U.S. v. Johnson

• Citation: 815 F.2d 309
• Decision Date: 14 April 1987
• Docket Number: No. 86-2494,86-2494
• Parties: UNITED STATES of America, Appellee, v. Clifton W. JOHNSON, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 309

815 F.2d 309

UNITED STATES of America, Appellee, v. Clifton W. JOHNSON, Appellant.

No. 86-2494.

United States Court of Appeals Fifth Circuit.

April 14, 1987.

Joel Androphy, David Berg, Houston, Tex., for appellant.

James R. Gough, Asst. U.S. Atty., Henry K. Oncken, U.S. Atty., Houston, Tex., for appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before POLITZ, JOHNSON, and DAVIS, Circuit Judges.

JOHNSON, Circuit Judge:

Clifton Johnson appeals from his conviction for fraudulent possession of credit card account numbers in violation of 18 U.S.C. Sec. 1029(a)(3). Finding Johnson's various contentions to be without merit, we affirm the judgment of the district court.

I.

On August 1, 1984, federal secret service agents received information indicating that Clifton Johnson was involved in counterfeiting credit cards. During an ensuing investigation, secret service agents were made aware of an outstanding California warrant for Johnson's arrest on theft charges. Based on the California warrant, and together with a Spring Valley, Texas, police officer, secret service agents arrested Johnson on November 27, 1984, in Houston. ¹ Immediately following the arrest, secret service agents took Johnson into federal custody, searched him, questioned him about his counterfeiting activities, and inventoried his car. The search of Johnson revealed an altered credit card. The inventory of his car revealed incriminating papers hidden beneath the spare tire and jack in the car's trunk.

Within twenty-four hours of his arrest, secret service agents brought Johnson before a state judge. Johnson waived extradition and was returned to California where he remained in custody until March 15, 1985, when he was released on bail pending trial. In the meantime, the Government filed a federal complaint on December 11, 1984, charging Johnson with unauthorized possession of altered credit cards and cardholder information. That same day, a federal magistrate issued a warrant for Johnson's arrest. Following his March 15 release on bail in California, Johnson was returned to Texas pursuant to a federal detainer to face federal charges.

On April 3, 1985, a federal grand jury indicted Johnson on eight counts of credit card fraud. In response, Johnson filed a motion to dismiss asserting that he was arrested by federal agents on November 27, 1984, and not indicted within thirty days as required by the Speedy Trial Act, 18 U.S.C. Secs. 3161-3174. Johnson also filed a motion to suppress material discovered during searches of his car and person on November 27, 1984. The district court denied both motions in an order entered on January 21, 1986.

Johnson entered a conditional plea of guilty to Count Eight of the indictment, charging him with fraudulent possession of credit card account numbers, 18 U.S.C. Sec. 1029(a)(3), and an unconditional plea of guilty to Count One of the indictment, charging him with conspiracy to defraud in violation of 18 U.S.C. Sec. 371. Johnson received a five-year sentence on Count One and a consecutive three-year sentence on Count Eight. He now appeals challenging the district court's January 21 order denying his motion to dismiss for violation of the Speedy Trial Act and his motion to suppress evidence seized on November 27, 1984.

II.

Johnson first asserts that the Government violated the Speedy Trial Act by delaying until April 3, 1985, to obtain an indictment. Under section 3161(b) of the Act, the Government must indict an accused within thirty days of his arrest, unless the time is extended for one of the eight reasons enumerated in section 3161(h). If the Government fails to meet this thirty day requirement, section 3162(a) requires the trial court to dismiss the complaint. Dismissal may be with or without prejudice.

Johnson's Speedy Trial Act claim requires us to determine when he was "arrested" within the meaning of 3161(b). Although Johnson was initially detained by federal agents on November 27, 1984, this detention did not trigger the Speedy Trial Act. Courts uniformly hold that an individual is not arrested under 3161(b) until he is taken into custody after a federal arrest for the purpose of responding to a federal charge. See, e.g., United States v. Sanchez, 722 F.2d 1501, 1509 (11th Cir.), cert. denied, 467 U.S. 1208, 104 S.Ct. 2396, 81 L.Ed.2d 353 (1984); United States v. Iaquinta, 674 F.2d 260, 266 (4th Cir.1982); United States v. Jones, 676 F.2d 327 (8th Cir.), cert. denied, 459 U.S. 832, 103 S.Ct. 71, 74 L.Ed.2d 71 (1982). When an individual is promptly released from federal custody without the Government filing formal charges, there is no "arrest" within the meaning of 3161(b). See United States v. Amuny, 767 F.2d 1113, 1120 (5th Cir.1985); United States v. Janik, 723 F.2d 537, 542 (7th Cir.1983); see also United States v. Redmond, 803 F.2d 438, 440 n. 7 (9th Cir.1986).

In the instant case, Johnson was promptly released from federal custody the day following his November 27 arrest, without federal charges having been filed. Given the absence of federal charges at that time, Johnson was not arrested within the meaning of 3161(b). The fact that Johnson's November 27 arrest was prompted by state charges which had already been filed does not suggest a different conclusion. An arrest for a violation of state law does not implicate the federal Speedy Trial Act, United States v. Gomez, 776 F.2d 542, 550 (5th Cir.1985); United States v. Wilson, 657 F.2d 755, 767 (5th Cir.1981), cert. denied, 455 U.S. 951, 102 S.Ct. 1456, 71 L.Ed.2d 667 (1982), even when federal officers participate in the arrest. See United States v. Russo, 796 F.2d 1443, 1451 (11th Cir.1986); United States v. Janik, 723 F.2d at 542.

The question remains whether the Speedy Trial Act was triggered by the Government's filing of a federal complaint on December 11, 1984. We conclude that it was not. Section 3161(b) requires that an indictment be filed within thirty days of arrest. Unlike an arrest, the filing of a complaint does not in itself impose a significant restraint on an accused's liberty. The complaint is merely a document on which action may or may not be taken. An accused may never even receive notice that a complaint has been filed. The filing of a federal complaint does not, in the absence of a federal arrest in connection with that complaint, trigger the time requirement of 3161(b). See United States v. Copley, 774 F.2d 728 (6th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 1272, 89 L.Ed.2d 580 (1986); United States v. Shahryar, 719 F.2d 1522 (11th Cir.1983). This is true even when the accused, as here, is in state custody at the time the federal complaint is filed, for it is only a federal arrest that triggers 3161(b). ²

We conclude that Johnson was not arrested within the meaning of section 3161(b) until he was turned over to federal officials following his release from state custody on March 15, 1985. It was only at that point that Johnson was under federal arrest in connection with the formal federal charges on which he was eventually convicted. See United States v. Stead, 745 F.2d 1170, 1172 (8th Cir.1984) (only a federal arrest in connection with the formal federal charge on which defendant is eventually tried triggers Speedy Trial Act). The federal indictment in this case was filed on April 3, 1985, well within thirty days of Johnson's section 3161(b) arrest. The Government did not, therefore, violate the Speedy Trial Act.

III.

Johnson next challenges the lawfulness of his arrest. According to Johnson, the secret service lacked authority under either federal or state law to make the arrest. Since the arrest was unauthorized, Johnson argues that the district court erred in failing to suppress evidence obtained subsequent to that arrest.

We disagree with Johnson's premise that Texas law did not authorize federal secret service agents to make the arrest. ³ The Texas Code of Criminal Procedure provides that:

The arrest of a person may be lawfully made also by any peace officer or private person, without a warrant upon reasonable information that the accused stands charged in the courts of a State with a crime punishable by ... imprisonment for a term exceeding one year ... (emphasis added).

Tex.Code Crim.Proc. art. 51.13 Sec. 14 (Vernon 1979). Although federal secret service agents are not designated as "peace officers" under Texas law, see Tex.Code Crim.Proc. art. 2.121 (Vernon Supp.1987), they can make an arrest when Texas law authorizes such an arrest by a "private person," as in Article 51. See, e.g., Sanchez v. State, 582 S.W.2d 813, 815 (Tex.Crim.App.1979), cert. denied, 444 U.S. 1043, 100 S.Ct. 728, 62 L.Ed.2d 728 (1980) (Federal border patrol agent could arrest individual for public drunkenness when Texas law authorized such an arrest by a private citizen.). Moreover, Article 2.121 of the Texas Code of Criminal Procedure provides that federal secret service agents "shall not be deemed peace officers, but shall have the powers of arrest, search and seizure as to felony offenses only under the laws of the State of Texas." Texas courts have construed Article 2.121 to "confer the same authority to arrest, search and seize on these federal officers as that already conferred on Texas peace officers." Gilmore v. State, 666 S.W.2d 136, 147 (Tex.Ct.App.1983) (Federal customs agent had authority under Article 2.121 to arrest defendant on state murder charges.).

Consequently, under Article 51.13 Sec. 14, the federal agents here, either pursuant to their authority to arrest, search and seize under Article 2.121 or as private citizens, could arrest Johnson "without a warrant upon reasonable information that [Johnson stood] charged in the courts of a State with a crime punishable by ... imprisonment for a term exceeding one year...." Johnson admits that federal agents knew of the California warrant for his arrest on state theft charges and that those charges were...