USA v. Schrum, et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
TRACY JONES,
a/k/a Tracy Wilcox,
Defendant.
5:20-CR-50141(03)-JLV
REPORT AND
RECOMMENDATION FOR
DISPOSITION OF MOTION
TO DISMISS OR,
ALTERNATIVELY, TO
SUPPRESS
Drug Task Force agents arrested Tracy Jones, a/k/a Tracy Wilcox (Jones), on a
federal warrant for conspiracy to distribute methamphetamine and questioned her after
she waived her Miranda rights. Agents then took her to jail where, for some inexplicable
reason, she sat for 37 days before a magistrate judge finally saw her. She moves to
dismiss the case against her or, in the alternative, to suppress her statements to agents,
on several grounds. Because Jones is not entitled to a dismissal or suppression, the
Court recommends that her motion (including the amendment to it) be denied.
BACKGROUND
On November 17, 2020, FBI Special Agent Dan Cooper and Oglala Sioux Tribe
Criminal Investigators Derek Puckett and Jon Archambeau, all agents of the Badlands
Safe Trails Drug Task Force, arrested Jones and others on federal warrants as part of a
“sweep” conducted of the Martin, South Dakota area. Within two hours or so of her
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arrest, agents interviewed Jones at the Bennett County State’s Attorney’s Office in
Martin. Cooper explained to her that she would be transported the next day to the
Pennington County Jail in Rapid City, to be booked and housed, and then would see a
judge on the federal charge. While in the company of arresting agents, Jones signed a
Miranda advisement form, acknowledging she understood her rights, agreed to speak
with agents and did so. During her conversation with them, Jones provided information
on several other persons, in and around Martin and Rapid City, and their drug
activities. Jones also spoke about her own methamphetamine distribution and her
supply sources.
Task Force agents did not elicit any statements from Jones after Investigator
Archambeau handed her over to jail officers on November 18. Nor did agents conduct
any follow-up interviews with Jones, or attempt to get her to talk, while she was in jail
or at any later time.
The Government originally maintained a 	Task Force agent provided phone
notification on November 18 to the magistrate judge’s chambers and to the United
States Marshals Service (USMS) that Jones had been arrested on the federal offense and
was in custody at the Pennington County Jail. After receiving the call, the Government
says, the USMS picked Jones up, drove her to the USMS office for processing, and
returned her to the Jail. Jones asserts no one ever advised the magistrate judge that she
was in custody and needed to be seen until just before her December 23 initial
appearance. In support of her assertion, Jones points to the judge’s on-the-record
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statement during the hearing that day: “For some reason we were not notified-- our
office wasn’t -- that she was taken into custody.”1
Because of the COVID-19 pandemic in November and December 2020 (and for
much of that year), most federal criminal defendants appeared for their hearings by
video from the Jail. Because of this arrangement and the corresponding lack of any need
to bring defendants to court, arresting agents typically were not informed of when a
particular defendant was scheduled to make his/her first court appearance before the
judge.
Jones secured released on December 23 after spending 37 days in jail. She later
moved to dismiss the drug charge against her, under the Due Process Clause of the
Fifth Amendment or to suppress her statements because they were obtained in violation
of 18 U.S.C. §3501 and the McNabb-Mallory rule.2
At the motion hearing, Jones presented evidence that a Task Force agent did
indeed contact the magistrate judge’s chambers on November 18. But that evidence
showed the agent said nothing about Jones in the voice message he left. By contrast, the
Government offered no evidence (other than a “belief”) to back up its contention that
law enforcement notified the judge or her staff of Jones’s arrest on, or shortly after,
November 18. Faced with proof problems, the Government conceded, to decide Jones’s
1See Mot. Hr’g Ex. F at 10 (Apr. 26, 2021).
2See McNabb v. United States, 318 U.S. 332 (1943); Mallory v. United States, 354 U.S.
449 (1957).
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motion, that no notice had been given to chambers and that the Court could determine
what the remedy should be for Jones’s five plus week delay in presentment.3
DISCUSSION
Jones claims that the way she was first presented to the magistrate judge, after
arrival in Rapid City, violated her procedural rights under the Federal Rules of
Criminal Procedure. She directs the Court’s attention to Rule 5, which generally
requires that upon arrest a defendant must be taken before a magistrate judge “without
unnecessary delay” in the district where he/she was arrested.4 Because she did not see a
magistrate judge until December 23, 2020, Jones argues that she was not promptly
presented as required by the Rule. Based on this perceived defect in proper procedure,
she urges the Court to dismiss the indictment against her or, at a minimum, suppress
those statements made in violation of her prompt right to presentment.
A. Dismissal
1. Waiver
Although the Eighth Circuit has not previously addressed the matter, courts
have concluded that a defendant can indeed waive Rule 5’s procedural safeguards.5
3See Mot. Hr’g Tr. 134-36, 140-43 (Apr. 26, 2021).
4See Fed. R. Crim. P. 5 (a), (c).
5See United States v. McConnell, No. 13-CR-273 (SRN/FLN), 2017 WL 396538 at *6
(D. Minn. Jan. 30, 2017) (collecting cases).
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And courts have been accepting of a presentment waiver when the defendant has been
given Miranda warnings, as was the case here.6 Because these holdings are in keeping
with the general presumption in favor of a defendant’s right to waive his/her rights,7
the Court adopts them and 	“joins the broad consensus in favor of upholding the
validity of Rule 5 waivers.”8
The question then becomes whether Jones’ waiver was a knowing, voluntary,
and intelligent one. On this record, the Court concludes that it was.
The waiver inquiry has “two dimensions”: the waiver must have been (1)
“voluntary in the sense that it was a free and deliberate choice rather than intimidation,
corrosion, or deception” and (2) made “with a full awareness of both the nature of the
right be abandoned and the consequences of the decision to abandon it.”9 The totality of
the circumstances are to be considered when determining whether a person’s waiver is
allowed.10
6See e.g. United States v. Guthrie, 256 F. App’x 478, 480-81 (9th Cir. 2008); United
States v. Ostrander, 411 F.3d 684, 696-97 (6th Cir. 2005); United States v. Salamanca, 990
F.2d 629, 634 (D.C. Cir. 1993); United States v. Duvall, 537 F.2d 15, 23-24, n.9 (2d Cir.
(1976)); Brown v. United States, 979 A.2d. 630, 635-36 (D.C. 2009).
7See New York v. Hill, 528 U.S. 110, 114 (2000).
8See McConnell, 2017 WL 396538 at *6.
9See Berghuis v. Thompkins, 560 U.S. 370, 382-83 (2010) (quoting Moran v. Burbine,
475 U.S. 412, 421 (1986)).
10See Burbine, 475 U.S. at 421.
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The 	record 	irrefutably 	shows 	that 	Jones 	waived 	her 	Miranda 	rights. 	She
understood her rights and chose not to assert or rely on any of them when she spoke to
Task Force agents.
Credible evidence proves that Jones was mindful of her rights and knew what
she was doing.11 Agent Cooper read each of them to Jones from an advice of rights
form.12 Jones then signed the form, acknowledged that she understood her rights, and
was willing to speak to agents without a lawyer present.13
Jones’s written waiver is a telling manifestation that she understood her rights
and was disposed to give them up.14 Her willingness to engage in an almost 45-minute
colloquy without the benefit of counsel and to make statements was a “course of
conduct indicating waiver” of her rights.15 If Jones wanted to remain silent, confer with
or have counsel present, or stop answering questions, she could have said so and ended
11See Berghuis, 560 U.S. at 385-86; Burbine, 475 U.S. at 421.
12See Mot. Hr’g Exs. 1, B, C; Mot. Hr’g Tr. 21-23, 34, 51-52, 92-93, 150.
13See Mot. Hr’g Exs. 1, B, C; Mot. Hr’g Tr. 22, 38, 51-54, 93, 150-51.
14See 	North 	Carolina 	v. 	Butler, 	441 	U.S. 	369, 	373 	(1979) 	(“an 	express
written…statement of waiver of the right to remain silent or the right to counsel is
usually strong proof of validity of that waiver”).
15Berghuis, 560 U.S. at 386.
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the interrogation. That she chose not to and elected to participate – by herself—in a
sustained dialog with Task Force agents is corroboration of a full-fledged waiver.16
What’s more, Jones’ statements were not coerced.17 At no time did Task Force
agents threaten or intimidate Jones, raise their voices, or become hostile toward her.18
Nor did they use any force, lay hands on Jones, lie, or employ deceptive stratagems to
get her to confess.19 Jones’s age (47), education (GED and 	three and-a-half years of
college), 	familiarity 	with 	the 	criminal 	justice 	system 	(misdemeanor 	arrests 	and
convictions dating to 2001),20 and conduct that day did not intimate that she was low
functioning 	or 	particularly 	suggestable 	and 	vulnerable 	to 	inquiries 	by 	authority
figures.21
Jones’s 	responses 	to 	the 	Miranda 	advisement 	and 	statements 	and 	actions
following it also established that she was not under the influence, suffering from any
mental impairments, or having trouble grasping questions put to her and that she
16See id.
17See id. (citing Burbine, 475 U.S. at 421); Colorado v. Connelly, 479 U.S. 157, 163-67,
170 (1986).
18See Mot. Hr’g Ex. B; Mot. Hr’g Tr. 54, 151.
19See Mot. Hr’g Ex. B; Mot. Hr’g Tr. 55-56.
20See Docket No. 51.
21See Mot. Hr’g Ex. B; Mot. Hr’g Tr. 54.
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comprehended her predicament.22 And she cooperated with agents (providing them
with drug information about herself and others), asking and answering questions, and
at times, correcting and clarifying what Agent Cooper said.23
This is not one of those isolated cases in which an arrestee, after being properly
advised of her Miranda rights, failed to make an open and autonomous decision to
speak with a probing agent. Jones did not say or do anything that conveyed an inability,
on her part, to discern and appreciate her rights and the implications of what she was
doing.24 She knew of the situation she was in and was willing to answer questions. No
evidence shows that agents improperly coerced her to do anything. Having waived her
Miranda rights and given voluntary statements to agents two to three hours after her
arrest, Jones cannot now seek the protection of Rule 5(a).25
2. Not the Remedy
Regardless, the appropriate remedy for a violation of Rule 5(a)(1)(A) is not
dismissal of the indictment, but suppression of evidence illegally obtained as a result of
the violation.26 The reason is simple: since the provisions of Rule 5(a) are procedural,
22See Mot. Hr’g Ex. B; Mot. Hr’g Tr. 55, 63, 93, 150-151, 154.
23See Mot. Hr’g Ex. B; Mot. Hr’g Tr. 23, 54-55, 93, 151.
24See Mot. Hr’g Ex. B; Mot. Hr’g Tr. 22-23, 51-55, 93, 151.
25See McConnell, 2017 WL 396538 at **6-7; United States v. Bell, 740 A. 2d 958, 962-
67 (D.C. 1999).
26See United States v. Cooke, 853 F.3d 464, 471 (8th Cir. 2017); United States v.
(continued. . .)
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not substantive, the sanction for failure to comply with the Rule is exclusion of those
statements taken during the period of unnecessary delay.27 So Jones’s only available
remedy is suppression of her November 17 statements to Task Force agents.
Jones’s contention that she is entitled to dismissal of the charge against her under
the Due Process Clause of the Fifth Amendment cannot be reconciled with federal
precedents. They consistently refer to the application of evidentiary sanctions (e.g., the
Chavez, 705 F.3d 381, 385-86 (8th Cir. 2013); see also United States v. Peeples, 962 F.3d 677,
686 (2d Cir. 2020)(Rule 5(a)’s history confirms that the remedy for a violation of the Rule
is the exclusion of evidence, not dismissal of a criminal case); United States v. Bibb, 194 F.
App’x 619, 623 (11th Cir. 2006) (“we have never recognized dismissal of the indictment
as a proper remedy for a Rule 5 violation”); United States v. Garcia- Echaverria, 374 F.3d
440, 452 (6th Cir. 2004) (noting generally that the appropriate remedy for a violation of
Rule 5(a) is suppression of statements and affirming the district court’s denial of
defendant’s motion to dismiss on that basis); United States v. Dyer, 325 F.3d 464, 470 n.2
(3d Cir. 2003) (observing that even if the government had violated Rule 5(a), the remedy
for such a violation is not dismissal, but suppression of statements taken during the
period of unnecessary delay); United States v. Castillo, No.1:20-cr-00061-JPH-TAB, 2020
WL 6743283 at **1-2 (S.D. Ind. Nov. 17, 2020) (117-day delay before initial appearance
did not require dismissal of the indictment because dismissal was not the appropriate
remedy for the conceded Rule 5(a)(1)(A) violation); United States v. Taylor, No.10-cr-16
2010 WL 2425922 at *2 (E.D. Wis. 2010) (absent widespread violations of Rule 5 or
flagrant misconduct and prejudice to defendant, dismissal of the indictment is not
justified); United States v. Savchenko, 201 F.R.D. 503, 509 (S.D. Cal. 2001)(Rule 5 “is not a
general remedial statute, but rather a rule designed to deal with a particular problem by
applying an evidentiary sanction”); United States v. Perez-Torribio, 987 F. Supp. 245, 247
(S.D. N.Y. 1997) (“Unnecessary delay violations of Rule 5(a) warrant suppression of
evidence,” not dismissal of the indictment).
27See Chavez, 705 F.3d at 385 (citing Dyer, 325 F.3d, 464, 470 n.2 (3d Cir. 2003)).
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exclusion of evidence), not dismissal of criminal charges, as the proper remedy for the
violation of the prompt presentment rule.28
Now the Supreme Court has validated an “outrageous conduct” defense to a
criminal prosecution: “we may someday be presented with a situation in which the
conduct of law enforcement agents is so outrageous that due process principles would
absolutely 	bar 	the 	government 	from 	invoking 	judicial 	processes 	to 	obtain 	a
conviction.”29 But to warrant dismissal of an indictment, the outrageousness of such
conduct must rise to the level of “violating that ‘fundamental fairness’ shocking to the
universal sense of justice.”30
Obnoxious police behavior, or even flagrant misconduct is not enough to
establish outrageousness in a constitutional sense.31 Rather, coercion, violence, or
28See Peeples, 962 F.3d at 685.
29 United States v. Russell, 411 U.S. 423, 431-32 (1973).
30 Id. at 432 (quoting Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 246
(1960)); see also United States v. Chin, 934 F.2d 394, 398 (2d Cir. 1991) (right to due
process violated where “the governmental conduct, standing alone, is so offensive that
it shocks the conscience”) (quoting Rochin v. California, 342 U.S. 165, 172 (1952));
Savchenko, 201 F.R.D. at 507 (“To obtain dismissal for some government misconduct,
including pre-indictment delay, there must be a showing of ‘outrageous conduct’ under
the Firth Amendment, or a violation of some other substantive right such as the Speedy
Trial Act.”).
31 See United States v. Kelly, 707 F.2d 1460, 1467 (D.C. Cir. 1983) (Opinion of
Ginsburg, J.).
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brutality to the person must be shown to transgress a defendant’s right to due process.32
Jones never faced extreme and overwhelming coercion, much less physical, or
psychological harm.33 Nor can it be said that the Task Force agents’ nonfeasance—in
notifying 	the 	magistrate 	judge 	of 	Jones’s 	arrest 	– 	was 	outrageous 	or 	that 	they
purposefully perverted a constitutionally protected right to further their investigation
efforts. Hence dismissal is not the rightful course of action.34
B. Suppression
1. Delay in the Presentment
Assuming Jones has a basis to challenge her statements that she did not waive,
she still cannot prevail on her fall-back suppression argument. Granted, the McNabb-
Mallory rule, a judicial doctrine based in common law and not the Constitution,
“generally render[s] inadmissible confessions made during periods of detention that
violat[e] the prompt presentment requirement of Rule 5(a).”35 But in 1968, Congress
32 See id. (citing Irvine v. California, 347 U.S. 128, 132-33 (1954)); see also Rochin, 342
U.S. 	166, 	172 	(physical 	coercion); 	Watts 	v. 	Indiana, 	338 	U.S. 	49, 	52-53 	(1949)
(psychological coercion).
33See Mot. Hr’g Ex. B; Mot. Hr’g Tr. 55-56.
34See Savchenko, 201 F.R.D. at 507-09.
35See Corley v. United States, 556 U.S. 303, 309 (2009) (quotation omitted).
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enacted a statute36 which limits this rule by providing a confession “shall not be
inadmissible solely because of delay in bringing [the defendant] before a magistrate
judge” if the confession was voluntary and was made “within six hours immediately
following” the defendant’s arrest or detention.37 So if the confession came within the
six-hour “safe harbor” of the statute, it is admissible if voluntary, subject to the rules of
evidence and whatever weight the jury decides to give to it.38 It is only when the
confession occurred before presentment and beyond six hours that a court must decide
whether delaying that long was unreasonable or unnecessary and the confession should
be suppressed.39
Applying these principles, suppression of Jones’s November 17 statements is
uncalled for. She made her statements voluntarily,40 less than six hours of being
36See 18 U.S.C. §3501.
37United States v. Casillas, 792 F.3d 929, 930 (8th Cir. 2015) (quoting Corley, 556 U.S.
at 309-10 and 18 U.S.C. §3501(c))
38See Corley, 556 U.S. at 322.
39See id.
40See Mot. Hr’g Ex. B. (showing that Jones’s statements were of her own free will
and not coerced); see also Mot. Hr’g Tr. 23, 54-56, 93, 151 (testimony supporting
voluntariness).
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arrested.41 They thus are admissible and not subject to McNabb-Mallory’s presentment
rule.42
2. Voluntariness
Jones, however, insists that her statements to Task Force agents were involuntary
and should be suppressed. This claim, like the presentment delay one she makes, is
unsustainable and provides her with no grounds for relief.
Cases 	in 	which 	a 	defendant 	can 	make 	a 	colorable 	argument 	that 	a 	self-
incriminating statement was “compelled,” when law enforcement authorities have
adhered to the dictates of Miranda, are rare.43 Jones still argues that the circumstances
surrounding the November 17 interview in Martin, when combined with her tardy
presentment before a magistrate judge, rendered her statements involuntary. The same
41See Mot. Hr’g Tr. 19, 58-59, 91.
42See Corley, 556 U.S. at 313-14, 322; Casillas, 792 F.3d at 931; see also United States v.
McDowell, 687 F.3d 904, 909 (7th Cir. 2012) (“18 U.S.C §3501(c) provides a six-hour “safe
harbor” for confessions given before presentment: A confession given within six hours
of arrest is admissible notwithstanding a delay in presentment if the judge finds it was
voluntary.”). United States v. Carter, 484 F. App’x 449, 457 (11th Cir. 2012) (oral
confession admissible where it was made within six-hour safe harbor period of statute,
voluntary, and in compliance with Miranda); United States v. Bull Bear, CR.18-50076-JLV,
2019 WL 4254667 at *7 (D.S.D. Sept. 9, 2019) (“A confession given within six hours of
arrest cannot be suppressed due to a Rule 5(a) violation.”).
43See Berkemer v. McCarty, 468 U.S. 420, 433, n. 20 (1984).
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analysis applies when considering the voluntariness of statements in the context of a
Miranda waiver and under the Fifth Amendment.44
The interview only lasted 44 minutes and was polite and conversational.45
Whatever accusatory inquiries Jones may have endured did not transform the meeting
into a coercive 	encounter that overbore her will.46 What agents said and did (both
before and after the Miranda waiver) had little or no effect on Jones.47
Undeterred, Jones maintains Agent Cooper made implied promises of leniency
that persuaded her to break silence and waive her rights. But what Cooper said to
Jones--about facing a ten-year mandatory minimum sentence unless she was truthful
and cooperated--was not a promise (either expressed or implied). Exhortations that it
would be in a suspect’s best interest to tell the truth and that she would benefit from
cooperating with authorities are not promises, 	much 	less ones that are false or
44See Colorado v. Connelly, 479 U.S. 157, 169-70 (1986); United States v. Havlik, 710
F.3d 818, 822 (8th Cir. 2013); United States v. Makes Room For Them, 49 F.3d 410, 415 (8th
Cir. 1995); United States v. Brave Hawk, 3:19-CR-30090-RAL, 2016 WL 311263 at *4 (D.S.D.
Jan. 26, 2016).
45See Mot. Hr’g Ex. B; see also Mot. Hr’g Tr. 24-25, 55, 94 (interview was about 44-
45 minutes long).
46See United States v. Larrabee, 3:16-CR-30039-RAL, 2016 WL 4987122 at *4 (D.S.D.
Sept. 14, 2016); Brave Hawk, 2016 WL 311263 at *4; United States v. Stoneman, CR. 09-
30101-RAL, 2010 WL 1610065 at **4-5 (D.S.D. April 20, 2010).
47See United States v. Daniels 775 F.3d 1001, 1005 (8th Cir. 2014).
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unfulfillable.48 Cooper’s statements to Jones were not a promise or an impermissible
hope of benefit, but encouragement to be honest in relating what she knew.49
The recording and Agent Cooper’s testimony (which the Court found to be
credible) show Jones’s statements were voluntary.50 They were ones she wanted to
make and were not the offspring of any coercive 	environment and questioning that
overwhelmed her faculties and paralyzed her ability to fend off the urge to confess. This
being the case, the statements may be used against her as substantive evidence at trial.51
48See Simmones v. Bowersox, 235 F.3d 1124, 1133 (8th Cir. 2001); United States v.
Pierce, 152 F.3d 808, 810-13 (8th Cir. 1998); Bolder v. Armontrout, 921 F.2d 1359, 1366 (8th
Cir. 1990).
49See United States v. Cruse, 59 F. App’x 72, 74-75, 78 (6th Cir. 2003); Linares v.
Yates, CV 11-3310AG (JC), 2015 WL 1967042 at *7 (C.D. Cal. April 30, 2015); State v.
Pyles, 166 N.H. 166, 171, 90 A.3d 1228, 1232 (2014); Wilson v. State, 285 Ga. 224, 227-28,
675 S.E.2d 11, 16 (2009); Phillips v. State, 2-02-452-CR, 2004 WL 362253 at *7 (Tex. Ct.
App. Feb. 26, 2004).
50See Mot. Hr’g Ex. B; Mot. Hr’g Tr. 22-25, 54-56, 93, 151.
51See United States v. Pugh, 25 F.3d 669, 675 (8th Cir. 1994); United States v
Rohrbach, 813 F.2d 142, 145, n.1 (8th Cir. 1987); United States v. Jackson, 712 F.2d 1283,
1285-87 (8th Cir. 1983); see also United States v. Boche-Perez, 755 F.3d 327, 343 (5th Cir.
2014) (delay did not result “in interrogation that was so lengthy, hostile, or coercive that
it would tend to overwhelm [defendant’s] will” and make his confession involuntary);
Lawhorn v. Allen, 519 F.3d 1272, 1290-92 (11th Cir. 2008) (defendant arrested but judicial
finding of probable cause was not made for six days, during which he confessed; held
confession admissible because it was voluntary and after defendant had been given,
and waived, his Miranda rights); Ostrander, 411 F.3d at 696 (“The rule in this circuit and
in most others is that unnecessary delay, standing alone, is not sufficient to justify the
suppression of an otherwise voluntary confession under 18 U.S.C. §3501, made during
that period.”); United States v. Bear Killer, 534 F.2d 1253, 1257 & n.3 (8th Cir. 1976)
(statements given 9 ½ and 12 hours after arrest were voluntary and admissible); United
States v. Wright, Crim No. 07-104(JRT/AJB), 2018 WL 141772 at **4-5 (D. Minn. Jan. 14,
(continued. . .)
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C. Supervisory Authority and Prejudice
Jones seeks dismissal, or at the very least, suppression to send a message that
flaunting Rule 5(a) will not be tolerated and result in sanctions. She seemingly calls on
the 	district 	court 	to 	exercise 	its 	supervisory 	authority 	and 	impose 	dismissal 	or
suppression as punishment or as a deterrent against future presentment delays.
Federal courts have supervisory powers which, within limits, allow them to
formulate procedural rules not specifically required by the Constitution or Congress.52
The purposes underlying use of these powers are three-fold “to implement a remedy
for violation of recognized rights, to preserve judicial integrity by ensuring that a
conviction rests on appropriate considerations validly before the jury, and finally, as a
remedy to deter illegal conduct.”53 But such powers are to be used sparingly.54 Courts
cannot punish misconduct unless it not only violated the defendant’s right but also
prejudiced her defense.55
2008) (despite four-month lapse between arrest and presentment, the statements were
not made during period of unnecessary delay, but even if they were, the statements
were voluntary and not subject to suppression).
52 See United States v. Hasting, 461 U.S. 499, 505 (1983).
53 Id. (internal citations omitted).
54 See United States v. Stokes, 124 F.3d 39, 46 (1st Cir. 1997).
55 See Bank of Nova Scotia v. United States, 487 U.S. 250, 254 (1988) (a federal court
may not invoke its supervisory powers to dismiss an indictment for misconduct before
the grand jury where the misconduct did not prejudice defendant); Hasting, 461 U.S. at
506 (supervisory powers may not be used to remedy harmless errors); United States v.
(continued. . .)
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Some courts, including the Eighth Circuit, have held that prejudice results only
when 	the 	government 	uses 	the 	delay 	to 	subject 	the 	defendant 	to 	unwarranted
interrogation.56 Task Force agents did not detain Jones for an unnecessary period to
elicit a confession from her.57
At any rate, the record belies any claims of prejudice. Jones has been on pretrial
release, and had counsel representing her, for more than five months. She has filed
discovery requests, objections, motions, and memoranda and had ample time to
interview witnesses, conduct investigations, and mount a defense to the drug charge.
And since a trial date has not even been set in her case, Jones can hardly claim that she
was, or has been, deprived of an adequate amount of time to prepare her case. While
regrettably, Jones’s period in custody was far longer than it should have been and may
have kept her from providing aid and comfort to her aunt and son in their times of
Casas, 425 F.3d 23, 47-48 (1st Cir. 2005) (a court may use its supervisory powers only
where there is a nexus between the improper conduct and prejudice to defendant);
United States v. Fernandez, 388 F.3d 1199, 1239 (9th Cir. 2004) (to justify the exercise of a
court’s supervisory powers, the misconduct must be flagrant and cause substantial
prejudice to defendant).
56 See, e.g., United States v. Cardenas, 410 F.3d 287, 293-94 (5th Cir. 2005); United
States v. Garcia-Echavarria, 374 F.3d at 452-53; United States v. Morrison, 153 F.3d 34, 56
(2d Cir. 1998); Theriault v. United States, 401 F.2d 79, 86 (8th Cir. 1968).
57 See Boche-Perez, 755 F.3d at 338-39; see also Cooke, 853 F.3d at 471 (observing that
the purpose of Rule 5(a) is to frustrate law enforcement officers from detaining an
arrestee for an unnecessary time to enable them to extract a confession from him);
United States v. Jeanetta, 533 F.3d 651, 655-56 (8th Cir. 2008) (same).
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need, there is no 	evidence that Task Force agents acted intentionally or willfully in
denying her access to the court.
Jones made no statements, and the Government obtained no additional evidence,
beyond §3501(c)’s six-hour time limit. Nor does it appear that the delay caused the loss
of evidence valuable to her. And because the grand jury handed down the indictment
before Jones’s arrest, the delay did not result in her continued detention without any
probable cause determination. Finally, even if the district court’s supervisory powers
might be appropriate to punish or deter based on repeated violations of Rule 5(a), Jones
presented no such pattern among Western Division arrestees and none appears to
exist.58
In the end, Jones was not prejudiced by her delay in the presentment to require
dismissal of her charged offense or suppression of the statements she gave to agents
within a few hours of her arrest.59
58See Mot. Hr’g Tr. 31-32, 39-40, 47, 73, 99; Docket No. 152 at 13-14 & n.2; but see
United States v. Theus, II, No. 1:14-cr-10005-CBK, R&R (Mar. 19, 2021) (15-day delay);
United States v. Bobtail Bear, No. 1:14-cr-10011-CBK, R&R (May 19, 2021) (7-day delay in
supervised release case).
59See Cooke, 853 F.3d 471; Chavez, 705 F.3d at 385-86; United States v. Mangual-
Santiago, 562 F.3d 411, 432 (1st Cir. 2009); see also United States v. Jernigan, 582 F.2d 1211,
1214 (9th Cir. 1978) (although DEA agents deliberate delay in arresting defendant until
a time when, as the agent well knew, defendant would be unable to go before a
magistrate, dismissal of indictment constituted too drastic of remedy where defendant
was unable to point to any prejudice other than he spent time in jail); Taylor, 2010 WL
2425922 at *2-3 (no specific prejudice in defendant’s ability to defend the case based on
26-day delay to require dismissal of his indictment); United States v. DiGregorio, 795 F.
(continued. . .)
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D. Potential Civil Recourse
That is not to say Jones has no remedy for the Rule 5(a) violation. She still can
pursue a civil action and seek to hold those responsible for her delay liable.60
E. Admonishment
Jones’s 37-day stay in jail was tragic. It should have never occurred. Task Force
agents believe someone notified the magistrate judge of her arrest and incarceration,
but they were mistaken. They did not, however, try and dupe anyone, have a hidden
agenda, engage in bad faith, or intend to delay the presentiment process.61 Even so,
Jones paid an enormous price. She lost her liberty for more than a month. Agents, and
Supp. 	630, 	634-36 	(S.D. 	N.Y 	1992) 	(defendants 	failed 	to 	show 	“demonstratable
prejudice” for five-month delay, making dismissal of indictment “inappropriate”); see
generally 1 Charles Alan Wright & Andrew D. Leipold, Federal Practice, and Procedure,
§72, n.21 (4th ed. 2008 & 2021 Update) (“Exclusion of a confession is not required if the
confession came before there had been delay; a confession given promptly upon arrest
is admissible even though thereafter there is improper delay in taking the defendant
before a magistrate judge.”); but see United States v Osunde, 638 F. Supp. 171, 176-77
(N.D. Cal. 1986) (dismissing the indictment for violating Rule 5(a) where defendant was
held for 106 days before appearing before a judge but noting there was no case law
supporting dismissal).
60 See Hayes v. Faulker County, Ark., 388 F.3d 669, 673-75 (8th Cir. 2004); Armstrong
v. Squadrito, 152 F.3d 564, 571-82 (7th Cir. 1998); see also Garcia Rodriquez v. Andreu
Garcia, 403 F. Supp. 2d 174, 176, 178 (D. P.R. 2005) (where an arrestee alleged that he
was not brought before a magistrate judge after his arrest and was incarcerated for five
days until he was released on bail, he stated a civil claim under the Due Process
Clause).
61See Mot. Hr’g Tr. 31, 39-40, 59-30, 73, 98.
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their fellow officers, need to have a protocol in place for promptly notifying the
magistrate judge, or someone other judicial officer, when a person has been arrested
and for taking each such arrestee, without unnecessary delay, before that judge or
officer. Law enforcement officers are now on notice of what they must do. A delay like
Jones experienced must not happen again-- to anyone else without good reason.62 If it
does, a different remedy (than admonishment) may be called for.
CONCLUSION
Jones 	was 	advised 	of 	all 	her 	Miranda 	rights, 	knowingly, 	voluntarily, 	and
intelligently waived those rights without ever invoking them. This waiver served also
to waive her rights under Rule 5(a)(1)(A). But even if it did not, Jones’s remedy is
suppression of any evidence illegally obtained as a result of the Rule 5(a) violation, not
dismissal of the indictment. The statements she made were neither caused by nor the
product of her delay in presentment. And they were voluntary for purposes of the Fifth
Amendment. The statements are therefore freely admissible at trial.
Jones’s 37-day delay is by no means something that can, or should be, brushed
aside. It was though an inadvertent error and is not part of a systemic problem in the
District’s Western Division. Admonishment, rather than a more harsh remedy, is the
elixir in this case.
62See 1 Federal Practice and Procedure, § 73 (discussing reasons for delay in
presentment).
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RECOMMENDATION
For all of these reasons, and based on the authorities cited in this report and the
record now before the Court, it is
RECOMMENDED that Jones’ Motion and Amended Motion to Dismiss and to
Suppress,63 be denied in all respects.
NOTICE
The 	parties 	have 	14 	calendar 	days 	after 	service 	of 	this 	report 	and
recommendation to file their objections to the same.64 Unless an extension of time for
cause is later obtained,65 failure to file timely objections will result in the waiver of the
right to appeal questions of fact.66 Objections must “identify[] those issues on which
further review is desired[.]”67
63See Docket Nos. 95, 113.
64See 28 U.S.C. §636(b)(1); Fed. R. Crim. P. 59(b).
65See Thompson v. Nix, 897 F.2d 356, 357 (8th Cir. 1990); Nash v. Black, 781 F.2d 665,
667 & n.3 (8th Cir. 1986) (citing Thomas v. Arn, 474 U.S. 140, 155 (1985)).
66See Thompson, 897 F.2d at 357; Nash, 781 at 667.
67Arn, 474 U.S. at 155.
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Dated this 28th day of May, 2021, at Pierre, South Dakota.
BY THE COURT:
MARK A. MORENO
UNITED STATES MAGISTRATE JUDGE
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