Olmedo-Villa v. Garland

• Court: District Court, S.D. California
• Decided: September 12, 2023
• Docket: 3:23-cv-01659
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA

10 JERIMIAH EMMANUEL Case No. 23-cv-01659-BAS 11 OLMEDO-VILLA, ORDER DENYING PETITION 12 Plaintiff, AND CLOSING CASE

13 v. (ECF No. 2)

14 MERRICK GARLAND, et al.,

15 Defendants. 16 17 Petitioner Jerimiah Emmanuel Olmedo-Villa filed a writ of habeas corpus ad 18 prosequendum on September 8, 2023. He claims he was not arraigned in a timely 19 fashion under Rule 5 of the Federal Rules of Criminal Procedure after he was arrested 20 on September 6, 2023. (ECF No. 2.) 21 Petitioner was set for an initial appearance on September 7, 2023. (See Case 22 No. 23-mj-3246-KSC, ECF No. 4.) On that date, the Court appointed provisional 23 counsel, but Petitioner was not produced from custody because he had tested positive 24 for COVID-19. The Court continued his arraignment to September 8, then to 25 September 12, and then further continued it in light of his positive test. (Id., ECF 26 Nos. 8 to 17.) 27 Counsel files this writ, demanding that Petitioner be produced immediately in 1 teleconferencing (“VTC”). (ECF No. 2.) The Government opposes. (ECF Nos. 2 5, 7.) 3 Under Rule 5, after arrest, a person is entitled to a hearing before a Magistrate 4 Judge “without unnecessary delay.” Fed. R. Crim. P. 5(a)(1). “What constitutes 5 ‘unnecessary delay’ is to be determined in light of all the facts and circumstances of 6 the case.” United States v. Savchenko, 201 F.R.D. 503, 506 (S.D. Cal. 2001). “Some 7 delay is inevitable in a variety of circumstances.” Id. Medical care of the defendant 8 is a “legitimate and necessary (hence reasonable) delay[] and [is] not in violation of 9 the Rule 5 requirement of promptness.” Id.; United States v. George, 987 F.2d 1428, 10 1431 (9th Cir. 1993) (“A delay cause by medical necessity does not violate Rule 11 5(a).”). 12 In this case, the fact that Petitioner’s Rule 5 hearing has been delayed because 13 he has tested positive for COVID-19 is not unreasonable and does not constitute 14 unnecessary delay. There is no evidence the Government purposely delayed 15 Petitioner’s arraignment for any reason other than his positive COVID-19 test. Not 16 only is the delay necessary for Petitioner to receive medical care, but it is also 17 necessary for the protection of other individuals in court, including U.S. Marshals, 18 interpreters, attorneys, and other courtroom personnel. Thus, the Court declines to 19 order Petitioner to court as long as he tests positive for a highly contagious disease. 20 To the extent Petitioner demands that he be arraigned via VTC, the Court 21 declines to so order. The Government indicates the MCC, where Petitioner is being 22 held, does not currently have VTC capabilities. (ECF No. 5.) Although, under Rule 23 5(g), VTC may be used to conduct an appearance under Rule 5, this subsection does 24 not require a court to adopt or use VTC. See Fed. R. Crim. P. 5(g), Advisory and 25 Committee Notes to 2002 Amendments. Such VTC requires both the informed 26 consent of the defendant as well as adequate procedures to make sure that defense 27 counsel and the defendant are provided ample opportunity to meet in private. Such 1 || with a contagious disease. Although this Court did use VTC during the declaration 2 of a Judicial Emergency due to the COVID-19 virus, individuals who tested positive 3 |/for the virus were quarantined and not produced for a VTC appearance, largely 4 || because the Bureau of Prisons did not want individuals testing positive to be moved 5 |jand have contact with multiple individuals involved in the VTC procedure. 6 || Furthermore, the Judicial Emergency under the CARES Act expired May 10, 2023. 7 ||See In re Criminal Case Proceedings During the COVID-19 Public Emergency, 8 || Order of the Chief Judge No. 63-M (S.D. Cal. Apr. 13, 2023). Hence, the procedures 9 that were previously in place are no longer viable. 10 Petitioner’s request to be produced in court despite his positive test for 11 |}COVID-19 and/or to be arraigned via VTC is DENIED. The clerk is directed to 12 close the case. 13 IT IS SO ORDERED. 14 f 15 || DATED: September 12, 2023 (pil A (Bashan. 6 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28