Thursday, June 25th, 2020

Remedy for a violation of the prompt-presentment rules of Fed.R.Crim.P. 5(c)(2) (concerning the “initial appearance” of someone arrested in a district “other than where the offense was allegedly committed”) isn’t “dismissal of the criminal case,” but an evidentiary sanction. In addition, a magistrate judge’s failure to sign the jurat on the last page of the supporting affidavit of the criminal complaint doesn’t render the complaint invalid, under Fed.R.Crim.P. 3, because the magistrate signed the criminal complaint, thereby attesting that the affiant’s assertions had been sworn before the magistrate. United States v. Peeples, No. 18-2309-cr, __F.3d__, 2020 WL 3406445 (June 22, 2020).

I.  Remedy for a violation of Fed.R.Crim.P. 5(c)(2)

Fed.R.Crim.P. 5(c)(2) governs the place for the “initial appearance” of someone “arrested in a district other than where the offense was allegedly committed” and the circumstances permitting the person’s transfer to a district outside the place of arrest. See Fed.R.Crim.P. 5(c)(2).

In United States v. Peeples, No. 18-2309-cr,  __F.3d__, 2020 WL 3406445  (June 22,  2020),  the government violated Fed.R.Crim.P. 5(c)(2) by removing Peeples from the district where he was arrested (the N.D.N.Y.) to the district of the crime  (the W.D.N.Y.) ,  without arranging for his “initial appearance” before a magistrate in the district of arrest (the N.D.N.Y.). The Circuit holds, however, that the remedy for this violation isn’t dismissal of the indictment, but the exclusion of prejudicial post-arrest evidence. And here, the government didn’t introduce Peeples’ post-arrests statements at the trial.

Peeples robbed a bank in Rochester, N.Y., located in the Western District of New York. “Eleven hours later, and approximately 140 miles away from the Rochester bank,” he was arrested in Binghamton, N.Y., in the Northern District.  Peeples, 2020 WL 3406445 at *1. In Binghamton, “in the Northern District of New York,” he was questioned by an FBI agent and, after waiving Miranda rights, made various statement and ultimately “confessed.” Id. at *2.

All this happened on the same day, January 5, 2017: the bank robbery in Rochester was at 8:30 a.m.; the arrest in Binghamton, at about 9 p.m.  Id. at *2.  But his initial appearance before a magistrate didn’t occur in the N.D.N.Y. and it didn’t happen on January 5th.  It occurred the next day, “January 6,” in Rochester in the W.D.N.Y. Id. at *5.  But under Rule 5(c)(2)(B), an “initial appearance” in Rochester needed to occur on “the day of the arrest.” See Fed.R.Crim.P. 5(c)(2)(B).

Under Rule 5(c)(2), when a person is “arrested in a district other than where the offense was allegedly committed,” the “initial appearance must be” “in the district of arrest.”  Fed.R.Crim.P. 5(c)(2)(A). “Alternatively, the  initial appearance could take place in a district adjacent to the district of arrest if one or another circumstance is met: (1) the appearance can occur more promptly in the adjacent district than in the district of arrest; or (2) the alleged crime took place in the adjacent district and the initial appearance will occur on the same day of the  arrest.” Peeples, id.  at *7 (emphasis added) (citing Fed.R.Crim.P. 5(c)(2)(B)).

Therefore, because “Peeples was taken to the Western District for his initial appearance on January 6” — rather than on the day of the arrest, January 5th –  “[t]o satisfy Rule 5(c)(2), the Government was required to show that an initial appearance in the Northern District [Binghamton] could not have occurred sooner, thereby justifying Peeples’ transfer to the Western District [Rochester]. The Government did not attempt to make this showing.” Id. at *5.

But despite the violation of Fed.R.Crim.P. Rule 5(c)(2), the remedy “is not dismissal of an indictment, but suppression of any post-arrest evidence illegally obtained as a result of the violation of the rule’s requirement.” Id. at *12. Here, the government didn’t “introduce at trial Peeples’ post-arrest statements, including his confession to [the FBI agent] at the Binghamton Police Department.” Id. at *5.

The Circuit didn’t address, however,  “whether an egregious delay in arraignment may violate some other right, such as the constitutional guarantee to due process, which may in turn provide the basis for a more drastic remedy in a criminal proceeding, including dismissal.” Id. at *7, n.33.

Finally, because there wasn’t proof of a purposeful violation of Rule 5, the Court rejected Peeples’ challenge to the search warrant based on the government’s use of his post-arrests statements to obtain the warrant. According to the Court, the record didn’t show “that the Government violated Rule 5(c)(2) in order to obtain a post-arrest, pre-arraignment confession from Peeples.” Id. *8.

II. The claimed violation of Fed.R.Crim.P. 3

At Peeples’s appearance in the W.D.N.Y., the magistrate judge failed to sign the jurat on the last page of the FBI agent’s affidavit, which was attached to the criminal complaint. Peeples, id. at *9. But the magistrate did sign the jurat that was on the face of the criminal complaint. (The jurat is a certification added to an affidavit, “stating when and before what authority the affidavit was made;” “a document in which a fact is formally attested.”).  Peeples, id. at *2 n.2 (citations and internal quotation marks omitted).

Fed.R.Crim.P. 3 provides that a criminal complaint is “a written statement of the essential facts constituting the offense[s] charged” that “must be made under oath before a magistrate judge or, if none is reasonably available, before a state or local judicial officer.” See Fed.R.Crim.P. 3.

Peeples argued that, by failing to sign the jurat on the last page of the agent’s affidavit, the magistrate judge failed to attest that the agent’s assertions had been made under oath in the magistrate’s presence. Peeples, id. at *9.

The Circuit disagreed. It stated that  “the text of Rule 3 merely requires that the complaint be made under oath before the magistrate judge.” Id. at *9. Here, both the magistrate and the FBI agent “signed the criminal complaint, which expressly references” the FBI agent’s affidavit. Id.  “By signing the complaint, [the magistrate] confirmed that [the FBI agent] swore to the truth of the assertion made in the affidavit in [the magistrate’s] own presence. Rule 3 does not require more.” Id.

III.  Denial of the defendant’s request for a special in-court identification procedure

At trial, Peeples, who hadn’t been subjected to a lineup, asked to be “seated elsewhere in the courtroom” than the defense table, during the testimony of two identification witnesses from the bank. Id. at *10.  The district court, “without explanation, denied the request for this special in-court procedure.” Id.

The Circuit noted that Peeples’ “request was arguably a reasonable one given the absence of an identification of Peeples prior to trial, the fact that Peeples’ appearance had changed, and the fact that a defendant’s traditional seating in a courtroom is inherently suggestive.” Id. at *10. Moreover, the Court has “admonished district courts to ensure that any in-court identification procedure employed does not amount to a show-up.” Id.

The Court ruled, however, that the record did not show that the in-court identifications here “were irreparably tainted by suggestibility.”And, in any event, any error, on this record, “would have been harmless beyond a reasonable doubt.” Id. at *11.

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