U.S. v. Orbino, 91-10179
| Decision Date | 02 November 1992 |
| Docket Number | No. 91-10179,91-10179 |
| Citation | 981 F.2d 1035 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Ferdinand Tafallia ORBINO, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Ferdinand Tafallia Orbino, pro se.
Thomas Muehleck, Asst. U.S. Atty., Honolulu, HA, for plaintiff-appellee.
Appeal from the United States District Court for the District of Hawaii.
Before: BROWNING, NORRIS, and REINHARDT, Circuit Judges.
This case calls on us to decide whether the Speedy Trial Act's 30-day clock begins to run when a defendant, under suspicion of a crime for which he is later convicted, is in the meantime arrested on an unrelated charge. We agree with the district court that it does not, and affirm appellant Orbino's conviction. 1
On December 23, 1989, Orbino was arrested by the Honolulu Police Department ("HPD") in connection with a raid on a cock fight. He and two others had been found in a van with a small amount of crystal methamphetamine and a large amount of cash.
Officer Barlow of the Immigration and Naturalization Service ("INS") had once requested that the HPD notify him if Orbino were ever apprehended, so that the INS could execute a 1976 immigration warrant for Orbino's arrest. Thus, after charging Orbino with Promoting a Dangerous Drug III, the HPD telephoned Officer Barlow and explained that it was prepared to release Orbino pending investigation. Instead, Agent Barlow came and arrested Orbino on the outstanding immigration warrant. Orbino was transferred to INS custody, where he was held until mid-January of 1990.
At that time, knowing that the INS was about to release Orbino on bail, federal prosecutors filed a complaint against him alleging a single count of possession with intent to distribute methamphetamine. Orbino was arrested on this drug charge on January 16, 1990 and indicted February 9, 1990. This first indictment issued less than thirty days after the federal drug arrest, but more than thirty days after Orbino was originally taken into custody by the INS.
On March 16, 1990, the second superseding indictment in a separate and much larger drug case came down, naming Orbino as a codefendant for the first time. The indictment alleged a methamphetamine distribution ring run by "Sonny" Guerrero. Charges against Orbino included the possession charge contained in his indictment of February 9, 1990, as well as a conspiracy charge and four other substantive possession counts. Orbino was tried and convicted under this indictment.
The Speedy Trial Act requires that the "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 ... in connection with such charges." 18 U.S.C. § 3161(b). Orbino repeats on appeal two arguments made to the district court that this requirement was not met. This court reviews 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).
First, Orbino alleges that his arrest by the INS on December 23, 1989 was a ruse, and that federal officers on a drug enforcement task force manipulated the "mock" deportation proceedings to ensure he would be detained continuously from that date. Citing United States v. Okuda, 675 F.Supp. 1552 (D.Haw.1987), he argues that the immigration arrest and the federal drug charges are so closely intertwined that his INS arrest on December 23, 1989 started the speedy trial clock ticking. The district court found, however, that "there was no collusion between the INS and the [task force investigating the Guerrero drug ring] in the arrest of defendant Orbino." Moreover, "United States v. Okuda was inapposite because 'defendant's arrest on the outstanding INS warrant was not for the same conduct, and indeed was wholly separate from, the later conduct charged in the criminal indictment.' " The district court held firm in its analysis even after Orbino prevailed in the INS proceeding.
We agree with the district court. The Speedy Trial Act allows the government thirty days to indict "from the...
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U.S. v. Gomez-Olmeda, CR. 03-073(JAF).
...thirty day period, be indicted for every crime known to the government failing which he may never be charged"); United States v. Orbino, 981 F.2d 1035, 1037 (9th Cir.1992) (holding that not all charges against a defendant must be issued within thirty days after arrest); United States v. Cas......
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Godwin v. United States
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