                                                                           [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                                                                     FILED
                                                              U.S. COURT OF APPEALS
                                   No. 98-2486                  ELEVENTH CIRCUIT
                              Non-Argument Calendar                  1/20/99
                                                                 THOMAS K. KAHN
                                                                      CLERK
                          D. C. Docket No. 96-92-CR-J-20


      UNITED STATES OF AMERICA,

                                                                      Plaintiff-Appellee,

                                       versus

      ALEXANDER PENA-COREA,

                                                                    Defendant-Appellant.



                     Appeal from the United States District Court
                         for the Middle District of Florida


                                 (January 20, 1999)



Before TJOFLAT, ANDERSON and MARCUS, Circuit Judges.




                                          1
PER CURIAM:

          Following a jury trial, Alexander Pena-Corea (“Pena”) was convicted in the district court

of illegal re-entry into the United States as a previously deported alien, in violation of 8 U.S.C. §

1326 (1994). He appeals, contending alternatively (1) that his conviction should be vacated and

the indictment dismissed because he was tried after the 180-day deadline contained in the

Interstate Agreement on Detainers Act (“IADA”), 18 U.S.C. App. 2, Art. III (1994), had expired,

and (2) that he should be granted a new trial because the district court erred in permitting the

Government to introduce in its case-in-chief statements he made at a hearing on his motion to

dismiss the indictment on statute of limitations grounds (namely, that he had re-entered, and had

been “found in,” the United States more than five years before the indictment was returned). We

affirm.



                                                  I.

          In 1986, Pena was convicted in the United States District Court for the Northern District

of California of using a telephone to facilitate a conspiracy to import cocaine. The court

sentenced Pena to two years in prison, suspended the sentence, and placed Pena on probation for

five years, with a special condition that he leave the United States immediately and not return

without the Attorney General’s permission. Pena agreed to this condition and was deported to

Colombia on February 6, 1987.1 Pena thereafter illegally re-entered the United States, and was

arrested for various offenses – in 1988, in 1989, and in 1991. On each occasion, he claimed to


          1
        Pena traveled to Colombia on a provisional passport issued by the Republic of
Colombia in response to an Immigration and Naturalization Service (“INS”) inquiry concerning
Pena’s Colombian citizenship.

                                                  2
have been born in Puerto Rico, provided the authorities with a false name, false identification,

and a false social security card, and, after being convicted, was sentenced to a term of probation.

         In March 1995, Pena was arrested in Hillsborough County, Florida, after delivering two

kilograms of cocaine to an undercover police officer. At that time, he falsely identified himself

as Alexander Correa-Pena. Pena was convicted of that offense under this false name, and

sentenced to ten years in the Florida prison system. In June 1996, in an attempt to avoid serving

the full ten-year term, Pena had his attorney write the INS with the request that it deport him

immediately. Counsel’s letter identified Pena incorrectly as Alexander Correa-Pena and failed to

mention that he had been previously deported. Meanwhile, the Florida prison authorities, having

determined that Pena had been born outside the United States, informed the INS of such fact. In

early July 1996, the INS identified Correa-Pena as Pena-Corea, the appellant, and on July 24 a

federal grand jury returned the instant indictment charging him with illegal re-entry.

         Rather than seek Pena’s immediate appearance for trial, the United States Attorney

decided to lodge a detainer with the person in charge of Pena’s incarceration, and he instructed

the United States Marshal deliver the detainer to that person. The Marshal did so, faxing the

detainer to the prison of Pena’s incarceration (and simultaneously sending a hard copy of the

detainer to the Florida Department of Corrections). The prison authorities, however, failed to

serve Pena with the detainer and to advise him of his right to demand that he be brought to trial

immediately. As a consequence, Pena, who knew that he had been indicted, did not exercise that

right.

         In July 1997, Pena’s attorney requested that the Government proceed with its prosecution

of Pena. On August 26, 1997, Pena was arraigned, and on September 8, 1997, he moved the


                                                 3
district court to dismiss his indictment on the grounds that the prosecution was barred by the

five-year statute of limitations, 18 U.S.C. § 3282 (1994), and that he had not been brought to trial

within the 180-day period prescribed by the IADA. On November 20, the court held an

evidentiary hearing on the motions. Pena testified in support of his statute of limitations defense

– that he had been “found in” the United States, within the meaning of 8 U.S.C. § 1326,2 more

than five years prior to the return of the indictment. At the conclusion of the hearing, the district

court rejected Pena’s statute of limitations defense. As for Pena’s IADA claim, the court ruled

that the IADA had not been implicated because Pena had never been served with the detainer.3



                                                 II.

       18 U.S.C. § 3161(j) (1994) provides:

                (1) If the attorney for the Government knows that a person charged
                with an offense is serving a term of imprisonment in any penal
                institution, he shall promptly –
                         (A) undertake to obtain the presence of the prisoner for
                         trial; or
                         (B) cause a detainer to be filed with the person having
                         custody of the prisoner and request him to advise the
                         prisoner of his right to demand trial.


       2
           8 U.S.C. § 1326 (West Supp. 1998) states, in pertinent part:
                [A]ny alien who –
                        (1) has been . . . deported . . . and thereafter
                        (2) enters . . . or is at any time found in, the Unites
                        States, unless . . .
                shall be fined under Title 18, or imprisoned not more than 2 years,
                or both.
       3
          Pena’s conduct in hiding his true identity from state officials may have contributed to
the Florida prison authority’s failure to serve Pena. As the district court observed, Pena had
been convicted and incarcerated under the name “Alexander Correa-Pena,” while the detainer
had issued in the name of “Alexander Pena-Corea.”

                                                  4
                (2) If the person having custody of such prisoner receives a
                detainer, he shall promptly advise the prisoner of the charge and of
                the prisoner’s right to demand trial. If at any time thereafter the
                prisoner informs the person having custody that he does demand
                trial, such person shall cause notice to that effect to be sent
                promptly to the attorney for the Government who caused the
                detainer to be filed.
                (3) Upon receipt of such notice, the attorney for the Government
                shall promptly seek to obtain the presence of the prisoner for trial.

In sum, section 3161(j) gives the prosecutor two choices. He may pursue an immediate trial or

he may let the defendant call the shot – that is, the defendant may demand an immediate trial or

he may simply bide his time and hope for the best. In the instant case, the prosecutor chose the

latter course. In doing so, he followed the statutory command to the letter: he lodged a detainer

with the person having Pena’s custody with the request that such person advise Pena of his right

to demand a trial. Had such person served Pena with the detainer, Pena could have triggered the

running of IADA’s 180-day speedy-trial provision. That provision, contained in Article III of

the statute, states:

                (a) Whenever a person has entered upon a term of imprisonment in
                a penal . . . institution of [a State that is a party to the Agreement
                on Detainers], and whenever during the continuance of the term of
                imprisonment there is pending in any other party State any untried
                indictment . . . on the basis of which a detainer has been lodged
                against the prisoner, he shall be brought to trial within one hundred
                eighty days after he shall have caused to be delivered to the
                prosecuting officer and the appropriate court of the prosecuting
                officer’s jurisdiction written notice of the place of his
                imprisonment and his request for a final disposition to be made of
                the indictment . . . .

18 U.S.C. App. 2, Art. III (1994).

        The question here is whether the Government should be held responsible for the state

custodian’s failure to serve Pena with the federal detainer and to advise him of his right to


                                                  5
demand a trial. We think not. In reaching this conclusion, we follow the lead of the Fifth Circuit

in Lara v. Johnson, 141 F.3d 239, 243 (5th Cir. 1998), which held that “dismissal because of

negligence on the part of the sending state is not a part of the IAD[A], and . . . it would be

inappropriate to expand the list of situations in which dismissal is dictated.” The IADA provides

for dismissal in the following situations:

                (1) if, after a prisoner has made the required request pursuant to
                Article III, trial does not occur within the required 180 days;
                (2) when trial does not occur before the prisoner, having been
                transferred to the receiving state, is sent back to the sending state;
                or
                (3) when the receiving state fails or refuses to accept temporary
                custody of the prisoner.

Id. (citation omitted).



                                                  III.

        Assuming that his IADA claim fails, Pena contends alternatively that he is entitled to a

new trial because the district court committed reversible error as a matter of law when it

permitted the Government to introduce into evidence statements he made at the hearing on his

motion to dismiss the indictment. As authority for his argument, Pena cites Simmons v. United

States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968), which held that “when a

Defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds,

his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he

makes no objection.” Id. at 394, 88 S. Ct. at 976. We need not reach the question of whether

Simmons’ rationale extends to a situation like the one here – where the defendant was not

attempting to vindicate a constitutional right – because the evidence of Pena’s guilt was


                                                   6
overwhelming. Thus, the error, if any, was harmless.

       AFFIRMED.




                                              7
