U.S. v. Pinto-Roman, 1:04CR319.

• Decision Date: 21 September 2004
• Docket Number: No. 1:04CR319.,1:04CR319.
• Citation: 337 F.Supp.2d 781
• Parties: UNITED STATES of America v. Richard Alfonso PINTO-ROMAN, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

Page 781

337 F.Supp.2d 781

UNITED STATES of America v. Richard Alfonso PINTO-ROMAN, Defendant.

No. 1:04CR319.

United States District Court, E.D. Virginia, Alexandria Division.

September 21, 2004.

Robert Coughlin, Assistant United States Attorney, United States Attorney's Office, Alexandria, for Plaintiffs or Petitioners.

May Shallal Kheder, Hanania & Kheder, Falls Church, for Defendants or Respondents.

MEMORANDUM OPINION

ELLIS, District Judge.

Defendant, Richard Alfonso Pinto-Roman, filed this motion to dismiss the indictment for unlawful reentry after deportation pursuant to 8 U.S.C. § 1326(a)(2), arguing that an untimely indictment violated his rights under the Speedy Trial Act (the "Act"), 18 U.S.C. § 3161(b). Specifically at issue is:

(i) whether the government violated the Speedy Trial Act by issuing an indictment more than thirty (30) days after the defendant was taken into administrative detention by the United States Department of Homeland Security, Immigration and Customs Enforcement (ICE) but less than thirty (30) days after the United States Attorney's Office (USAO) decided to prosecute the case and issued a warrant charging defendant where, as here, the ICE had completed all necessary investigation to prosecute the defendant two weeks before the USAO decided to prosecute the case.

For the reasons that follow, there is no violation of the Speedy Trial Act and accordingly defendant's motion to dismiss the indictment must be denied.

I.

The record reflects the following undisputed facts. Defendant, a Bolivian citizen, first entered the United States on a B-2 visa as a visitor for pleasure on January 20, 1986. Later that year, on November 3, 1986, he was granted Lawful Permanent Resident status. On May 27, 1992, defendant was arrested by Drug Enforcement Administration Agents at the Miami International Airport and charged with importation of cocaine and possession of cocaine with the intent to distribute. He was convicted of the cocaine importation charge, an aggravated felony in violation of 21 U.S.C., § 952(a) and 960(a)(1),¹ and sentenced to five years in prison. After serving his sentence, defendant was deported from the United States to Bolivia on October 15, 1996.

On an unknown date thereafter, defendant reentered the United States without the consent of either the Attorney General or the Secretary of the Department of Homeland Security or their delegates. On May 25, 2004, defendant was found and arrested at the Dulles Airport by ICE Special Agent William C. Hampton and placed in administrative detention.² At the time of the arrest, Agent Hampton took defendant's fingerprints and gave him his Miranda rights, which defendant waived before giving a sworn statement that he had been deported previously and that he had reentered the United States without consent from the proper authorities.

Three weeks after defendant's arrest, on June 16, 2004, Agent Hampton sent defendant's fingerprints by facsimile to the FBI Special Processing Center, which promptly confirmed that the prints matched those taken from the defendant following his 1992 arrest that originally led to his removal from the United States. On the same date, Agent Hampton referred the case to the USAO for the Eastern District of Virginia, which took the case under consideration for prosecution. After an internal review process which lasted approximately two weeks, the USAO on July 2, 2004, filed a criminal complaint and an arrest warrant against the defendant, charging him with unlawful reentry after deportation in violation of 8 U.S.C. § 1326(a) (as modified by 6 U.S.C. § 202(3), 202(4), 542(d), 557). Twenty-seven days later, on July 29, 2004, a grand jury returned an indictment charging defendant with unlawful reentry after deportation.

Defendant now challenges the indictment as untimely under the Speedy Trial Act because it was filed more than thirty days after defendant was "arrested or served in connection with such charges." See 18 U.S.C. § 3161(b). More specifically, defendant argues that the thirty-day period to file an indictment commenced to run on May 25, 2004, the date defendant was initially detained, because defendant confessed on that date to all facts necessary to prosecute him for unlawful reentry. In the alternative, defendant argues that the thirty days commenced to run, at the latest, on June 16, 2004, the date the ICE and the USAO received fingerprint confirmation that defendant, in fact, had been convicted previously of a crime and deported from the country. In other words, defendant argues that the filing period was triggered once the government had at its disposal all information necessary to prosecute defendant.

In response, the government argues that the thirty days did not commence to run until July 2, 2004, the date the USAO decided to prosecute the case and the date defendant was "arrested" in connection with the unlawful reentry charge. In the government's view, the two-week period between June 16 and July 2, 2004 should not count toward the thirty days because this period was reasonably devoted to the USAO's internal review process to decide whether to accept the case for prosecution. According to the government, this decision was not made until July 2, 2004, at which time defendant was arrested and charged and the Act's thirty-day clock began to run. The indictment issued twenty-seven days later.

II.

This dispute is governed by the Speedy Trial Act, 18 U.S.C. § 3161(b), which states in pertinent part,

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. § 3161(b) (emphasis added). In the event the government fails to comply with the filing requirement, the Act mandates dismissal of the charge. See 18 U.S.C. § 3162(a)(1).

There is no controlling Fourth Circuit precedent regarding the application of the Act's thirty-day time limit to file an indictment to persons held in administrative detention. There is, however, ample settled authority in other circuits addressing the issue. Thus, it is well-settled in other circuits that civil detentions, including those for deportation, do not trigger the Speedy Trial Act's thirty-day limit to issue an indictment.³ Instead the Act's time limit commences to run only "after an individual is `accused,' either by an arrest and charge or by an indictment." United States v. Drummond, 240 F.3d 1333, 1335-36 (11th Cir.2001). Put another way, if a defendant is held subject to a lawful civil detention, the time limit to indict the defendant on a criminal offense does not commence to run until the defendant is specifically arrested or charged for that offense; it does not begin to run prior to that date merely because the defendant was previously civilly detained.

This conclusion is entirely consistent with, indeed it is compelled by, the language of the Speedy Trial Act, which makes clear that the thirty-day limit to file an indictment applies only to an indictment issued in connection with the "offense" for which the defendant was "arrested." 18 U.S.C. § 3161(b). The Act further defines "offense" as "any Federal criminal offense." 18 U.S.C. § 3172(2) (emphasis added). Administrative detentions, including detentions pursuant to civil deportation charges, are civil in nature and thus, do not qualify as arrests in connection with criminal charges. See United States v. Cepeda-Luna, 989 F.2d 353, 355 (9th Cir.1993) (finding that ICE deportation proceedings have been consistently classified as civil rather than criminal proceedings). Accordingly, the thirty-day indictment requirement does not begin to run until the defendant is arrested or formally charged with a federal offense. See id. In this case, the criminal arrest and formal charging of defendant occurred on July 2, 2004, and thus by the plain terms of the Act, the thirty days commenced to run on that date. It follows, therefore, that the indictment was timely when filed twenty-seven days later on July 29, 2004.

But the analysis does not end there, for some circuits have sensibly recognized a limited "ruse" exception to the rule that ICE detentions are civil in nature and are not "arrests in connection with" a criminal charge under § 3161(b). In this regard, a civil detention may constitute "an arrest in connection with a criminal charge," and thus trigger the thirty-day Speedy Trial Act clock, when the civil detention is a "mere ruse[] to detain a defendant for later criminal prosecution."⁴ And importantly, the burden is on the defendant to establish that the "primary or exclusive purpose of the civil detention was to hold him for future prosecution." United States v. De La Pena-Juarez, 214 F.3d 594, 598 (5th Cir.2000) (applying "ruse exception," but finding that defendant had failed to demonstrate that criminal prosecution was the "primary or exclusive purpose" of his civil detention); see also Drummond, 240 F.3d at 1336 (citing United States v. Noel, 231 F.3d 833, 836 (11th Cir.2000)) (applying "ruse" exception, but concluding that defendant had offered no evidence of a ruse to hold him for any purpose other than to facilitate his deportation).

Defendant concedes the general principle that ICE detentions are civil in nature and are not properly considered arrests in connection with criminal charges under the Act. Here, however, defendant argues that his ICE detention was merely a ruse to facilitate his ensuing criminal prosecution for unlawful reentry. According to defendant, this ruse to detain him for criminal proceedings began either on May 26, 2004, the date of his initial detention by the ICE, or at the latest on June 16, 2004, the date the USAO received all the necessary evidence to prosecute him. Yet, defendant offers no persuasive evidence to meet his burden of showing, or even raising a suspicion, of...