U.S. v. Benitez, s. 93-50306

• Decision Date: 09 September 1994
• Docket Number: 93-50396 and 93-50261,Nos. 93-50306,s. 93-50306
• Citation: 34 F.3d 1489
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. George BENITEZ; Javier Ramirez; Jose Camilo Lizarraga, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1489

34 F.3d 1489

UNITED STATES of America, Plaintiff-Appellee, v. George BENITEZ; Javier Ramirez; Jose Camilo Lizarraga,

Defendants-Appellants.

Nos. 93-50306, 93-50396 and 93-50261.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 7, 1994.

Decided Sept. 9, 1994.

Diana M. Cavanaugh, Newport Beach, CA, Michael D. Abzug, Los Angeles, CA, Julian W. Bailey, Orange, CA, for defendants-appellants.

Marc S. Harris, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before: FLETCHER, CANBY, and HALL, Circuit Judges.

FLETCHER, Circuit Judge:

George Benitez, Javier Ramirez, and Jose Camilo Lizarraga ("appellants") appeal their conditional guilty plea convictions for assaulting and interfering with government agents and using firearms during a crime of violence. Appellants appeal the district court's denial of their motion to dismiss for violation of the Speedy Trial Act and Fed.R.Crim.P. 48(b). Ramirez and Lizarraga also appeal the court's denial of their motion to suppress their confessions. Finally, Ramirez appeals the application of the sentencing guidelines adjustment for obstruction of justice and the court's refusal to grant a two level reduction for minor-participant status. We have jurisdiction and we affirm.

I

From July 1991 to September 1992, federal agents were involved in an investigation code-named "Operation Green Ice" that targeted narcotics traffickers and money launderers in Southern California. As part of this operation, federal agents posed as money launderers and agreed to launder drug proceeds for suspected drug dealers.

On August 20, 1992, federal Agent Heidi Landsgraft arranged with a target of the investigation for the delivery of $710,000 of drug proceeds to be laundered. Lizarraga acted as the courier for the target. Two undercover agents posing as couriers for Agent Landsgraft met with Lizarraga in the parking lot of the Orange County John Wayne Airport. Several additional federal agents, including Special Agent Thomas Eilers, performed surveillance at the airport.

Prior to meeting with the undercover agents, Lizarraga arranged with Benitez, Ramirez, and codefendant Lavaro Jorge Cardona-Echeverria ("Cardona") to pose as police officers and to rob the undercover agents of the drug proceeds. At the airport meeting, shortly after Lizarraga had met with the undercover agents, Ramirez, Benitez, and Cardona approached the agents. Benitez and Ramirez carried fake police badges and Benitez wore what appeared to be a police-style "raid" jacket. Benitez flashed a badge and identified himself and his two companions as police officers. Benitez told one agent to place his hands in the air, grabbed the agent, and began to handcuff him. Ramirez and Cardona approached the other agent and allegedly attempted to force the agent into Lizarraga's car. The agent drew his weapon and ordered everyone to freeze.

Surveillance agents ran to the group and ordered appellants and Cardona to lie on the ground. When Benitez did not immediately release the agent he was handcuffing, a federal agent grabbed Benitez and forced him to the ground. Ramirez, Lizarraga, and Cardona were handcuffed but because there was not a fourth pair of handcuffs, Benitez was held on the ground. The agents called 911 for assistance and approximately fifteen minutes later officers of the Orange County Sheriff's Department ("OCSD") arrived. At this time Benitez was handcuffed. Approximately forty-five minutes later, appellants were taken to the OCSD.

Appellants were booked and interviewed by OCSD officers. OCSD Inspector Gary Jones prepared a report in connection with the arrest. The report did not disclose the true names or occupations of the federal agents, but instead used the agents' undercover names in order to avoid compromising the federal investigation. The report was presented to the Orange County District Attorneys' office, which filed a felony complaint on August 24, 1992, charging appellants with robbery, kidnapping, and possession of over $100,000 in drug proceeds in violation of state law. The complaint did not disclose that the victims were federal agents, also apparently to avoid compromising the federal undercover operation.

A preliminary hearing was set for September 14, 1992. On this date, Operation Green Ice was still underway and the federal government was still concerned about revealing the identities of the undercover agents, who were to be witnesses at the hearing. The agents did not appear at the hearing, the complaint was dismissed, and a new complaint was filed.

A new hearing was set for September 28, 1992. Prior to that date, the U.S. Attorney's Office notified the state that it intended to seek an indictment against the defendants and the state charges were dismissed.

On September 29, 1992, the U.S. Attorney's office filed a federal complaint charging appellants with assaulting federal officers in violation of 18 U.S.C. Sec. 111. Eleven days later, on October 9, 1992, a federal grand jury returned a multi-count indictment. On November 5, 1992, Cardona filed a motion to dismiss for violations of the Speedy Trial Act and Fed.R.Crim.P. 48(b). Appellants subsequently joined this motion. On December 8, 1992, Ramirez and Lizarraga filed a motion to suppress their confessions on the grounds that they were coerced. The district court held a hearing on January 8, 1993 to resolve appellants' motions. The court denied the motion to dismiss and the motion to suppress.

On January 19, 1993, appellants executed plea agreements in which they pled guilty to assaulting a federal officer in violation of 18 U.S.C. Sec. 111, and using a firearm in relation to a crime of violence in violation of 18 U.S.C. Sec. 924(c). Each appellant reserved the right to appeal the district court's denial of their motions to dismiss and suppress. After sentencing, appellants timely appealed.

II

Appellants allege that the district court erred by failing to dismiss the indictment under the Speedy Trial Act, 18 U.S.C. Sec. 3161(b), because more than thirty days elapsed between their arrest on August 20, 1992 and their indictment on October 9, 1992. We review factual findings concerning the Speedy Trial Act for clear error and questions of law regarding its interpretation de novo. United States v. Nash, 946 F.2d 679, 680 (9th Cir.1991).

The Speedy Trial Act requires federal authorities to indict and bring to trial incarcerated individuals within specified time periods. This case involves the requirement that an incarcerated individual be indicted within thirty days of his arrest:

Any information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges.

18 U.S.C. Sec. 3161(b). If a violation of this provision occurs, the Act requires dismissal. 18 U.S.C. Sec. 3162(a)(1).

Only a "federal arrest" triggers the running of the thirty day time period set forth in Sec. 3161(b). United States v. Manuel, 706 F.2d 908, 914-15 (9th Cir.1983); United States v. Adams, 694 F.2d 200, 202 (9th Cir.1982), cert. denied, 462 U.S. 1118, 103 S.Ct. 3085, 77 L.Ed.2d 1347 (1983). Thus, to trigger the thirty day time period, appellants' arrest on August 20 must qualify as a federal arrest. We conclude that it does not.

A federal arrest requires that the defendant be detained pursuant to federal charges. United States v. Cepeda-Luna, 989 F.2d 353, 356 (9th Cir.1993). An individual who is not officially charged with a federal offense or "accused" has not been arrested for the purposes of Sec. 3161(b). E.g., United States v. Orbino, 981 F.2d 1035, 1037 (9th Cir.1992), cert. denied, --- U.S. ----, 114 S.Ct. 256, 126 L.Ed.2d 208 (1993); United States v. Walker, 856 F.2d 26, 27 (5th Cir.1985); United States v. Davis, 785 F.2d 610, 613-14 (8th Cir.1986); United States v. Candelaria, 704 F.2d 1129, 1131-32 (9th Cir.1983). ¹ In this case, appellants' arrest was not federal because appellants were held pursuant to a complaint charging appellant with violations of state laws.

Appellants argue that the arrest falls within Sec. 3161(b) because the original detention at the airport was made by federal officers conducting a federal investigation. However, the fact that federal authorities actively participate in an investigation does not mandate the application of the Speedy Trial Act. Cepeda-Luna, 989 F.2d at 356; United States v. Johnson, 953 F.2d 1167, 1172 (9th Cir.) (F.B.I. investigation followed by state arrest does not trigger Speedy Trial Act), cert. denied, --- U.S. ----, 113 S.Ct. 226, 121 L.Ed.2d 163 (1992); Manuel, 706 F.2d at 915 (neither F.B.I. involvement in investigation nor tribal arrest triggers Speedy Trial Act); Adams, 694 F.2d at 202 (joint federal-state investigation followed by state arrest does not trigger Speedy Trial Act). Thus, the fact that appellants' arrest followed from a federal investigation is not sufficient to create a federal arrest.

Furthermore, several circuits have held that the Speedy Trial Act is not triggered when a defendant is arrested by federal authorities and immediately released or turned over to state authorities and charged with state law violations. E.g., United States v. Beede, 974 F.2d 948, 950 (8th Cir.1992) (arrest by federal agents and immediate placement into state authorities' custody does not trigger Speedy Trial Act), cert. denied, --- U.S. ----, 113 S.Ct. 1016, 122 L.Ed.2d 163 (1993); United States v. Bagster, 915 F.2d 607, 609-10 (10th Cir.1990) (no federal arrest where arrest by federal agents but no formal charges filed); United States v. Amuny, 767 F.2d 1113, 1120 (5th Cir.1985) (Speedy Trial Act not triggered where federal authorities perform arrest and immediately thereafter state authorities take custody and press charges); United...