United States v. Quinones
| Decision Date | 19 August 2013 |
| Docket Number | CRIMINAL ACTION NO. H-13-391-1 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. JOSE LUIS HURTADO QUINONES, Defendant. |
| Court | U.S. District Court — Southern District of Texas |
The defendant, Jose Hurtado Quinones, has moved to dismiss the indictment, issued on June 26, 2013, (Docket Entry No. 1), on the ground that it was filed after the Speedy Trial Act's 30-day deadline, (Docket Entry No. 11). The issue is when the 30-day period began to run. For the reasons set out below, the court finds that it began to run on May 19, 2013, making the indictment untimely under the Speedy Trial Act. The case is dismissed. Because the delay is the fault of the government, the dismissal is with prejudice.
On May 19, 2013, U.S. Customs and Border Protection officers at Houston Intercontinental Airport detained Hurtado Quinones on the suspicion that he had used an altered visa to attempt to enter the United States and that he had previously been deported. Hurtado Quinones argues that on May 19, a Customs and Border Protection officer presented the case to the U.S. Attorney's Office for possible prosecution for the fraudulent misuse of a visa, in violation of 18 U.S.C. § 1546, and for illegal reentry after removal, in violation of 8 U.S.C. § 1326. (Docket Entry No. 11, at 2). Hurtado Quinones argues that the U.S. Attorney's Office accepted the case for criminal prosecutionon May 19. If the 30-day period for indictment began to run on May 19, the deadline for indictment was June 19. Hurtado Quinones was not indicted until June 26. He asserts that he was detained before the indictment issued for the primary purpose of gathering evidence to prepare the criminal charges.
The government responds that the U.S. Attorney's Office did not accept the case for prosecution until June 12, 2013. The magistrate judge approved and signed the complaint and issued the arrest warrant on June 12. The following day, June 13, Hurtado Quinones was arrested and taken into U.S. Marshal custody. The government asserts that Hurtado Quinones was in administrative detention until the U.S. Marshals arrested him and took him into custody. (Docket Entry No. 13, at 2-5).
This court held an evidentiary hearing on August 6, 2013. Customs and Border Protection Enforcement Officers Fernando Guajardo and Robert Scarborough testified. Officer Scarborough had also testified in the preliminary hearing before the magistrate judge and submitted an affidavit as part of the government's response to the motion to dismiss. (Docket Entry No. 13-1). At the hearing, the government reiterated its argument that it had not accepted the case for prosecution until June 12. The government also argued that Hurtado Quinones was administratively detained from May 19 to June 13 in part to allow immigration authorities to interview him about his statement that he had a "credible fear" of harm to his children if he were removed.
"The Speedy Trial Act is designed to protect a criminal defendant's constitutional right to a speedy trial, and also to serve the public's interest in prompt criminal proceedings." United States v. Gonzalez-Rodriguez, 621 F.3d 354, 368 (5th Cir. 2010). "Any information or indictment chargingan 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). "An individual is 'arrested' under the Speedy Trial Act only when he is 'taken into custody after a federal arrest for the purpose of responding to a federal charge.'" United States v. De La Pena-Juarez, 214 F.3d 594, 597 n.6 (5th Cir. 2000) (quoting United States v. Johnson, 815 F.2d 309, 312 (5th Cir.1987)); accord United States v. Gardner, 248 F. App'x 605, 607 (5th Cir. 2007) (per curiam). Failure to comply with the Act's 30-day time limit results in dismissal. 18 U.S.C. § 3162(a)(1); De La Pena-Juarez, 214 F.3d at 597. Whether the dismissal should be with or without prejudice turns on the court's determination of certain factors. See 18 U.S.C. § 3162(a)(1); United States v. Mancia-Perez, 331 F.3d 464, 468 (5th Cir. 2003).
Generally, the Act is not triggered by civil detention, including Customs and Border Protection administrative detention. See De La Pena-Juarez, 214 F.3d at 597-98; United States v. Pasillas-Castanon, 525 F.3d 994, 997 (10th Cir. 2008) (). This circuit and other circuits recognize what is known as the "ruse exception" to this general rule. See Pasillas-Castanon, 525 F.3d at 997 (). Under the exception, "an INS arrest triggers the Speedy Trial Act's time clock where the administrative and criminal charges against the defendant are identical such that the detention is simply used as a substitute for criminal arrest." De La Pena-Juarez, 214 F.3d at 598 (citation and internal quotation marks omitted). Such a civil detention "is used primarily or exclusively to develop criminal charges involving the conduct on which the civil arrest was based." Id. (quoting United States v. Restrepo, 59 F. Supp. 2d 133, 137 (D. Mass. 1999)). "Themere fact that the detaining authorities are aware other potential criminal charges are available does not trigger the exception." Pasillas-Castanon, 525 F.3d at 998. Rather, the defendant must "demonstrate[ ] that the primary or exclusive purpose of the civil detention was to hold him for future criminal prosecution." De La Pena-Juarez, 214 F.3d at 598. "In short, if the detaining authorities have a lawful basis for their civil detention, a defendant is not entitled to invoke the exception." Pasillas-Castanon, 525 F.3d at 998.
Courts apply the ruse exception to protect defendants "against the possibility of collusion between federal criminal authorities and civil or state officials." De La Pena-Juarez, 214 F.3d at 598 (citation and internal quotation marks omitted). "[S]ome evidence of collusion to detain [the] defendant to facilitate his prosecution is still necessary even when the administrative and criminal charges are identical . . . ." United States v. Pinto-Roman, 337 F. Supp. 2d 781, 787 (E.D. Va. 2004); accord United States v. Guevara-Umana, 2006 WL 3335058, at *3 (E.D.N.Y. Oct. 27, 2006). Courts consistently decline to apply the exception if the record shows no indication of collusion. See, e.g., Pasillas-Castanon, 525 F.3d at 998; United States v. Rodriguez-Amaya, 521 F.3d 437, 442 (4th Cir. 2008); De La Pena-Juarez, 214 F.3d at 599-600.
The government presented the sworn affidavit of Officer Scarborough in response to the motion to dismiss the indictment. Officer Scarborough stated that Hurtado Quinones was administratively detained from May 19 to June 12, 2013, when the case was presented to and accepted by the U.S. Attorney's Office. (Docket Entry No. 13-1, ¶ 6). But the documents admitted into evidence at the hearing show that Officer Guajardo signed a statement on May 19, 2013 stating that on that date, the "AUSA accepted the case for Criminal Prosecution." (Docket Entry No. 16-5,Form I-213). Officer Scarborough acknowledged this when he testified at the hearing but described it as only a "tentative" acceptance. When Officer Scarborough testified under oath in the preliminary hearing held on June 14, he stated that the U.S. Attorney's Office accepted — with no reference to "tentative" — the case for criminal prosecution on May 19, 2013. Officer Scarborough's August 6 testimony that the U.S. Attorney's Office's May 19 acceptance was "tentative" is also inconsistent with a Customs and Border Protection document that Officer Guajardo sent to the U.S. Attorney's Office on June 12, 2013, which was admitted into evidence at the August 6 hearing. The document, marked as Government's Exhibit 2 to the response to the motion to dismiss, stated: "If Mexican, must indict on or before June 19, 2013." (Docket Entry No. 13-2). That document and date are consistent with, and support, the strong evidence that the U.S. Attorney's Office accepted the case for prosecution on May 19, 2013, as Hurtado Quinones contends, not on June 12.
The record also contains other evidence that the U.S. Attorney's Office accepted the case for prosecution for violations of 18 U.S.C. § 1546 and 8 U.S.C. § 1326 on May 19. This court reviewed in camera email correspondence between Officer Guajardo and the U.S. Attorney's Office. These documents — at least the portion showing the brief email exchange between the U.S. Attorney's Office and Officer Guajardo at Customs and Border Protection — are not subject to attorney-client privilege. First, Officer Guajardo and Officer Scarborough both testified about the communications with the U.S. Attorney's Office submitting the case for consideration for criminal prosecution. The government also submitted written documents showing communications from their office to the U.S. Attorney's Office. Second, an agency asking whether the U.S. Attorney's Office will accept a case for prosecution is not a confidential communication made for the purpose of obtaining legal advicefor the client agency. "[C]ommunication is protected by the attorney-client privilege if it is intended to remain confidential and was made under such circumstances that it was reasonably expected and understood to be confidential." In re Auclair, 961 F.2d 65, 70 (5th Cir. 1992) (alterations, citation, and internal quotation marks omitted). It is not uncommon for a law-enforcement agency to ask whether the government will prosecute, and the timing of that inquiry is routinely part of the Speedy Trial Act inquiry. See, e.g., United States v. Dyer, 325 F.3d...
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