United States District Court, D. Oregon
Gregory R. Nyhus, Assistant United States Attorney, United States Attorney's Office, Portland, OR, Attorney for Plaintiff.
Stephen R. Sady, Office of the Federal Public Defender, Portland, OR, Attorney for Defendant.
OPINION & ORDER
MARCO A. HERNNDEZ, District Judge.
Defendant Jose Manuel Nuñez-Naranjo brings this Motion to Dismiss for Violation of the Speedy Trial Act. Defendant contends that the federal indictment charging him with being an alien in possession of a firearm, in violation of 18 U.S.C. § 922(g), was not filed within 30 days of his arrest as required under the Speedy Trial Act, 18 U.S.C. § 3161(b). The Court heard oral argument on April 2, 2015 and April 13, 2015. For the reasons that follow, Defendant's motion is denied.
On July 30, 2014, Defendant was arrested by Clackamas County deputies following a traffic stop in which they discovered a firearm. Defendant was taken into custody and charged with "Unlawful Possession of a Weapon" and "Failure to Carry and Present a License." On the same day, an immigration detainer was filed. Def.'s Ex. 101.
On July 31, 2014, Defendant was given a plea offer from the Clackamas County District Attorney and was released from state custody. Def.'s Mot. Ex. C. Defendant was ordered to appear on September 4, 2014; he failed to do so but he did appear in Multnomah County on October 8, 2014 on an unrelated charge of possession of methamphetamine. Def.'s Mot. Ex. A, D. Defendant pleaded guilty to "Possession of Controlled Substances-Methamphetamine" and received a sentence of 20 days incarceration. Def.'s Mot. Ex. E. Because of the existing Clackamas County warrant, on November 3, 2014, Defendant was transported to Clackamas County. Def. Mot. Ex. F.
At oral argument, Immigration Enforcement Agent Prince Planthara, the primary agent working on Defendant's case, testified that on November 18, 2014, he was part of an email conversation with Clackamas County Deputy District Attorney (DDA) Michael Salvas and jail staff. Mr. Planthara testified that he had communicated to DDA Salvas that there was federal interest in prosecuting Defendant for the federal charge of alien in possession of a firearm.
On November 19, 2014, DDA Salvas filed a motion to dismiss the state charges, "on the grounds and for the reason that the U.S. Attorney's office will be seeking to prosecute defendant on these charges." Def.'s Mot. Ex. G. The order was signed the same day. Id.
Also on the same day, November 19, Defendant was arrested by Mr. Planthara on behalf of Immigration and Customs Enforcement (ICE). Mr. Planthara testified that his sole purpose in making the arrest was to effect an administrative detention for violation of immigration laws. According to Mr. Planthara, because Defendant had a prior conviction for possession of methamphetamine, he was deemed a mandatory arrest according to ICE priorities.
The Department of Homeland Security (DHS) Form I-213, filled in by Mr. Planthara on November 19, 2014, states the current administrative charges against Defendant as "Alien Present Without Admission or Parole" and "Controlled Substance Conviction." Def.'s Ex. 119 at 2. The DHS Form I-265, also dated November 19, 2014, includes the handwritten notation: "Subject has a PCS conviction, and has been accepted for federal prosecution 922(g)." Def.'s Ex. 123 at 1.
Defendant's "A-file" documents demonstrate that once Defendant was taken into ICE custody, he requested that an immigration judge review his custody determination. Def.'s Ex. 121. In addition, Defendant waived his right to a 10-day period prior to appearing before an immigration judge, asking instead for an expedited hearing on a Form 1-862, titled "Notice to Appear." Def.'s Ex. 122 at 2. At oral argument, Mr. Planthara testified that the Notice to Appear is the charging document for immigration proceedings in immigration court and that an immigration case begins with the filing of such document. However, Mr. Planthara testified that in this case, neither he nor any other immigration enforcement agent filed the Notice to Appear with the immigration court. As a consequence, the immigration court has no open case for Defendant, Defendant's A-file reflects no activity in the immigration case since November 19, 2014, no asylum officer has conducted a credible fear review, and Defendant has yet to appear before an immigration judge. Mr. Planthara conceded that the failure to file the Notice to Appear was contrary to normal protocol.
On January 14, 2015, Defendant was indicted by a federal grand jury and an arrest warrant was issued. On January 28, 2015, Defendant first appeared in federal court and was arraigned on a single-count indictment alleging "Alien in ...