The opinion of the court was delivered by: Sue E. Myerscough United States District Judge
E-FILED Thursday, 23 June, 2011 04:44:37 PM
Clerk, U.S. District Court, ILCD
OPINION SUE E. MYERSCOUGH, United States District Judge:
This cause is before the Court on Defendant Jose Meza-Perez's Appeal of Magistrate Judge's Finding of Probable Cause (d/e 5). The Government has filed a response. For the reasons that follow, the Appeal of Magistrate Judge's Finding of Probable Cause is DENIED.
On May 23, 2011, Defendant was charged in a criminal Complaint with document fraud in violation of 18 U.S.C. § 1546(a). A four-page affidavit executed by Glen Harrington, a special agent with the U.S. Department of Homeland Security, Immigration, and Customs Enforcement (ICE), supported the Complaint and the application for a warrant to arrest Defendant.
On May 25, 2011, Defendant made his initial appearance with the benefit of an interpreter. United States Magistrate Judge Byron G. Cudmore advised Defendant of his rights, the charge against him, the potential penalties, and appointed counsel for Defendant. Defendant stipulated to detention. Judge Cudmore proceeded to a preliminary hearing. The Government proffered the affidavit. The Government also asked Judge Cudmore to take judicial notice of his earlier finding of probable cause, and Judge Cudmore did so. Defendant called Agent Harrington to testify.
The affidavit and the testimony at the hearing provided the following. On May 22, 2011, during a traffic stop, Defendant presented an I-94 admission document as identification. According to Mr. Harrington's testimony, an I-94 document is a record issued as evidence of a foreigner's arrival and departure from the county. An I-94 can also be used as evidence of an authorized stay in the United States.
The I-94 at issue herein had upon it Defendant's photograph and administrative number 045136129. That administration number was not assigned to Defendant but was assigned to a different person, who is currently a legal permanent resident.
The I-94 also contained red-stamped lettering across the face of the document and picture. The red-stamped lettering read: "PROCESSED FOR 1-551*fn1 TEMPORARY EVIDENCE OF LAWFUL ADMISSION FOR PERMANENT RESIDENCE VALID UNTIL (15-DEC-2000) EMPLOYMENT AUTHORIZED." Agent Harrington explained that an I-551 is a lawful permanent resident card. However, when people initially come into the United States as immigrants, the government officials do not have the facilities for issuing the lawful permanent resident card at the border. Therefore, the officials will stamp the lettering described above on the I-94 entry document and put the date it is valid until to cover the time until the immigrant receives their "real card."
The affidavit further provided that on May 23, 2011, after receiving his warnings pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), Defendant stated he had purchased the card from someone in Matamoras, Mexico. Defendant stated he did not use the I-94 to cross the border or for any other benefit.
Judge Cudmore reaffirmed the previous finding of probable cause.
Where, as here, a defendant is charged by complaint, the magistrate judge must conduct a preliminary hearing, unless the defendant waives the hearing. See Fed.R.Crim.P. 5.1(a). "If the magistrate judge finds probable cause to believe an offense has been committed and the defendant committed it, the magistrate judge must promptly require the defendant to appear for further proceedings." Fed.R.Crim.P. 5.1(e). If the magistrate judge does not find probable cause, the judge must dismiss the complaint and discharge the defendant. Fed.R.Crim.P. 5.1(f). "Probable cause has been defined as facts and circumstances sufficient to warrant a prudent man in ...