United States v. Tejada

United States Court of Appeals
For the First Circuit

Nos. 00-1461
00-1491

UNITED STATES OF AMERICA,

Appellee,

v.

PEDRO LUIS TEJADA,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Salvador E. Casellas, U.S. District Judge]
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]

Before

Torruella, Circuit Judge
Coffin and Campbell, Senior Circuit Judge.

Raymond L. Sanchez Maceira, by Appointment of the Court, for
appellant.
Jared Lopez, Assistant U.S. Attorney, with whom Guillermo
Gil, United States Attorney, Jorge E. Vega-Pacheco, Assistant
U.S. Attorney, and Thomas F. Klumper, Assistant U.S. Attorney,
were on brief, for appellee.
June 27, 2001
 COFFIN, Senior Circuit Judge. Appellant Pedro Luis Tejada

seeks dismissal of his indictment for illegal reentry into the

United States, see 8 U.S.C. § 1326(b)(2), on the ground that the

government failed to bring him before a magistrate judge within

48 hours following his warrantless arrest, in violation of

Federal Rule of Criminal Procedure 5(a).1 The district court

concluded that Rule 5(a) was inapplicable to Tejada's

circumstances because he was arrested for an immigration-related

"status offense" – and thus was civilly detained – rather than

for a general crime whose elements do not include alien status.

The district court ruled correctly, and we therefore affirm the

denial of appellant's motion to dismiss. We also reject

Tejada's related contention that the district court improperly

revoked his term of supervised release.

I. Factual Background

1 In relevant part, Rule 5(a) states:

Except as otherwise provided in this rule, an officer
making an arrest under a warrant issued upon a
complaint or any person making an arrest without a
warrant shall take the arrested person without
unnecessary delay before the nearest available federal
magistrate judge or [other authorized judicial
officer].

The requirement that such an appearance generally take place
within 48 hours stems from the Fourth Amendment, not Rule 5(a),
but the two contexts typically are treated alike. See United
States v. Encarnacion, 239 F.3d 395, 398 n.2 (lst Cir. 2001).

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 In February 1998, appellant was deported to the Dominican

Republic following his conviction on a federal drug charge. Ten

months later, on December 20, he flew into Carolina, Puerto

Rico, and was detained by inspectors for the Immigration and

Naturalization Service (INS) on suspicion that he had unlawfully

entered the United States. On December 22, during an interview

with INS Inspectors Jerry Morales and Fernando Ruz, appellant

acknowledged his previous conviction and deportation. Morales

ordered appellant's immigration records (the "A File"), which

contained documents confirming the earlier deportation

proceedings, and upon receiving the file, he referred the case

to the U.S. Attorney's office for consideration of criminal

charges.

On January 5, 1999, sixteen days after he first was

detained, appellant was brought before a magistrate judge for an

initial appearance.2 He subsequently was indicted on one count

of violating 8 U.S.C. § 1326(b)(2), which bars unauthorized

reentry into the United States by an individual previously

deported for an aggravated felony. After unsuccessfully seeking

dismissal based on a violation of Rule 5(a), appellant pled

2 In an affidavit, INS Inspector Morales stated that he did
not receive the A File until "about January 5, 1999." It thus
appears that appellant was brought before the magistrate judge
on the same day, or shortly after, Morales obtained the
documentary proof of his prior deportation.

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guilty and was sentenced. In a related proceeding, the district

court revoked the supervised release term that appellant had

received in the drug case that had triggered his deportation.

He was sentenced to a six-month term in lieu of supervised

released, to be served consecutively to the fifty-one month

sentence imposed for the illegal reentry.

On appeal, appellant renews his challenge under Rule 5(a),

claiming that the court erred in refusing to dismiss the

indictment with prejudice. In addition, because revocation of

his supervised release term resulted from his conviction under

§ 1326(b)(2), he claims that the release term must be

reinstated. For reasons we explain below, both contentions are

unavailing.

II. Discussion

As his counsel acknowledged at oral argument, Tejada's

appeal lost most of its force when a panel of this court ruled

earlier this year that § 1326(b)(2) is a status offense that

does not trigger the protections of Rule 5(a) until the criminal

process has been initiated against the detained alien. See

United States v. Encarnacion, 239 F.3d 395, 399 (lst Cir. 2001);

see also United States v. Noel, 231 F.3d 833, 837 (11 th Cir.

2000) (per curiam); United States v. Cepeda-Luna, 989 F.2d 353,

358 (9th Cir. 1993). The requirement that a magistrate evaluate

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his detention within 48 hours of his arrest is therefore

inapplicable. Instead, his detention was civil in nature and

governed by 8 U.S.C. § 1357(a)(2), see Encarnacion, 239 F.3d at

398-400, which empowers INS officials to effect a warrantless

arrest of

any alien who in [their] presence or view is entering
or attempting to enter the United States in violation
of any law or regulation made in pursuance of law
regulating the admission, exclusion, expulsion, or
removal of aliens . . . .

An alien detained under that provision must be taken "without

unnecessary delay for examination before an officer of the [INS]

having authority to examine aliens as to their right to enter or

remain in the United States." Id.3 Thus, to comply with the

applicable statute, the arresting authorities needed to bring

appellant to an IRS examining officer, not a magistrate,

"without unnecessary delay."

Appellant was interviewed two days after his arrest by INS

Inspectors Morales and Ruz. Although he baldly asserts on

3Another subsection of § 1357 allows INS officers to make
arrests for immigration-related felonies and requires that the
alien be taken promptly before "the nearest available officer
empowered to commit persons charged with offenses against the
laws of the United States . . . ." 8 U.S.C. § 1357(a)(4).
Courts have read subsection (a)(2) to apply to arrests of aliens
for status offenses and subsection (a)(4) to apply to arrests of
aliens for other crimes. Encarnacion, 239 F.3d at 398. In
turn, Rule 5(a) is considered applicable to subsection (a)(4)
detainees, but not to those detained under subsection (a)(2).
Id. at 398-99.

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appeal that this timing did not comply with the statute and

violated his due process rights, he failed to make that claim to

the district court, see District Court Opinion at 6, or to

develop it on appeal. We therefore need not address the

specific question whether appellant's appearance before the INS

occurred "without unnecessary delay" as mandated by §

1357(a)(2). We think it beyond debate, however, that the period

at issue – approximately the same time permitted by Rule 5(a)4

– did not constitute a deprivation of rights that warrants our

intervention, particularly in the absence of a preserved claim.

We nonetheless wish to note that aliens arrested for status

offenses are not without protection from excessively long

detentions. Where the government uses civil detention as a

pretext for holding an individual while it investigates other

possible criminal charges, Rule 5(a) may be deemed applicable,

see Encarnacion, 239 F.3d at 399-400; cf. Noel, 231 F.3d at 836

("Although routine INS detentions incident to deportation do not

trigger the Speedy Trial Act, a contrary result may be warranted

when detentions are used by the government, not to effectuate

deportation, but rather as 'mere ruses to detain a defendant for

4 At argument, the government indicated that appellant was
arrested in the early morning hours of December 20 and brought
before the INS officers later in the morning of December 22,
several hours beyond the 48-hour time period.

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later criminal prosecution.'" (quoting Cepeda-Luna, 989 F.2d at

357)); United States v. De La Pena-Juarez, 214 F.3d 594, 598 (5th

Cir. 2000) (applying Speedy Trial Act only "where the defendant

demonstrates that the primary or exclusive purpose of the civil

detention was to hold him for future criminal prosecution");

Cepeda-Luna, 989 F.2d at 358.5 In addition, where the delay in

bringing the alien before a magistrate is so unnecessarily long

that it effects a constitutional deprivation, the alien may

petition for habeas corpus relief under 28 U.S.C. § 2241, see

Encarnacion, 239 F.3d at 399 n.4; Cepeda-Luna, 989 F.2d at 358.6

5 We note that appellant did not raise a claim under the
Speedy Trial Act, 18 U.S.C. §§ 3161-3174. The Act provides, in
pertinent part:

Any information or indictment charging an individual
with the commission of an offense shall be filed
within 30 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). Some courts have held that the clock
starts to run from the date of the civil arrest when the
administrative and criminal charges against the defendant are
identical. See, e.g., United States v. Restrepo, 59 F. Supp. 2d
133, 137 (D. Mass. 1999); United States v. Vasquez-Escobar, 30
F. Supp.2d 1364, 1367 (M.D. Fla. 1998); United States v. Okuda,
675 F. Supp. 1552, 1555 (D. Haw. 1987).
6Appellant's lawyer asserted at oral argument that it would
be difficult for an alien to obtain counsel to bring such claims
because there is no right to counsel in civil habeas
proceedings. Not all aliens will lack resources, however, and
those unable to hire counsel may, as in other settings, seek pro
bono representation. In any event, it is our hope that what we
say here about the appropriate length of civil detentions, see

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 In this case, there is no evidence that appellant initially

was detained for any reason other than routine inquiry into his

suspicious immigration status – a civil matter, see Encarnacion,

239 F.3d at 399 – and his confession two days later to

immigration officials confirmed his unlawful status. At that

point, appellant's circumstances were in many respects identical

to those we described in Encarnacion:

His interview with [INS Officers Ruz and Morales],
mandated by the "taken without unnecessary delay . .
. before an officer of the [INS]" language of §
1357(a)(2), amplified the INS's suspicions that
[appellant's] attempted entry was unlawful. But only
after receiving the INS file on [appellant] containing
the prior deportation order had [Ruz and Morales]
secured the "probable cause" necessary to initiate the
criminal process under the applicable law and
regulations. . . . Consequently, [appellant's] case
did not become criminal until [Morales's] contact with
the U.S. Attorney, and after that point, [appellant]
was brought expeditiously before the federal
magistrate judge.

Id. (emphasis in original).

We acknowledge that appellant's situation differs from

Encarnacion's in that it took twice as long to transmit

appellant's file to Inspector Morales as the period we

infra pp. 7-8, will prompt more expeditious action by the INS.
Moreover, we agree with the district court that in cases of
"lengthy yet lawful civil detention that may arise from
inefficient investigation by immigration officers, defendant may
request upon sentencing (if he is convicted or enters a guilty
plea) that 'any prejudice traceable to the pretrial detention []
be mitigated by giving him credit for time served on the INS
detainer.'" District Court Opinion at 13 (citation omitted).

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questioned as unnecessarily lengthy in Encarnacion, see id.

("[P]rompt action by INS officials (and the availability of

today's parcel-delivery services) should make it possible to

transmit files between INS offices more quickly than seven

days."). Although the days at issue here spanned the winter

holidays, when greater delay is unsurprising, such a lapse of

time at least borders on excessive in light of the easy access

in most locations to overnight delivery service.

Yet, in the absence of any evidence that the government

deliberately employed delaying tactics for an impermissible

purpose, we have no basis in these circumstances for considering

the matter further. On the issue before us – whether the

district court wrongly refused to dismiss appellant's case based

on a violation of Rule 5(a) – we find no error.7 That conclusion

also disposes of appellant's challenge to withdrawal of his

supervised release term, which is based solely on the invalidity

of his conviction under § 1326(b)(2).

The judgment of the district court is therefore affirmed.

7We note that this court has not yet decided "whether Rule
5(a) can ever be a basis for dismissal of an indictment absent
evidence of unwarranted interrogation during the period of
detention." Encarnacion, 239 F.3d at 400 n.5.

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