreasonable. (ER 37-38.) Specifically, the magistrate judge ruled:
All right, this is my ruling.
I conclude that upon the filing of the detainer by the State of California and on the signing of his OR release, he ceased to be a federal prisoner; that as a federal — former federal prisoner, the people here in Yosemite, as a courtesy to the state, transported him down to Mariposa. But I don't find that to be of any significant legal consequence. He was a state prisoner from the time he signed his OR release and theron. And whether the state messed up in not coming and getting him for six days is of no legal consequence in this [sic] proceedings.
The motion to dismiss is denied.
(Tr. 20.)
On August 23, 2005, Means entered a conditional plea of guilty to operating a motor vehicle with a blood alcohol concentration in excess of .08, in exchange for which the Government agreed to dismiss the remaining charges of driving under the influence and speeding. (Doc. 13.) On September 20, 2005, Means was sentenced to twenty four months probation and a $1,500.00 fine, which were stayed pending appeal. (ER 45.) On September 30, 2005, Means timely noticed his appeal to the district court. (ER 42.)
III. Questions Presented ?
1. Did Mr. Means's continued federal custody, after he was released on his own recognizance, violate the Interstate Agreements on Detainers ("IAD"), 18 U.S.C. App. 2 § 2 (1970), and constitute an illegal seizure in violation of the Fourth Amendment and a deprivation of liberty without due process of law?
2. Did the 173-day delay between Mr. Means's arrest and his first appearance before the United States Magistrate Court violate F.R. Crim. P. 5, the Mallory rule, the local Criminal Justice Act plan, and the Fourth Amendment?
3. Was the 173-day delay between the filing of the charging documents in this case and Mr. Means's initial appearance unreasonable and did it violate his Sixth-Amendment right to a speedy trial under Doggett v. United States, 505 U.S. 647 (1992), and Barker v. Wingo, 407 U.S. 514 (1972)?
4. Assuming that a violation of Mr. Means's rights relating to presentment before the magistrate court is found, what is the appropriate remedy?
IV. STANDARD OF REVIEW
A district court reviews de novo a magistrate judges' denial of a motion to dismiss an indictment on constitutional grounds. See United States v. Bueno-Vargas, 383 F.3d 1106 (9th Cir. 2004.)V. DISCUSSION
A. Did Mr. Means's continued federal custody, after he was released on his own recognizance, violate the Interstate Agreements on Detainers ("IAD"), 18 U.S.C. App. 2 § 2 (1970), and constitute an illegal seizure in violation of the Fourth Amendment and a deprivation of liberty without due process of law ?
1. Applicability of the Interstate Agreements on Detainers to this case.
The Interstate Agreement on Detainers ("IAD") is a "compact among 48 States, the District of Columbia, Puerto Rico, the Virgin Islands, and the United States." Carchman v. Nash, 473 U.S. 716, 719 (1985). California has adopted the IAD. Cal. Penal Code § 1389. The IAD is a congressionally sanctioned interstate compact, and is therefore enforceable as federal law. Cuyler v. Adams, 449 U.S. 433, 438-442 (1981).
A detainer is "a request filed by a criminal justice agency with the institution in which a prisoner is incarcerated, asking the institution either to hold the prisoner for the agency or to notify the agency when release of the prisoner is imminent." Carchman, 473 U.S. at 719. "Detainers generally are based on outstanding criminal charges, outstanding parole or probation-violation charges, or additional sentences already imposed against the prisoner." Id.
The IAD was passed in order to avoid the "uncertainties which obstruct programs of prisoner treatment and rehabilitation" stemming from charges outstanding against a prisoner, detainers based on untried indictments, informations or complaints, and difficulties in securing speedy trial of persons already incarcerated in other jurisdictions . . ." IAD Art. I. The purpose of the IAD is "to encourage the expeditious and orderly disposition of [outstanding] charges and determination of the proper status of any and all detainers based on untried indictments, informations or complaints." Id.
The inmate who has a detainer against him is filled with anxiety and apprehension and frequently does not respond to a training program. He often must be kept in close custody, which bars him from treatment such as trustyships, moderations of custody and opportunity for transfer to farms and work camps. In many jurisdictions he is not eligible for parole; there is little hope for his release after an optimum period of training and treatment, when he is ready for return to society with an excellent possibility that he will not offend again. Instead, he often becomes embittered with continued institutionalization and the objective of the correctional system is defeated.Carchman, 473 U.S. at 720 (citing Council of State Governments, Suggested State Legislation, Program for 1957, p. 74 (1956)). The Carchman court succinctly summarized the operation of the IAD as follows:
To achieve [the purpose of encouraging the expeditious and orderly disposition of outstanding charges and the determination of the status of any and all detainers based on untried indictments, informations or complaints], Art. III of the Agreement establishes a procedure by which a prisoner incarcerated in one party State (the sending State) may demand the speedy disposition of "any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner" by another party State (the receiving State). Specifically, Art. III requires the warden to inform the prisoner that a detainer has been lodged against him and that he may request final disposition of the indictment, information, or complaint upon which the detainer is based. If the prisoner makes such a request, the warden must forward it, together with a certificate providing certain information about the prisoner's terms of confinement, to the appropriate prosecuting official and court of the receiving State. The authorities in the receiving State then must bring the prisoner to trial within 180 days, absent good cause shown, or the court must dismiss the indictment, information, or complaint with prejudice, and the detainer will cease to be of any force or effect.Carchman, 473 U.S. at 720.
But, by its own terms, the IAD only applies to individuals who are being held "upon a term of imprisonment in a penal or correctional institution of the sending state." IAD Art. III(a). Similar language is repeated elsewhere in the IAD. For example, Article IV(a) provides:
The appropriate officer of the jurisdiction in which an untried indictment, information, or complaint is pending shall be entitled to have a prisoner against whom he has lodged a detainer and who is serving a term of imprisonment in any party State made available in accordance with article V(a) hereof upon presentation of a written request for temporary custody or availability to the appropriate authorities of the State in which the prisoner is incarcerated: Provided, That the court having jurisdiction of such indictment, information, or complaint shall have duly approved, recorded, and transmitted the request: And provided further, That there shall be a period of thirty days after receipt by the appropriate authorities before the request be honored, within which period the Governor of the sending State may disapprove the request for temporary custody or availability, either upon his own motion or upon motion of the prisoner
Article IV(a).
Means argues that, although he was released from federal custody on conditions from Yosemite National Park, NPS "continued to hold him in its custody and transport him, via patrol car, to Mariposa County." (Doc. 21 at 6.) The government argues that Defendant was released from NPS custody then taken back into custody for the sole purpose of transferring him to Madera County under the authority of the state detainer. Defendant insists, however, that the IAD applies because he was "not simply held [at Yosemite] on the basis of the Madera County detainer, while Madera County decided whether to come get Mr. Means or waive its right to do so as is the IAD procedure. Instead, Mr. Means was transferred to Mariposa County, which did not have a detainer lodged with the Government, where he spent six days in the Marioposa County jail, until he was ultimately released into the custody of Madera County, which subsequently imposed a ten-month sentence on Mr. Means for his violation of parole." (Doc. 27 at 2.) But, Defendant does not explain the legal significance of these facts.
Critically, even if Means had remained in NPS custody, he would not have been serving a term of incarceration. Rather he would have been in pretrial custody, a form of custody that does not trigger operation of the IAD. See United States v. Reed, 620 F.2d 709, 711 (9th Cir. 1980). The factual circumstances in Reed were as follows:
[A]ppellant was being held in a state facility in connection with federal and state charges when he was approached by a state officer seeking his cooperation with regard to another state offense. Appellant agreed to cooperate, provided he was transferred to another state facility. After his transfer appellant was in state custody, but his records were marked "Hold for U.S. Marshals" by a state officer. Appellant now contends that this "hold" and his later removal from state custody for his federal arraignment, followed by his return to state custody required dismissal of these charges under Art. IV(e) of the Interstate Agreement on Detainers Act.Reed, 620 F.2d at 711. The Reed court adopted two alternative bases for concluding that Reed's rights under the IAD statute were not violated. First, the Ninth Circuit Reasoned:
[T]he federal government never lodged a detainer. While the notation "Hold for U.S. Marshals" might in some cases create a detainer within the meaning of the Act, it was not a detainer in this case since it was made by a state officer, without the direction of a federal agent or officer. The trial court considered extensive testimony from several officials familiar with appellant's incarceration status and properly concluded that there was no federal detainer.Id.
More importantly for the instant appeal, the Ninth Circuit also concluded that Reed "was not serving a 'term of imprisonment' within the meaning of the statute." Id.
Appellant was in custody awaiting trial on state and federal charges and awaiting revocation of his parole arising out of an earlier state charge. The purpose of the Interstate Agreement on Detainers Act is "to minimize the adverse impact of a foreign prosecution on rehabilitative programs of the confining jurisdiction." United States v. Milhollan, 599 F.2d 518, 528 (3d Cir. 1979). We agree with the decisions of other circuits that neither a pretrial detainee nor a parole violator has a sufficient interest in the rehabilitation programs of his confining institution to justify invocation of the Act. United States v. Milhollan, supra (pretrial detainee); United States v. Harris, 566 F.2d 610 (8th Cir. 1977) (pretrial detainee); United States v. Roberts, 548 F.2d 665 (6th Cir. 1977) (pretrial detainee); United States v. Dobson, 585 F.2d 55 (3d Cir. 1978) (parole violator).Id. at 711-12 (emphasis added) (citations edited).
Defendant attempts to distinguish Reed, first arguing that, unlike in Reed where the Ninth Circuit held that the IAD did not apply because there was no detainer filed, it is undisputed that Madera County filed a detainer against Mr. Means. (Doc. 27 at 3.) Although this is correct, Defendant cannot escape the alternative holding: that the IAD simply does not apply to pretrial detainees or parole violators. Defendant had no interest in the rehabilitation programs of the transferring jurisdiction. The district court is bound to follow such alternative reasoning, even if it could arguably be considered dicta. See Barapind v. Enomoto, 400 F.3d 744, 750-51 (9th Cir. 2005).
The Reed holding also applies to individuals who have been incarcerated on parole violations. Id. So, to the extent that Means argues that the IAD was violated while he was in state custody after the federal detainer/arrest warrant was lodged against him, the IAD does not apply to that situation either.
The government addresses whether the IAD was violated with respect to NPS's filing of a detainer against Defendant while he was incarcerated in the state system even though it does not appear that Defendant makes any such argument. In any case, such an argument would have any merit, as Defendant did not appear in federal court on the basis of the NPS detainer. He was not taken into federal custody and appeared of his own volition after his release from state custody.
Defendant also argues, unpersuasively, that the holding from Reed simply does not apply to this case because Reed concerned Articles III and IV of the IAD, both of which clearly apply only to prisoners who are currently serving terms of incarceration. Instead, Defendant suggests that this case is governed by Articles II and V, provisions that Defendant argues are not limited in their scope to only prisoners who are incarcerated. But, even a cursory examination of the IAD reveals that Means' argument is flawed. Article II provides definitions of terms utilized throughout the IAD, while Article V explains procedures that must be followed by parties after a request is made under either Article III or IV. Therefore, the (post-conviction) incarcerated prisoner limitation applies to the entire IAD. There is no basis for applying Articles II and V to parole violators or individuals held in pretrial custody.
2. Fourth Amendment Violation.
Defendant next argues that even if "the IAD did not apply to Mr. Means after he was "released" from federal custody, NPS had no legal basis whatsoever on which to continue to detain him. . . ." After Means was released from the Yosemite Holding Facility on the federal charges, NPS took Means back into custody on the state detainer faxed from the Madera County Department of Corrections. The government maintains that the detainer provided NPS with independent probable cause to detain Means.
An arrest comports with the Fourth Amendment if, at the moment of the arrest, the facts and circumstances within the arresting officers knowledge "were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense." Beck v. Ohio, 379 U.S. 89, 91 (1964). In California, probable cause is not required to arrest a parolee for a violation of parole. People v. Kanos, 14 Cal. App. 3d 642, 648 (1971). The arrest of a parolee is more like "a mere transfer of the subject from constructive custody into actual or physical custody." United States v. Rabb, 752 F.2d 1320, 1324 (9th Cir. 1984) (quoting People v. Villareal, 262 Cal. App. 2d 438, 447 (1968)). Specifically, in California, "the written order of the parole authority shall be a sufficient warrant for any peace or prison officer to return to actual custody any conditionally released or paroled prisoner." Cal. Penal Code § 3060. The detainer faxed to NPS, filled out on a California Department of Corrections form 1018 ("Notice of Return to Prison"), qualifies as a "written order of the parole authority." Pursuant to California Penal Code Section 3060.
Notably, in the federal system, a parolee does not enjoy "the absolute liberty to which every citizen is entitled, but only [a] conditional liberty properly dependent on observance of special parole restrictions." Morrissey v. Brewer, 408 U.S. 471, 480 (1972). The Second Circuit has held that the detention of a parolee under a parole warrant is not an "arrest as defined in the fourth amendment. United States v. Polito, 583 F.2d 48, 54-55 (2nd Cir. 1978) (detention of parolee under parole violator's arrest warrant is not an "arrest" as defined in the Fourth Amendment).
There is a logical reason to distinguish between the retaking of a parolee and the apprehension of one to be charged with a crime. The parole revocation procedure is not part of a criminal prosecution, and a parolee may be arrested and reincarcerated for reasons that would not permit the arrest or incarceration of other persons. Therefore, it is reasonable to assume an administrative warrant issued for retaking of a parolee should not be judged by exacting Fourth Amendment standards.Sherman v. Reilly, 364 F. Supp. 2d 1216, 1219 (D. Or. 2005) (citing Henrique v. U.S. Marshal, 476 F. Supp. 618, 629 (D.C. Cal. 1979).
However, a question remains on what grounds a National Park Ranger within the exclusive jurisdiction of Yosemite National Park may hold an individual on a state parole warrant and transport him to State authorities. Pursuant to California Penal Code Section 830.8, National Park Rangers may "exercise the powers of arrest of a peace officer as specified in Section 836 . . . provided these rangers are exercising the arrest powers incidental to the performance of their federal duties . . . [and the ranger,] prior to the exercise of these arrest powers, shall have been certified by their agency heads as having satisfactorily completed the training requirements of Section 832.3, or the equivalent thereof." Alternatively, it is possible for California authorities to deputize persons from other jurisdictions to effect the return of a parole violator:
[An] officer designated by the Governor pursuant to subdivision 5 of Section 11177 of this code may deputize any person regularly employed by another state to act as an officer and agent of this State in effecting the return of any person who has violated the terms and conditions of parole or probation as granted by this State. In any matter relating to the return of such a person, any agent so deputized shall have all the powers of a police officer of this State.
Any deputization pursuant to this section shall be in writing and any person authorized to act as an agent of this State pursuant hereto shall carry formal evidence of his deputization and shall produce the same upon demand.Cal. Penal Code § 11177.5. There may also be other bases upon which NPS performed this accommodation for the State. The record does not fully explain the legal basis for the NPS taking Means back into custody on the parole hold and transporting him to Mariposa. Although in some circumstances, a remand for the taking of further evidence on this question might be warranted, there is no need for a remand under the circumstances. Even if Means was unlawfully detained on the parole warrant, his remedy is civil and lies elsewhere. Dismissal of the federal DUI case is not justified on the basis that a federal law enforcement officer took Means into custody on a state parole hold and transferred him to state authorities.
As this is likely a common occurrence, it seems equally likely that either the National Park Ranger was cross-deputized or that NPS was otherwise authorized to do so. No evidence was submitted on the issue of cross-deputization.
Defendant's argument has one additional facet. He maintains that, even if the government properly detained him, NPS had no basis (apart from the IAD, which does not apply) for transporting Means could to Mariposa County, rather than Madera County. Mariposa had no outstanding charges against Means, but held him there for six additional days prior to being transferred to Madera County authorities. The government does not directly respond to this argument. Nevertheless, outside the framework of the IAD, Defendant does not explain how NPS's use of Mariposa county as a state custodial intermediary warrants dismissal of the federal charges against Means. The state detainer has statewide effect under state law and, assuming the Park Ranger had authority to detain Means on the parole warrant, Means could be placed in any state detention facility en route to Madera County, the requesting authority.
3. Alleged Due Process Violation.
Although the first question presented by Defendant on appeal raises the issue of "deprivation of liberty without due process of law," Means offers no argument or legal authority to support the existence of a due process violation under the facts and circumstances of this case.
B. Did the 173-day delay between Mr. Means's arrest and his first appearance before the United States Magistrate Court violate F.R. Crim. P. 5, the Mallory rule, the local Criminal Justice Act plan, and the Fourth Amendment ?
Defendant next argues that the 173 day delay between his arrest and first appearance violated Federal Rule of Criminal Procedure 5, the local Eastern District of California Criminal Justice Act Plan, and the Fourth Amendment.
1. Rule 5 — Presentment "Without Unnecessary Delay."
Federal Rule of Criminal Procedure Rule 5(b) provides that, "if a defendant is arrested without a warrant, a complaint meeting Rule 4(a)'s requirement of probable cause must be promptly filed. . . ." Rule 5(a)(1)(A) requires that "[a] person making an arrest within the United States must take the defendant without unnecessary delay before a magistrate judge, or before a state or local judicial officer. . . ."
The government incorrectly asserts that these rules do not apply to misdemeanor offenses. The requirements of Federal Rule of Criminal Procedure Rules 5(a), (b), (c), and (e), do apply to misdemeanors. See United States v. Salivas-Gonzalez, 147 F. Supp. 2d 58, 60 (D.P.R. 2001). Salivas-Gonzalez relied upon Atwater v. City of Lago Vista, 532 U.S. 318 (2001), which held that if an officer has probable cause to believe an individual has committed a misdemeanor in his presence, he may, without violating the Fourth Amendment, arrest the offender. At the same time, the Atwater court reiterated the principal that "anyone arrested for a crime without formal process, whether for felony or misdemeanor, is entitled to a magistrates's review of probable cause within 48 hours . . ." Id.
The Supreme Court in Mallory v. United States, 354 U.S. 452-54 (1957), reaffirmed that the purpose of the prompt arraignment requirement was to prevent law enforcement officers from using the time between arrest and presentment to obtain confessions. See also United States v. Murray, 197 F.R.D. 421, 423 (S.D. Cal. 2000). To enforce this purpose, "incriminating statements elicited from defendants during a period of unlawful detention" are deemed inadmissible. Mallory, 354 U.S. at 453. The Mallory Court held that "[p]rovisions related to Rule 5(a) contemplate a procedure that allows arresting officers little more leeway than the interval between arrest and the ordinary administrative steps required to bring a suspect before the nearest available magistrate." Id. But, what actually constitutes unreasonable delay "is to be determined in light of all of the facts and circumstances of the case." Murray, 197 F.R.D. at 423.
Unlike the Fourth Amendment, which requires that a judicial officer make probable cause determination within 48 hours of a person's arrest if that person is to be detained pending further proceedings, County of Riverside v. McLaughlin, 500 U.S. 44, 57 (1991), prompt presentment that satisfies Rule 5(a) "need not be within 48 hours of a person's arrest." Murray, 197 F.R.D. at 423 (citing United States v. Van Poyck, 77 F.3d 285 (9th Cir. 1996)). Nor does Rule 5(a) require weekend or nighttime arraignments. Van Poyck, 77 F.3d at 289-90. Moreover, delays caused by "transportation of the defendant, jurisdictional determinations, availability of the magistrate judge, medical care or the intoxicated state of the defendant are all legitimate delays and not in violation of [Rule 5(a)]. . . ." Murray, 197 F.R.D. at 423 (emphasis added).
Here, Means was arrested at 4:30 p.m. on a Friday and booked into the Yosemite Holding Facility just before 5:00 p.m. It would have been presumptively reasonable to delay presentment before the magistrate until Monday. Instead, Means was released on his own recognizance the following morning, after he sobered up and signed a Standing Order of Release and Appearance Bond from the United States Magistrate court for Yosemite National Park, setting forth certain conditions of release and scheduling Defendants initial court appearance in Yosemite for November 16, 2004. The standing order is dated October 23, 2004, the date of Means' release from custody. It bears Judge Wunderlich's signature, but it appears to have been signed in advance, as it is undisputed that Means was not arraigned by Judge Wunderlich on that date.
Means was not presented before a magistrate judge for a full 173 days after his arrest. He was never advised of his right to counsel or of any other federal rights until April 12, 2005. Defendant asserts that he was prejudiced by this delay. Specifically, he asserts that prompt appointment of counsel might have ensured resolution of the federal charges against him while he was serving his state parole violation sentence. If this had been the case, he would have had the opportunity to request "that his federal sentence run concurrent with his state sentence." This prejudice, Defendant suggest, warrants dismissal. Defendant was not given a custodial sentence on his federal charge so there was no federal time in custody to run concurrent with his state sentence. Other "prejudice" is not suggested
The purpose of Rule 5 is to prevent law enforcement officers from using the time between arrest and presentment to obtain confessions. Mallory, 354 U.S. at 452-54. That is why suppression of inculpatory statements made during detentions that violate Rule 5 are subject to suppression. See United States v. Studley, 783 F.2d 934 n. 2 (9th Cir. 1986) ("the normal remedy for violation of Rule 5(a) is suppression of evidence obtained during the unreasonable delay"); see also United States v. Morrison, 153 F.3d 34, 56 (2d Cir. 1998); United States v. Nazarenus, 983 F.2d 1480, 1482-83 (8th Cir. 1993); Lovelace v. United States, 357 F.2d 306, 310 (5th Cir. 1966). In contrast, Defendant has cited no authority that suggests dismissal is an appropriate remedy for a Rule 5 violation in a case where the delay was not used to subject the defendant to unwarranted interrogation nor did any federal law enforcement officers seek any benefit or advantage from the delay.
2. Did the Delay Constitute a Fourth Amendment Violation?
The Fourth Amendment imposes independent presentment obligations on arresting officials. For example, Gerstein v. Pugh, 420 U.S. 103, 114 (1975), held that "the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest." More specifically, if a person is to be detained in custody pending further proceedings, a judicial officer must make a probable cause determination within 48 hours of the person's arrest. McLaughlin, 500 U.S. at 57. Here, however, Means was not detained by federal authorities pending further federal proceedings. Rather, he was almost immediately released on his own recognizance after he sobered up, so the Gersten-McLaughlin, 48 hour deadline does not apply. The fact that Means was detained by other state jurisdictions in excess of 48 hours on a parole violation is immaterial to the analysis. He was not detained by federal authorities on federal charges for more than 24 hours, let alone for more than the 48 hour Fourth Amendment touchstone.
3. Did the Delay Violate the Criminal Justice Act ("CJA") Plan for the United States District Court for the Eastern District of California?
The CJA Plan for the Eastern District of California provides, in pertinent part:
Presentation of Accused for Appointment of Counsel. Federal law enforcement and prosecutorial agencies, probation officers, and pretrial services officers in this district, and those acting on their behalf, shall promptly ask any person who is in custody, or who otherwise may be entitled to counsel under the CJA, whether he or she is financially able to secure representation, and shall, in such cases in which the person indicates that he or she is not able, notify the Federal Public Defender Office, which shall assign a lawyer to discuss with the person the right to representation and right to appointed counsel, and if appointment of counsel seems likely, assist in the completion of a financial affidavit (CJA Form 23) and arrange to have the person promptly presented before a magistrate judge for determination of financial eligibility and appointment of counsel.
Gen. Order No. 323, IX (A) (1996) (emphasis added).
The United States argues that the CJA Plan was not violated at all because Defendant was appointed counsel when he eventually made his initial appearance before the magistrate judge on April 12, 2005, after he was released from sate custody. The government further argues that "any dely in the actual initial appearance and appointment of counsel was due to the defendant's failure to notify the Government of his incarceration, as required by the conditions of release, and failure to appear on his scheduled hearing date." (Doc. 26 at 18.) Defendant responds by arguing that the "conditions of release" imposed upon Means must be deemed invalid because they were not imposed by a "judicial officer." See 18 U.S.C. § 3142(a) ("Upon the appearance before a judicial officer of a person charged with an offense, the judicial officer shall issue an order that, pending trial, the person be — (1) released on personal recognizance or upon the execution of an unsecured appearance bond . . . (2) released on a condition or combination of conditions. . . . (3) temporarily detained . . . or (4) detained. . . .").
Perhaps most importantly, Defendant argues that he was prejudiced by the delayed appointment of a federal defender. Specifically, Means asserts that had counsel been appointed on the federal charges in a more timely manner, his federal attorney could have demanded that Means be transferred (pursuant to the IAD) to federal custody to resolve his federal claims. Had this happened, Means could have petitioned to have his federal sentence run concurrent with his state sentence. The sole "federal sentence" was 24 months probation and a $1,500 fine.
But, again, Defendant cites no authority to support the proposition that dismissal of the federal charges is an appropriate remedy where a CJA plans violation has occurred. C. Was the 173-day delay between the filing of the charging documents in this case and Mr. Means's initial appearance unreasonable and did it violate his Sixth-Amendment right to a speedy trial under Doggett v. United States, 505 U.S. 647 (1992), and Barker v. Wingo, 407 U.S. 514 (1972) ?
Defendant has not brought a direct challenge based on the Sixth Amendment right to counsel. While failing to directly address Defendant's CJA Plan argument, the government attempts to address whether Defendant had a sixth amendment right to trial. Specifically, the government emphasizes that the right to counsel does not attach until the commencement of formal prosecution, either by formal charge, preliminary hearing, indictment, information, or arraignment, citing United States v. Hayes, 231 F.3d 663, 671-72 (9th Cir. 2000). The government then asserts that the sixth amendment right to counsel did not attach in this case because "the defendant made no court appearance [but was] released on a Saturday by Yosemite National Park after he had 'sobered' up." (Doc. 26 at 17.) Means had been arrested without a warrant and issued a citation for Driving While Intoxicated. Apart from the citation, no other formal charges have ever been filed in this case. Yet, Means pled guilty and was sentenced, all based upon the citation as the formal charging document. The issuance of the citation was the commencement of formal prosecution. Nevertheless, Defendant has not demonstrated that the failure to promptly inform Defendant of his right to counsel warrants dismissal under the circumstances.
The Sixth-Amendment right to a speedy trial is triggered upon arrest or formal charge. See United States v. Marion, 404 U.S. 307 (1971). Courts must look to the following four factors in determining whether postcharge delay constitutes a speedy-trial violation:
The Sixth Amendment right to a speedy trial must be distinguished from the statutory right to a speedy trial set forth in the Speedy Trial Act, 18 U.S.C. § 3161, et seq., which provides that "the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment." § 3161(c)(1). As Means was not charged by information or indictment, the seventy day speedy trial deadline does not apply to him. Accordingly, Means has not raised the Speedy Trial Act as a defense.
1) whether the delay was uncommonly long;
2) the reason for the delay;
3) whether the defendant asserted his speedy-trial rights in due course; and
4) whether the defendant suffered prejudice as a result of the delay.See Doggett v. United States, 505 U.S. 647, 650-51 (1992).
The first inquiry, length of delay, must be broken down into two separate steps. Id. at 651-52. As a threshold matter "[t]o trigger a speedy trial inquiry, an accused must show that the period between indictment and trial passes a threshold point of 'presumptively prejudicial' delay." Id. If this threshold is not satisfied, the court should not proceed with the remainder of the four part inquiry. Id. Generally, delays approaching one year have been deemed "presumptively prejudicial." United States v. Beamon, 992 F.2d 1009, 1012-13 (9th Cir. 1993). One case out of the Second Circuit concluded that a delay of eight months satisfied the threshold requirement, United Stats v. Vassell, 970 F.2d 1162, 1164 (2d Cir. 1992). No authority concluding that a delay less than six months meets the threshold requirement has been located.
Defendant asserts that the 173 day delay was "uncommonly long" particularly in light of the nature of the federal charges filed against Means. But, the delay does not meet the threshold requirement of Doggett. No cases have been located that suggest a delay of less than six months satisfies the threshold requirement. The constitutional speedy trial inquiry need go no further.
The parties debate at length various aspects of the remaining four-step Doggett analysis. For example, the United States asserts that Means should bear the blame for his delayed presentment because he did not inform NPS of his incarceration in the state system. Moreover, the United States notes that the defendant failed to raise the speedy trial issue while he was incarcerated in Madera County. Means responds that it is "asinine" to assert that the delay was his fault, as the government failed to obtain judicial approval to impose conditions upon his release, including the condition that he appear before the Magistrate on November 16, 2004. ( See Doc. 27 at 5.) However, the law requires that a person who is cited out of custody on his own recognizance must be given a finite court appearance date as part of the release and promise to appear.
Means then reiterates how he was prejudiced by the delay in appointing him counsel on federal charges, in that he missed his opportunity to request that his federal sentence run concurrent with his state sentence. But Defendant is not entirely without fault in this respect. Defendant knew the date he had promised to make his initial appearance in federal court. Although it may be inappropriate to hold his failure to appear against him, as the requirement of appearance and/or written notification of change of address was not imposed upon him by a judicial officer, he was aware of his appearance date, he could have he notified NPS or the magistrate court of his incarceration or he could have asked any state lawyer representing him to notify the federal court. Means was not a stranger to the criminal justice system. He knew that he could not simply ignore a required court appearance.
Finally, Means cites authority that supports the proposition that the length of the delay must be examined in light of the degree of culpability or negligence of the government's actions. See Beamon, 992 F.2d at 1013. Means suggests that the government had a constitutional obligation to ask for his prompt return to face his federal charges and that the government's failure to do so was negligent. In support of this assertion, Means cites United States v. Geelan, 520 F.2d 585 (9th Cir. 1975). In Geelan, an individual who allegedly committed a string of bank robberies in both Arizona and California was arrested and charged by Arizona authorities with bank robbery. Shortly thereafter, he was indicted by a district court in California for a different bank robbery, and the federal authorities placed a detainer against him. The Arizona courts found Geelan incompetent to stand trial and committed him to a state mental hospital. After almost five years in the hospital, he was deemed competent to stand trial on the state charges. But, those charges were subsequently dismissed. Geelan was then handed over to the United States Marshal and arraigned on the federal bank robbery charge, almost six years after his arrest. The Geelan court concluded that this six year delay was presumptively prejudicial (i.e., that it satisfied the threshold requirement). Id. at 587. The Ninth Circuit determined that, during the time Geelan was committed to the state mental hospital, the United States had breached its obligations to (1) determine that there was a substantial probability that he would attain capacity in the foreseeable future and (2) monitor that he was making progress toward that goal. Id. at 588. As a result, the Geelan court concluded that Geelan's potential defense of insanity was severely prejudiced by the lapse of more than seven years. Id. at 589.
There are essentially no parallels between Geelan and the instant case. Not only is the threshold requirement of unlawful delay not satisfied, but Means has failed to establish that his defense on a misdemeanor has been prejudiced in any way by the delay. The only potential prejudice he claims, was the possible loss of an opportunity "to have his state and federal sentences run concurrently." This is addressed below.
D. Assuming that a violation of Mr. Means's rights relating to presentment before the magistrate court is found, what is the appropriate remedy ?
As discussed above in the context of Means' various theories to support dismissal, Means has utterly failed to establish that dismissal is an appropriate sanction under the facts of this case. In his opening brief, in a section that purports to directly address the propriety of dismissal, Means first argues that dismissal is warranted under Alabama v. Bozeman, 533 U.S. 146, 156 (2001). That case concerned a transfer of a prisoner from a federal correctional institution to state custody and then back to federal custody that violated the IAD. Because the IAD does not apply here, Bozeman is distinguishable and cannot support dismissal in this case.
Next, Means argues that dismissal is warranted because the "Fourth Amendment independently requires that charges stemming from an illegal warrantless arrest must be dismissed," citing Almeida-Sanchez v. United States, 413 U.S. 266 (1973), United States v. Majouraru, 474 F.2d 766 (9th Cir. 1973). (Doc. 21 at 11.) This argument is totally misplaced. First, Means does not suggest (nor could he) that NPS lacked probable cause to arrest him for speeding and driving under the influence. As those are the charges Means now seeks to have dismissed, there is no basis for dismissal, because the DUI/speeding arrest was lawful. Moreover, none of Means' other Fourth Amendment grounds have any merit. NPS had probable cause to detain him on the parole detainer and no Fourth Amendment presentment violation occurred with respect to Means' federal charges because he was released from federal custody within 24 hours following his arrest. He was never arrested on state charges as he was subject to a parole hold and was retained in custody by the state for alleged violation of parole.
Means next suggests that dismissal is warranted because NPS has exhibited an "ongoing failure to present defendants before USMC in YNP" and that this constitutes an "extraordinary violation of the rights of many individuals in the park." (Doc. 21 at 11.) Specifically, Means maintains that this potential for widespread abuse warrants dismissal in this case as "the incentive for NPS to establish procedures to avoid future problems with illegal detentions in YNP."
Counsel is aware of several other misdemeanor cases currently pending in USMC at YNP, or on appeal to this Court, in which individuals suspected of petty offenses were taken into custody and held for more than twenty-four hours, many of whom, like Mr. Means in this case, were not thereafter presented to USMC for days or even weeks. When the prompt-presentment requirement is not met, the effect of its denial can be difficult, at best, to determine, particularly in a case such as this one, where the Government alleges no incriminatory statements to have been made by Mr. Means during the period of his presentment delay. If the Court declines to order a dismissal of the charges in this case, with prejudice, it will confer upon Mr. Means precisely the right without a remedy that the Supreme Court has eschewed since Marbury v. Madison, 5 U.S. 137 (1803). The potential for NPS to abuse its discretion under Atwater in effectuating warrantless custodial detentions of individuals suspected of having committed misdemeanor and petty offenses is enormous in light of the number of regulatory offenses that exist in the National Park system and the high volume of law enforcement activity in YNP. Only a dismissal with prejudice will provide the incentive for NPS to establish procedures to avoid future problems with illegal detentions in YNP.
(Doc. 21 at 11.)
The parties engage in an extended debate over whether there are facts in the record to support Means' assertion that there is an ongoing failure on the part of NPS to present defendants in accordance with the law. Means asserts that it is enough that he made such assertions before the magistrate judge and that the government did not dispute those assertions. Moreover, Means notes that the government admitted in its response to Means' original motion to dismiss that "the process of releasing defendants on their own recognizance is followed in the majority of the arrests in YNP and it was followed with Devin Means. . . ." ( See Doc. 27 at 7.) The government observes that the early release of misdemeanants is to minimize their detention not to delay communication with counsel. Even assuming that such facts are in the record, Means' has failed to establish that the remedy he seeks for alleged non-prompt presentment is appropriate. Apart from Means' citation to Marbury v. Madison, 5 U.S. 137 (1803), for the general proposition that violation of every right should have a remedy, Means cites absolutely no authority to support his assertion that dismissal of valid speeding and admitted drunk driving charges against him is an appropriate way to punish NPS or motivate NPS to develop new policies with respect to detention.
A few cases do address related questions of whether delayed presentment warrants dismissal. For example, in United States v. D.L., 453 F.3d 1115, 1125-26 (9th Cir. 2006), a juvenile was detained in a manner that violated various procedural protections set forth in the Juvenile Detention Act. The juvenile eventually gave a confession that constituted the only evidence that he "knowingly" committed a crime, a requirement of the particular crime alleged. The Ninth Circuit remanded the case to the district court for it to determine whether the government used the confession to prove up the essential element of knowledge before the grand jury. If so, the JDA violation was prejudicial because it led the government to initiate prosecution of the juvenile, and the "remedy is for the charges against the juvenile to be dismissed." Id. at 1126. Here, however, there is no evidence, apart from the alleged potential sentence coordination, that any prejudice resulted from the delayed presentment. Dismissal is not warranted here, although a remedy may lie in the modification of Means's sentence
E. Term of Probation.
Means was sentenced to two years probation and fined $1,500 for operating a motor vehicle with blood alcohol concentration in excess of .08. If the case had been sooner presented, Means could have received the benefit of federal counsel's legal advice on coordinating the dispositions in the state and federal cases. There is no evidence why his state defense counsel (if any) did not raise this issue when he or she appeared with Means in Madera County Superior Court on the violation of parole. It is appropriate for this issue to be remanded for consideration by the Magistrate Judge.
VI. CONCLUSION
For the reasons set forth above:
(1) Defendant's motion to dismiss and set aside his conviction is DENIED; the conviction is AFFIRMED.
(2) The Case is REMANDED for the Magistrate Judge to consider the sentence imposed, and whether Means should be given any time credit against his federal term of probation by virtue of any delay in presentment on the federal charges.
IT IS SO ORDERED.