United States District Court, N.D. Iowa, Western Division
REPORT AND RECOMMENDATION
LEONARD T. STRAND, Magistrate Judge.
This case is before me on defendant Felipe Martinez-Hernandez's motion (Doc. No. 10) to dismiss. Plaintiff (the Government) has filed a resistance (Doc. No. 14). Pursuant to Section IV(A) of the trial-setting order (Doc. No. 8), the motion has been assigned me for the preparation of a report and recommended disposition. Neither party has requested a hearing to present evidence and/or arguments. Having reviewed the written materials, I find that no such hearing is necessary. The motion is fully submitted and ready for decision.
RELEVANT BACKGROUND AND PROCEDRUAL FACTS
The following facts appear to be undisputed for purposes of defendant's motion: On October 23, 2014, the Grand Jury for this District returned an indictment (Doc. No. 2) against Martinez-Hernandez charging him with the offense of being an aggravated felon found after illegal re-entry in violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2). An arrest warrant (Doc. No. 3) was issued the same day.
On the afternoon of Wednesday, January 21, 2015, Martinez-Hernandez was arrested in Lincoln, Nebraska, by Deputies of the United States Marshals Service (USMS). Shortly after the arrest, USMS contacted the United States District Court for the District of Nebraska to arrange an initial appearance before a United States Magistrate Judge (USMJ). The court advised USMS that the USMJ in Lincoln was not available to conduct the initial appearance until Friday, January 23, 2015, at 2:00 p.m. According to Martinez-Hernandez, he thus "sat in some county jail for 2 days" before having his initial appearance. Doc. No. 10 at 2.
The initial appearance occurred as scheduled on January 23, 2015. At that time, counsel was appointed for Martinez-Hernandez and he waived his rights to (a) an identity hearing and production of the warrant, (b) a preliminary hearing and (c) a detention hearing. Doc. No. 4 at 6. The USMJ ordered that Martinez-Hernandez be detained, in part because he is subject to an Immigration and Customs Enforcement (ICE) detainer and faces deportation. Id. at 7.
Martinez-Hernandez was then transported to this District. Counsel was appointed and an initial appearance and arraignment was conducted on January 28, 2015. Martinez-Hernandez entered a plea of not guilty and did not request a detention hearing. Doc. No. 7. As such, he remains in custody while awaiting trial, which is scheduled for April 6, 2015. Doc. No. 8.
A. The Arguments
Martinez-Hernandez's argument for dismissal is based entirely on Federal Rule of Criminal Procedure 5. He contends that he was not brought before a USMJ "without unnecessary delay, " as required by Rule 5(a), because he "sat in some county jail for 2 days" before his initial appearance. Doc. No. 10 at 2, ¶ 6. Martinez-Hernandez further contends that the appropriate remedy is dismissal. Other than referring to Rule 5, he cites no case law or other authorities in support of his motion. Doc. No. 10 at 1-2. This is unfortunate because, as I will explain below, his request for relief is contrary to controlling authority.
The Government acknowledges that Rule 5(a)'s "unnecessary delay" standard applied upon Martinez-Hernandez's arrest in Nebraska. The Government argues that the "unnecessary delay" requirement is not rigid and was not violated in this case. It further argues that any violation was harmless and, in any event, that dismissal would not be the appropriate remedy.
1. Was There A Violation Of Rule 5(a)?
Federal Rule of Criminal Procedure 5 states, in ...