Florida Court Rules that 11-Day Delay Before Presenting Defendants to Magistrate Judge was Unnecessary and Violates Federal Rule of Criminal Procedure 5

This case pertains to a matter that has previously garnered media attention in “The Coast Guard’s ‘Floating Guantánamos’”. If you haven’t read that article, I highly suggest you head over to the New York Times’ website and do so before coming back to finish this post. In general, “Floating Guantánamos” and the decision, U.S. v. Henriquez, et al., No. 22-20161-CR, 2023 WL 3819797 (S.D. Fla. April 24, 2023),¹ concern the duration and—specifically in the case of “Floating Guantánamos”—circumstances in which defendants are held on Coast Guard vessels prior to being brought to the U.S. for prosecution.

Federal Rule of Criminal Procedure 5(a)(1)(B) states that, “[a] person making an arrest outside the United States must take the defendant without unnecessary delay before a magistrate judge, unless a statute provides otherwise.” (emphasis added). The question then is, what is “unnecessary delay?” In most Circuits, the test used to determine if there is unnecessary delay prior to presenting a defendant for an initial appearance comes from United States v. Purvis, 768 F.2d 1237 (11th Cir. 1985). Specifically, courts consider the following factors:

(1) the distance between the location of the defendant’s arrest in international waters and the U.S. port he was brought to; (2) the time between the defendant’s arrival at the U.S. port and his presentment to the magistrate judge; (3) any evidence of mistreatment or improper interrogation during the delay; and (4) any reason for the delay, like exigent circumstances or emergencies.

Id. at 1238-39. Using this four-part test, a District Court in the Southern District of Florida (“SDFL”) recently determined in U.S. v. Henriquez, et al., that the U.S. government failed to present defendants to a magistrate without unnecessary delay. So, let’s examine why the court made its decision by looking at a timeline of events from that case:

30 March 2022 – Defendants’ Go-fast vessel (“GFV”) was interdicted by the Friesland, a Dutch naval vessel with an embarked Coast Guard law enforcement detachment (“LEDET”), approximately 140 nautical miles south of Dominican Republic.
6 April 2023 – The Department of Justice (“DOJ”) determined that defendants’ criminal case would be tried in the SDFL, and a DEA agent was assigned to the case. Additionally, the defendants were transferred from the Friesland to the U.S. Coast Guard Cutter (“CGC”) Tezanos.
8 April 2023 – Defendants were transferred from CGC Tezanos to the Billings, a warship operated by the United States Navy, because the CGC Tezanos “needed to refuel and restock its supplies in a Puerto Rican port between April 8 and April 11[,]” and the government did not want to bring the defendants into U.S. territorial seas.
9 April 2023 – Defendants were transferred from the Billings via helicopter to the Wichita, another Naval warship.
**10 April 2023 – According to the decision, “if the Government wanted to do so, it could have easily brought Defendants before a Judge in Puerto Rico by April 10, 2023, at the very latest.”
11 April 2023 – Defendants were transferred back to CGC Tezanos.
15 April 2023 – Defendants were transferred to the CGC Thetis.
20 April 2023 – The CGC Thetis delivered defendants into the assigned DEA agent’s custody in Guantanamo Bay, Cuba.
21 April 2023 – Defendants were transported to Miami for their initial appearance before a magistrate judge in the SDFL for violations of the MDLEA.

U.S. v. Henriquez, et al., 2023 WL 3816698, at *1-3. Applying Purvis factors to these facts, the court determined that the eleven-day delay (from 10 April 2023 to 21 April 2023) in presenting the defendants to a magistrate judge was an unnecessary, “wasteful expenditure of precious federal resources” that violated Fed. R. Crim. P. Rule 5.

Concerning the first Purvis factor the court noted that it weighed against the government because “[h]ad Defendants been presented to a Magistrate Judge in Puerto Rico [when the CGC Tezanos went to resupply, it] would have very little trouble concluding that this factor does not weigh against the Government because the USCG covered the distance between capture and arrival in a United States port in a reasonably timely fashion. But that is not what happened. Instead of disembarking Defendants in Puerto Rico when the Tezanos was scheduled to arrive in port, the Government engaged in a complicated series of transfers to avoid Puerto Rican waters altogether.” Id. at *5.

Likewise, the court found that the third and fourth Purvis factors weighed against the government. More specifically, instead of bringing the defendants to Puerto Rico where they could have been promptly presented before a magistrate judge, defendants were shuffled between U.S. assets for approximately 12 days (from 8 April 2023 to 20 April 2023), seemingly to avoid the activation of their U.S. Constitutional rights (by staying out of U.S. territorial seas) and to allow for interrogation by a specific DEA agent assigned to the case. As such, according to the court, the reasoning for the delay was unreasonable, avoidable, and violated Fed. R. Crim. P. Rule 5. Id. at *6.²

Although the court ruled in favor of the defendants, it was “hesitant” to call the government’s delay “unnecessary” in light of 11^th Circuit precedent³ permitting lengthy delays, but ultimately determined that “it is not the total travel time that strikes us as meaningful; rather, only the circumstances of Defendants’ last ten days at sea illustrate the ‘unnecessary delay’ in their presentment.” Id. at *5.

This decision is tough to grapple with, but I understand the court’s reasoning. We often see defendants being passed from U.S. government asset to asset to ensure they are delivered to what the U.S. government believes is correct venue, especially in cases where the interdiction is linked to a specific investigation. Is that appropriate (and fair to the defendants)? The SDFL does not think so.

The full decision can be found here.

1
Magistrate Judge Torres’s decision was adopted by District Court Judge Gayles in its entirety on 5 June 2023. The full citation is, United States v. Henriquez, No. 22-20161-CR, 2023 WL 3819797, at *1 (S.D. Fla. Apr. 24, 2023), report and recommendation adopted, No. 22-20161-CR, 2023 WL 3816698 (S.D. Fla. June 5, 2023).
2
Ultimately, the court, however, did not dismiss the complaint and simply suppressed any statements made to assigned DEA agent.
3
United States v. Cabezas-Montano, 949 F.3d 567, 590-94 (11th Cir. 2020) (applying the Purvis factors and approving a 49-day delay in a similar case)