                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-18-2003

USA v. Dyer
Precedential or Non-Precedential: Precedential

Docket 02-1046




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                         PRECEDENTIAL

                                     Filed April 18, 2003

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT


                   No. 02-1046


           UNITED STATES OF AMERICA
                         v.
                 WINSTON DYER,
                              Appellant

    Appeal from the United States District Court
      for the Eastern District of Pennsylvania
     (D.C. Criminal Action No. 00-cr-00702-1)
     District Judge: Honorable Robert F. Kelly

            Argued on January 14, 2003
Before: ROTH, FUENTES and ALDISERT, Circuit Judges

           (Opinion filed April 18, 2003)
                  Robert A. Zauzmer, Esquire (Argued)
                  Floyd J. Miller, Esquire
                  615 Chestnut Street, Suite 1250
                  Philadelphia, PA 19106
                    Counsel for Appellee
                  Robert Epstein, Esquire (Argued)
                  Federal Court Division
                  Curtis Center, Independence
                  Square West, Suite 540 West
                  Philadelphia, PA 191076
                    Counsel for Appellant
                             2



                 OPINION OF THE COURT

ROTH, Circuit Judge:
   Defendant Winston Dyer appeals his judgment of
conviction for unlawful reentry into the United States after
a previous deportation in violation of 8 U.S.C. § 1326. He
argues that the District Court erred in denying his motion
to dismiss the indictment under the Speedy Trial Act, 18
U.S.C. § 3161(b) and Fed. R. Crim. P. 5(a), and in failing to
indicate the reasons for its denial of his request for a
downward departure. For the reasons stated below, we will
affirm.

            I.   Facts and Procedural History
  Dyer, a Jamaican national, legally entered the United
States on December 15, 1987. In 1988, he was arrested by
the Philadelphia Police Department with sixty-one packets
of cocaine, a small amount of marijuana, and a firearm.
Following conviction, the Court of Common Pleas of
Philadelphia County sentenced Dyer on September 18,
1989, to two to four years imprisonment for delivery of a
controlled substance (cocaine), and two years probation for
simple assault. On January 25, 1992, as a result of this
conviction, the Immigration and Naturalization Service (INS)
ordered Dyer deported. Dyer was deported and
subsequently reentered the United States without
permission from the United States Attorney General.
  On October 18, 2000, INS Special Agent Patrick McCall
encountered Dyer at 6404 Rising Sun Avenue in
Philadelphia. Agent McCall was at that address with a
member of the Baltimore City Police Department to arrest
a female Jamaican national in a matter not involving Dyer.
Upon entering the building, Agent McCall encountered
Dyer, along with another Jamaican national, in the
basement. Agent McCall identified himself as a special
agent with the INS and asked Dyer about his citizenship.
Dyer responded that he was a citizen of Jamaica and
provided Agent McCall with an alien registration card. A
                              3


computer verification check of the card revealed that Dyer
had previously been deported because of a drug
distribution conviction. Dyer admitted the deportation and
the drug conviction. Dyer also admitted a marijuana
conviction. Agent McCall presented Dyer with a
Reinstatement of Deportation Notice, which reinstated his
former warrant of deportation. According to Agent McCall,
Dyer was taken into custody for two reasons. First, Dyer
admitted that he was currently on probation in the City of
Philadelphia for a marijuana conviction, a status which
would make him deportable. Second, the INS duty agent
informed Agent McCall that Dyer had a conviction in the
City of Philadelphia for delivery of cocaine for which he had
served one to three years.
   The following day, October 19, Agent McCall contacted
the United States Attorney’s Office “[f]or criminal
prosecution for reentry after deportation.” The United
States Attorney’s Office did not respond to Agent McCall
until October 24. On October 25, Agent McCall compared
the fingerprints of the individual sentenced on September
18, 1989, for delivery of a controlled substance with the
fingerprints obtained from Dyer on October 18. The result
of the comparison convinced Agent McCall that Dyer was
the same individual who previously had been convicted of
cocaine distribution. On October 26, Agent McCall obtained
a Certificate of Nonexistence of Records, which showed no
record that Dyer had ever applied to the United States
Attorney General for permission to reenter the United
States following his initial deportation. In a report dated
November 2, Agent McCall recommended that Dyer be
prosecuted for illegal reentry. On November 3, the United
States Attorney’s Office accepted the case for prosecution.
  Dyer was indicted on November 28, 2000, for illegal
reentry after deportation without the Attorney General’s
permission in violation of 8 U.S.C. § 1326. Dyer moved to
dismiss the indictment pursuant to the Speedy Trial Act.
The District Court held a hearing, at which Agent McCall
testified that an individual who illegally reenters the United
States can be either prosecuted or deported without
prosecution. While most illegal reentry cases are
prosecuted, some are not, usually because paperwork was
                               4


not properly filed or documents are missing from the file.
Agent McCall testified that he handles criminal and
administrative matters at INS and that there is a separate
deportation section. When an illegal reentrant is deported
without prosecution, the deportation section, not the
criminal and administrative section, arranges the
deportation.
  Agent McCall testified at the Speedy Trial Act hearing
that, once Dyer was taken into custody, the deportation
section was notified. Before the deportation section could
deport Dyer, it had to contact the Jamaican consulate in
order to obtain travel documents. Agent McCall testified
that he was aware that it typically takes six months to
deport someone to Jamaica. However, he was not familiar
with the procedures followed by the deportation section,
and, while he was investigating whether to recommend
criminal prosecution or deportation without prosecution, he
did not know what steps, if any, the deportation section
was taking to arrange for Dyer’s deportation.
  Agent McCall admitted that, at some time subsequent to
the filing of the indictment, he became aware that the
deportation section never obtained travel documents
because this case became a criminal matter. On redirect
examination, the following exchange occurred:
    Q      Okay. And the reason those documents were never
           requested by the INS is because this was a criminal
           matter that would then later on after the
           completion of a sentence or prosecution, then you
           would initiate the deportation procedure by asking
           for those papers, correct?
    A   Correct.
    Q      And that hasn’t been done because this is a
           criminal matter?
    A   Yes.
    ****
    The Court:       Do you know that those documents
                    weren’t requested?
                             5


    The Witness:    Yes, Your Honor. He has not been
                   formerly presented to the Jamaican
                   consulate for travel documents.
   Agent McCall also admitted that, shortly after taking
Dyer into custody, he subjectively came to believe that this
case was a criminal matter. Agent McCall testified that,
while he intended that Dyer be deported at the time he gave
Dyer the Reinstatement of Deportation Notice, by the
following day, he considered this case a criminal matter.
During redirect examination by Dyer’s attorney, the
following exchange took place:
    Q   And [this case] has always in your mind been a
        criminal matter?
    A   It was a criminal matter on October 19th when I
        presented it to the U.S. Attorney’s Office.
  However, even though Agent McCall had subjectively
thought this case might be a criminal matter since October
19, 2000, the case did not actually become a criminal
matter until later. Agent McCall testified that “I thought it
was a criminal matter [shortly after Dyer was taken into
custody, but] it didn’t become a criminal matter until all
the elements were received, one of which was the
certification, no permission to reenter the United States,
which I received on the 26th of October.”
  Following the Speedy Trial Act hearing, the District Court
denied the motion to dismiss. Dyer pled guilty but expressly
reserved the right to appeal the District Court’s denial of
his Speedy Trial Act motion.
  On January 4, 2002, Dyer was sentenced to 41 months
imprisonment, which is at the bottom of the U.S.
Sentencing Guidelines range. At sentencing, Dyer’s attorney
made the following statement on Dyer’s behalf:
    He received a conviction a dozen years ago and he
    came back in the country to work in a legal sense. He
    was here illegally, but he was working in a legal sense.
      It’s something that the Court may consider, whether
    this case falls within the heartland of whether or not
    these laws were appropriate to Mr. Dyer, the ones that
                              6


    are so — in his sense they seem draconian because he
    comes back here to work and not to conduct himself in
    an illegal manner, and that’s why he’s getting a
    sentence which is 200 percent greater than would
    otherwise be received, because we don’t want people
    [to] come in here and ply in illegal trade.
      But Mr. Dyer was not here to ply in illegal trade. He
    was here to work, albeit he was here illegally. I think
    that the Court should take that into consideration
    when sentencing, and if the Court did find that it was
    outside of the heartland of cases that we wish to
    approach with this 200 percent increase, I believe the
    Court is able to fashion a sentence below those
    Guidelines.
      If the Court does not decide to do that, we would
    certainly ask the Court to sentence Mr. Dyer to at least
    at the bottom of the Guidelines, which is 41 months.
When Dyer addressed the sentencing judge directly, he
stated that he thought he could return to the United States
four or five years after his deportation. The sentencing
judge then imposed sentence, without addressing the
appropriateness of a downward departure. Dyer did not
object at the sentencing hearing to the judge’s failure to
address the issue of departure. Dyer timely filed a notice of
appeal.

       II.   Jurisdiction and Standard of Review
  The District Court had jurisdiction over this criminal case
involving offenses against the laws of the United States
pursuant to 18 U.S.C. § 3231. We have jurisdiction under
28 U.S.C. § 1291. The District Court’s construction of the
statutory provisions of the Speedy Trial Act and Rule 5(a)
are subject to plenary review. We review the District Court’s
conclusions of fact for clear error. United States v. Lattany,
982 F.2d 866, 870 (3d Cir. 1992). As for the failure to
address the downward departure, which was not objected
to, we review unpreserved challenges for plain error. See
e.g. United States v. Vonn, 535 U.S. 55 (2002).
                               7


                      III.   Discussion
A.   Speedy Trial Act
   The Speedy Trial Act requires that, “[a]ny information or
indictment charging an 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). If the government fails to comply with this time
limit, the Speedy Trial Act requires the dismissal of charges
in the complaint, with or without prejudice. 18 U.S.C.
§ 3162(a)(1) (“If, in the case of any individual against whom
a complaint is filed charging such individual with an
offense, no indictment or information is filed within the
time limit required by section 3161(b) as extended by
section 3161(h) of this chapter, such charge against that
individual contained in such complaint shall be dismissed
or otherwise dropped.”); see also United States v. Oliver,
238 F.3d 471, 473 (3d Cir. 2001).
   In this case, Agent McCall took Dyer into custody
pursuant to civil authority. It is undisputed that Agent
McCall came across Dyer by chance, while investigating an
unrelated matter. He was not acting pursuant to an arrest
warrant when he arrested Dyer, and he did not intend to
arrest him when he went to 6404 Rising Sun Avenue.
Rather, when Agent McCall took Dyer into custody, he gave
Dyer a Reinstatement of Deportation Notice, which
indicated that Agent McCall was detaining Dyer pursuant
to civil authority. This Court has not addressed the issue of
whether a civil detention triggers the Speedy Trial Act’s
thirty day time limit. According to the language of the Act,
it applies only to an indictment issued in connection with
the “offense” for which the defendant was “arrested.” 18
U.S.C. § 3161(a)(1). The Act defines “offense” as a criminal
offense. 18 U.S.C. § 3172(2). For that reason, we will follow
the other Courts of Appeals that have considered the issue
and hold that a civil detention, including INS civil
detention, does not trigger the Speedy Trial Act’s thirty day
time limit. See United States v. Garcia-Martinez, 254 F.3d
16, 19 (1st Cir. 2001); United States v. De La Pena-Juarez,
214 F.3d 594, 597 (5th Cir.), cert. denied, 531 U.S. 983
(2000); United States v. Grajales-Montoya, 117 F.3d 356,
                              8


366 (8th Cir.), cert. denied, 522 U.S. 1007 (1997); United
States v. Cepeda-Luna, 989 F.2d 353, 355-56 (9th Cir.
1993); United States v. Noel, 231 F.3d 833, 836 (11th Cir.
2000), cert. denied, 531 U.S. 1200 (2001).
   Dyer does not contest that civil detention by the INS
generally does not trigger the Speedy Trial Act’s thirty day
time limit or that he was taken into custody pursuant to
civil authority. Rather, he argues that, in this case, the
Speedy Trial Act’s time limit began to run when the INS
took him into custody under the “ruse exception”
recognized by some Courts of Appeals. See Garcia-Martinez,
254 F.3d at 20; De La Pena-Juarez, 214 F.3d at 598-99;
Cepeda-Luna, 989 F.2d at 357-58; Noel, 231 F.3d at 836.
We do not at this time need to decide whether to recognize
the ruse exception. Even if we were to conclude that the
exception is a valid one, Dyer has not shown that he would
be entitled to invoke it under the circumstances of this
case. See Grajales-Montoya, 117 F.3d at 366 (declining to
reach the issue of whether to recognize the ruse exception
because a defendant clearly did not qualify for the
exception).
  Under the ruse exception, a civil detention triggers the
Speedy Trial Act’s time limit when federal criminal officials
collude with civil authorities to detain an individual
pending criminal charges, such that the primary or
exclusive purpose of civil detention is to hold the individual
for future prosecution. See Garcia-Martinez, 254 F.3d at 20;
De La Pena-Juarez, 214 F.3d at 598-99; Grajales-Montoya,
117 F.3d at 366; Cepeda-Luna, 989 F.2d at 357-58; Noel,
231 F.3d at 836. Dyer cites District Court cases which
suggest that the ruse exception applies when the INS holds
an illegal reentrant while it investigates and decides
whether the reentrant should be prosecuted or deported
without prosecution. See United States v. Vasquez-Escobar,
30 F. Supp. 2d 1364, 1367 (M.D. Fla. 1998); United States
v. Pena, 73 F. Supp. 2d 56, 59 (D. Mass. 1999); United
States v. Okuda, 675 F. Supp. 1552, 1554-55 (D. Haw.
1987); United States v. Osunde, 638 F. Supp. 171, 174
(N.D. Cal. 1986). However, subsequent cases from the
Courts of Appeals make it clear that the Speedy Trial Act’s
time limit is not triggered by the fact that the INS is
                                   9


conducting a reasonable investigation in order to decide
whether the reentrant should be prosecuted or deported
without prosecution. Garcia-Martinez, 254 F.3d at 19-20;
United States v. Drummond, 240 F.3d 1333, 1336 (11th Cir.
2001).
  In this case, Agent McCall conducted a prompt
investigation to determine whether Dyer should be
prosecuted or deported without prosecution. The day after
taking Dyer into custody, Agent McCall contacted the
United States Attorney’s Office to inform officials there that
Dyer might be eligible for prosecution for reentry after
deportation. Within a week of detention, Agent McCall had
determined, based on a fingerprint comparison, that Dyer
had been convicted of a drug distribution crime and
deported for that crime. The following day, Agent McCall
obtained a Certificate of Nonexistence of Records, which
showed no record that Dyer had ever applied to the United
States Attorney General to reenter the United States. It was
only at this point, according to Agent McCall’s testimony,
that there was a sufficient basis to conclude that Dyer
could be prosecuted for illegal reentry. The following week,
on November 2, Agent McCall prepared a report
recommending that Dyer be prosecuted for illegal reentry.
The day after Agent McCall prepared this report, the United
States Attorney’s Office accepted the case for prosecution.
Dyer was indicted on November 28. Thus, within 15 days of
taking Dyer into civil detention, the INS came to the
conclusion that there was a sufficient basis to prosecute
rather than deport him; within 16 days of civil detention,
the United States Attorney’s Office accepted the case for
prosecution; and within 41 days of civil detention Dyer was
indicted. We conclude that this prompt handling of Dyer’s
case by Agent McCall would not invoke the ruse exception
even if we were to adopt it. See Noel, 231 F.3d at 837
(holding that the passage of 39 days from the date of civil
detention to indictment did not suggest that the detention
was a ruse).1

1. Dyer argues that the INS did not need to conduct an investigation into
whether he should be prosecuted or deported without prosecution
because he confessed that he had illegally reentered the country when
                                  10


  Dyer makes much of the fact that Agent McCall contacted
the United States Attorney’s Office the day after Dyer was
in custody to inform the United States Attorney’s Office that
Dyer might be subject to criminal prosecution. However,
“the fact that federal [criminal law enforcement] officials are
aware of, and perhaps slightly involved in, the deportation
proceedings . . . would not establish, as a matter of law, the
requisite collusion.” Grajales-Montoya, 117 F.3d at 366-67;
see also De La Pena-Juarez, 214 F.3d at 600 (“The fact that
federal criminal authorities might have known about [a
person]’s detention . . . does not necessarily support a
conclusion that they colluded with the INS to detain” that
person); Garcia-Martinez, 254 F.3d at 18, 20 (holding that
there was no evidence of collusion, or that the sole or
primary purpose of detention was to prepare for criminal
prosecution, even though INS officials contacted the United
States Attorney’s Office to refer a case for criminal
prosecution more than thirty days prior to the issuing of an
indictment).
   Nor does the fact that Agent McCall subjectively believed
that this could be a criminal matter when he contacted the
United States Attorney’s Office qualify this case for the ruse
exception. In United States v. Seals, the Court of Appeals
for the District of Columbia recognized that the Speedy
Trial Act’s time limit is not triggered because an
investigating official contemplates filing federal criminal
charges against a person who is in a type of detention that
does not otherwise trigger the Speedy Trial Act’s time limit.
See 130 F.3d 451, 455 (D.C. Cir. 1998) (holding that the
Speedy Trial Act’s time limit is not triggered when a person
is taken into state custody, and the fact that federal
officials involved in the state arrest intended to bring
federal charges did not qualify the state detention for the
ruse exception articulated in Cepeda-Luna).

Agent McCall took him into custody. However, this confession was not a
sufficient basis upon which to decide whether Dyer should be prosecuted
or deported without prosecution, and it was more than reasonable for
Agent McCall to verify Dyer’s claims. See Garcia-Martinez, 254 F.3d at
20 (holding that INS investigators acted with reasonable diligence by
verifying information contained in a computer database, which could
have been erroneous).
                                    11


  In summary, because Dyer’s initial detention by Agent
McCall was civil, not criminal, the Speedy Trial Act was not
implicated during the period that Dyer was in INS custody.
We need look no further.
B.   Federal Rule of Criminal Procedure 5(a)
   Moreover, since Dyer was under civil detention rather
than criminal arrest, his claim that the government violated
Fed. R. Crim. P. 5(a) by not bringing him before a
Magistrate Judge within a reasonable time of his detention
lacks merit. Fed. R. Crim. P. 5(a) requires that a defendant
who is arrested be brought before a Magistrate Judge
“without unnecessary delay.” However, Fed. R. Crim. P. 5(a)
only applies to criminal arrests, it does not apply to INS
civil detention. See Cepeda-Luna, 989 F.2d at 358; see also
United States v. Tejada, 255 F.3d 1, 3-4 (1st Cir.), cert.
denied, 534 U.S. 1068 (2001). In this case, as discussed
above, Agent McCall placed Dyer under INS civil detention,
not criminal arrest, on October 18. Dyer was not under
criminal arrest prior to his indictment. Thus, a preliminary
hearing pursuant to Fed. R. Crim. P. 5(a) was not required
because “the purpose of a preliminary hearing [pursuant to
Fed. R. Crim. P. 5(a)] is to afford an arrested person a
prompt determination as to whether there is probable cause
to hold him for grand jury action. . . . This purpose is
served, and the hearing rendered unnecessary, by the
return of an indictment.” United States v. Dorsey, 462 F.2d
361, 363 (3d Cir. 1972) (quotation omitted).2
C.   Downward Departure Motion
   Dyer claims that this case is not within the heartland of
the United States Sentencing Guidelines for the offense of
illegal reentry because he had reentered the United States

2. Further, even if the government had violated Fed. R. Crim. P. 5(a), the
remedy for such a violation is not dismissal of the indictment. Rather,
since the provisions of Fed. R. Civ. P. 5(a) are procedural, not
substantive, “the sanction imposed by federal courts for failure to comply
with Rule 5(a) is suppression of statements taken during the period of
‘unnecessary delay.’ ” Govt. of the Virgin Islands v. Gereau, 502 F.2d 914,
923 n. 5 (3d Cir. 1974). In the present case, Dyer does not seek to
suppress any incriminating statements, so this remedy would be
inapplicable.
                              12


to obtain legal employment and he thought he could reenter
legally after four or five years from his deportation. As an
initial matter, Dyer did not formally move for a departure.
At sentencing, Dyer’s attorney stated that:
    I think that the Court should take [the fact that this
    case was outside the heartland] into consideration
    when sentencing, and if the Court did find that it was
    outside of the heartland of cases . . . , I believe the
    Court is able to fashion a sentence below those
    Guidelines. If the Court does not decide to do that, we
    would certainly ask the Court to sentence Mr. Dyer to
    at least the bottom of the Guidelines . . . .
While his attorney did not use the “magic words” downward
departure, he clearly was requesting such a departure.
United States v. Brannan, 74 F.3d 448, 452 (3d Cir. 1996).
Dyer’s attorney did not, however, object when the District
Court sentenced Dyer without making any reference to the
request for departure.
   Under these circumstances, there is no need to remand
for clarification of the District Court’s basis for denying this
motion, even though the District Court did not indicate
why, in effect, it did so. It is evident from the language of
8 U.S.C. § 1326 that the motive of the illegal entrant in
reentering is irrelevant to the commission of the offense. We
surmise that few illegal reentrants would admit that they
reentered for any purpose other than a legal one. Indeed, a
legal purpose for an illegal reentry has been held to be
insufficient to warrant a downward departure. See United
States v. Abreu-Cabrera, 64 F.3d 67, 76 (2d Cir. 1995)
(holding that defendant who returned illegally to visit his
family not entitled to a downward departure). Because it is
clear from the record that this case does not fall outside of
the heartland, no plain error was committed when the
District Court did not grant a downward departure. We do
not need to remand for further explanation. See United
States v. Mummert, 34 F.3d 201, 205 (3d Cir. 1994).

                       IV.   Conclusion
  For the reasons stated above, the judgment of the District
Court will be affirmed.
                            13


A True Copy:
        Teste:

                 Clerk of the United States Court of Appeals
                             for the Third Circuit
