US v. Okuda

• Decision Date: 11 August 1987
• Docket Number: Crim. No. 87-00995.
• Parties: UNITED STATES of America, Plaintiff, v. Teruo OKUDA, Defendant.
• Court: U.S. District Court — District of Hawaii

675 F. Supp. 1552

UNITED STATES of America, Plaintiff, v. Teruo OKUDA, Defendant.

Crim. No. 87-00995.

United States District Court, D. Hawaii.

August 11, 1987.

R. Michael Burke, Asst. U.S. Atty., U.S. Atty.'s Office, Honolulu, Hawaii, for plaintiff.

Walter Horie, Honolulu, Hawaii, for defendant.

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS CRIMINAL COMPLAINT WITH PREJUDICE, AND GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS INDICTMENT

KAY, District Judge.

I. BACKGROUND

On June 10, 1987, the defendant, Teruo Okuda, arrived in Honolulu. On June 12, 1987, he was arrested by the Department of Justice and the Immigration and Naturalization Service (hereinafter referred to as the I.N.S.). He was held in custody for purposes of both immigration and criminal investigations. On June 13, 1987, he posted a bond of $75,000 with the I.N.S., and was released from custody by an I.N.S. judge subject to the normal restrictions against travel outside the island of Oahu.

On June 15, 1987, the criminal complaint was filed, charging the defendant with having willfully and knowingly used a false visa, in violation of 18 U.S.C. § 1546. The defendant made his initial appearance before Magistrate Daral Conklin. He posted a $75,000 signature bond, again with the normal restrictions against travel outside the island of Oahu. The $75,000 cash bond posted with the I.N.S. would be transferred to the federal court at such time as the I.N.S. released the money.

The government and the defendant engaged in plea negotiations. On June 23, 1987, the defendant offered to waive indictment and to enter an unconditional plea of guilty pursuant to an information. The government rejected the offer, demanding a particular sentence under Fed.R.Crim.P. 11(e)(1)(C). The parties did not reach agreement on the appropriate sentence.

On July 13, 1987, the defendant lodged an Ex Parte Motion to Shorten Time on a Motion to Dismiss Under 18 U.S.C. § 3161. On July 14, 1987, the government lodged an order for dismissal pursuant to Fed.R. Crim.P. 48(a). The government's order was apparently intended to substitute as a motion to dismiss without prejudice. The court shortened time to hear the defendant's motion to dismiss and took the government's order under advisement. Therefore, the parties agree that the complaint should be dismissed, but disagree as to whether the dismissal should be with or without prejudice.

On July 16, 1987, the grand jury indicted Mr. Okuda on two counts. Count 2 is the same charge contained in the complaint, use of a false visa in violation of 18 U.S.C. § 1541. Count 1 is for the somewhat different crime of false statement, 18 U.S.C. § 1001.

II. THE COMPLAINT

18 U.S.C. § 3161(b) requires that an individual must be charged with an indictment or information within thirty days after arrest.¹

The issue presented is whether the Speedy Trial Act begins to run from June 13, 1987, the date of arrest, or from June 15, 1987, the date of the criminal charge and arraignment.

The government argues that the Speedy Trial Act clock commences to run when a defendant is charged, and not when a defendant is informally arrested. United States v. Solomon, 679 F.2d 1246 (8th Cir. 1982). In Solomon, the defendant was arrested and then immediately released. The Eighth Circuit held that the initial arrest did not trigger the Speedy Trial Act. The Ninth Circuit indicated that it might rule similarly if the defendant was "released without charge and without other continuing restraint." United States v. Antonio, 705 F.2d 1483, 1485 n. 1 (9th Cir.1983).

However, in United States v. Osunde, 638 F.Supp. 171 (N.D.Cal.1986), the defendant was arrested by I.N.S. agents on December 4, 1985 for using a false visa. He was never released. The criminal complaint was filed on March 21, 1986 at which time the defendant was first brought before a United States Magistrate. An indictment was delivered on April 2, 1986. The government argued then, as it does now, that the initial arrest by the I.N.S. agents did not trigger the Speedy Trial Act. The court held then, as this court does now, that the government is wrong.

The Osunde court distinguished Solomon as a case where the defendant was not placed under any continuing detention or restraint. To apply Solomon to the facts in Osunde would permit the government to hold an individual for an indefinite period, so long as the government filed the indictment within thirty days of the criminal complaint. Thus, the court in Osunde held that the Speedy Trial Act was invoked by the initial federal arrest.

Although Mr. Okuda was released from detention on June 13, 1987, he was placed on bail, forbidden from leaving the Island of Oahu, and prevented from returning home. The government contends that on June 12, 1987 there was "a mere informal arrest as to criminal matters, but a formal arrest as to the administrative process." Whether the arrest was formal or informal, Mr. Okuda was physically detained for a short period and a continuing restraint was placed on his physical movement. The critical issue is the substance of the restraint, not the semantical terminology for the arrest. "It is the restraint on individual liberty not merely procedural stagnation following the filing of formal charges which Congress intended to protect against when it passed the Act." Osunde, 638 F.Supp. at 174.

Mr. Okuda's status as an alien raises an issue which the Osunde court left unresolved.² In U.S. v. Reme, 738 F.2d 1156 (11th Cir.1984), a group of Haitian refugees were picked up by the I.N.S. for illegally entering the United States. About one year later, one of the refugees was charged and indicted for bringing illegal aliens into the United States. The court held that the arrest by the I.N.S. was for an offense different than alleged in the criminal charge. The I.N.S. arrested the defendant for illegally entering the United States in violation of immigration regulations. The defendant was held on that administrative charge and for no other reason. After subsequent investigation, the government discovered that the defendant was also guilty of the crime of importing illegal aliens. The court held that the Speedy Trial Act did not begin to run until the defendant was charged with the criminal complaint.

Here, Mr. Okuda was arrested by both I.N.S. and federal agents on the same charge, use of a false visa. The government argues that the immigration process is administrative whereas the criminal process is judicial. The administrative and criminal charges, therefore, are inherently different.

The court is not convinced. The holding in Reme was based upon the factual differences between the two charges, not merely the technical jurisdiction of each. In Reme, the defendant was initially held for simply entering the United States illegally. He was then criminally charged for bringing others into the United States illegally. Here, the administrative and criminal charges are identical. The necessary elements and evidence for both charges are the same. Thus, Reme is clearly distinguishable.

Unlike Reme, the government did not require additional time to discover new facts. In arresting Mr. Okuda, the government either had sufficient proof to indict or it did not. If the government had sufficient proof to arrest the defendant on the administrative charge, it had sufficient proof to indict the defendant on the identical criminal charge.

Furthermore, the use of the I.N.S. as a substitute for criminal arrest is improper. The government through the I.N.S. arrests non-citizens and places them under a continuing restraint knowing and intending that criminal charges will later be brought. The government then charges the defendant with the crime, and expects additional time to maintain the restraint without justification. To elevate form over substance in this matter would make a mockery of the spirit of the Speedy Trial Act. Congress has given the government thirty days to indict. If the government cannot do so, it must release the defendant. It may not manipulate the I.N.S. to do what it could not do alone.

The Ninth Circuit has indicated that an arrest by state authorities to temporarily restrain a defendant until federal authorities decide to prosecute triggers the Speedy Trial Act. United States v. Cordova, 537 F.2d 1073, 1076 (9th Cir.1976). This court finds similarly that Okuda's arrest by I.N. S. officials initiated the thirty day period under the Speedy Trial Act where the government fully intended to charge the defendant with the identical criminal charge and purposefully utilized the I.N.S. to detain the defendant pending the filing of the criminal complaint.

Therefore, the government's failure to dismiss by July 13, 1987 requires the dismissal of the complaint. 18 U.S.C. § 3161(b).

In determining whether to dismiss the complaint with or without prejudice, the court must consider three factors: 1) the seriousness of the offense; 2) the facts and circumstances of the case which led to dismissal; and 3) the impact of reprosecution on the administration of the Speedy Trial Act and the administration of justice.³

The complaint charges the defendant with using a false visa, in violation of 18 U.S.C. § 1541 which carries a maximum penalty of five years imprisonment, a fine of $2,000, or both. Under 18 U.S.C. § 3623, the maximum possible fine is increased to $250,000. Although a felony, the offense is considered relatively non-serious by the Parole Commission among the categories of felonies. Osunde, 638 F.Supp. at 175.

The court recognizes that in Osunde, the defendant had no criminal record. In contrast, Mr. Okuda allegedly has a prior criminal history involving violent crimes. Therefore, under the particular facts of this case, the seriousness of the offense is greater than in Osunde.

Nevertheless, the government's actions in failing to indict are inexcusable. The defendant offered to waive indictment and...