U.S. v. Vasquez-Escobar

• Decision Date: 30 October 1998
• Docket Number: No. 98-62-CR-FTM-17D.,98-62-CR-FTM-17D.
• Citation: 30 F.Supp.2d 1364
• Parties: UNITED STATES of America, v. Santos Sixto VASQUEZ-ESCOBAR.
• Court: U.S. District Court — Middle District of Florida

30 F.Supp.2d 1364

UNITED STATES of America, v. Santos Sixto VASQUEZ-ESCOBAR.

No. 98-62-CR-FTM-17D.

United States District Court, M.D. Florida, Fort Myers Division.

October 30, 1998.

Martin Der Ovanesian, Federal Public Defender's Office, Ft. Myers, FL, for Defendant.

William Zloch, U.S. Atty's Office, Middle District of Florida, Ft. Myers, FL, for U.S.

MEMORANDUM AND ORDER

ALDRICH, District Judge.

This case presents the limited question of whether the federal government may detain an alien for five months under the guise of a civil immigration statute that provides for the detention of aliens who have illegally reentered the United States after a prior order of deportation, while it awaits evidence with which to indict him on an identical criminal charge. The Court holds that it cannot.

I. Facts

On or about October 18, 1996, Santos Sixto Vasquez-Escobar ("Vasquez-Escobar"), a citizen of El Salvador, was arrested on charges unknown to the Court and deported from the United States. He reentered the United States on an unknown date, was arrested by the State of Florida on or about September 7, 1997 for a probation violation, and was placed in Collier County Jail. Apparently, the State notified the Immigration and Naturalization Service ("INS") that it was holding Vasquez-Escobar.

The INS placed a detainer on Vasquez-Escobar. On September 10, 1997, INS border patrol agent Ernest Baron completed an INS Form I-247 entitled "Immigration Detainer-Notice of Action", that indicated (1) that an "[i]nvestigation has been initiated to determine whether [Vasquez-Escobar] is subject to removal from the United States"; and (2) that "[d]eportation or removal from the United States has been ordered." By September 15, 1997, the INS "began to prepare the matter for the United States Attorney Office so that a decision could be made whether to accept the matter for prosecution." (Pl. Second Amended Response) (unpaginated).

On December 31, 1997, the State dismissed its charges against Vasquez-Escobar.¹ However, he remained in custody because of the INS detainer. The government alleges that he was placed in the Krome Service and Processing Center ("Krome Center")² on INS civil deportation charges on January 1, 1998. Vasquez-Escobar alleges that he was not placed in the Krome Center but instead remained in the Collier County Jail.

On January 2, 1998, INS officer Bruce Busby completed an INS Form I-213 entitled "Record of Deportable/Inadmissible Alien" that indicated that Vasquez-Escobar had a criminal record and had previously been deported. The form also stated "Status When Found REENTRY" and the following:

Barron was notified by Deputies in the jail that the sujbect [sic] had been deported and was back in Jail. Barron obtained the Alien file from Miami District Records and turned the case over to BPA [border patrol agent] Busby.

Subject was in custody of Collier County Sheriff's Office for a violation of probation. Subject was fingerprinted and interviewed on 9-17-97.³ He was given an I-214 advisement [sic] of rights in to Spanish read and sign. He read the form and stated he understood and would talk to BPA Busby. He stated he was deported in October of 1996. He stated he did not reenter until September 3, 1997. He said he reentered the United States by wading the river near Laredo, Texas. He then made his way to Houston, Texas and then to Florida. He stated he was then arrested on a probation violation. He stated he did not get charged with any other crime. He stated he reentered the United States even though he knew he would be prosecuted because his wife and family are here in Florida. He stated he has had porblems [sic] with the government in El Salvador also.

CIS and NCIC checks⁴ revealed the prior deport and an extensive criminal record. An I-247 was placed with the Collier County Jail. Prosecution is being reviewed by AUSA in Ft. Myers, Fl.

The United States Attorney's Office accepted this case for prosecution on March 18, 1998. On May 27, 1998, Vasquez-Escobar was indicted by a federal grand jury in the Middle District of Florida on one count of illegally reentering the United States after deportation without the permission of the Attorney General of the United States, in violation of 8 U.S.C. § 1326(a).⁵ This is the only count in the indictment.

The government alleges that it did not indict Vasquez-Escobar until May, 1998, because it did not learn until April 30, 1998, "the name of the [detention enforcement officer] who executed and served form I-205", a warrant for deportation, on Vasquez-Escobar, without which it "would not be able to establish that [Vasquez-Escobar] had been previously deported from the United States" and "would not be able to prove one of the essential elements against [Vasquez-Escobar] for the crime charged." (Pl. Second Amended Response). Thus, according to the government, "any preaccusation delay can be attributed to establishing the suspect's guilt beyond a reasonable doubt." (Id.) (emphasis added).

On June 16, 1998, Vasquez-Escobar was served with a federal warrant and had an initial appearance before a magistrate judge in the Southern District of Florida. On June 19, 1998, Vasquez-Escobar appeared before the magistrate judge for a removal and detention hearing. The magistrate judge ordered him detained as a danger to the community; he waived his right to removal proceedings and was removed to the Middle District of Florida.

He had an initial appearance before a magistrate judge in the Middle District of Florida on June 24, 1998 and was arraigned on July 7, 1998. On July 8, 1998, the government presented him with a plea agreement. On July 30, 1998, he filed a motion to dismiss the indictment, alleging that his detention violated either Federal Rule of Criminal Procedure 5(a) or Rule 9(c)(1), or both, and the Speedy Trial Act. He does not challenge the right of the government to deport him.

On August 7, 1998, this Court scheduled a hearing on the motion to dismiss, at which the government informed the Court, without providing any supporting case law or authority that it was detaining Vasquez-Escobar pursuant to 8 U.S.C. § 1231(a)(5). The Court ordered the parties to provide briefs concerning § 1231(a)(5), the Speedy Trial Act, and the Due Process Clause of the Fifth Amendment within five days.

II. The Speedy Trial Act

Title 8 U.S.C. § 1231(a)(5), § 241(a)(5) of the Immigration and Nationality Act ("INA"), as amended, provides for the removal of an alien under a reinstated order of removal, and states:

If the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this chapter, and the alien shall be removed under the prior order at any time after the reentry.

(emphasis added). The government argues that § 241(a)(5) provides it the authority to detain Vasquez-Escobar for five months prior to indictment, as he was not formally "arrested" on federal criminal charges, but instead was detained civilly pursuant to this statute.

Vasquez-Escobar alleges that he was "arrested" by the federal government when it continued to detain him specifically for illegally reentering the United States, after the State of Florida dismissed its charges in December, 1997, and then indicted him on an identical criminal charge of illegally reentering the United States. As he was not indicted until May, 1997, he alleges that his nearly five-month detention prior to indictment violates the Speedy Trial Act ("Act"), 18 U.S.C. § 3161(b), that provides in pertinent part:

... Any information or indictment charging an individual with the commission of any offense shall be filed within 30 days from the date on which such individual was arrested or served with a summons in connection with such charges.

(emphasis added).

The Court finds Vasquez-Escobar's argument persuasive. Vasquez-Escobar was detained after December 31, 1997, pursuant to an INS detainer hold for illegally reentering the United States. He was deemed deportable, and under § 241(a)(5), has no right to appeal this decision. Thus, his order of deportation is final.

As his order of deportation is final, the government admits that it was not holding him to effectuate his deportation under § 241(a)(5). Instead, it held him after December, 1997, for illegally reentering the United States, specifically to provide the government the time and evidence necessary to establish his "guilt beyond a reasonable doubt" for an identical criminal charge of illegally reentering the United States under 8 U.S.C. § 1326(a).⁶

As such, his "civil" detention after December, 1997, amounted to an arrest "in connection with such charges" alleged in the indictment, and the speedy trial clock began to run on this charge after December 31, 1997. See United States v. Okuda, 675 F.Supp. 1552 (D.Haw.1987) ("The critical issue is the substance of the restraint, not the semantical terminology for the arrest"); United States v. Osunde, 638 F.Supp. 171 (N.D.Cal.1986) ("To the extent it is asserted that a proper interpretation of the term `arrest', as contemplated under the Speedy Trial Act, would condone continuous detention without charge, this Court declines and refuses to make such an illogical inference. It is the restraint on individual liberty, not merely the procedural stagnation following the filing of formal charges, which Congress intended to protect against when it passed the Act").⁷

As the government failed to indict Vasquez-Escobar within thirty days of his arrest, this Court must dismiss the indictment. This Court has discretion to dismiss the complaint with or without prejudice and the Eleventh Circuit does not perceive a preference for either form of dismissal. United...