           Case: 15-10261   Date Filed: 12/04/2015   Page: 1 of 9


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-10261
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 1:13-cr-00039-AT-JSA-1


UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

versus

JESUS BOCANEGRA,



                                             Defendant - Appellant.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Georgia
                     ________________________

                            (December 4, 2015)

Before MARTIN, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Jesus Bocanegra appeals his conviction for possession of 1,000 kilograms or

more of marijuana with intent to distribute, in violation of 21 U.S.C. §§

841(a)(1),(b)(1)(A)(vii). He contends that his indictment violated the Speedy Trial

Act, 18 U.S.C. § 3161, because he was arrested by state officials and held in state

custody for three months before he was indicted by the federal government. After a

review of the record and the parties’ briefs we affirm Mr. Bocanegra’s conviction.

                                         I

      In November of 2012, Customs and Border Patrol officers discovered

marijuana hidden within the compartments of furniture shipped from Mexico to

Mr. Bocanegra’s commercial furniture business. The officers notified the U.S.

Attorney’s Office, which stated it might be interested in prosecuting the case. On

November 15, 2012, an undercover federal officer delivered the furniture

containing marijuana to the commercial space leased by Mr. Bocanegra. Mr.

Bocanegra received and unloaded part of the furniture and then asked the

undercover driver to deliver the remaining pieces to a warehouse leased by Mr.

Bocanegra. A surveillance team of federal agents waited outside the warehouse

until Mr. Bocanegra arrived the next day. He and several other men spent hours in

the warehouse and then drove away in Mr. Bocanegra’s truck.

      That same day, November 16, 2012, local officers and Georgia state agents,

at the direction of federal agents, arrested Mr. Bocanegra and took him into state


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custody. Federal agents conducted a search of the warehouse, where they found

several pieces of furniture with false backs to conceal hollow compartments. The

federal agents uncovered approximately 1,200 kilograms of marijuana after taking

apart the furniture. The federal agents subsequently explained that they involved

state and local authorities in the event that the federal government did not

prosecute Mr. Bocanegra. Both state and federal authorities interrogated Mr.

Bocanegra.

       The federal agents contacted the U.S. Attorney’s Office again about

prosecuting the case, but an Assistant U.S. Attorney informed the agents that the

Office would not be prosecuting the case, as the amount of marijuana found fell

below their internal threshold for prosecution. Gwinnett County officers then took

Mr. Bocanegra to the Gwinnett County Detention Center, and the state charged Mr.

Bocanegra. The federal agents, however, continued to lobby the U.S. Attorney’s

Office to take the case.

       On January 4, 2013, the U.S. Attorney’s Office informed state prosecutors

that they might take the case. On February 5, 2013, a federal grand jury indicted

Mr. Bocanegra, and that same day the state dismissed all pending charges against

him.

       Before trial, Mr. Bocanegra filed a motion to dismiss the indictment under

the Speedy Trial Act, 18 U.S.C. § 3161, as more than 30 days had elapsed between


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his initial arrest and the indictment. After an evidentiary hearing, the district court

denied Mr. Bocanegra’s motion, finding that the government did not use the “state

criminal charges as a ‘ruse’ nor as a cloak for its delay in prosecution of federal

charges.” Mr. Bocanegra, the district court found, was not held by state authorities

“solely to answer federal charges or as an administrative device to excuse delays in

the U.S. Attorney’s Office’s charging process.” The district court, therefore,

concluded that there was no violation of the Speedy Trial Act and Mr. Bocanegra

proceeded to trial. A jury found Mr. Bocanegra guilty of possession of marijuana

with intent to distribute, in violation of 18 U.S.C. § 841.

      On appeal, Mr. Bocanegra argues that the district court erred in denying his

motion to dismiss the indictment because the government violated the Speedy Trial

Act. He argues that the government did not indict him until 81 days after he was

arrested. Although he acknowledges he was in state custody following his initial

arrest, Mr. Bocanegra asserts that his state custody was “constructive federal

custody.” The district court, Mr. Bocanegra contends, erred in finding no violation

of the Speedy Trial Act.

                                          II

      We review a district court’s denial of a defendant’s motion to dismiss under

the Speedy Trial Act de novo and the district court’s factual findings on excludable

time for clear error. United States v. Harris, 376 F.3d 1282, 1286 (11th Cir. 2004).


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The Speedy Trial Act, 18 U.S.C. § 3161(b), “requires the government to file an

indictment or information against a defendant within thirty days from the date on

which he was arrested or served with a summons.” United States v. Mathurin, 690

F.3d 1236, 1239 (11th Cir. 2012). “If the thirty-day time limit is not met, the Act

entitles the defendant to dismissal of the charges contained in the initial

complaint.” Id. The issue here is not the date of the indictment, but rather the date

of Mr. Bocanegra’s arrest. Mr. Bocanegra contends he was arrested for purposes of

the Speedy Trial Act on November 16, 2012, while the government contends that

the Act was never triggered because Mr. Bocanegra was not arrested on federal

charges until after he was indicted.

      Mr. Bocanegra was arrested at the direction of federal agents on November

16, 2012, and subsequently placed into state custody, as the U.S. Attorney’s Office

initially declined to prosecute him. In order for an arrest to trigger the Act,

however, that arrest must be on federal charges. See United States v. Kubiak, 704

F.2d 1545, 1548 (11th Cir. 1983) (citing United States v. Shahryar, 719 F.2d 1522,

1524–25 (11th Cir. 1983) (“For the time limit of the Act to commence a person

must be held for the purpose of answering to a federal charge.”)). See also United

States v. Skanes, 17 F.3d 1352, 1353 (11th Cir. 1994) (noting that although the

defendant was arrested on the same charges by state authorities and held in state

custody, “it was not until [the defendant] was taken into federal custody . . . that


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the time constraints of the Speedy Trial Act were triggered”); United States v. Bell,

833 F.2d 272, 277 (11th Cir. 1987) (finding that although federal authorities were

highly involved in the defendant’s initial arrest, “it was only after the federal

indictment . . . that the clock under the Speedy Trial Act began running”).

      Mr. Bocanegra argues that because the agents that led the investigation and

arrested him were federal officials, his arrest was in effect a federal arrest. This

circuit’s precedent, however, is contrary to Mr. Bocanegra’s argument given the

factual findings of the district court. “[I]f one is held by state officers on a state

charge and subsequently turned over to federal authorities for federal prosecution,

the starting date for purposes of the Act is the date that the defendant is delivered

into federal custody.” Shahryar, 719 F.2d at 1525 (holding that the date of the

federal indictment, not the date of the state arrest, was the triggering date for the

Speedy Trial Act).

      That a defendant’s arrest is effected by federal officers does not mean the

arrest was federal in nature if the defendant was “never taken before a federal

magistrate” nor had “federal charges ever lodged against [him] in a complaint.”

Kubiak, 704 F.2d at 1548. The application of the Act does not, as Mr. Bocanegra

contends, “depend[ ] only upon which type of agency—federal or otherwise—first

places his hands upon and detains a defendant.”




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      In Kubiak, much like in Mr. Bocanegra’s case, “federal law enforcement

authorities declined prosecution in favor of the state law enforcement agency.” Id.

at 1548, n.3. We found that the defendants there “were not held to answer in

federal court until they were indicted,” despite being initially arrested by federal

officers, who also contacted federal, state, and local law enforcement agencies to

see who would prosecute the defendants. Id. State authorities initially agreed to

prosecute, but then became concerned that they lacked jurisdiction over the

defendants, and approximately four months later, the defendants were federally

indicted. The defendants argued the indictment violated the Speedy Trial Act,

because more than 30 days had passed between their initial arrest and the

indictment. Id. at 1548. We held, however, that the defendants’ initial arrest by the

coast guard did not trigger the Speedy Trial Act, because the defendants “were not

held to answer in federal court until they were indicted.” Id. at 1548, n.3.

      Mr. Bocanegra nevertheless argues that the arrest was a federal arrest,

because even though he was in state custody, it was constructive federal custody.

In United States v. Russo, 796 F.2d 1443, 1450–51 (11th Cir. 1986), the defendant,

Mr. Pine, made a similar argument, asserting that the federal government’s

involvement in the investigation leading to his arrest triggered the 30-day clock in

the Speedy Trial Act, even though he was taken into state custody pending state

criminal charges. Mr. Pine argued that “he was being held by state authorities to


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answer federal charges.” Id. at 1451. We found that because Mr. Pine “was at no

time in custody to answer federal charges or under federal arrest until . . . state

charges were dismissed . . . , there was no violation of the Speedy Trial Act.” Id.

We come to the same conclusion here. Mr. Bocanegra was not in constructive

federal custody simply because the team investigating his criminal conduct and

directing the initial arrest were federal officers.

      Mr. Bocanegra finally argues that we should, nevertheless, construe his

initial arrest as a federal arrest on federal charges because the state detention was a

“mere ruse” to detain him for future federal charges. We have explained, in the

context of INS detentions incident to deportation, that though such “detentions are

civil in nature and do not trigger the Speedy Trial Act, . . . a contrary result may be

warranted when deportations are used by the government as ‘mere ruses to detain a

defendant for later criminal prosecution.’” United States v. Drummond, 240 F.3d

1333, 1336 (11th Cir. 2001) (citing United States v. Noel, 231 F.3d 833, 836 (11th

Cir. 2000)). In these cases, the burden is on the defendant “to establish that the

primary or exclusive purpose of the civil detention was to hold him for future

[federal] prosecution.” Id. at 1336 (internal quotation marks and citation omitted).

      We have not recognized a “mere ruse” exception in the context of a state’s

detention of an individual on pending state criminal charges. Such an extension

might implicate sovereignty concerns, as “an arrest or indictment by one sovereign


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would not cause the speedy trial guarantees to become engaged as to possible

subsequent indictments by another sovereign.” United States v. MacDonald, 456

U.S. 1, 10 n.11 (1982). See also Shahryar, 719 F.2d at 1525 (“Common sense, as

well as deeply rooted concepts of federalism, dictate that the Speedy Act rules

relate only to federal and not to state custody. To hold otherwise would require our

rejection of the doctrine of dual sovereignty . . . .”).

      In any event, even if the “mere ruse” exception applied to state detentions,

Mr. Bocanegra cannot establish here that his detention at Gwinnett County was a

“mere ruse” to hold him for future federal criminal charges. The district court

found that there was no ruse, and the record supports that finding. State charges

were brought against Mr. Bocanegra, and federal agents did not contact state

prosecutors. The record suggests the state officers and prosecutors were moving

forward to bring a case against Mr. Bocanegra, until those charges were dismissed

in February of 2013, when the federal government brought federal charges.

                                           III

       The district court did not err in denying Mr. Bocanegra’s motion to dismiss

the indictment under the Speedy Trial Act. We therefore affirm.



       AFFIRMED.




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