Free Motion to Dismiss - District Court of California - California

Case 3:08-mj-02347-JMA

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JOHN R. FIELDING, JR., California Bar No. 108303 402 W. Broadway, Suite 1700 San Diego, California 92101 Telephone: (619) 233-0467 Attorney for Defendant, GARY TAYLOR BLACKWOOD

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (THE HONORABLE JAN M. ADLER)

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UNITED STATES OF AMERICA, Plaintiff, vs. GARY TAYLOR BLACKWOOD, Defendant

) ) ) ) ) ) ) ) ) ) )

Case No.: 08MJ2347 NOTICE OF MOTION AND MOTION TO DISMISS PURSUANT TO FEDERAL RULE OF CRIMINAL PROCEDURE, RULE 5 Date: August 14, 2008 Time: 2:00 p.m.

TO:

KAREN P. HEWITT, UNITED STATES ATTORNEY AND GREGORY NOONAN, ASSISTANT UNITED STATES ATTORNEY: PLEASE TAKE NOTICE that on August 14, 2008, at 2:00 p.m., or as soon thereafter as

counsel may be heard, the defendant, GARY TAYLOR BLACKWOOD ("Mr. Blackwood"), by and through his counsel, John R. Fielding, Jr., will and hereby does ask this Court to enter an

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order granting the motion listed below. MOTION Mr. Blackwood, pursuant to United States Constitution and all other applicable statutes, case law and local rules, hereby moves this Court for an order to:

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(1) DISMISS This motion is based upon the instant notice of motion, motion, the attached memorandum of points and authorities, and any and all other materials that may come to this

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Court's attention at the time of the hearing on this motion.

Dated: August 11, 2008
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/s/John R. Fielding John R. Fielding, Jr. Attorney for Defendant [email protected]

Motion to Dismiss

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JOHN R. FIELDING, JR., California Bar No. 108303 402 W. Broadway, Suite 1700 San Diego, California 92101 Telephone: (619) 233-0467 Attorney for Defendant, GARY TAYLOR BLACKWOOD

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (THE HONORABLE JAN M. ADLER)

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UNITED STATES OF AMERICA, Plaintiff, vs. GARY TAYLOR BLACKWOOD, Defendant

) ) ) ) ) ) ) ) ) ) )

Case No.: 08MJ2347 POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS PURSUANT TO FEDERAL RULE OF CRIMINAL PROCEDURE, RULE 5 Date: August 14, 2008 Time: 2:00 p.m.

I. STATEMENT OF FACTS Mr. Blackwood was arrested on July 18, 2008. Thirteen days later, on July 31, 2008, he appeared before the Honorable Judge Adler for arraignment. During the thirteen days between his arrest and his initial appearance, Mr. Blackwood was transported to six different federal detention facilities. According to Mr. Blackwood, he was initially housed for two days at an unknown location near the border. He was then transferred in the middle of the night to George Bailey. He remained at George Bailey for one day before he was transferred to an unknown location in El Centro where he remained for three days. Mr. Blackwood was then taken to El Centro's Imperial County Jail for five days. Five days later, Mr. Blackwood was transferred back to the

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unknown El Centro facility where he remained for one day. His pre-arraignment tour of federal
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facilities came to an end when he was taken to the Metropolitan Correctional Center ("M.C.C."). As of the date of this motion, Mr. Blackwood is still housed at the M.C.C. Mr. Blackwood's wife, Lisa Blackwood, became concerned when she had not heard from Mr. Blackwood after July 18th. She filed a missing person's report. The British Consulate assisted Ms. Blackwood in her efforts to locate her husband. Eventually, Ms. Blackwood learned that her husband was in federal custody. II. APPLICABLE LAW A. MR. BLACKWOOD'S CASE SHOULD BE DISMISSED BECAUSE HE WAS NOT BROUGHT BEFORE A MAGISTRATE UNTIL THIRTEEN DAYS AFTER HIS ARREST Fed.R.Crim.P. 5 guarantees a defendant the right to be brought before a magistrate soon after being arrested. U.S. v. Osunde, 638 F.Supp. 171, 176 (N.D. Cal., 1986). In pertinent part, Rule 5(a) states, An officer making an arrest ... without a warrant shall take the arrested person without unnecessary delay before the nearest available federal magistrate.... Fed.R.Crim.P. 5(a); see also Osunde at 176. In Osunde, the Court found that the passage of 106 days between the defendant's arrest and his first appearance before Magistrate Brazil was, without a doubt, a grossly unnecessary delay. Id. Osunde found that the flagrant violations of Rule 5 warranted dismissal. Here, Mr. Blackwood was transported to six different facilities in the thirteen days between his arrest and initial appearance before a magistrate. This obvious and egregious violation of Mr. Blackwood's liberty interests warrants dismissing his case in order "to serve notice on the government that such action cannot and will not be countenanced or

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condoned by the courts." Id. At 177, emphasis added.
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Dated: August 11, 2008

/s/John R. Fielding John R. Fielding, Jr. Attorney for Defendant [email protected]
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John R. Fielding, Jr. California Bar No. 108303 402 W. Broadway, Suite 1700 San Diego, California 92101 Tel: (619) 233-0467 Fax: (619) 233-0475 Email: [email protected]

Attorney for Defendant, BLACKWOOD UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA Plaintiff,

) Criminal Case No. 08MJ2347 ) ) CERTIFICATE OF SERVICE v. ) ) GARY TAYLOR BLACKWOOD ) Defendant. ) _________________________________________ ) I, the undersigned, declare: That I am over eighteen years of age, a resident the County

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of San Diego, State of California, and I am not a party in the within action; That my business
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address is: 402 W. Broadway, Suite 1700, San Diego, CA 92101.
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That I caused to be served the within NOTICE OF MOTION AND MOTION TO DISMISS AND POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS on the Untied States Attorney's Office, by electronically filing the document with the Clerk of the United States District Court for the Southern District of California, 880 Front Street, San

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Diego, California 92101, using its ECF System, which electronically notifies them. I certify that the foregoing is true and correct. Executed on August 11, 2008, at San Diego, California.

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Dated: August 11, 2008

S John R. Fielding, Jr. John R. Fielding, Jr. Attorney for Defendant [email protected]

CERTIFICATE OF SERVICE - 2