
    UNITED STATES of America, v. Moises CINTRON, Defendant.
    Criminal No. 07-10435-NMG.
    United States District Court, D. Massachusetts.
    June 10, 2009.
    
      Glenn MacKinley, U.S. Attorney’s Office, Susan M. Poswistilo, Boston, MA, for United States of America.
    Robert J. Galibois, II, Plymouth, MA, Mark W. Shea, Shea & LaRocque, Cambridge, MA, for Defendant.
   MEMORANDUM & ORDER

GORTON, District Judge.

In this criminal case the defendant, Moisés Cintron (“Cintron”), is charged with one count of being a felon in possession of a firearm and ammunition. He has moved to dismiss the Indictment pending against him pursuant to Fed.R.Crim.P. 5 because he was not arraigned until the day after his arrest. The motion is without merit and will be denied

I. Factual Background

Cintron was arrested on the morning of November 5, 2008, during the course of a vehicle stop on Route 128 in Massachusetts after police observed a gun protruding from his pocket. The facts surrounding that vehicle stop are recounted in detail in this Court’s December 15, 2008, 592 F.Supp.2d 198, Memorandum and Order (Docket No. 23), which denied most aspects of Cintron’s motion to suppress.

Cintron’s arrest occurred sometime after 10:00 AM and he was subsequently taken to the Massachusetts State Police barracks in Danvers, Massachusetts. Following the arrest state officials called Special Agent Michael Turner (“Turner”) of the Bureau of Alcohol, Tobacco, Firearms and Explosives (“the ATF”) at approximately 11:00 AM. At an evidentiary hearing on the defendant’s motion to suppress, Turner testified that after receiving that call he traveled to the Danvers barracks with the intention of interviewing Cintron. Turner arrived at the barracks at approximately 1:45 PM but the interview did not commence until approximately 4:00 PM. Finally, Cintron was arraigned on the following day, November 6, 2007.

II. Procedural History

Cintron was indicted on December 19, 2007. He filed a motion to suppress on July 17, 2008, which, after an evidentiary hearing and several memoranda and orders, was finally denied in its entirety on April 1, 2009, 2009 WL 924423.

At a status conference held on April 30, 2009,.the Court scheduled trial in this case for June 29, 2009. At that same status conference the defendant requested the Court’s permission to file a motion to dismiss based on the failure to arraign Cintron on the day of his arrest. Although expressing skepticism about the merits of such a motion, the Court permitted its filing on or before May 7, 2009, and granted the government one week to respond. Cintron filed the pending motion to dismiss on May 8, 2009, and the government has since filed its opposition.

III. Analysis

Cintron asserts that the Indictment must be dismissed because his arrest and arraignment did not comply with the requirements of Fed.R.Crim.P. 5. That rule states, in pertinent part:

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.

Fed.R.Crim.P. 5(a)(1)(A). As the defendant recognizes, that rule ordinarily does not apply to persons in state custody. See, e.g., United States v. Rivas-Lopez, 988 F.Supp. 1424, 1428 (D.Utah 1997) (“Rule 5(a) attaches only after the accused is taken into federal custody.” (citation omitted)). Although that would seem to end the inquiry, the defendant argues that Rule 5(a) can apply to a defendant in state custody where there is evidence of a “working arrangement” between federal and local law enforcement rendering the custody federal in substance. See United States v. Mayes, 552 F.2d 729, 734 (6th Cir.1977); Carpenter v. United States, 264 F.2d 565, 571 (4th Cir.1959).

Although there may be circumstances in which the involvement of federal officials in the detention of a suspect in state custody is so pervasive as to warrant the conclusion that the custody was federal in substance, this case does not present that scenario. The mere fact that Special Agent Turner was called and decided to interview Cintron does not convert the defendant’s custody from state to federal. There is no evidence to suggest that Turner, or any other federal official, delayed Cintron’s arraignment or exercised any authority or control over Cintron’s detention. Consequently, the defendant’s motion to dismiss will be denied.

ORDER

In accordance with the foregoing, the defendant’s motion to dismiss (Docket No. 42) is DENIED.

So ordered.  