United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
E. Jones, United States District Judge.
Jose Perez-Rodriguez (Perez) brings this Motion to Dismiss
for Violation of the Speedy Trial Act. [#13] Perez contends
that the federal indictment charging him with Illegal
Reentry, in violation of 8 U.S.C. § 1326, was not filed
within 30 days of his arrest as required under the Speedy
Trial Act, 18 U.S.C. § 3161(b). For the reasons that
follow, Perez's motion [#13] is DENIED.
October 18, 2017, an Immigration and Customs Enforcement
(ICE) officer located Perez while Perez was in custody at the
Multnomah County Jail following a state drug investigation.
[#13, Sealed Ex, A)] On October 19, 2017, ICE transported
Perez to its Enforcement and Removal Office in Portland,
Oregon, where he received a Notice of Intent/Decision to
Reinstate a Prior Order. [#13, Sealed Ex. B)]. An ICE agent
gave Perez Miranda warnings and then interviewed
Perez. After stating that he understood his rights, Perez
admitted that he was a citizen of Mexico, had been previously
removed from the United States to Mexico in 2012, and had
re-entered the United States in August, 2016, without
permission from either the Attorney General or the Secretary
for the Department of Homeland Security. [#13, Sealed Ex. B]
Perez remained in custody at the ICE detention facility from
October 19, 2017, until November 29, 2017, when he was
indicted by a Grand Jury for the instant Illegal Reentry
charge. On November 30, 2017, the U.S. Marshal Service served
Perez with an arrest warrant. Perez was arraigned on the
charge later the same day.
the Speedy Trial Act, an "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 a violation
occurs, the Act mandates dismissal:
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.
18 U.S.C. §3162(a)(1).
argues that the indictment filed against him on November 29,
2017 must be dismissed because he was in de facto federal
criminal custody starting on October 19, 2017. Perez contends
that the October 19 interview, during which the ICE agent
gave Perez Miranda warnings, triggered the running
of the 30-day clock. At that time, ICE had all of the
necessary information to charge Perez with the crime of
Illegal Reentry pursuant to 18 U.S.C. § 1326. And ICE
detained him continuously from October 19 through November
29, 2017 without conducting any hearings to reinstate his
prior removal order.
government counters that when ICE transferred Perez from
Multnomah County, it did so for the purpose of determining
Perez's eligibility to remain in this country, a strictly
administrative proceeding. Perez remained in administrative
custody until November 29, 2017, the date of the current
indictment. The government asserts that because Perez was
arrested on the federal criminal immigration charges on
November 30, 2017, the day after he was arraigned, the 30-day
limitation of the Speedy Trial Act was moot.
Ninth Circuit has "repeatedly declined to apply the
Speedy Trial Act in situations where the defendant's
detention is not pursuant to federal criminal charges, even
though federal criminal authorities may be aware of and even
involved with that detention." United States v.
Cepeda-Luna, 989 F.2d 353, 356 (9th Cir.
1993). Here, the evidence indicates that Perez's arrest
by ICE on October 19, 2017 was an administrative detention.
The paperwork filled out by ICE during Perez's detention
included Form 1-213, the first step in the civil deportation
process. Perez's Form 1-213 indicated the reason for
transporting him from Multnomah County to ICE was "for
service of a Notice of Intent/Decision to Reinstate a Prior
Order." All of this is consistent with civil deportation
charges as authorized by 8 U.S.C. § 1231.
contends that the administrative immigration proceeding was a
mere ruse to hold Perez for the illegal reentry prosecution.
The Ninth Circuit has adopted the "ruse exception"
to the general rule that the Speedy Trial Act does not apply
to administrative detentions, Cepeda-Luna, 989 F.2d
at 357. Under this exception, the Speedy Trial Act can be
applied to civil detentions when a defendant demonstrates
that "federal criminal authorities . .. collude[d] with
civil or state officials to have those authorities detain a
defendant pending federal criminal charges solely for the
purpose of bypassing the requirements of the Speedy Trial
Act." Cepeda-Luna, 989 F.2d at 357. Perez's
proof that federal criminal authorities colluded with civil
authorities consists of: (1) ICE giving Perez
Miranda warnings in contemplation of a criminal
prosecution; (2) the fact that the government had all the
information necessary to bring the federal charge of Illegal
Reentry under 8 U.S.C. § 1326 on October 19, 2017; and,
(3) the fact that ICE conducted no hearings during
Perez's detention from October 19, 2017 to November 29,
proof of collusion is insufficient. First, Miranda
warnings do not turn a civil proceeding into a criminal one.
Miranda warnings are triggered by the compulsory or
coercive aspect of a custodial situation. Miranda v.
Arizona,384 U.S. 436, 444 (1966). If, in the
investigatory stage of a case, a defendant is taken into
custody, warnings should be given. Mathis v. United
States,391 U.S. 1 (1968)(Miranda warnings required in
custodial situation during IRS tax investigation prior to
criminal charges.) Here, Perez was in custody, albeit for an
administrative process, and the Miranda warnings did
not change the civil administrative process into a criminal
one. Perez does not offer ...