U.S. v. De La Pena-Juarez

• Decision Date: 13 June 2000
• Docket Number: AGUIRRE-TIBR,No. 98-41565,DEFENDANT-APPELLANT,ALSO,PENA-JUARE,N,PLAINTIFF-APPELLEE,98-41565
• Parties: (5th Cir. 2000) UNITED STATES OF AMERICA,, v. FRANKLIN DE LAKNOWN AS CARLOS OTTONIEL DE LA PENA, UNITED STATES OF AMERICA,, v. GAMALIEL AGUIRRE-TIBRA,o. 99-20479
• Court: U.S. Court of Appeals — Fifth Circuit

Page 594

214 F.3d 594 (5th Cir. 2000)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. FRANKLIN DE LA PENA-JUAREZ, ALSO KNOWN AS CARLOS OTTONIEL DE LA PENA, DEFENDANT-APPELLANT.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. GAMALIEL AGUIRRE-TIBRA, DEFENDANT-APPELLANT.

No. 98-41565, No. 99-20479

UNITED STATES COURT OF APPEALS FIFTH CIRCUIT

June 13, 2000

Rehearing Denied July 21, 2000.

Appeals from the United States District Court For the Southern District of Texas

Before Emilio M. Garza, Demoss, and Stewart, Circuit Judges.

Emilio M. Garza, Circuit Judge

Franklin De La Pena-Juarez ("De La Pena-Juarez") appeals the district court's denial of his motion to dismiss his indictment based upon a violation of the Speedy Trial Act, 18 U.S.C. 3161(b). Gamaliel Aguirre-Tibra ("Aguirre-Tibra") also seeks review of the district court's denial of his motion to dismiss his indictment based upon a Speedy Trial Action violation. Because these cases raise an identical issue of law, we consolidate them for the purposes of this opinion. For the reasons set out below, we affirm the judgments of the district courts.

I.

A.

De La Pena-Juarez, a citizen of Guatemala, was deported from the United States in 1994 after being convicted of a drug offense in a Florida state court. On June 29, 1998, the Immigration and Naturalization Service ("INS") discovered that De La Pena-Juarez was being held in a Brownsville, Texas jail on charges of aggravated assault.¹ On the same day, following an INS interview during which De La Pena-Juarez informed an INS agent that he had previously been deported, the agent placed a civil detainer on De La Pena-Juarez. De La Pena-Juarez was subsequently held in custody at an INS detention center in Los Fresnos, Texas between approximately June 29 and July 14.

On July 14, 1998, the INS filed criminal charges against De La Pena-Juarez based on illegal re-entry into the United States in violation of 8 U.S.C. 1326. After he was indicted on this charge on August 4, De La Pena-Juarez filed a motion to dismiss the indictment, alleging a violation of the Speedy Trial Act. Specifically, De La Pena-Juarez argued that more than thirty days had passed between his "civil arrest" on June 29 and his indictment for illegal re-entry on August 4. The district court denied the motion, basing its ruling "primarily upon the fact that this Judge, this Court, [was] satisfied that the detention of the defendant until July 14, 1998, was not predicated upon actual criminal charges being filed against [De La Pena-Juarez]." De La Pena-Juarez entered a conditional guilty plea to the illegal-re-entry charge, preserving his right to appeal the court's ruling on his motion to dismiss. After his conviction and sentencing, De La Pena-Juarez filed this timely appeal.

B.

Aguirre-Tibra, a citizen of Mexico, was deported from the United States in 1993 after pleading guilty to aggravated assault with a deadly weapon. Sometime thereafter, he illegally reentered the United States.

On November 16, 1997, Aguirre-Tibra was arrested for unlawfully carrying a weapon in Harris County, Texas. On December 7, during his pretrial detention, Aguirre-Tibra was interviewed by INS Agent Smith, and Aguirre-Tibra admitted that (1) he was in the United States illegally, (2) he was a Mexican national, and (3) he had a prior felony conviction. Agent Smith filed a detainer on Aguirre-Tibra that afternoon. After the interview, Agent Smith ran a computer search to locate and order Aguirre-Tibra's alien file ("A file").

On December 30, 1997, Aguirre-Tibra pleaded guilty to the state weapons charge and was sentenced to one year imprisonment. He completed the sentence, and on May 16, 1998, Aguirre-Tibra was released into INS custody. At that time, INS agents detained him on civil deportation charges. Later that day, Agent David Jennings of the INS Investigations Branch² interviewed Aguirra-Tibra, who again admitted to his illegal re-entry as a previously-deported felon. Agent Jennings then fingerprinted Aguirre-Tibra and prepared a notice of intent to reinstate the prior order of deportation. Aguirre-Tibra was then transferred to an INS detention center in Houston. Aguirre-Tibra's alien file was placed in a red folder and sent to the Deportations Branch. According to both parties, a red folder indicates that the Investigations Branch is investigating the detainee for possible criminal prosecution.

According to the government, once a deportable alien is placed in detention, the Investigations Branch and the Deportations Branch of the INS work independently. Here, between August 6 and September 11, agents in the Investigations Branch (1) ordered a certificate of nonexistence of record, a document that would confirm whether or not Aguirre-Tibra had applied to the Attorney General for permission to re-enter the United States,³ and (2) examined Aguirre-Tibra's fingerprints to confirm that they matched the fingerprints on the original warrant of deportation. On September 11, 1998, the Investigations Branch referred Aguirre-Tibra's case to the United States Attorney's Office for prosecution.⁴ On October 26, 1998, Aguirre-Tibra was indicted for illegal re-entry after deportation. Three days later, on October 29, Aguirre-Tibra was arrested on the indictment by the United States Marshal and taken into federal criminal custody.⁵

The Deportations Branch took no action to deport Aguirre-Tibra until December 11, 1998, when it issued an order of deportation. Agent Jennings attributed the delay in deportation to the backlog of cases in the Deportations Branch and the fact that the Investigations Branch was investigating the possibility of recommending criminal charges against Aguirre-Tibra.

On January 19, 1999, Aguirre-Tibra filed a motion to dismiss the indictment based on an alleged violation of the Speedy Trial Act. He claimed that the speedy trial clock began to run on May 16, 1998, when he was first placed in INS custody. The district court denied his motion.

Aguirre-Tibra was subsequently convicted of illegal re-entry and sentenced to forty-five months imprisonment and three years of supervised release. Without objection by either side, the district court also ordered at the sentencing hearing that 50% of Aguirre-Tibra's prison earnings be sent to his family to help care for his children. Aguirre-Tibra filed this timely appeal.

II.

On appeal, both De La Pena-Juarez and Aguirre-Tibra argue that the district court erred in denying their motions to dismiss under 3161(b) and 3162(a)(1) of the Speedy Trial Act because more than thirty days elapsed between their civil detentions and their criminal indictments. With respect to De La Pena-Juarez, the government argues that the "speedy trial time clock" did not start running until July 14, the date that the INS officially filed charges against De La Pena-Juarez, and, accordingly, his indictment was timely under the Speedy Trial Act. With regards to Aguirre-Tibra, the government argues that the time clock did not begin to run until October 29, 1998, the date on which Aguirre-Tibra was arrested and detained on a federal charge of illegal re-entry after deportation. We review the district court's factual findings regarding a Speedy Trial Act motion for clear error and its legal conclusions de novo. See United States v. Bailey, 111 F.3d 1229, 1235 (5th Cir. 1997).

The Speedy Trial Act requires federal authorities to indict and try an incarcerated individual within a certain time period after his arrest. Of particular relevance to this case, 3161(b) provides that "[a]ny 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." ⁶ 18 U.S.C. 3161(b). Failure to comply with the time limits set out in the Act results in dismissal of charges. See 18 U.S.C. 3162(a)(1) ("If, in the case of any individual against whom a complaint is filed charging such individual with an offense, no indictment or information is filed within the time limit required by section 3161(b) as extended by section 3161(h) of this chapter, such charge against that individual contained in such complaint shall be dismissed or otherwise dropped.").

As a general rule, the provisions of the Speedy Trial Act do not apply to civil detentions. See United States v. Hausman, 894 F.2d 686, 688-89 (5th Cir. 1990) ("In addition, Hausman suggests that the perfections of 3161(b) should have been triggered by the filing of the federal detainer against him. We have rejected this argument in both United States v. Johnson and in United States v. Taylor.") (internal citations omitted). On its face, the thirty-day requirement applies only to an indictment issued in connection with the offense for which the defendant was arrested. See 18 U.S.C. 3161(b); United States v. Cepeda-Luna, 989 F.2d 353, 355 (9th Cir. 1993). "Offense" is defined as "any Federal criminal offense." 18 U.S.C. 3172(2).

Several courts have applied this proposition to the immigration context, holding that the Speedy Trial Act is not implicated when a defendant is detained on civil deportation charges. See, e.g., United States v. Grajales-Montoya, 117 F.3d 356, 366 (8th Cir. 1997); United States v. Cepeda-Luna, 989 F.2d 353, 355-56 (9th Cir. 1993) ("Consistent with these cases, we hold that the Speedy Trial Act is not implicated when a defendant is detained on civil charges by the Immigration and Naturalization Service."); United States v. Restrepo, 59 F. Supp. 2d 133, 137 (D. Mass. 1999). Having never before addressed this precise issue in a published opinion, we now find this to be a reasonable application of the general rule. Cf. United States v. Minister David Iredia, No. 95-20657 (5th Cir. December 11, 1995) (unpublished) (holding that civil arrest in connection with INS's lawful function regarding deportation did not implicate Speedy...