United States v. Peeples

18-2309-cr

United States v. Peeples

In the

United States Court of Appeals

for the Second Circuit

AUGUST TERM 2019

No. 18-2309-cr

UNITED STATES OF AMERICA,

Appellee,

v.

JOSEPH W. PEEPLES, III,

Defendant-Appellant,

On Appeal from the United States District Court

for the Western District of New York

ARGUED: MARCH 31, 2020

DECIDED: JUNE 22, 2020

Before: WALKER, CABRANES, AND SACK, Circuit Judges.

Defendant-Appellant Joseph W. Peeples, III (“Peeples”) appeals

from a judgment of the United States District Court for the Western

District of New York (Frank P. Geraci, Jr., Chief Judge) convicting him,

following a jury trial, of bank robbery, entering a bank with the intent

to commit larceny, and bank larceny.

On appeal, Peeples argues that the District Court erred in

declining to dismiss the criminal charges against him because: (i) he

was transferred outside of the district of arrest to the district where the

crime took place without first appearing before a magistrate judge,

assertedly in violation of Federal Rule of Criminal Procedure 5(c)(2);

and (ii) the magistrate judge failed to sign the affidavit attached to the

complaint in alleged violation of Federal Rule of Criminal Procedure

3, even though he signed the face of the complaint. Peeples also

challenges the admission of certain testimony at trial.

The two main questions presented in this case are: (1) whether

dismissal of a criminal complaint is the appropriate remedy for a

violation of Rule 5(c)(2); and (2) whether a magistrate judge’s failure

to sign the jurat on the last page of the affidavit attached to the criminal

complaint renders the complaint invalid under Rule 3, even where the

magistrate judge did sign the complaint itself.

On review, we conclude that, in the circumstances presented,

dismissal of criminal charges is not the appropriate remedy for a

violation of Rule 5(c) and the magistrate judge’s failure to sign the

affidavit attached to the criminal complaint did not render the

complaint invalid. We also conclude that Peeples’ remaining

2

evidentiary challenges do not warrant a vacatur of his conviction.

Accordingly, the judgment the District Court is AFFIRMED.

KATHERINE A. GREGORY, Assistant United

States Attorney, for James P. Kennedy, Jr.,

United States Attorney, Western District of

New York, Buffalo, NY, for Appellee.

JILLIAN S. HARRINGTON, Monroe Township,

NJ, for Defendant-Appellant.

JOSÉ A. CABRANES, Circuit Judge:

On January 5, 2017, at approximately 8:20 a.m., Joseph W.

Peeples, III (“Peeples”) robbed a bank in Rochester, New York and

immediately fled the scene. 1 Carrying over $100,000 in large stacks of

cash, Peeples needed to escape. His ultimate destination? Unclear, but

perhaps Mexico (at least, according to one passing statement by

Peeples). His escape plan? Also unclear. Perhaps trying to figure one

1 For purposes of this appeal, where Peeples “has been found guilty of the

crime charged, the factfinder’s role as weigher of the evidence is preserved through

a legal conclusion that upon judicial review all of the evidence is to be considered in

the light most favorable to the prosecution.” Lewis v. Jeffers, 497 U.S. 764, 782 (1990)

(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979) (footnote omitted)). Here,

Peeples does not challenge the sufficiency of the evidence at trial to support his

criminal conviction.

3

out on the run, Peeples made several stops. He took a cab and checked

in to a hotel in Rochester using his own name. Later that morning, he

boarded a Greyhound bus headed for New York City. But he never

made it there. Instead, he got off the bus in Binghamton and tried to

buy a car. Unable to do so, he found a hotel, booked a room, and asked

an employee where he could find a shopping mall and a strip club.

The escape route by way of Binghamton did not turn out to be

a successful one for Peeples. Before boarding the bus in Rochester,

Peeples accidentally had left behind an unbroken trail of evidence—

the sunglasses, sweatshirt, and shirt that he wore during the robbery,

and approximately $53,400 in cash. With the assistance of

eyewitnesses, extensive video surveillance, and physical evidence, law

enforcement agents were able to trace Peeples’ steps with notable

precision. Eleven hours later, and approximately 140 miles away from

the Rochester bank, Peeples, then a guest in the Grand Royale Hotel in

Binghamton, was arrested.

Peeples now appeals from a judgment of the United States

District Court for the Western District of New York (Frank P. Geraci,

Jr., Chief Judge) convicting him, following a jury trial, of bank robbery,

entering a bank with the intent to commit larceny, and bank larceny.

On appeal, Peeples contends that his judgment of conviction should

be vacated for two principal reasons.

First, Peeples argues that the District Court erred in declining to

dismiss the criminal charges against him because: (i) he was

transferred outside of the district of arrest to the district where the

4

crime took place without first appearing before a magistrate judge, in

asserted violation of Federal Rule of Criminal Procedure 5(c)(2); 2 and

(ii) the magistrate judge failed to sign the affidavit attached to the

complaint in alleged violation of Federal Rule of Criminal Procedure

3, 3 even though he signed the face of the complaint.

Second, Peeples argues that the District Court erred in admitting:

(i) the bank employees’ testimony identifying Peeples for the first time

at trial in alleged violation of his due process rights; and (ii) physical

evidence seized from the Binghamton hotel room in alleged violation

of his right to be free from unreasonable searches and seizures.

2 Rule (c)(2) provides in relevant part:

If the defendant was arrested in a district other than where the

offense was allegedly committed, the initial appearance must

be:

(A) in the district of arrest; or

(B) in an adjacent district if:

(i) the appearance can occur more promptly there;

or

(ii) the offense was allegedly committed there and

the initial appearance will occur on the day of

the arrest.

3 Rule 3 provides: “The complaint is a written statement of the essential facts

constituting the offense charged. Except as provided in Rule 4.1, it must be made

under oath before a magistrate judge or, if none is reasonably available, before a

state or local judicial officer.”

5

The two main questions presented in this case are: (1) whether

dismissal of a criminal complaint is the appropriate remedy for a

violation of Federal Rule of Criminal Procedure 5(c); and (2) whether

a magistrate judge’s failure to sign the jurat on the last page of the

affidavit attached to the criminal complaint renders the complaint

invalid under Federal Rule of Criminal Procedure 3, even where the

magistrate judge did sign the complaint itself. 4

We conclude that, in the circumstances presented, the dismissal

of criminal charges is not the appropriate remedy for a violation of

Rule 5(c) and that the magistrate judge’s failure to sign the affidavit

attached to the criminal complaint did not render the complaint

invalid. We also conclude that Peeples’ remaining evidentiary

challenges do not warrant vacatur of his conviction. Accordingly, the

August 1, 2018 judgment the District Court is AFFIRMED.

BACKGROUND

When Peeples entered a Chase Bank in Rochester on January 5,

2017, he was wearing a black knit cap, gold rimmed sunglasses, a black

pullover sweatshirt, black jeans, and black boots. There were two bank

4 “A jurat is in reality a certificate of the officer who administered the oath

that the affiant had subscribed and sworn to the same before him.” United States v.

McDermott, 140 U.S. 151, 153 (1891); see also Dawson v. Phillips, Case No. 03-cv-8632

(RJS) (THK), 2008 WL 818539, at *1 n.3 (S.D.N.Y. Mar. 25, 2008) (“A ‘jurat’ is a

‘certification added to an affidavit . . . stating when and before what authority the

affidavit . . . was made’; a ‘certificate’ is a ‘document in which a fact is formally

attested.’” (quoting Black's Law Dictionary (8th ed. 2004)).

6

employees present: Jeannine Furioso and Patricia Bentley. Pretending

to have trouble with his bank account, Peeples approached Furioso

and handed her a black bag and a note with robbery instructions. The

note said: “listen, you need to cooperate, I want large bills, otherwise

everybody will die today.” 5

Upon receipt of the threatening note, Furioso nervously walked

over to Bentley in the teller line and handed her the bag so that Bentley

could retrieve the money. Peeples objected. He “want[ed] the money

out of the vault,” not “out of [teller] drawer.” 6 He also exclaimed, “I’m

not playing around, I’ve done this before, hurry up.” 7 Peeples, who

appeared to have something in the front of his pullover sweatshirt,

had given the impression to Furioso and Bentley that he was carrying

a “gun,” a “bomb,” or some kind of “weapon.” 8

Furioso and Bentley entered their combinations to open the

vault. Once inside the vault, Peeples began to put stacks of cash in his

black bag. He then exited the bank as he had entered: through the front

door, but now with more than $100,000 in his bag. Furioso

immediately notified security and called the police.

As confirmed by surveillance video and the eyewitness

testimony of a parking garage attendant, a man wearing all black and

5 Trial Transcript at 123.

6 Id. at 127, 175.

7 Id. at 176.

8 Id. at 133, 191.

7

carrying a black bag, identified at trial as Peeples, was seen minutes

after the robbery running down the bank’s stairs and towards the cab

stand at the nearby Hyatt Hotel. There, around 8:30 a.m., Peeples got

into a J & J taxicab. According to the cab driver, they arrived at a

Greyhound bus station around 8:47 a.m. The driver gave Peeples a

business card and, as Peeples rushed out of the cab, he left behind in

the back seat his sunglasses, the black sweatshirt, and $9,900 in the

sweatshirt’s pockets, all of which was recovered by the Rochester

police. As shown on video, Peeples entered the bus station and headed

to the men’s bathroom. Minutes later, he came out of the bathroom

wearing different clothing and placed something in the garbage can

outside the bathroom. It was not mere trash though, but rather, a black

shirt and $43,500 in cash, also recovered by Rochester police.

Video surveillance showed Peeples leaving the station and

getting into another taxi. According to the testimony of Gurmit Ram,

the driver of the second taxi, Peeples headed to a Quality Inn Hotel.

The hotel’s general manager, in testimony at trial, confirmed Peeples’

brief visit to the Quality Inn. According to the manager, an individual

who identified himself as “Joseph W. Peeples, III” and was carrying

large amounts of cash checked in to the hotel that morning. Peeples

left the hotel and returned to the bus station about an hour later in

Ram’s cab. According to video surveillance, around 10:15 a.m., Peeples

entered the bus station and purchased a bus ticket to New York City.

At approximately 10:45 a.m., Peeples boarded the bus; but he did not

arrive at his apparent destination. Instead, according to the bus driver,

between 2:10 and 2:20 p.m., Peeples got off the bus in Binghamton.

8

In Binghamton, Peeples got into another taxi. According to the

driver, Youssif Saleh, Peeples asked to be driven to various places.

First, he went to a liquor store. Then, wanting to buy a car in cash,

Peeples went to a car dealership. Realizing that he needed insurance

to buy the car, Peeples headed to a State Farm location. But that did

not work for Peeples either. Unable to buy insurance or a car, Peeples

opted to look for a hotel.

The first two hotels Peeples tried refused to book him a room

without a credit card. Then, Saleh drove Peeples to the Grand Royale

Hotel, where Peeples was finally able to book a room (Room 310) for

$600 in cash. Saleh gave Peeples his business card and left. Once settled

in, Peeples asked a hotel employee where he could find a shopping

mall and a strip club.

At 9:00 p.m., having traced Peeples’ movements by reviewing

video surveillance material and speaking with several eyewitnesses,

Special Agent John Bokal of the Federal Bureau of Investigation

(“FBI”) arrived at the Grand Royale Hotel. Joined by a hotel employee,

Special Agent Bokal headed to Room 310 to look for Peeples. On their

way to the room, they ran into Peeples, who was sitting on the stairs,

and Special Agent Bokal immediately placed Peeples under arrest. In

response, Peeples asked the employee, “[W]ho ratted me out, was it

you?” 9 He also exclaimed, “you know they’re after me,” “you were

9 Id. at 567.

9

supposed to let me get to Mexico,” “you know what I did,” and “don’t

go in my room without a warrant.” 10

Peeples was taken away and detained in the Binghamton Police

Department—in the Northern District of New York—where he was

questioned by Special Agent Bokal. At the police station, after waiving

his Miranda rights, Peeples confessed to: (1) having robbed the Chase

bank in Rochester; (2) accidentally leaving the money in the back seat

of the J & J Taxi and in the garbage can at the Greyhound bus station

in Rochester; and (3) hiding the remaining stacks of cash inside Room

310. In the meantime, police officers were posted outside of Room 310

to secure the area pending a search warrant.

The next day, on January 6, 2017, a magistrate judge in the

Northern District of New York approved the search warrant

application. Police officers executed the warrant in Room 310 and

found, among other things, $48,700 in cash; business cards from the J

& J Taxi driver, from Ram, and from Saleh; a bag; a room key to a

Quality Inn Hotel; a Greyhound bus ticket from Rochester to New

York City for a January 5, 2017, 10:55 a.m. bus; and a benefits card and

a Chase card in Peeples’ name.

That same day, January 6, Peeples was transported back to

Rochester, where he was brought, at about 3:50 p.m., before a

magistrate judge in the Western District of New York for his initial

appearance. Notwithstanding the magistrate judge’s repeated

10 Id.

10

admonitions about the advantages of being represented by counsel

during his criminal prosecution, and the disadvantages of not being

represented by an attorney, Peeples elected to proceed pro se. In fact,

Peeples represented himself throughout the criminal proceedings,

including trial, while maintaining a court-appointed counsel on

standby. After a 90-minute deliberation, the jury found Peeples guilty

on all three counts.

On July 27, 2018, the District Court sentenced Peeples to 240

months’ imprisonment on Count 1 (Bank Robbery) and Count 2

(Entering a Bank With Intent to Commit Larceny), to run concurrently

with 120 months’ imprisonment on Count 3 (Bank Larceny), to be

followed by 3 years of supervised release. This appeal followed.

DISCUSSION

On appeal, Peeples argues that his judgment of conviction

should be vacated because the District Court erred in failing to dismiss

the criminal complaint against him and in failing to exclude certain

evidence introduced at trial. In considering his challenge on appeal,

we review de novo any questions of law arising from the District

11

Court’s judgment, 11 any evidentiary ruling for “abuse of discretion,” 12

and any findings of fact for “clear error.” 13

Furthermore, we will reverse an evidentiary ruling only in

instances of “manifest error.” 14 And “even where we conclude that an

evidentiary ruling was ‘manifestly erroneous,’ we will nonetheless

affirm if the error was ‘harmless’—that is, if we can conclude that the

error did ‘not affect substantial rights.’” 15 In determining whether an

erroneous admission was harmless, we consider: “(1) the overall

strength of the prosecutor’s case; (2) the prosecutor’s conduct with

respect to the improperly admitted evidence; (3) the importance of the

See All. for Open Soc’y Int’l, Inc. v. U.S. Agency for Int’l Dev., 911 F.3d 104,

11

109 (2d Cir. 2018).

12See United States v. Miller, 626 F.3d 682, 687–88 (2d Cir. 2010). “A district

court has ‘abused its discretion if it based its ruling on an erroneous view of the law

or on a clearly erroneous assessment of the evidence,’ Cooter & Gell v. Hartmarx

Corp., 496 U.S. 384, 405 . . . (1990), or rendered a decision that ‘cannot be located

within the range of permissible decisions,’ Zervos v. Verizon N.Y., Inc., 252 F.3d 163,

169 (2d Cir. 2001).” In re Sims, 534 F.3d 117, 132 (2d Cir. 2008) (alteration omitted).

13United States v. Cramer, 777 F.3d 597, 601 (2d Cir. 2015) (“A finding of fact

is clearly erroneous only if, after reviewing all of the evidence, this Court is left

‘with the definite and firm conviction that a mistake has been committed.’”

(quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985)).

14Miller, 626 F.3d at 688–89 (collecting cases and explaining that “we find

‘manifest error’ only where we are ‘persuaded that the trial judge ruled in an

arbitrary and irrational fashion.’” (quoting United States v. Dhinsa, 243 F.3d 635, 649

(2d Cir. 2001)).

15Id. at 688 (quoting Fed. R. Crim. P. 52(a); SR Int'l Bus. Ins. Co. v. World

Trade Ctr. Props., LLC, 467 F.3d 107, 119 (2d Cir. 2006)).

12

wrongly admitted testimony; and (4) whether such evidence was

cumulative of other properly admitted evidence.” 16

For the reasons stated below, we reject Peeples’ challenges on

appeal and thus affirm the District Court’s judgment of conviction.

I. The Remedy for an Alleged Violation of Federal Rule of

Criminal Procedure 5(c)(2)

Peeples argues that the District Court should have dismissed the

criminal charges against him because he was transferred outside of the

district of his arrest (N.D.N.Y.) to the district where the crimes took

place (W.D.N.Y.), without first appearing before a magistrate judge in

the Northern District, in asserted violation of Rule 5(c)(2) of the

Federal Rules of Criminal Procedure. We disagree.

Rule 5 of the Federal Rules of Criminal Procedure governs the

procedures relating to a defendant’s initial appearance. 17 More

specifically, Rule 5(c)(2) provides:

If the defendant was arrested in a district other than

where the offense was allegedly committed, the initial

appearance must be:

(A) in the district of arrest; or

16 United States v. Gomez, 617 F.3d 88, 95 (2d Cir. 2010) (quotation marks and

citation omitted).

17 Fed. R. Crim. P. 5 (entitled, “Initial Appearance”).

13

(B) in an adjacent district if:

(i) the appearance can occur more

promptly there; or

(ii) the offense was allegedly committed

there and the initial appearance will

occur on the day of arrest.

Relatedly, Rule 5(a)(1)(A) provides that “[a] person making an arrest

within the United States must take the defendant without unnecessary

delay before a magistrate judge, or before a state or local judicial officer

as Rule 5(c) provides, unless a statute provides otherwise.”

There is no question that Peeples was arrested in a district other

than the district where the bank robbery was committed. Therefore,

under Rules 5(a)(1)(A) and 5(c)(2), the Government needed to take

Peeples, without unnecessary delay, before a magistrate judge in: (1)

the Northern District; (2) an adjacent district (such as the Western

District), if Peeples’ appearance could occur more promptly in that

adjacent district than in the Northern District; or (3) the Western

District, if the initial appearance would have taken place on the same

day of the charged robbery (January 5). 18

As noted above, Peeples was taken to the Western District for

his initial appearance on January 6 at about 3:50 p.m. To satisfy Rule

5(c)(2), the Government was required to show that an initial

appearance in the Northern District could not have occurred sooner,

18 See Fed. R. Crim. P. 5(c)(2).

14

thereby justifying Peeples’ transfer to the Western District. The

Government did not attempt to make this showing. Nor does it now

contest Peeples’ assertion that his transfer to the Western District for

an initial appearance was a technical violation of Rule 5(c)(2). Instead,

the Government notes that it agreed not to introduce at trial Peeples’

post-arrest statements, including his confession to Special Agent Bokal

at the Binghamton Police Department.

Peeples argues that the Government’s decision is not enough;

the District Court was required, in his view, to dismiss the charges

against him, because, he asserts, dismissal of the charges is the only

proper remedy for a violation of Rule 5(c)(2). Alternatively, Peeples

argues that the search warrant issued by the magistrate judge in the

Northern District and the criminal complaint filed against him in the

Western District were invalid because the affidavits in support of both

documents relied in part upon Peeples’ post-arrest statements. We

address and reject each argument in turn.

A.

Peeples’ principal argument that dismissal of a criminal case is

the only proper remedy for a violation of Rule 5(c)(2) lacks merit. As a

threshold matter, the dismissal of criminal charges has no basis in the

text of Rule 5(c)(2). And perhaps more critically, that proposed remedy

cannot be reconciled with the precedents of the Supreme Court and

our own Court in the closely related context of Rule 5(a)(1)(A)’s

limitation on post-arrest, pre-arraignment investigations. Those

precedents are instructive and apply with equal force to the present

15

circumstances; they consistently refer to the application of evidentiary

sanctions (e.g., the exclusion of evidence), not dismissal of criminal

charges, as the appropriate remedy for a violation of the rule.

1.

“Rule 5(a)(1)(A) requires law enforcement to present arrestees

[to a magistrate judge] ‘without unnecessary delay.’” 19 But even before

the enactment of Rule 5(a), “[t]he common law obliged an arresting

officer to bring his prisoner before a magistrate as soon as he

reasonably could.” 20 The longstanding remedy for a violation of “this

prompt-presentment requirement” is the suppression of any

prejudicial post-arrest statements, including “a defendant’s

confession.” 21

For more than seven decades, the Supreme Court has made it

clear that the failure to present a defendant promptly before a judicial

officer may render a defendant’s post-arrest confession inadmissible. 22

Put another way, the “evidentiary rule of exclusion [ ] formulated by

19 United States v. Gonzalez, 764 F.3d 159, 167 (2d Cir. 2014) (quoting Fed. R.

Crim. P. 5(a)(1)(A)).

20 Corley v. United States, 556 U.S. 303, 306 (2009).

21United States v. Redlightning 624 F.3d 1090, 1106 (9th Cir. 2010) (internal

quotation marks omitted).

22 See, e.g., Corley, 556 U.S. at 322; United States v. Alvarez-Sanchez, 511 U.S.

350 (1994); Mallory v. United States, 354 U.S. 449 (1957); Upshaw v. United States, 335

U.S. 410 (1948); McNabb v. United States, 318 U.S. 332 (1943).

16

the Supreme Court” has long been the “judicial technique utilized for

the enforcement of [the prompt-presentment requirement in] Rule

5(a).” 23 To that end, we have stated that “we will exclude confessions

obtained following an unnecessary or unreasonable delay in

presentment,” 24 and that such exclusions may be necessary to deter

any “continuing practice of unnecessarily delaying arraignments.” 25

Although the history of the prompt-presentment requirement

codified in Rule 5(a) reflects an evolving understanding of what

constitutes a violation of that requirement, 26 that same history

confirms that the remedy for such a violation is the exclusion of

evidence, not dismissal of a criminal case. 27 And, as some of our sister

23 United States v. Klapholz, 230 F.2d 494, 496 (2d Cir. 1956).

24 Gonzalez, 764 F.3d at 167 (citing Corley, 556 U.S. at 322) (emphasis added).

25United States v. Fullwood, 86 F.3d 27, 32 (2d Cir. 1996) (citing United States

v. Colon, 835 F.2d 27, 31 (2d Cir. 1987)).

See, e.g., Corley, 556 U.S. at 306–11, 322; 2 Wayne R. LaFave, Jerold H. Israel,

26

Nancy J. King, and Orin S. Kerr, Criminal Procedure § 6.3(b) (4th ed. 2009) (as

supplemented) (describing the reactions to the Supreme Court’s McNabb-Mallory

rule over the years); 1 Charles Alan Wright & Arthur Miller, Federal Practice &

Procedure § 72 (4th ed. 2008) (as supplemented) (“Timing of the Initial

Appearance”).

27See Corley, 556 U.S. at 322 (relying on, among other things, the Advisory

Committee’s Notes on Federal Rule of Evidence 402 which explains that “the

effective enforcement of . . . Rule 5(a) . . . is held to require the exclusion of

statements elicited during detention in violation thereof” (internal quotation marks

and citations omitted)); see also Gonzalez, 764 F.3d at 167–68 (analyzing the prompt-

presentment requirement in terms of whether the elicited confession should be

excluded); Fullwood, 86 F.3d at 32 (same); Colon, 835 F.2d at 31 (same); United States

17

Circuits have held, “the 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.” 28

2.

The remedy of exclusion of evidence is not unique to Rule 5(a),

as it is not specific to its text or circumstances. The evidentiary sanction

of exclusion reflects the broader principle that prejudicial evidence

obtained as a result of governmental misconduct may be excluded to

safeguard defendants’ rights through the deterrence of similar future

misconduct by the Government. 29 That principle applies with equal

v. Perez, 733 F.2d 1026, 1031–32 (2d Cir. 1984) (same); United States v. Rubio, 709 F.2d

146, 153–54 (2d Cir. 1983) (same).

28United States v. Cooke, 853 F.3d 464, 471 (8th Cir. 2017); see, e.g., United States

v. Dyer, 325 F.3d 464, 470 n.2 (3d Cir. 2003) (same); Bayless v. United States, 381 F.2d

67, 70–71 (9th Cir. 1967) (same); see also United States v. Bibb, 194 F. App’x 619, 623

(11th Cir. 2006) (non-precedential summary order pursuant to Fed. R. App. P. 32.1

and 11th Cir. R. 36-2, 36-3) (same).

Various district courts also have reached the same conclusion. See, e.g.,

United States v. Savchenko, 201 F.R.D. 503, 509 (S.D. Cal. 2001) (“Rule 5 . . . is not a

general remedial statute, but rather a rule designed to deal with a particular

problem by applying an evidentiary sanction. . . . In this case, even if the delay in

transport of the defendants from the high seas to the district court were found

unnecessary or unreasonable, those facts alone would not justify dismissal since

that is not a sanction available under Rule 5.”); United States v. Perez-Torribio, 987 F.

Supp. 245, 247 (S.D.N.Y. 1997) (“Unnecessary delay violations of Rule 5(a) warrant

suppression of evidence,” not dismissal of the indictment); United States v.

DiGregorio, 795 F. Supp. 630, 634 (S.D.N.Y. 1992) (same).

See Rubio, 709 F.2d at 153 (concluding that, in the absence of wrongdoing

29

by the Government, the district court correctly denied the defendant’s motion to

18

force to violations of Rule 5(c)(2)’s own prompt-presentment

requirement. We see no reasonable basis to adopt a different remedy

here with respect to Rule 5(c)(2), nor does Peeples provide a reasoned

justification to do so.

By its own terms, Rule 5(c)(2) governs the place of a defendant’s

initial appearance, as well as the circumstances permitting the

defendant’s transfer to another district. As described above, the rule

requires the defendant’s initial appearance to take place in the district

of the defendant’s arrest. 30 Alternatively, the initial appearance could

take place in a district adjacent to the district of arrest if one or another

circumstance is met: (1) the appearance can occur more promptly in

the adjacent district than in the district of arrest; or (2) the alleged

crime took place in the adjacent district and the initial appearance will

occur on the same day of the arrest. 31

As revealed by the text of Rule 5(c)(2), one of the main concerns,

if not the principal one, animating its procedural requirements is

precisely the same concern that animates the requirement in Rule

5(a)(1)(A): that a defendant be presented to a judicial officer for his or

suppress his post-arrest statements under Rule 5(a)); cf. Herring v. United States, 555

U.S. 135, 139–40 (2009) (explaining that, in the context of the Fourth Amendment,

the Supreme Court’s “decisions establish an exclusionary rule that . . . is designed

to safeguard Fourth Amendment rights generally through its deterrent effect”

(internal quotation marks and citations omitted)).

30 See Fed. R. Crim. P. 5(c)(2)(A).

31 See Fed. R. Crim. P. 5(c)(2)(B).

19

her arraignment as soon as practicable in order to prevent the

Government from using the delay to obtain incriminating evidence or

elicit a confession. 32 It follows that the exclusion of prejudicial, post-

arrest evidence obtained in violation of Rule 5(c)(2) may be an

appropriate and fully satisfactory remedy for certain violations of that

rule, as it is for violations of Rule 5(a)(1)(A). 33

3.

32 Cf. United States v. Marrero, 450 F.2d 373, 376 (2d Cir. 1971) (“It is not the

lapse of time but the use of the time . . . to employ the condemned psychologically

coercive or third degree practices [of interrogators] which is proscribed.”); see also

Rubio, 709 F.2d at 153–54 (explaining that a “lapse of hours between arrest and

arraignment, standing alone, does not require the exclusion of a statement made

during the period” because there must be some ensuing “prejudice” to the

defendant as a result of the Government’s wrongdoing); United States v. Middleton,

344 F.2d 78, 82 (2d Cir. 1965) (“The objective of Rule 5(a) is to check resort to

psychologically coercive or ‘third degree’ practices and not simply to insure that

the accused is arraigned at the earliest possible time.” (internal citation omitted)).

33 We do not address here, much less consider, whether an egregious delay

in arraignment may violate some other right, such as the constitutional guarantee

to due process, which may in turn provide the basis for a more drastic remedy in a

criminal proceeding, including dismissal. Cf. Savchenko, 201 F.R.D. at 509 (“Where

government delay or outrageous conduct leads to a request for a dismissal, a basis

beyond Rule 5 must be used if defendant truly hopes to succeed. The Due Process

Clause of the U.S. Constitution and the Acts of Congress stated herein are well

designed to address those circumstances.”); United States v. Egan, 501 F. Supp. 1252,

1263 (S.D.N.Y. 1980) (analyzing the violation of the prompt-presentment

requirement in terms of the suppression of post-arrestment statements, but also

concluding that the “dismissal of the indictment” was not warranted because the

arraignment delay did “not rise to the level of outrageous conduct which shocks

the conscience”).

20

Here, the Government did not rely on Peeples’ post-arrest

statements as part of its evidence at trial. Therefore, with respect to the

trial proceedings, Peeples cannot show that his transfer to the Western

District in violation of Rule 5(c)(2) caused him any prejudice. “There

having been no evidence [used at trial] which could have been

excluded, on motion, on these grounds,” the District Court correctly

concluded that there was no further remedy available to Peeples and

thus his motion “to dismiss the [complaint] . . . was correctly denied.” 34

B.

To our knowledge, Peeples’ post-arrest statements to Special

Agent Bokal were only used in the application for the search warrant

executed at the Grand Royale Hotel and in the criminal complaint filed

against Peeples. But, in the circumstances presented, that reliance did

not render the warrant or the complaint invalid, nor did it require the

dismissal of the ensuing criminal charges against Peeples.

As a threshold matter, we note that Peeples has not pointed to

any evidence in the record justifying the exclusion of the post-arrest

statements from the affidavits in support of the search warrant and the

criminal complaint. Nothing in the record of this case supports an

inference, let alone demonstrates, that the Government violated Rule

34Bayless, 381 F.2d at 71; see Appellant’s App’x at 127 (Decision of the District

Court denying Peeples’ motion because “the only evidence obtained between

Peeples’[ ] arrest and his initial appearance were the statements he made to law

enforcement” and since “the Government does not intend to use Peeples’[ ]

statements in its case . . . there is no remedy available to Peeples”).

21

5(c)(2) in order to obtain a post-arrest, pre-arraignment confession

from Peeples. 35 Without evidence of wrongdoing, there is “nothing to

deter” and “exclusion simply cannot pay its way.” 36

In any event, although unlawfully obtained evidence should not

be included in an affidavit, 37 it is well established that “[t]he mere

inclusion of tainted evidence in an affidavit does not, by itself, taint the

warrant or the evidence seized pursuant to the warrant.” 38 In those

circumstances, “[a] reviewing court should excise the tainted evidence

and determine whether the remaining, untainted evidence would

provide a neutral magistrate with probable cause to issue a warrant”

or file a criminal complaint. 39

Even if we were to excise Peeples’ post-arrest statements from

the affidavits in support of the application for the search warrant and

in support of the criminal complaint, there is ample untainted

evidence in the affidavits supporting the magistrate judge’s probable

cause findings. Law enforcement officials were able to trace Peeples’

35 Cf. Rubio, 709 F.2d at 153 (affirming the denial of the defendant’s motion

to suppress because, among other things, “there was no purposeful postponement

of arraignment, and no lengthy, hostile, or coercive interrogation which caused the

[defendant] prejudice”); see also ante note 32.

36United States v. Raymonda, 780 F.3d 105, 118 (2d Cir. 2015) (internal

quotation marks and citation omitted).

37 See Wong Sun v. United States, 371 U.S. 471, 484–85 (1963).

38 United States v. Trzaska, 111 F.3d 1019, 1026 (2d Cir. 1997) (citation

omitted).

39 Id. (citation omitted).

22

steps from Rochester to Binghamton with commendable precision by

relying on the testimony of witnesses, extensive video surveillance,

and physical evidence that Peeples left behind in Rochester.

Specifically, the affidavits pointed to, among other things, the

testimony of the bank employees, video surveillance from the Hyatt

Hotel in Rochester, the testimony of the two taxi drivers in Rochester,

the money and items left in the back seat of the J & J taxi, video

surveillance from the Greyhound bus station in Rochester, the money

and shirt discarded in the garbage can of the bus station, video

surveillance from the Quality Inn Hotel in Rochester, testimony of the

Quality Inn’s manager, video surveillance from the Binghamton bus

station, testimony of the taxi driver in Binghamton, testimony of the

employees of the Grand Royale Hotel in Binghamton, and items seized

from Peeples during his arrest. 40

Peeples’ confession and post-arrest statements merely

corroborated what abundant “extrinsic evidence independently

secured through skillful investigation” 41 already revealed: there was

probable cause to believe that Peeples robbed the Chase bank in

Rochester and was hiding the stolen money in his hotel room in

Binghamton.

40See Government’s App’x at 4–8 (Special Agent Bokal’s affidavit in support

of the application for a search warrant of Room 310); see also Appellant’s App’x at

17–21 (Special Agent Fleitman’s affidavit in support of the criminal complaint).

41 Escobedo v. Illinois, 378 U.S. 478, 489 (1964).

23

Accordingly, Peeples failed to demonstrate that the

Government’s violation of Rule 5(c)(2) had any prejudicial effect

whatsoever on the criminal case against him.

II. The Magistrate Judge’s Signature of the Criminal

Complaint Under Federal Rule of Criminal Procedure 3

Peeples correctly notes that Magistrate Judge Jonathan Feldman

of the Western District did not sign the jurat on the last page of the

affidavit submitted by Special Agent Seth Fleitman of the FBI. Judge

Feldman did sign, however, the jurat on the face of the criminal

complaint against Peeples, to which the affidavit was attached.

Peeples argues that the magistrate judge’s failure to sign the affidavit

rendered the complaint invalid under Rule 3 of the Federal Rules of

Criminal Procedure and that, as result, the District Court erred in

declining to dismiss the complaint. In the circumstances presented

here, we see no error in the District Court’s decision to not dismiss the

complaint.

Rule 3 provides in relevant part that a criminal complaint is “a

written statement of the essential facts constituting the offense[s]

charged,” which “must be made under oath before a magistrate judge

or, if none is reasonably available, before a state or local judicial

officer.” By failing to sign the jurat on the last page of the affidavit,

Peeples argues, the magistrate judge failed to attest that the assertions

made in the affidavit were made under oath. The argument carries

little weight in light of the facts presented here.

24

As a threshold matter, the text of Rule 3 merely requires that the

complaint be made under oath before the magistrate judge. It may well

be that the magistrate judge’s signature in the affidavit in support of

the criminal complaint constitutes the best evidence that Rule 3’s

requirement was met. It does not follow, however, that anything else

falls short of satisfying Rule 3.

By its own terms, Rule 3 refers to the criminal complaint itself,

and not to any affidavit presented in support of the complaint. Here,

both Judge Feldman and Special Agent Fleitman signed the criminal

complaint, which expressly references the affidavit (or “sheet”) by

Special Agent Fleitman that is attached to the complaint. 42 By signing

the complaint, Judge Feldman confirmed that Special Agent Fleitman

swore to the truth of the assertions made in the affidavit in Judge

Feldman’s own presence. 43 Rule 3 does not require more.

Even if we were to assume, for the sake of argument only, that

Judge Feldman erred in failing to sign Special Agent Fleitman’s

affidavit, that error did not render the complaint invalid. To reach this

conclusion, we draw guidance from sources in two closely related

contexts.

First, as revealed in one compendium of practice in the various

American jurisdictions, under the law of many states, it is the case that

42 See Appellant’s App’x 16 (Criminal Complaint).

43See id. (stating that the complaint was “[s]worn to before [the magistrate

judge] and signed in [his] presence”).

25

“[g]enerally, the omission of a jurat is not fatal to the validity of an

affidavit so long as it appears either from the instrument itself or from

outside evidence that the affidavit was, in fact, duly sworn to before

an authorized officer.” 44 Moreover, “in the absence of a jurat, the fact

may be proved by outside evidence from a source other than the

document itself” and “in the face of an incomplete or defective jurat,

many states allow extrinsic evidence to prove that the affidavit was

properly sworn.” 45

Second, we also have stated that “minor errors in an affidavit are

not cause for invalidating the [document] that it supports.” 46 In

examining warrant applications and their underlying affidavits, for

example, the Supreme Court has admonished “magistrates and

courts” to “test[ ] and interpret[ ]” them “in a commonsense and

realistic fashion,” rather than in “a hypertechnical . . . manner.” 47

These two contexts—namely, the predominant understanding

across our country of the validity of affidavits and the Supreme

Court’s teaching on the interpretation of warrant applications—guide

our analysis of the present situation. Just as we uphold warrants

“despite ‘technical errors,’ . . . when the possibility of actual error is

44 2A C.J.S. Affidavits § 28 (2020) (footnotes omitted and collecting cases).

45 Id. (footnotes omitted and collecting cases).

46 United States v. Waker, 534 F.3d 168, 171 (2d Cir. 2008).

47 United States v. Ventresca, 380 U.S. 102, 108–09 (1965).

26

eliminated by other information,” 48 here, any possible error or

confusion has been eliminated by Judge Feldman’s signature of the

complaint and his confirmation that Special Fleitman swore to the

truth of the assertions made in the affidavit in Judge Feldman’s

presence.

In sum, in the circumstances presented here, the District Court

did not err in declining to dismiss the criminal complaint against

Peeples.

III. Peeples’ Evidentiary Challenges

Peeples argues that his conviction should be vacated because

the District Court erred in admitting: (1) identification testimony at

trial in violation of his due process rights; and (2) evidence seized from

Room 310 in violation of his Fourth Amendment rights. We disagree.

A.

Peeples first argues that his in-court identification by Furioso

and Bentley, the Chase bank employees who were the victims of

Peeples’ robbery, was unduly suggestive and should have been

excluded. To Peeples, the evidentiary ruling was so manifestly

erroneous that a vacatur of his conviction is imperative. The argument

lacks merit.

48 Velardi v. Walsh, 40 F.3d 569, 576 (2d Cir. 1994).

27

Due process requires identification testimony to be excluded if

it is so unreliable as to create “a very substantial likelihood or

irreparable misidentification.” 49 In the context of in-court

identifications, we have admonished district courts to ensure that any

in-court identification procedure employed does not amount to a

“show-up.” 50

Here, the Government and Peeples agree that Peeples’

appearance had changed significantly between the time of the robbery

and the trial. Concerned with the possibility of undue suggestibility of

an in-court identification, Peeples, who was proceeding pro se, asked

the District Court if he could be seated elsewhere in the courtroom

during the testimony of Furioso and Bentley. The request was

arguably a reasonable one given the absence of an identification of

Peeples prior to trial, the fact that Peeples’ appearance had changed,

and the fact that a defendant’s traditional seating in a courtroom is

inherently suggestive. 51 Nonetheless, the District Court, without

explanation, denied the request for this special in-court procedure.

49 Simmons v. United States, 390 U.S. 377, 384 (1968).

50 United States v. Archibald, 734 F.2d 938, 941, modified, 756 F.2d 223 (2d Cir.

1984).

See id. (explaining that the traditional seating of a defendant in the

51

courtroom is “obviously suggestive” and that “[a]ny witness, especially one who

has watched trials on television, can determine which of the individuals in the

courtroom is the defendant, which is the defense lawyer, and which is the

prosecutor”).

28

The Government argues that Peeples was required to move for

a line-up order prior to trial. A line-up order would have “assure[d]

that the identification witness will first view the suspect with others of

like description rather than in the courtroom sitting alone at the

defense table.” 52 According to the Government, only if that request for

a line-up order had been “denied or the decision reserved would

special in-court procedures possibly have been warranted.” 53 Because

Peeples did not move for such an order, the Government contends,

Peeples “should not now be heard to complain about the alleged

[suggestibility] of in-court identifications.” 54

We agree with the Government that there is no evidence in the

record “that the in-court identifications were irreparably tainted by

[suggestibility].” 55 Indeed, Furioso and Bentley notably testified that

they were confident in their in-court identification of Peeples, 56 and

Furioso even identified Peeples as the robber by his voice. 57 In any

event, we need not decide whether the District Court erred in

52 United States v. Brown, 699 F.2d 585, 594 (2d Cir. 1983).

53 Government’s Br. at 26 (citing Archibald, 756 F.2d at 223).

54 Id.

55 Id.

56 See Trial Transcript at 143 (testimony by Furioso that she was “100% [sure]

they caught the right guy” and that she was “looking right at him”); id. at 184–85

(testimony by Bentley that Peeple’s “image is drilled into [her] head for the rest of

[her] life probably”).

57 Id. at 130–31.

29

admitting the identification testimony of Furioso and Bentley after

denying Peeples’ request for a special in-court identification

procedure, as there can be no question that, even if we were to find an

error in the District Court’s evidentiary ruling, that error would have

been harmless beyond any reasonable doubt.

We reach this conclusion in light of, among other things, the

strength of the Government’s case and the overwhelming evidence

against Peeples. 58 Indeed, the identification by Furioso and Bentley

was a minor part of the Government’s case against Peeples, which

included an unbroken chain of video surveillance, physical evidence,

and other eyewitnesses who also identified Peeples without difficulty.

And, finally, there is no evidence of prosecutorial misconduct leading

to the admission of the challenged identification testimony.

B.

Peeples also argues that the evidence recovered from Room 310

should have been suppressed because allegedly there was a

warrantless entry and an exploratory search of the room prior to the

execution of the search warrant. This last argument is not supported

by the record and warrants little discussion.

On July 12, 2017, the magistrate judge conducted an evidentiary

hearing in which the FBI agent who arrested Peeples, Special Agent

58 See ante at 12–13 & note 16; see also United States v. Stewart, 907 F.3d 677,

689 (2d Cir. 2018) (“We have repeatedly held that the strength of the government’s

case is the most critical factor in assessing whether error was harmless.” (quotation

marks omitted)).

30

Bokal, testified. At no point during the evidentiary hearing did Peeples

ask Special Agent Bokal whether someone entered Room 310 prior to

the execution of the search warrant. After the suppression hearing, the

Government submitted a letter that included a crime scene entry log

that identified those police officers were posted outside Room 310

between Peeples’ arrest and the execution of the search warrant.

Furthermore, at trial, the hotel manager testified that he opened

Room 310’s door and left because he had no authority to be there.

There is no evidence in the record, however, that someone entered and

searched the room prior to the execution of the warrant. To the

contrary, Special Agent Bokal testified at trial that, shortly after

Peeples’ arrest, law enforcement agents secured the room from the

outside pending the arrival of a search warrant. That testimony was

confirmed by other law enforcement officers, who also testified that

no one entered the room before the search warrant was executed.

Peeples bears the burden of establishing that his rights under

the Fourth Amendment were violated and that any unlawfully-

obtained evidence should have been excluded from trial. 59 Yet,

Peeples, who already had been taken away and was not present at the

59 Rakas v. Illinois, 439 U.S. 128, 130 n.1 (1978) (“The proponent of a motion

to suppress has the burden of establishing that his own Fourth Amendment rights

were violated by the challenged search or seizure.”); see also Simmons, 390 U.S. at

389 (“[T]o effectuate the Fourth Amendment's guarantee of freedom from

unreasonable searches and seizures, this Court long ago conferred upon defendants

in federal prosecutions the right, upon motion and proof, to have excluded from trial

evidence which had been secured by means of an unlawful search and seizure.”

(emphasis added)).

31

time when the hotel manager opened the room, failed to provide any

evidence in support of his speculative belief that there was a

warrantless entry and search of Room 310. In the absence of

supporting evidence or a showing that any factual finding was clearly

erroneous, Peeples has failed to support his claim that his Fourth

Amendment rights were violated.

We have no trouble concluding that the District Court did not

err in denying Peeples’ motion to suppress and admitting the physical

evidence seized from Room 310.

CONCLUSION

To summarize, we conclude that:

(1) The appropriate remedy for a violation of Rule 5(c)(2) of the

Federal Rules of Criminal Procedure is not dismissal of an

indictment, but suppression of any post-arrest evidence

illegally obtained as a result of the violation of the rule’s

requirement.

(2) Peeples failed to show that his transfer to the Western

District of New York for an initial appearance in violation of

Rule 5(c)(2) caused him any prejudice.

a. With respect to the trial proceedings, because the

Government did not rely on Peeples’ post-arrest

statements in its case before the jury, there was no

evidence that could have been excluded and thus the

32

motion to dismiss the criminal charges was correctly

denied.

b. With respect to the affidavit in support of the

application for the search warrant and the affidavit in

support of the criminal complaint, Peeples failed to

demonstrate that the circumstances presented here

warranted the exclusion of the post-arrest statements.

And, in any event, even if we were to excise those

statements from the affidavits, the District Court

correctly denied the motion to dismiss because the

search warrant and the criminal complaint remained

valid in light of the ample untainted evidence in the

affidavits supporting the magistrate judge’s probable

cause findings.

(3) The District Court did not err in denying Peeples’ motion to

dismiss the criminal complaint because, even though the

magistrate judge failed to sign the jurat on the last page of

the affidavit in support of the criminal complaint, the

magistrate judge signed the jurat on the complaint itself, to

which the affidavit was attached. The magistrate judge’s

signature in the complaint attested to the fact that the

complainant’s assertions were sworn before the magistrate

judge and signed in his presence, thereby complying with

the requirement of Rule 3 of the Federal Rules of Criminal

Procedure.

33

(4) Peeples failed to present evidence showing that the in-court

identification by the Chase bank employees was irreparably

tainted by suggestibility in violation of his due process

rights. We need not conclude that the District Court erred in

admitting the identification testimony while denying

Peeples’ request for a special in-court identification

procedure because any such error would have been

harmless beyond a reasonable doubt and thus would not

warrant a vacatur of Peeples’ conviction.

(5) Peeples failed to support his speculative belief that there was

a warrantless entry and exploratory search of Room 310 prior

to the execution of the search warrant and thus the District

Court did not err in admitting the physical evidence seized

from the hotel room pursuant to the search warrant.

For the foregoing reasons, the District Court’s August 1, 2018

judgment is AFFIRMED.

34