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
