United States District Court, S.D. Mississippi, Northern Division
ORDER GRANTING MOTION TO DISMISS
CARLTON W. REEVES UNITED STATES DISTRICT JUDGE.
the Court is Frederico Hernandez-Rios' motion to dismiss
the indictment. Docket No. 18. For the reasons stated below,
the motion is granted.
August 2, 2018, Hernandez-Rios was one of several passengers
stopped by a police officer with the Brandon Police
Department in a routine traffic stop on U.S. Interstate 20.
The officer requested assistance from Immigration and Customs
Enforcement (ICE) to verify alienage of the driver and
passengers. Once the ICE agents arrived, they determined
Hernandez-Rios to be a citizen of Mexico, previously removed
from the United States, and was taken into civil custody. On
August 3, the Enforcement and Removal Operations (ERO), a
component of the Department of Homeland Security, assumed
custody of Hernandez-Rios “for appropriate detention
pending acceptance for prosecution by the United States
Attorney's Office.” Docket No. 18-2.
August 6, 2018, an agent with the Department of Homeland
Security, Malcolm McMillin, filed a criminal complaint
against Hernandez-Rios for illegally reentering the United
States after having been previously removed, in violation of
8 U.S.C. § 1326(a)(1) and (b)(2). Docket No. 1. The
Court issued an arrest warrant on that same day. On August 8,
McMillin served Hernandez-Rios with the arrest warrant. That
same day, he was taken before Magistrate Judge F. Keith Ball
for his initial appearance and remanded to the custody of the
U.S. Marshals Service. Hernandez-Rios was indicted by a
federal grand jury on September 7, 2018.
argues that the indictment should be dismissed because it ran
afoul the Speedy Trial Act. The Speedy Trial Act provides, in
Any 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 an indictment or information is
not filed within the time limit set forth in § 3161(b),
the charges against the individual shall be dismissed.
Id. § 3162(a)(1). The purpose of the Act is to
“protect a criminal defendant's constitutional
right to a speedy trial, and also serve the public's
interest in prompt criminal proceedings.” United
States v. Gonzalez-Rodriguez, 621 F.3d 354, 368 (5th
the Speedy Trial Act's 30-day time limit is not triggered
by civil detentions. United States v. De La
Pena-Juarez, 214 F.3d 594, 597 (5th Cir. 2000). The
Fifth Circuit, however, has recognized an exception to this
general rule. Under this exception, a civil detention will
trigger the 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.” De La Pena-Juarez, 214 F.3d at
598. “Under this exception, several courts have held
that an [Immigration and Naturalization Service
(“INS”)] arrest triggers the Speedy Trial
Act's clock where the administrative and criminal charges
against the defendant are identical such that the detention
is simply used as a ‘substitute for criminal
arrest.'” Id. (citing United States v.
Vasquez-Escobar, 30 F.Supp.2d 1364, 1367 (M.D. Fla.
1998) (holding that the Speedy Trial Act was triggered where
INS held the defendant solely for illegal reentry and then
criminally charged him with same)). The defendant bears the
burden of proof when asserting this exception.
issue before the Court is whether the September 7, 2018
indictment was too late. Hernandez-Rios argues that the clock
began on August 2, 2018, when he was taken into civil
custody, but no later than August 6, when the criminal
complaint was filed. The failure to indict him within 30 days
of his civil detention or the criminal complaint,
contends, requires the indictment to be dismissed with
Government responds that the Speedy Trial clock began on
August 8, 2018, when Hernandez-Rios was arrested pursuant to
the arrest warrant. It contends that the ICE agents promptly
transported Hernandez-Rios to Louisiana for deportation
proceedings once they learned that he was illegally in the
United States on August 2, 2018. However, the record does not
reflect this. While ICE may have been authorized to detain
Hernandez-Rios pending his removal, the record does not
reflect that Hernandez-Rios was being held for removal.
Instead, the Report of Investigation states that, on August
3, 2018, Hernandez-Rios was “released to the custody of
ERO Jackson for appropriate detention pending acceptance for
prosecution by the United States Attorney's
Office.” Docket No. 18-2. This tends to prove that the
primary purpose of the August 2 civil detention was to hold
Hernandez-Rios for future prosecution for illegal reentry. In
other words, the Government's own documents show that
Hernandez-Rios' civil detention was for the purpose of
future criminal prosecution. Accordingly, the Speedy Trial
Act clock started to run on August 2, 2018, and not on August
6 or August 8.
determining whether to dismiss the indictment for
noncompliance with the Speedy Trial Act with or without
prejudice, the Court shall consider “(1) the
seriousness of the offense; (2) the facts and circumstances
of the case which led to the dismissal; and (3) the impact of
a reprosecution on the administration of [the Speedy Trial
Act] and on the administration of justice.” 18 U.S.C.
§ 3162(a)(2). Apparently, satisfied with the strength of
its argument that there has been no violation of the
Hernandez-Rios' speedy trial rights, the Government has
offered no explanation for its delay and does not argue that
a dismissal should be without prejudice. Regardless, the
motion to dismiss the indictment with prejudice is denied. At
most, there is a six-day delay. The Fifth Circuit has
considered a 41-day delay to be “relatively
brief.” United States v. May, 819 F.2d 531,
53.4 (5th Cir. 1987). There is no evidence that the
Government has engaged in a pattern of filing illegal reentry
indictments that might justify dismissal with prejudice.
See United States v. Mancia-Perez, 331 F.3d 464, 470
(5th Cir. 2003). Nor has Hernandez-Rios presented evidence
that his defense to the charges has been or would be impaired
by the delay. United States v. Blank, 701 F.3d 1084,
1090 (5th Cir. 2012).
the dismissal is without prejudice.