The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge:
The defendant, Brent K. Antoine*fn1 , appeals from United States Magistrate Judge James Orenstein's March 21, 2011 order removing him, pursuant to FEDERAL RULE OF CRIMINAL PROCEDURE ("Rule") 5(c)(3)(D)(ii), to the Western District of Pennsylvania for prosecution pursuant to an arrest warrant issued in that district on November 30, 2010. Defendant argues that: (i) probable cause is not the appropriate standard for a determination of identity in a Rule 5 removal proceeding and, (ii) even if probable cause is the appropriate standard, the government has not met its burden for removal. The government disagrees. For the reasons set forth below, Magistrate Judge Orenstein's March 21, 2011 order of removal is affirmed.
On March 3, 2010, law enforcement officers of the Scott Township Police Department in Pennsylvania ("local officers") responded to an alert from Walmart loss prevention employees that four individuals had attempted to use credit cards that did not match the identification they presented. (Mar. 11, 2011 Tr.*fn2 at 6-8.) The local officers who stopped the individuals on March 3, 2010 did not review any identification documents, or take any photographs or fingerprints at that time. (Id.at 8-9, 21.) One of the individuals, who identified himself as Brent Hercules Antoine, told the local officers his address was 100 East 21 Avenue, Apt. 519, Brooklyn, NY,*fn3 provided his social security number as 067-02-0247 and provided his date of birth as January 10, 1977. (Id. at 9, 22-23, 26; Gov't Brief Ex. 7*fn4 .)
A few weeks after this incident, Special Agent Michael Raden of the United States Secret Service found a New York State Department of Motor Vehicles ("DMV") photograph of someone with the name Brentt K. Antoine. (Mar. 11, 2011 Tr.at 11-13; see also Mar. 21, 2011 Hearing Ex. C.) The DMV photograph was shown to the local officer who had stopped the individuals in the Walmart parking lot on March 3, 2010. (Mar. 11, 2011 Tr. at 12-13.)The local officer stated that the DMV photograph looked like an old picture of the individual he stopped on March 3, 2010. (Mar. 11, 2011 Tr.at 12-13.) The DMV photograph shown to the local officer was not of defendant, and the pedigree information of the individual in the photograph, including his social security number, date of birth and height, were different from that of defendant. (Id. at 28-34, 45.)
On November 30, 2010, a warrant was issued for defendant's arrest by the United States District Court for the Western District of Pennsylvania, for conspiracy to commit access device fraud in violation of 18 U.S.C. §§ 1029(a)(1)-(3) and for possession of fifteen or more counterfeit or unauthorized access devices in violation of 28 U.S.C. § 1029(a)(3), based on the March 3, 2010 incident. Secret Service Agents arrested defendant on January 25, 2011 immediately after an immigration adjustment interview in New York. (Id. at 13-15.) At that time, defendant had various identification documents in his possession with several variations of his name, including Brent K. Hercules Antoine and Brent Kevin Hercules Antoine. (Id. at 16-17; see also Mar. 11, 2011 Hearing Exs. 4, 5.) Dough Burek, one of the local officers who had identified the individuals in the Walmart parking lot on March 3, 2010, identified defendant as the person he saw in the parking lot on March 3, 2010 from defendant's arrest photograph taken on January 25, 2011. (Mar. 11, 2011Tr. at 18-20; Mar. 11, 2011 Hearing Ex. 3.)
On January 25, 2011, Special Agent Trepiccione filed a request in this court that defendant be removed to the Western District of Pennsylvania pursuant to the arrest warrant issued on November 30, 2010. Magistrate Judge Orenstein held identity hearings on March 11, 2011 and March 21, 2011 to determine whether removal of defendant to the Western District of Pennsylvania would be proper.
During these hearings, the magistrate judge granted defendant the opportunity to subpoena the other Brentt K. Antoine (the "witness Antoine"), who was the person in the DMV photograph initially identified by the local officer. (Mar. 11, 2011 Tr. at 47-48, 50.) The witness Antoine appeared in court pursuant to defense subpoena. (See Mar. 21, 2011 Tr. at 2-12.) The witness Antoine presented a copy of his learner's permit which contained the DMV photograph that the local officer had initially identified as an individual who looked like an old picture of the individual the officer spoke to on March 3, 2010. (See Mar. 21, 2011 Tr. at 3-4; Mar. 21, 2011 Hearing Ex. C.) The witness Antoine also testified that his address is 570 Lefferts Avenue, his social security number is 111-86-2854 and his date of birth is June 13, 1979. (Mar. 21, 2011 Tr. at 3.)
Based on the evidence provided at the identity hearings, the magistrate judge held that probable cause was the proper standard to apply to determine whether defendant was the person named in the indictment, and that there was probable cause to believe that defendant was the person named in the indictment.
The parties dispute whether: (i) probable cause is the proper standard for a determination of identity pursuant to Rule 5(c)(3); and (ii) the government has met its burden for removal.
A.Standard for Determination of Identity in Removal Proceeding
Defendant argues that the magistrate judge's application of the probable cause standard to determine identity in a removal proceeding was improper and, instead, the government must "clearly and satisfactorily" establish the defendant's identity as the defendant indicted by the grand jury for purposes of removal. The government disagrees and argues that the magistrate judge properly applied the probable cause standard.
Rule 5 does not specify the standard to be applied to determine whether the defendant in an action is the same person named in the out-of-district indictment. As the magistrate judge points out, ". . . the Advisory Committee notes to Rule 5 and, in particular, the 2002 Amendment to Rule 5, note that Rule 5.1, which explicitly incorporates a probable cause standard, was carved out of Rule 5 and it was basically an organizational change to reflect that Rule 5.1 would deal with preliminary hearings." (See Mar. 21, 2011 Tr. at 29-30.) Furthermore, several cases apply the probable cause standard to determinations of identity in removal proceedings, although they do not expressly discuss whether it is in fact the ...