United States v. Jones, 5:20-CR-50141(03)-JLV

Decision Date12 October 2021
Docket Number5:20-CR-50141(03)-JLV
PartiesUNITED STATES OF AMERICA, Plaintiff, v. TRACY JONES, a/k/a Tracy Wilcox, Defendant.
CourtU.S. District Court — District of South Dakota


TRACY JONES, a/k/a Tracy Wilcox, Defendant.

No. 5:20-CR-50141(03)-JLV

United States District Court, D. South Dakota, Western Division

October 12, 2021



Drug Task Force agents arrested Tracy Jones, a/k/a Tracy Wilcox (Jones), on a federal warrant for conspiracy to distribute methamphetamine and questioned her after she waived her Miranda rights. Agents then took her to jail where, for some inexplicable reason, she sat for 37 days before a magistrate judge finally saw her. She moves to dismiss the case against her or, in the alternative, to suppress her statements to agents, on several grounds. Because Jones is not entitled to a dismissal or suppression, the Court recommends that her motion (including the amendment to it) be denied.


On November 17, 2020, FBI Special Agent Dan Cooper and Oglala Sioux Tribe Criminal Investigators Derek Puckett and Jon Archambeau, all agents of the Badlands Safe Trails Drug Task Force, arrested Jones and others on federal warrants as part of a “sweep” conducted of the Martin, South Dakota area. Within two hours or so of her


arrest, agents interviewed Jones at the Bennett County State's Attorney's Office in Martin. Cooper explained to her that she would be transported the next day to the Pennington County Jail in Rapid City, to be booked and housed, and then would see a judge on the federal charge. While in the company of arresting agents, Jones signed a Miranda advisement form, acknowledging she understood her rights, agreed to speak with agents and did so. During her conversation with them, Jones provided information on several other persons, in and around Martin and Rapid City, and their drug activities. Jones also spoke about her own methamphetamine distribution and her supply sources.

Task Force agents did not elicit any statements from Jones after Investigator Archambeau handed her over to jail officers on November 18. Nor did agents conduct any follow-up interviews with Jones, or attempt to get her to talk, while she was in jail or at any later time.

The Government originally maintained a Task Force agent provided phone notification on November 18 to the magistrate judge's chambers and to the United States Marshals Service (USMS) that Jones had been arrested on the federal offense and was in custody at the Pennington County Jail. After receiving the call, the Government says, the USMS picked Jones up, drove her to the USMS office for processing, and returned her to the Jail. Jones asserts no one ever advised the magistrate judge that she was in custody and needed to be seen until just before her December 23 initial appearance. In support of her assertion, Jones points to the judge's on-the-record


statement during the hearing that day: “For some reason we were not notified-- our office wasn't -- that she was taken into custody.”[1]

Because of the COVID-19 pandemic in November and December 2020 (and for much of that year), most federal criminal defendants appeared for their hearings by video from the Jail. Because of this arrangement and the corresponding lack of any need to bring defendants to court, arresting agents typically were not informed of when a particular defendant was scheduled to make his/her first court appearance before the judge.

Jones secured released on December 23 after spending 37 days in jail. She later moved to dismiss the drug charge against her, under the Due Process Clause of the Fifth Amendment or to suppress her statements because they were obtained in violation of 18 U.S.C. §3501 and the McNabb-Mallory rule.[2]

At the motion hearing, Jones presented evidence that a Task Force agent did indeed contact the magistrate judge's chambers on November 18. But that evidence showed the agent said nothing about Jones in the voice message he left. By contrast, the Government offered no evidence (other than a “belief”) to back up its contention that law enforcement notified the judge or her staff of Jones's arrest on, or shortly after, November 18. Faced with proof problems, the Government conceded, to decide Jones's


motion, that no notice had been given to chambers and that the Court could determine what the remedy should be for Jones's five plus week delay in presentment.[3]


Jones claims that the way she was first presented to the magistrate judge, after arrival in Rapid City, violated her procedural rights under the Federal Rules of Criminal Procedure. She directs the Court's attention to Rule 5, which generally requires that upon arrest a defendant must be taken before a magistrate judge “without unnecessary delay” in the district where he/she was arrested.[4] Because she did not see a magistrate judge until December 23, 2020, Jones argues that she was not promptly presented as required by the Rule. Based on this perceived defect in proper procedure, she urges the Court to dismiss the indictment against her or, at a minimum, suppress those statements made in violation of her prompt right to presentment.

A. Dismissal

1. Waiver

Although the Eighth Circuit has not previously addressed the matter, courts have concluded that a defendant can indeed waive Rule 5's procedural safeguards.[5]


And courts have been accepting of a presentment waiver when the defendant has been given Miranda warnings, as was the case here.[6] Because these holdings are in keeping with the general presumption in favor of a defendant's right to waive his/her rights, [7]the Court adopts them and “joins the broad consensus in favor of upholding the validity of Rule 5 waivers.”[8]

The question then becomes whether Jones' waiver was a knowing, voluntary, and intelligent one. On this record, the Court concludes that it was.

The waiver inquiry has “two dimensions”: the waiver must have been (1) “voluntary in the sense that it was a free and deliberate choice rather than intimidation, corrosion, or deception” and (2) made “with a full awareness of both the nature of the right be abandoned and the consequences of the decision to abandon it.”[9] The totality of the circumstances are to be considered when determining whether a person's waiver is allowed.[10]


The record irrefutably shows that Jones waived her Miranda rights. She understood her rights and chose not to assert or rely on any of them when she spoke to Task Force agents.

Credible evidence proves that Jones was mindful of her rights and knew what she was doing.[11] Agent Cooper read each of them to Jones from an advice of rights form.[12] Jones then signed the form, acknowledged that she understood her rights, and was willing to speak to agents without a lawyer present.[13]

Jones's written waiver is a telling manifestation that she understood her rights and was disposed to give them up.[14] Her willingness to engage in an almost 45-minute colloquy without the benefit of counsel and to make statements was a “course of conduct indicating waiver” of her rights.[15] If Jones wanted to remain silent, confer with or have counsel present, or stop answering questions, she could have said so and ended


the interrogation. That she chose not to and elected to participate - by herself-in a sustained dialog with Task Force agents is corroboration of a full-fledged waiver.[16]

What's more, Jones' statements were not coerced.[17] At no time did Task Force agents threaten or intimidate Jones, raise their voices, or become hostile toward her.[18]Nor did they use any force, lay hands on Jones, lie, or employ deceptive stratagems to get her to confess.[19] Jones's age (47), education (GED and three and-a-half years of college), familiarity with the criminal justice system (misdemeanor arrests and convictions dating to 2001), [20] and conduct that day did not intimate that she was low functioning or particularly suggestable and vulnerable to inquiries by authority figures.[21]

Jones's responses to the Miranda advisement and statements and actions following it also established that she was not under the influence, suffering from any mental impairments, or having trouble grasping questions put to her and that she


comprehended her predicament.[22] And she cooperated with agents (providing them with drug information about herself and others), asking and answering questions, and at times, correcting and clarifying what Agent Cooper said.[23]

This is not one of those isolated cases in which an arrestee, after being properly advised of her Miranda rights, failed to make an open and autonomous decision to speak with a probing agent. Jones did not say or do anything that conveyed an inability, on her part, to discern and appreciate her rights and the implications of what she was doing.[24] She knew of the situation she was in and was willing to answer questions. No. evidence shows that agents improperly coerced her to do anything. Having waived her Miranda rights and given voluntary statements to agents two to three hours after her arrest, Jones cannot now seek the protection of Rule 5(a).[25]

2. Not the Remedy

Regardless, the appropriate remedy for a violation of Rule 5(a)(1)(A) is not dismissal of the indictment, but suppression of evidence illegally obtained as a result of the violation.[26] The reason is simple: since the provisions of Rule 5(a) are procedural,


not substantive, the sanction for failure to comply with the Rule is exclusion of those statements taken during the period of unnecessary delay.[27] So Jones's only available remedy is suppression of her November 17 statements to Task Force agents.

Jones's contention that she is entitled to dismissal of the charge against her under the Due Process Clause of the Fifth Amendment cannot be reconciled with federal precedents. They consistently refer to the application of...

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