The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge
ORDER DENYING DEFENDANT'S MOTION TO DISMISS THE INDICTMENT AND TO ISSUE A WRIT OF PROHIBITION
Defendant Catarino Minero-Rojas ("Minero-Rojas") is charged with attempted entry after deportation in violation of 8 U.S.C. § 1326; fraud and misuse of visas, permits and other documents in violation of 18 U.S.C. § 1546(a); and aggravated identity theft in violation of 18 U.S.C. § 1028A. Minero-Rojas has filed a motion to dismiss the indictment and for the issuance of a writ of prohibition ordering the United States to cease its pattern and practice of delaying the presentment of defendants before a magistrate judge and subjecting pretrial arrestees to substandard conditions of confinement. Doc. No. 24. For the reasons discussed below, Minero-Rojas' motion is DENIED but the Court enters orders under its supervisory powers to facilitate elimination of the continued delays in presenting defendants before a magistrate judge.
This district is one of the busiest districts in terms of criminal defendants. For example, in the 12-month period ending September 30, 2010, this district had criminal cases filed against 5,592 defendants. Administrative Office of the United States Courts, 2010 Annual Report of the Director: Judicial Business of the United States Courts, Table D at 207, http://www.uscourts.gov/uscourts/Statistics/JudicialBusiness/2010/JudicialBusinespdfvers ion.pdf. The only other districts that had more criminal defendants in the same time period were the District of Arizona (7,856), the Southern District of Texas (9,375) and the Western District of Texas (9,905). Id.
The overwhelming majority of criminal cases begin with the arrest of the defendant. Rule 5(a)(1)(A) of the Federal Rules of Criminal Procedure ("Rule 5") provides, in pertinent part, that "[a] person making an arrest within the United States must take the defendant without unnecessary delay before a magistrate judge . . . ." In speaking of the importance of Rule 5's requirement of presentment without unnecessary delay, the Supreme Court observed:
It also counts heavily against the position of the United States that it would leave the Rule 5 presentment requirement without any teeth, for as the Government again is forced to admit, if there is no McNabb-Mallory, there is no apparent remedy for delay in presentment. One might not care if the prompt presentment requirement were just some administrative nicety, but in fact the rule has always mattered in very practical ways and still does. As we said, it stretches back to the common law, when it was "one of the most important" protections "against unlawful arrest." Today presentment is the point at which the judge is required to take several key steps to foreclose Government overreaching: informing the defendant of the charges against him, his right to remain silent, his right to counsel, the availability of bail, and any right to a preliminary hearing; giving the defendant a chance to consult with counsel; and deciding between detention or release.
Corley v. United States, 556 U.S. 303, 129 S.Ct. 1558, 1570 (2009) (citations omitted).
Timely presentment of a defendant before a magistrate judge is also crucial to allow a defendant to consult with counsel so that steps can be taken to secure evidence that may disappear or witnesses that may be unavailable.*fn1 See Fed. R. Crim. P. 5(d)(2) ("The judge must allow the defendant reasonable opportunity to consult with counsel.").
Moreover, the time for certain procedural due process protections, such as preliminary hearings and detention hearings, run from the time of the initial appearance. Fed. R. Crim. P. 5.1(c) requires that "[t]he magistrate judge must hold the preliminary hearing within a reasonable time, but no later than 14 days after the initial appearance if the defendant is in custody and no later than 21 days if not in custody." 18 U.S.C. § 3142(f) provides that where the attorney for the Government moves for an order of detention, the hearing shall be held immediately upon the person's first appearance before the judicial officer. The hearing may be continued on motion of the defendant for up to five days and on motion of the Government for up to three days.
Unnecessary delay in bringing an arrested defendant before a magistrate judge frustrates the sound historical principles behind Rule 5. It can result in a loss of evidence, failure to timely make bail and the opportunity to communicate with counsel. Furthermore, a delay in presentment is de facto detention and the defendant is not to be detained without a hearing under 18 U.S.C. § 3142(f) for more than three days from initial appearance unless he/she asks for a further delay of two days. Thus, by delaying the initial appearance, the Government is able to obtain detention without a hearing longer than authorized by 18 U.S.C. § 3142(f).*fn2 Moreover, holding the defendant in a detention facility for days before the initial appearance often results in the defendant being held incommunicado.
In many districts, defendants are brought directly to the magistrate judges. Although there is no specific written order, the practice in this district has been for the arresting agents to take arrested persons to the Metropolitan Correctional Center ("MCC"). The detainees are then screened for health issues and delivered to the U.S. Marshal to be brought to court. This process worked not only to ensure the safety and health of arrestees and those in contact with them, such as court personnel, but also to organize the defendants and provide them with access to counsel and Pretrial Services before their initial appearance so that a meaningful hearing could be held before the magistrate judge to determine their right to appointed counsel and conditions of release. Additionally, given the large number of defendants arrested each day, the practice of bringing defendants directly to the magistrate judge would be disorganized and create serious security and administrative concerns. Under the practice in this district, defendants usually appeared before the magistrate judge the next court day after their arrest. Sometimes, if they were arrested in the early morning, they were processed through the MCC and appeared on the magistrate judge's calendar that afternoon.
There is no requirement, however, that the MCC be the only point to which officers can bring arrested persons. The MCC opened in 1974 and can only accommodate approximately 1,000 detainees. Federal Bureau of Prisons, Weekly Population Report, http://www.bop.gov/locations/weekly_report.jsp (last visited Nov. 2, 2011). At the same time, criminal prosecutions have recently skyrocketed in this district. Between 2006 and 2010, the annual number of new criminal defendants in this district experienced a 76% increase from 3,180 in September 2006 to 5,592 in September 2010. Compare Administrative Office of the United States Courts, 2006 Annual Report of the Director: Judicial Business of the United States Courts, Table D at 214, http://www.uscourts.gov/uscourts/Statistics/JudicialBusiness/2006/front/completejudicialb usiness.pdf, with Administrative Office of the United States Courts, 2010 Annual Report of the Director: Judicial Business of the United States Courts, Table D at 207, http://www.uscourts.gov/uscourts/Statistics/JudicialBusiness/2010/JudicialBusinespdfvers ion.pdf. It is apparent that the MCC can no longer handle on a routine basis the influx of arrestees in this district.
The consequence of relying solely on the MCC has been a substantial failure to comply with Rule 5(a)(1)(A) in the San Diego Division.*fn3 Minero-Rojas asserts that arrestees in this district are experiencing delays of five to eleven calendar days between the time of arrest and initial appearance before a magistrate judge. Doc. No. 24, App. A-D. The Government does not challenge the underlying data provided by Minero-Rojas. However, the Court's review of the data provided by Minero-Rojas reveals that excluding weekends and court holidays, arrestees in this district are actually experiencing delays of two to six court days, with the majority experiencing a delay of three court days. See United States v. Van Poyck, 77 F.3d 285, 289 (9th Cir. 1996) (weekend delays reasonable when due to unavailability of magistrate judge). Chart A below outlines the delays being experienced by arrestees in this district, based on the data supplied by Minero-Rojas, excluding those in the hospital post-arrest and pre-initial appearance, and excluding weekends and court holidays.
DELAY (in court days) 2 DAYS 3 DAYS 4 DAYS 5 DAYS 6 DAYS DEFENDANTS 15 172 72 30 4
Since Minero-Rojas' motion to dismiss the indictment was filed on
August 29, 2011, the delays in presentment have continued.*fn4
Minero-Rojas claims that between August 31, 2011 and October
6, 2011, arrestees in this district have experienced delays of five to
seven calendar days. Doc. 34, App. Y, Z, AA. Once again, because the
Government does not challenge the underlying data provided by
Minero-Rojas, the Court accepts it as accurate. However, the Court's
review of the data provided by Minero-Rojas reveals that excluding
weekends and court holidays, arrestees in this district are actually
experiencing delays of two
to four court days. See Van Poyck, 77 F.3d at 289. Chart B below
outlines the more recent delays being experienced by arrestees in this
district, excluding those in the hospital post-arrest and pre-initial
appearance, and excluding weekends and court holidays.
DELAY (in court days) 2 DAYS 3 DAYS 4 DAYS DEFENDANTS 31 84 28
Between August 29, 2011, when Minero-Rojas filed his motion to dismiss the indictment, and October 14, 2011, the Government reports that most of the defendants were arraigned within three court days of their arrest. Doc. 37. The Court's review of the data provided by the Government reveals that excluding defendants who were transferred from state custody or arrested pursuant to an out-of-district complaint, arrestees in this district are actually experiencing delays of one to six court days. Chart C below outlines the more recent delays being experienced by arrestees in this district, according to the Government, excluding those in the hospital post-arrest and pre-initial appearance, and excluding weekends and court holidays.
DELAY (in court days) 1 DAY 2 DAYS 3 DAYS 4 DAYS 5 DAYS 6 DAYS DEFENDANTS 236 225 196 51 15 1 Minero-Rojas disputes the relevancy and accuracy of the Government's data, namely that the Government included cases where (1) the defendant was brought from state custody; (2) the defendant was not in custody at the initial appearance; (3) the defendant was arrested pursuant to an out-of-district complaint; and/or (4) the defendant had his/her initial appearance in El Centro, California or Yuma, Arizona. Doc. 38 at 1:24-2:6. Minero-Rojas also argues that there are errors in the Government's stated date of arraignment. Doc. 38 at 2:7-8. However, even if the Court were to take the Government's proffered data at face value, the Court still finds that there has been a pattern of failure to comply with Rule 5(a)(1)(A) because even an unnecessary delay of just one day is a violation of the rule.
The reality of the continued failure of the Government to comply with the timely presentment provision of Rule 5 is underscored by the proceedings held before Magistrate Judge Cathy Ann Bencivengo just last Friday, October 28, 2011, of which the Court takes judicial notice. See Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (court may take judicial notice of proceedings in other courts if those proceedings have a direct relation to matters at issue). A copy of the transcript of those proceedings will be filed in this case. At 2:43p.m. on October 28, 2011, Judge Bencivengo reported on the record the names of the defendants ...