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.
CR. 20-50141-03-JLV
ORDER
INTRODUCTION
Pending before the court is defendant’s amended motion to dismiss the
indictment as it relates to her or, in the alternative, to suppress all evidence
garnered by her statement to law enforcement.1 	(Docket 113). 	The United
States opposes defendant’s motion. 	(Dockets 122 & 152). 	Defendant’s motion
was referred to Magistrate Judge Mark A. Moreno for a report and
recommendations pursuant to 28 U.S.C. § 636(b)(1)(B) and the court’s June 8,
2016, and May 10, 2021, standing orders. 	An evidentiary hearing was held.
(Dockets 142 & 147). 	Magistrate Judge Moreno issued a report and
recommendations (“R&R”). 	(Docket 157). 	The magistrate judge recommended
the defendant’s motion to dismiss the indictment as it relates to Ms. Jones and
her motion to suppress be denied. 	Id. at pp. 1 & 21. 	Defendant timely filed
objections to the R&R. 	(Docket 161). 	For the reasons stated below, the
1 Defendant’s earlier motion to dismiss and alternative motion to suppress
(Docket 95) are deemed moot by the filing of the amended motion.
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defendant’s objections are overruled and the R&R is adopted consistent with this
order.
DEFENDANT’S OBJECTIONS
The defendant submitted ten objections to the R&R. 	Id. 	Defendant’s
objections are summarized and presented in the following order for resolution
purposes:
1. 	Defendant objects to the finding she never asserted her right to
remain silent. 	Id. at p. 2;
2. 	Defendant objects to the finding that the only basis upon which
she moved for dismissal was under the Due Process Clause of
the Fifth Amendment. 	Id.;
3. 	Defendant objects to the conclusion that by waiving her
Miranda2 rights she waived her right to timely presentation to a
magistrate judge for arraignment. 	Id. at pp. 2-3;
4. 	Defendant objects to the failure of the R&R to acknowledge the
ruling of Corley.3 	Id. at p. 3;
5. 	Defendant objects to the conclusion that suppression is the
only remedy available under Rule 5(a).4 	Id. at p. 4;
6. 	Defendant objects to the conclusion that the court cannot
invoke its supervisory power to deter future illegal conduct of
law enforcement. 	Id. at p. 6;
7. 	Defendant objects to the conclusion she may have a civil
remedy available. 	Id. at p. 7;
8. 	Defendant objects to the conclusion that law enforcement is
on notice. 	Id.;
2 Miranda v. Arizona, 384 U.S. 436 (1966).
3 Corley v. United States, 556 U.S. 303 (2009).
4 Fed. R. Crim. P. 5(a).
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9. 	Defendant objects to the R&R’s conclusion because of
systemic Rule 5(a) violations in the Northern Division of the
District of South Dakota. 	Id.;
10. 	Defendant objects to the conclusion that her alternative
motion to suppress should be denied. 	Id. at p. 8.
ANALYSIS
Under the Federal Magistrate Act, 28 U.S.C. § 636(b)(1), if a party files
written objections to the magistrate judge’s proposed findings and
recommendations, the district court is required to “make a de novo
determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” 	Id. 	The court may “accept,
reject, or modify, in whole or in part, the findings or recommendations made by
the magistrate judge.” 	Id. 	See also Fed. R. Crim. P. 59(b)(3). 	The court
completed a de novo review of those portions of the R&R to which objections were
filed and a de novo review of the transcript of the suppression hearing and the
exhibits admitted at the hearing.
FINDINGS OF FACT
The defendant filed only two objections to the magistrate judge’s statement
of facts developed during the suppression hearing. 	(Docket 162 at p. 2). 	Both
of those objections focus on information the defendant asserts the magistrate
judge failed to include in the findings of fact. 	Id. 	Otherwise, the defendant did
not object to the statement of facts in the R&R. 	Id.
Except as affected by the court’s rulings on defendant’s objections, the
court adopts the findings of fact made by the magistrate judge. 	Before
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addressing defendant’s factual objections, the court finds it appropriate to
present a brief summary of the R&R’s findings of fact.
On November 17, 2020, Ms. Jones was arrested by three law enforcement
officers in the Martin, South Dakota, area on a federal warrant. 	Within
approximately two hours of her arrest, Ms. Jones was interviewed by FBI Agent
Cooper in the presence of two other law enforcement officers at the Bennett
County State’s Attorney’s Office in Martin. 	Near the beginning of the interview,
Ms. Jones read and signed a Miranda advisement form acknowledging she
understood her rights and consented to waive those rights and answer questions
without the presence of an attorney. 	Suppression Hearing Exhibit C. 	During
the ensuing approximately 45-minute interview, Ms. Jones provided information
regarding her own methamphetamine distribution, supply sources and other
people in the Martin and Rapid City areas engaged in drug activities.
Later that day, Ms. Jones was transported to the Pine Ridge Adult Offender
Facility in Pine Ridge, South Dakota, to be jailed there overnight.
The next day, on November 18, Ms. Jones was transported to the FBI
Office in Rapid City, South Dakota, for processing or booking and then was
delivered to the Pennington County Jail in Rapid City. 	The government
concedes law enforcement did not provide notice of Ms. Jones’ arrest to the
chambers of United States Magistrate Judge Daneta Wollmann. 	It was not until
37 days later, on December 23, 2020, that Ms. Jones appeared before and was
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arraigned by Magistrate Judge Wollmann. 	Ms. Jones was granted pretrial
release on that date.
1. 	DEFENDANT OBJECTS TO THE FINDING SHE NEVER
ASSERTED HER RIGHT TO REMAIN SILENT.
Magistrate Judge Moreno found that within a couple hours of her arrest,
Agent Cooper read each of the Miranda rights on the form to Ms. Jones, who
acknowledged she understood her rights and agreed to speak to law enforcement
without an attorney present. 	(Docket 157 at p. 6) (referencing Suppression Hearing
Exhibits 1, B & C; citations to the suppression hearing transcript omitted).
Contrary to the magistrate judge’s finding, the defendant contends that
approximately 24 hours later, on November 18, 2020, she invoked her right to
remain silent. 	(Docket 161 at p. 2) (referencing Docket 147 at pp. 63:13-64:10 &
101:13-102:1). 	Ms. Jones acknowledges that based upon exercising her right to
remain silent, she was not questioned further. 	Id.
It is unclear from the defendant’s citations to the suppression hearing
transcript whether Ms. Jones was asked if she wanted to give a further statement on
November 18, or whether she invoked her right to remain silent. 	Criminal
Investigator Jonathan Archambeau with the Oglala Sioux Tribal Department of
Public Safety and a task force officer with the Badlands Safe Trails Task Force
transported Ms. Jones from Martin, South Dakota, to the Pine Ridge Facility and
then to the United States Marshals Service (“USMS”) in Rapid City. 	(Docket 147 at
p. 151:16-25). 	Before leaving for Pine Ridge, Investigator Archambeau did not ask
Ms. Jones to speak further with him. 	Id. at pp. 156:23-157:6.
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It is clear, however, the government does not claim Ms. Jones provided any
information or made a statement to law enforcement immediately before or during
the time between her transfer to the Pine Ridge Adult Offender Facility, the USMS
Office in Rapid City and ultimately to the Pennington County Jail. 	See id. at
p. 152:1-3.
Defendant’s first objection to the R&R is overruled.
2. 	DEFENDANT OBJECTS TO THE FINDING THAT THE ONLY
BASIS UPON WHICH SHE MOVED FOR DISMISSAL WAS
UNDER THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT.
The R&R states Ms. Jones “moved to dismiss the drug charge against her,
under the Due Process Clause of the Fifth Amendment[.]” 	(Docket 157 at p. 3).
Ms. Jones objects to this finding because she also moved for dismissal pursuant to
Fed. R. Crim. P. 5(a). 	(Docket 161 at p. 2) (referencing Docket 153 at p. 1).
Defendant’s brief asked the court to dismiss the indictment against her with
prejudice “under the due process clause of the Fifth [Amendment] to the United
States’ Constitution, and the Federal Rule of Criminal Procedure 5(a).” 	(Docket 153
at p. 1). 	However, the defendant only argued “due process” in the introduction and
the conclusion of her brief. 	Id. at pp. 1 & 15. 	The entirety of defendant’s brief
focused on the alleged violation of Rule 5(a). 	Id. at pp. 1-10.
The magistrate judge focused on both Rule 5(a) and Ms. Jones’ due process
claims. 	(Docket 157 at pp. 4-11). 	The magistrate judge concluded that “[h]aving
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).” 	Id. at
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p. 8 (references omitted). 	“[T]he 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.” 	Id. (references omitted). 	“[S]ince the provisions of Rule 5(a)
are procedural, not substantive,” the magistrate judge concluded “the sanction for
failure to comply with the Rule is exclusion of those statements taken during the
period of unnecessary delay.” 	Id. at pp. 8-9 (references omitted). 	Defendant’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[,]” as the magistrate judge found those cases “consistently refer to the
application of evidentiary sanctions (e.g., the exclusion of evidence), not dismissal of
criminal charges, as the proper remedy for the violation of the prompt presentment
rule.” 	Id. at pp. 9-10 (references omitted).
Defendant’s second objection to the R&R is overruled.
CONCLUSIONS OF LAW
3. 	DEFENDANT OBJECTS TO THE CONCLUSION THAT BY
WAIVING HER MIRANDA RIGHTS SHE WAIVED HER RIGHT TO
TIMELY PRESENTATION TO A MAGISTRATE JUDGE FOR
ARRAIGNMENT.
Rule 5 governing initial appearances provides that following an arrest, the
“person making an arrest within the United States must take the defendant without
unnecessary delay before a magistrate judge[.]” 	Fed. R. Crim. P. 5(a)(1)(A).
Because Ms. Jones was arrested in Bennett County, South Dakota, “where the
offense was allegedly committed . . . [her] initial appearance must be in that
district[,]” that is, the District of South Dakota. 	Fed. R. Crim. P. 5(c)(1)(A). 	As a
practical matter, that means appearance before a magistrate judge at the federal
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courthouse for the Western Division of the District of South Dakota in Rapid City,
South Dakota.
Although Ms. Jones was not presented to a magistrate judge for 37 days,
Magistrate Judge Moreno found this procedural right could be waived. 	“Although
the Eighth Circuit has not previously addressed the matter, courts have concluded
that a defendant can indeed waive Rule 5’s procedural safeguards.” 	(Docket 157 at
p. 4) (reference to collected cases omitted). 	Particularly “when the defendant has
been given Miranda warnings,” the magistrate judge found “courts have been
accepting of a presentment waiver.” 	Id. at p. 5 (references omitted).
Ms. Jones opposes this finding. 	(Docket 161 at p. 3).
What is irrefutable is that no one, ever, at any point advised Ms. Jones
that if she signed the Advice of Rights document she would be waving
presentment rights and could be held for 37 days in jail before seeing a
judge. 	It is not contained in the Advice of Rights document presented
to Ms. Jones, it was not discussed by Special Agent Cooper or any other
law enforcement officer during the interrogation or at any other time,
and it is not part of the advice of rights given to Ms. Jones by the court
at her initial appearance.
Id. (references to the suppression hearing record omitted). 	Because “the Eighth
Circuit has not previously addressed this issue,” Ms. Jones submits “the only
authority [cited in the R&R] to support [waiver] is not binding on this Court.” 	Id.
“Without being advised of these rights[,]” defendant argues “it is not possible that a
person untrained in the law, such as Ms. Jones, could knowingly, intelligently and
voluntarily waive her presentment rights.” 	Id.
Other than her general argument, Ms. Jones points to no case authority
which supports her position. 	Although the Eighth Circuit never directly addressed
this issue, a number of circuit courts have.
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“[B]y validly waiving his Miranda right to silence and an attorney, and by
agreeing to speak with the police, [the defendant] has thereby also waived any
Mallory right to be brought before a magistrate ‘as quickly as possible.’ ” 	Pettyjohn
v. United States, 419 F.2d 651, 656 (D.C. Cir. 1969) (underlining provided; citing
Mallory v. United States, 354 U.S. 449, 454 (1957), cert. denied, 397 U.S. 1058
(1970)). 	The D.C. Circuit acknowledged this principal in an earlier decision. 	“[W]e
had occasion recently to articulate this limitation that Miranda has effected upon
the earlier Mallory decision. 	In short, we held that [a] valid Miranda waiver is
necessarily . . . also a waiver of an immediate judicial warning of constitutional
rights[.]” 	Id. (underlining provided; referencing Frazier v. United States, 419 F.2d
1161, 1166 n.8 (D.C. App. 1969)). 	See also United States v. Barlow, 693 F.2d 954,
959 (6th Cir. 1982) (“In the instant case appellant . . . waived his Miranda rights
before giving his statement to the FBI. 	He now cannot seek the protection of Rule
5(a). 	A valid Miranda waiver also waives the prompt judicial warning of one’s
constitutional rights.”) (underling provided); United States v. Binder, 769 F.2d 595,
599 (9th Cir. 1985), overruled on other grounds by United States v. Morales, 108
F.3d 1031 (9th Cir. 1997) (“A waiver of Miranda rights constitutes a waiver of the
rights under Rule 5.”); United States v. Indian Boy X, 565 F.2d 585, 592 (9th Cir.
1977) (“Since the Miranda waiver was valid, there was a valid waiver of the
McNabb-Mallory prompt arraignment right [Fed. R. Crim. P. 5(a) & 18 U.S.C.
§ 5033].”) (underlying provided); United States v. Ostrander, 411 F.3d 684, 696-97
(6th Cir. 2005) (finding that because the defendant “was not intimidated or
physically abused, that he understood what was going on and what his rights were,
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and that he began to discuss the crime well within the six-hour safe harbor,” the
defendant’s Miranda waiver also waived prompt presentment before the magistrate
judge) (citations omitted; underlying provided).
District courts in other circuits have adopted the same rule. 	“Even assuming
arguendo that the delay [in presentment to the magistrate judge] was unnecessary,
suppression of the statements would nonetheless be inappropriate in view of his
valid Miranda waiver[.]” 	United States v. Lukens, 735 F. Supp. 387, 391 n.1 (D.
Wyo. 1990) (referencing Barlow, 693 F.2d at 959; other references omitted).
“Delays [in presentment pursuant to Rule 5(a)] effected for the purpose of
interrogation are considered to be unnecessary.” 	United States v. Thompson, No.
10-cr-20410, 2011 WL 4072506, at *3 (S.D. Fla. Feb. 28, 2011) (referencing Corley,
556 U.S. at 308), report and recommendation adopted, No. 10-20410-CR, 2011 WL
4055400 (S.D. Fla. Sept. 13, 2011), aff'd sub nom., United States v. Gray, 544 Fed.
Appx. 870 (11th Cir. 2013). 	In Thompson, the court found that “upon being
advised of his Miranda rights, Defendant made a voluntary statement and then
proceeded to invoke his right to terminate the questioning. 	These actions are
consistent with Defendant’s awareness and understanding of his rights and are
indicative that the statement made by Defendant was voluntary and knowing.” 	Id.,
2011 WL 4072506, at *5. 	For this reason, the Florida district court concluded the
defendant waived his Rule 5(a) right to a prompt presentation before a magistrate
judge. 	“[T]he Miranda waiver was knowing and voluntary, and any statements
made by Defendant thereafter should not be suppressed.” 	Id.
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“Applying O’Neal,5 the Court sees no choice other than to find that
Defendant’s multiple Miranda waivers vitiated any prompt presentment problem.
. . . [T]he bottom line of O’Neal is that a defendant who is made aware of and willingly
waives his rights to remain silent and to consult with an attorney before speaking
necessarily suffers no prejudice from a delay in hearing those same rights repeated
in court.” 	United States v. Hector, No. 1:12-CR-183, 2013 WL 2898078, at *13
(N.D. Ga. Jan. 29, 2013), report and recommendation adopted in part, rejected in
part, No. 12-CR-183, 2013 WL 2898099 (N.D. Ga. June 11, 2013).
“[A] valid Miranda waiver may also waive the prompt judicial warning of one’s
constitutional rights. 	Particularly where the delay between arrest and presentment
was not for the purposes of coercion or intimidation, courts in this circuit will find
defendants to have waived their prompt presentment rights.” 	United States v.
Mora-Pizarro, No. 13-CR-00082, 2016 WL 6871271, at *7 (W.D. Ky. Nov. 21, 2016)
(referencing Barlow, 693 F.2d at 959). 	See also United States v. Ramirez, No.
3:13-CR-82, 2016 WL 11214627, at *10 (W.D. Ky. Dec. 9, 2016) (same), report and
recommendation adopted, No. 13CR-82, 2017 WL 384276 (W.D. Ky. Jan. 27, 2017).
One district court in the Eighth Circuit has specifically adopted the same rule.
“[C]ourts have been particularly permissive of a defendant’s waiver of his
presentment rights when he has previously been given his Miranda warnings[.]”
5 United States v. O’Neal, 411 F.2d 131, 136-137 (5th Cir. 1969)
(considering the McNabb-Mallory suppression rule (codified at 18 U.S.C. § 3501).
Justice Alito expressly cited O’Neal as standing for the proposition that “a waiver
of Miranda rights also constitutes a waiver under McNabb-Mallory.” 	Corley,
556 U.S. at 329 (Alito, J., dissenting) (underlining provided).
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United States v. McConnell, No. 13-CR-273 2017 WL 396538, at *6 (D. Minn. Jan.
30, 2017) (referencing Barlow, 693 F.2d at 959; Binder, 769 F.2d at 599).
While these decisions may not be binding legal precedent, they provide
persuasive authority which the court cannot overlook. 	The court finds by waiving
her Miranda rights, Ms. Jones waived her right to prompt presentment before a
magistrate judge pursuant to Rule 5(a).
Defendant’s third objection to the R&R is overruled.
4. 	DEFENDANT OBJECTS TO THE FAILURE OF THE R&R TO
ACKNOWLEDGE THE RULING OF CORLEY.
The magistrate judge observed “if the confession came within the six-hour
‘safe harbor’ of [18 U.S.C. § 3501(c)], it is admissible if voluntary, subject to the
rules of evidence and whatever weight the jury decides to give to it.” 	(Docket
157 at p. 12) (referencing Corley, 556 U.S. at 322). 	“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.” 	Id. (referencing Corley, 556 U.S. at 322).
Defendant objects to the magistrate judge’s apparent limited consideration
of Corley because the R&R “does not address the defendant’s contention that
Rule 5(a) is designed to prevent secret detention.” 	(Docket 161 at p. 3). 	Ms.
Jones argues if it is “contended that Rule 5(a) is designed only to prevent secret
detention aimed at procuring self-incriminating statements. 	This cannot be the
law.” 	Id. at p. 4.
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Contrary to defendant’s objection, that is exactly the purpose of
§ 3501 when read in conjunction with Rule 5(a). 	That section provides in part:
In any criminal prosecution by the United States . . . a confession
made or given by a person who is a defendant . . . while . . . under
arrest 	. 	. 	. 	in 	the 	custody 	of 	any 	law-enforcement 	officer 	or
law-enforcement agency, shall not be inadmissible solely because of
delay in bringing such person before a magistrate judge . . . if such
confession is found by the trial judge to have been made voluntarily
and if the weight to be given the confession is left to the jury and if
such confession was made or given by such person within six hours
immediately following [her] arrest or other detention . . . .
18 U.S.C. § 3501(c).
Ms. Jones offers no evidence that she was detained in order to extract a
confession. 	The magistrate judge found Ms. Jones’ confession came within the
6-hour safe harbor period permitted by § 3501(c) and that her statement was
voluntary. 	(Docket 157 at pp. 12-13).
Defendant’s fourth objection to the R&R is overruled.
5. 	DEFENDANT OBJECTS TO THE CONCLUSION THAT
SUPPRESSION IS THE ONLY REMEDY AVAILABLE UNDER
RULE 5(a).
The magistrate judge concluded “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.” 	(Docket 157 at p. 8) (referencing
United States v. Cooke, 853 F.3d 464, 471 (8th Cir. 2017); United States v.
Chavez, 705 F.3d 381, 385-86 (8th Cir. 2013); other references omitted).
Defendant argues “[t]he cases cited in support of the conclusion that
‘prejudice results only when the government uses the delay to subject the
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defendant to unwarranted interrogations’ are not persuasive and the Eighth
Circuit case cited is materially distinguishable.” 	(Docket 161 at p. 5). 	Ms.
Jones contends “[n]one of the . . . cited cases offer guidance directly on the issue
of prejudice to a defendant for in ability [sic] to exercise rights―including right to
a detention hearing―due to unnecessary delay.” 	Id. at p. 6. 	“Conversely,”
defendant submits “the Corley case . . . directs that the protections provided by
Rule 5(a) expand beyond only prejudice to the trial defense.” 	Id. 	For this
reason, Ms. Jones argues the magistrate judge’s “conclusion is contrary to law.”
Id.
Defendant’s objection is without merit. 	“[T]he appropriate remedy for a
violation of Rule 5(a)(1)(A) is not dismissal of an indictment, but suppression of
evidence illegally obtained as a result of the violation.” 	Cooke, 853 F.3d at 471
(referencing Chavez, 705 F.3d at 385-86. 	In Cooke, the defendant “argu[ed] . . .
that the period in state custody prejudiced him by delaying appointment of
counsel, which deprived counsel of adequate time to prepare for trial.” 	Id.
Finding no authority to support defendant’s argument for dismissal, the court
stated “[w]e have not been directed to any authority suggesting that this is a sort
of prejudice addressed by Rule 5(a)[.]” 	Id. 	“Cooke was not prejudiced by the
period of delay and so he has not identified any available remedy for a supposed
violation of Rule 5.” 	Id.
In Chavez, the defendant, as an alleged illegal alien, was taken into
criminal custody without a warrant. 	Chavez, 705 F.3d at 384-85. 	The court
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found Mr. Chavez’s Rule 5(a) rights and his Fourth Amendment right to a
“probable-cause determination” were violated. 	Id. at 385. 	“Even so,” the court
ruled “the appropriate remedy is not dismissal of the indictment.” 	Id.
Recognizing the defendant’s frustration, the court observed “Chavez claims that
there must be some remedy for the violation of these rights. 	Remedies may exist
for violations like those here, but dismissal is not one of them.” 	Id. 	“In this
case, there is no showing of prejudice to Chavez from the delay between arrest
and appearance. 	Even if there were, the appropriate remedy would be
suppression of the statements made during that period, not dismissal of the
indictment.” 	Id. at 385-86.
While Ms. Jones argues she was forced to remain in custody for 37 days
before being arraigned and then allowed pretrial release, that does not constitute
the type of prejudice contemplated by Corley, Cooke, Chavez or the other cases
referenced in the R&R. 	See Docket 157 at p. 8 n.26. 	The court adopts the
conclusion of the R&R that the only remedy under the facts of this case is the
suppression of an ill-gotten confession, which did not occur.
Defendant’s fifth objection to the R&R is overruled.
6. 	DEFENDANT OBJECTS TO THE CONCLUSION THAT THE
COURT CANNOT INVOKE ITS SUPERVISORY POWER TO
DETER FUTURE ILLEGAL CONDUCT OF LAW
ENFORCEMENT.
The magistrate judge evaluated whether the conduct of law enforcement in
Ms. Jones’s case constituted “outrageous conduct.” 	(Docket 157 at p. 10).
“[T]o warrant dismissal of an indictment, the outrageousness of such conduct
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must rise to the level of ‘violating that “fundamental fairness” shocking to the
universal sense of justice.’ ” 	Id. (citing United States v. Russell, 411 U.S. 423,
432 (1973) (internal citation omitted)). 	The magistrate judge found “Jones never
faced extreme and overwhelming coercion, much less physical, or psychological
harm. 	Nor can it be said that the Task Force agents’ nonfeasance―in notifying
[Magistrate Judge Wollman] of Jones’s arrest―was outrageous or that they
purposefully perverted a constitutionally protected right to further their
investigation efforts.” 	Id. at p. 11. 	With this finding, the R&R recommends
“dismissal is not the rightful course of action.” 	Id.
Ms. Jones submits “the Court could use its supervisory power to dismiss
this case and send an unmistakable message to deter further unlawful behavior
by law enforcement officers.” 	(Docket 161 at p. 6). 	She offers “[t]he Court is not
impotent to protect the rights of the citizens against unlawful executive branch
overreach.” 	Id. (referencing United State v. Osunde, 638 F. Supp. 171, 176-77
(N.D. Cal. 1986)).
The problem with the defendant’s argument is that the magistrate judge
found law enforcement was guilty of “nonfeasance” and that their conduct was
neither “outrageous” nor done with the intent to “purposefully pervert[] a
constitutionally protected right to further their investigation efforts.” 	(Docket
157 at p. 11). 	Osunde presented an entirely different set of facts. 	After his
arrest, Mr. Osunde was not brought before a magistrate judge on the complaint
for an initial appearance until 106 days later and then was not indicted until 12
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days after his appearance. 	Osunde, 638 F. Supp. at 173. 	The Osunde court
was particularly focused on the 118 days between arrest and indictment, a
speedy trial act violation of 18 U.S.C. § 3161(b), which requires an information or
indictment be filed within 30 days from the date of arrest. 	Id. 	Contrary to the
decisions of later courts, Osunde concluded Rule 5(a) provided a defendant “a
specific substantive right.” 	Id. at 176. 	In light of the statutory right and
substantive right, the court found the conduct of the government’s “serious and
flagrant violations[,]” warrant dismissal with prejudice. 	Id. at 177.
While the court retains the supervisory authority to dismiss an indictment
under egregious circumstances or where clearly reprehensible conduct shocks
the court’s conscience and its sense of justice, this is not that case. 	While it is
unfortunate Ms. Jones lingered for 36 days in jail before appearing before the
magistrate judge, the facts of this case do not warrant dismissal of the
indictment. 	Unlike Osunde, probable cause existed in Ms. Jones’ case as an
indictment had been filed and a federal arrest warrant was issued by Magistrate
Judge Wollmann. 	(Dockets 21 & 22).
Defendant’s sixth objection to the R&R is overruled.
7. 	DEFENDANT OBJECTS TO THE CONCLUSION SHE MAY
HAVE A CIVIL REMEDY AVAILABLE.
After concluding dismissal of the indictment was not a proper remedy, the
magistrate judge offered that Ms. Jones may be able to “pursue a civil action and
seek to hold those responsible for her delay liable.” 	(Docket 157 at p. 19).
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Defendant argues the civil resource option may violate Heck v. Humphrey, 512
U.S. 477 (1994), as a “finding or an implied finding . . . that Ms. Jones’
unnecessarily long detention was not unlawful could preclude Ms. Jones’ ability
to have the matter decided civilly under the Res Judicata or collateral attack
theory.” 	(Docket 161 at p. 7).
The cases cited by the magistrate judge demonstrate 42 U.S.C. § 1983
claims may be pursued for pre-appearance detention which violates due process.
See Docket 157 at p. 19 n.60.
Defendant’s seventh objection to the R&R is overruled.
8. 	DEFENDANT OBJECTS TO THE CONCLUSION THAT LAW
ENFORCEMENT IS ON NOTICE.
Based on the facts of this case, the R&R concludes “[l]aw enforcement
officers are now on notice of what they must do. 	A delay like Jones experienced
must not happen again . . . . If it does, a different remedy (than admonishment)
may be called for.” 	Id. at p. 20.
Defendant objects to the magistrate judge’s conclusion. 	She argues
“[i]gnorance of the law excuses no man,” and “[d]oes this Court really intend to
hold law enforcement officers who swear to know, uphold, and enforce the law to
a lower standard than it holds its lay citizens?” 	(Docket 161 at p. 7 & 7 n.26).
Ms. Jones submits if law enforcement is not punished for their conduct in this
case, the court’s action “could be construed as a grant[] of qualified immunity.”
Id. at p. 7.
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The court is not going to engage in a pre-filing determination of a civil
complaint pursuant to 42 U.S.C. § 1983 about whether law enforcement in this
case may be entitled to qualified immunity to Ms. Jones’ potential civil rights
claim. 	The court is confident the FBI and Magistrate Judge Wollmann, and her
staff, have put into place checks to assure that unfortunate events like what
happened to Ms. Jones do not happen again.
Defendant’s eighth objection to the R&R is overruled.
9. 	DEFENDANT OBJECTS TO THE R&R’S CONCLUSION
BECAUSE OF SYSTEMIC RULE 5(A) VIOLATIONS IN THE
NORTHERN DIVISION OF THE DISTRICT OF SOUTH
DAKOTA.
Defendant objects to the conclusion in the R&R that dismissal is not
appropriate because the defendant provided evidence of “systemic disregard for
Rule 5 were in the Northern Division of the District of South Dakota. 	Id. at p. 7
(referencing Docket 153 at p. 5).
In United States v. Theus, II, CR. 20-10045 (D.S.D. 2020), when
considering a motion to dismiss the indictment based on a 16-day delay in
presentment of the defendant to the magistrate judge, that court soundly
criticized an Assistant United States Attorney and members of the United States
Marshals Service for the District of South Dakota for their lack of candor and
false statements in court. 	Id., Docket 34. 	District Court Judge Charles B.
Kornmann adopted the magistrate’s judge report and dismissed the case
because of the defendant’s death. 	Id., Docket 41 at p. 2.
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In United States v. Bobtail Bear, CR-14-10011 (D.S.D. 2014), the
magistrate judge found a seven-day delay in presentment “was not purposeful,
but due to personnel, training, and communication issues, slip ups, and poor
policies.” 	Id., Docket 73 at p. 3. 	The district court has not ruled on the report
of the magistrate as of the date of this order.
In United States v. Rodlund, CR-20-10041 (D.S.D. 2020) there is no order
or report of a magistrate judge which makes reference to a failure of prompt
presentation for an initial appearance and arraignment before the magistrate
judge. 	At the time of the issuance of the indictment on October 6, 2020, the
defendant was a prisoner in the Big Sandy Federal Prison in Inez, Kentucky.
(Dockets 1 & 7). 	Because the defendant was serving a custodial sentence, by
the writ of habeas corpus ad prosequendum the magistrate judge set Mr.
Rodlund’s initial appearance in Aberdeen, South Dakota, for December 14,
2020. 	(Docket 7). 	During the COVID-19 pandemic and in light of the
defendant’s federal custody in another case, an extended date for arraignment
appears logical. 	This case is wholly unrelated to the facts presently before the
court in Ms. Jones’ case.
The court finds the isolated events in the Northern Division of the District
of South Dakota do not compel the court to reject the magistrate judge’s
conclusion or recommendation in this case. 	The court adopts the magistrate
judge’s conclusion that law enforcement “did not . . . try and dupe anyone, have
a hidden agenda, engage in bad faith, or intend to delay the presentiment
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process.” 	(Docket 157 at p. 19). 	“By no means” should the 37-day delay in
presentment in Ms. Jones’ case “be[] brushed aside. 	It was though an
inadvertent error and is not part of a systemic problem in the District’s Western
Division.” 	Id. at p. 20.
Defendant’s ninth objection to the R&R is denied.
10. 	DEFENDANT OBJECTS TO THE CONCLUSION THAT HER
ALTERNATIVE MOTION TO SUPPRESS SHOULD BE
DENIED.
Ms. Jones objects to denial of her alternative motion to suppress her
statement to law enforcement contending the R&R “refuses to acknowledge the
statements were not made voluntarily.” 	(Docket 161 at p. 8). 	She asserts the
magistrate judge “did not apply the factors . . . set forth under 18 U.S.C.
§ 3501(b),” but reached the conclusion “only after analysis of various case law.”
Id. (referencing Docket 157 at pp. 4-8). 	Defendant argues “[s]ince the proper
rule was not analyzed the conclusion is contrary to law.” 	Id.
Section 3501(b) provides:
The trial judge in determining the issue of voluntariness shall take
into consideration all the circumstances surrounding the giving of
the confession, including
(1) 	the time elapsing between arrest and arraignment
of the defendant making the confession, if it was
made after arrest and before arraignment,
(2) 	whether such defendant knew the nature of the
offense with which [she] was charged or of which
[she] was suspected at the time of making the
confession,
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(3) 	whether or not such defendant was advised or
knew that [she] was not required to make any
statement and that any such statement could be
used against [her],
(4) 	whether or not such defendant had been advised
prior to questioning of [her] right to the assistance
of counsel, and
(5) 	whether or not such defendant was without the
assistance of counsel when questioned and when
giving such confession.
The presence or absence of any of the above-mentioned factors to be
taken into consideration by the judge need not be conclusive on the
issue of voluntariness of the confession.
18 U.S.C. § 3501(b).
The R&R references the entirety of § 3501 and then specifically cites the
six-hour “safe harbor” period between arrest and the defendant’s statement
identified in § 3501(c). 	(Docket 157 at 	p. 12) (referencing United States v.
Casillas, 792 F.3d 929, 930 (8th Cir. 2015) (citing Corley, 556 U.S. at 309-10 &
322) (referencing 18 U.S.C. § 3501(c)). 	Citing to the motion hearing transcript,
the magistrate judge found Ms. Jones’ statement was made “voluntarily, less
than six hours of being arrested.” 	Id. at pp. 12-13 (reference omitted). 	This
finding satisfies subsection (1) of § 3501(b).
In the factual background section of the R&R, the magistrate judge found
Ms. 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
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activities. 	Jones 	also 	spoke 	about 	her 	own 	methamphetamine
distribution and her supply sources.
Id. at p. 2 (emphasis added). 	The magistrate judge found the defendant’s
written 	[Miranda] 	waiver 	is 	a 	telling 	manifestation 	that 	she
understood her rights and was disposed to give them up. 	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.
Id. at p. 6. 	Finally, the magistrate judge found Ms. Jones’ “interview . . . was
polite and conversational.” 	Id. at p. 14. 	When addressing voluntariness, the
magistrate judge found “[t]he same analysis applies when considering the
voluntariness of statements in the context of a Miranda waiver and under the
Fifth Amendment.” 	Id. 	These findings satisfy factors (2), (3), (4) and (5) of
§ 3501(b).
That the magistrate judge addressed each of the § 3501(b) and (c) factors in
the context of the controlling case authority as opposed to directly addressing the
§ 3501 factors does not minimize the analysis. 	The R&R provides a thorough
analysis of the facts and the application of the § 3501 factors to those facts in
arriving at the conclusions and recommendations made.
Defendant’s tenth objection to the R&R is overruled.
ORDER
Based on the above analysis, it is
ORDERED that defendant’s objections (Docket 161) are overruled.
IT IS FURTHER ORDERED that the report and recommendation (Docket
157) is adopted consistent with this order.
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IT IS FURTHER ORDERED that defendant’s amended motion to dismiss
(Docket 113) is denied.
IT IS FURTHER ORDERED that defendant’s alternative amended motion
to suppress (Docket 113) is denied.
IT IS FURTHER ORDERED that defendant’s motion to suppress and
alternative motion to suppress (Docket 95) are denied as moot.
Dated October 12, 2021.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
UNITED STATES DISTRICT JUDGE
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