United States District Court, S.D. California
For Alan Saldana-Beltran, Defendant: James Anthony Johnson, LEAD ATTORNEY, Federal Defenders of San Diego, Inc., El Centro, CA; James Fife, Federal Defenders of San Diego, Inc., San Diego, CA; Roxana Sandoval, Federal Defenders of San Diego, San Diego, CA.
For USA, Plaintiff: Matthew Brehm, LEAD ATTORNEY, U.S. Attorney's Office, San Diego, CA.
ORDER AFFIRMING THE MAGISTRATE JUDGE'S IDENTITY FINDING AND LIFTING THE STAY OF REMOVAL
Hon. Roger T. Benitez, United States District Judge.
This is an appeal from a Magistrate Judge's identity determination and order of transfer. For the following reasons, the Magistrate Judge's identity determination is affirmed and the stay of the order to transfer the defendant is lifted.
On January 16, 2013, Alan Saldana-Beltran was indicted by a grand jury in the Northern District of Ohio. (AR  at 34.) Alan Saldana-Beltran was indicted for conspiracy to possess heroin with the intent to distribute in violation of 21 U.S.C. § § 841 (a)(1), (b)(1)(A), and 846. ( Id. at 35.) An arrest warrant was issued on January 17, 2013. Appellant was arrested on May 1, 2014 in the Southern District of California. ( Id. at 32, 45.) At his initial appearance on May 2, 2014, Appellant appeared before United States Magistrate Judge Peter C. Lewis. ( Id. at 45.)
An identity and removal hearing was held on May 14, 2014. The Magistrate Judge found Appellant to be the person charged in the indictment and ordered the defendant transferred to the Northern District of Ohio for trial. ( Id. at 46.) Defendant contests the finding that he is the
same person named in the indictment. Appellant filed a notice of appeal on May 20, 2014, and moved to stay the removal on May 29, 2014.
There is a dearth of caselaw addressing the standards to be used in a contested identity hearing or considering whether a magistrate judge's identity finding may be appealed to a district judge.
I. Appellate Jurisdiction is Lacking
There is no right to appeal a magistrate judge identity finding and transfer order (historically referred to as a " removal" order from a " removal hearing" ). When a defendant is arrested in a district other than where the alleged offense was committed, Rule 5 of the Federal Rules of Criminal Procedure requires a magistrate judge to determine that the arrestee is the same person named in the indictment. Fed. R. Crim. P. 5(c)(3)(D)(ii) (" the magistrate judge must transfer the defendant to the district where the offense was allegedly committed if . . . the judge finds that the defendant is the same person named in the indictment . . . ." ). This determination, held in accordance with Rule 5, is a pretrial matter which a magistrate judge has authority to decide. See 28 U.S.C. § 636(a)(1) (" Each United States magistrate judge shall have . . . all powers and duties conferred or imposed upon United States commissioners by law or by the Rules of Criminal Procedure for the United States District Courts . . . ." ); see also U.S. Dist. Ct. Rules S.D. Cal. Crim. LR 57.4.a.1 (authorizing magistrate judges to exercise the jurisdiction granted by the Federal Rules of Criminal Procedure). Removal hearings and the concomitant identity findings were historically conducted by United States commissioners. See e.g., United States v. Levy, 268 U.S. 390, 393-94, 45 S.Ct. 516, 69 L.Ed. 1010 (1925) (holding that a commissioners' decision in a removal hearing is not given res judicata effect, but may be persuasive in a second removal hearing); see also 1944 adoption of Fed. R. Crim. P. 40 (all removal hearings shall take place before a United States commissioner or a Federal judge); see generally, Peter G. McCabe, The Federal Lawyer, Vol. 61 (May/June 2014), " A Brief History of the Federal Magistrate Judges Program," at 44, 47 (" In the words of the Senate Judiciary Committee report, the central purpose of the Federal Magistrate Act of 1968 was 'both to update and make more effective a system that had not been altered basically for over a century and to cull from the ever-growing workload of the U.S. district courts matters that are more desirably performed by a lower tier of judicial officers.'" ) .
There is no provision for an appeal from an identity finding and transfer order of a magistrate judge. From the statutory silence, it is fair to presume that Congress did not intend to provide a right to appeal. In contrast, Congress did provide a right to appeal a magistrate judge's bail determination. Title 18 U.S.C. § 3145. The magistrate judge's authority to set ...