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United States of America v. Daniel Arthur Clevenger

October 13, 2011


The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

Order Denying Defendant's Motionto Dismiss the Indictment

Presently before the Court is defendant Daniel Arthur Clevenger's motion to dismiss the indictment. Defendant argues dismissal is appropriate as a remedy for the government's violation of Fed. R. Crim. P. 5, based on outrageous government conduct, or as an exercise of the Court's supervisory powers. For the reasons set forth herein, the Court DENIES defendant's motion.


Defendant was arrested at approximately 3:45 p.m. on Monday, July 25, 2011 on suspicion of alien smuggling. He was transported to the Brown Field Border Patrol Station, where he arrived at approximately 4:43 p.m. [Declaration of Border Patrol Agent Jeffrey Selden ("Selden Decl."), ¶ 5-6.] Supervisory Border Patrol Agent Zimmer went to the room where defendant was being detained around 5:50 p.m. However, because he believed defendant was under the influence of a controlled substance, Supervisory Border Patrol Agent Zimmer "decided to give Clevenger a few hours to compose himself and to allow any possible side effects [of] his prior crystal meth binge to subside." [Report of Investigation ("ROI"), Doc. 16-2, pp. 5-6] Border Patrol Agent Ramon Garcia took defendant's statement around 12:30 a.m. on July 26. [ROI, p.6.] After defendant made his statement, he remained at the Brown Field Station. On Tuesday morning, July 26, the Prosecutions Unit at the Brown Field Station called the MCC, received a booking window number, and was told that an MCC official would call when space was available. [Selden Decl., ¶ 7.]

At approximately 7 a.m. on Wednesday, July 27, an official from MCC informed the Border Patrol Prosecutions Officer they had space for defendant. [Selden Decl., ¶ 11.] The complaint and probable cause statement were taken to the U.S. Attorney's Office that morning. The complaint was signed and filed shortly thereafter. Defendant arrived at MCC at approximately 9:30 a.m. [Selden Decl., ¶ 12.] Defendant was set for initial appearance before Magistrate Judge McCurine on Wednesday, July 27, but for unknown reasons that appearance was continued to Thursday, July 28, at 10:30 a.m. [Doc. Nos. 2 and 3.]

Throughout the time he was detained at the Brown Field Station, defendant was the only prisoner in the holding cell. [Selden Decl., ¶ 8.] Defendant received regular meals. [Selden Decl., ¶ 9.] However, he was not allowed to bathe, brush his teeth, change his clothes, or make a telephone call.*fn1 Defendant slept on the floor with two blankets but with no mattress or pillow. The room in which he was detained had a toilet with an attached faucet which was the only source of water. He was not given a cup from which to drink.*fn2 He was fed bean, egg, and cheese burritos for breakfast, lunch and dinner. He was not given access to recreation, medical services, or psychological counseling.*fn3


Defendant argues the persistent failure to present arrestees in this District to a magistrate judge without unnecessary delay violates Fed. R. Crim. P. 5 and due process. Defendant argues both the delay in bringing arrestees to court, and the conditions under which they are detained at Border Patrol stations, require correction.*fn4

1. Presentment and Rule 5

A law enforcement officer has the duty to present an arrestee before a magistrate judge without unnecessary delay. United States v. Garcia-Hernandez, 569 F.3d 1100, 1104 (9th Cir. 2009); Fed. R .Crim. P. 5(a). The primary concern of the presentment requirement since common law has been to "prevent secret detention" and to "inform a suspect of the charges against him." Corley v. United States, 556 U.S. 303, 129 S. Ct. 1558, 1563 (2009). The remedy for an unnecessary delay is suppression of statements made by the arrestee. Id.

There is no authority for defendant's argument that the Court may dismiss the indictment as a sanction for violation of Rule 5. In combination, Rule 5 and 18 U.S.C. § 3501 delineate the prompt presentment requirement and the remedies for failure to promptly bring an arrestee before the nearest magistrate judge. Voluntary statements given within the first six hours of detention are admissible, subject to the rules of evidence. 18 U.S.C. § 3501(c); Corley, 129 S. Ct. at 1571. Statements made outside the initial six hour period (or such longer time period as the court deems "reasonable considering the means of transportation and the distance to be traveled to the nearest available magistrate"), may also be admissible unless the court determines the delay was unreasonable or unnecessary Id.; see also Garcia-Hernandez, 569 F.3d at 1105. Violation of Rule 5 does not justify dismissal of the indictment. United States v. Savchenko, 201 F.R.D. 503 (S.D. Cal. 2001) (discussing the cases and concluding that suppression of statements, rather than dismissal, is the only remedy available under Rule 5). The Court DENIES defendant's motion to dismiss under Rule 5.

2. Due Process and the Court's supervisory powers

Defendant argues it violates due process "for pretrial arrestees to be held in custody for days at a time, with no counsel, no bail determination, no ability to contact family, while being made to sleep on metal benches or the floor, with or without a blanket, given minimal food each day, no clean clothes, no access to religious services, no access to physical exercise, and no opportunity for personal hygiene." Defendant makes sweeping arguments about systemic issues associated with the processing and detention of arrestees by the Border Patrol. However, he fails to individualize those claims to justify dismissal of his case.

There are two grounds upon which the Court may dismiss an indictment based upon government misconduct. First, where the government engages in conduct "so grossly shocking and so outrageous as to violate the universal sense of justice," the court may outright dismiss the indictment. United States v. Lopez, 577 F.3d 1053, 1068 (9th Cir. 2009). This is an "extremely high standard." United States v. Nobari, 574 F.3d 1065, 1081 (9th Cir. 2009). A defendant must also show he was prejudiced by the outrageous government conduct in order to warrant dismissal. United States v. Struckman, 611 F.3d 560, 574 (9th Cir. 2010); United States v. Ross, 372 F.3d 1097, 1110 (9th Cir. 2004). Here, the government delayed in bringing defendant to Court and held ...

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