United States v. Jesus Bocanegra , 631 F. App'x 871 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-10261
Non-Argument Calendar
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D.C. Docket No. 1:13-cr-00039-AT-JSA-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JESUS BOCANEGRA,
Defendant - Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(December 4, 2015)
Before MARTIN, JORDAN, and ANDERSON, Circuit Judges.
PER CURIAM:
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Jesus Bocanegra appeals his conviction for possession of 1,000 kilograms or
more of marijuana with intent to distribute, in violation of 21 U.S.C. §§
841(a)(1),(b)(1)(A)(vii). He contends that his indictment violated the Speedy Trial
Act, 18 U.S.C. § 3161, because he was arrested by state officials and held in state
custody for three months before he was indicted by the federal government. After a
review of the record and the parties’ briefs we affirm Mr. Bocanegra’s conviction.
I
In November of 2012, Customs and Border Patrol officers discovered
marijuana hidden within the compartments of furniture shipped from Mexico to
Mr. Bocanegra’s commercial furniture business. The officers notified the U.S.
Attorney’s Office, which stated it might be interested in prosecuting the case. On
November 15, 2012, an undercover federal officer delivered the furniture
containing marijuana to the commercial space leased by Mr. Bocanegra. Mr.
Bocanegra received and unloaded part of the furniture and then asked the
undercover driver to deliver the remaining pieces to a warehouse leased by Mr.
Bocanegra. A surveillance team of federal agents waited outside the warehouse
until Mr. Bocanegra arrived the next day. He and several other men spent hours in
the warehouse and then drove away in Mr. Bocanegra’s truck.
That same day, November 16, 2012, local officers and Georgia state agents,
at the direction of federal agents, arrested Mr. Bocanegra and took him into state
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custody. Federal agents conducted a search of the warehouse, where they found
several pieces of furniture with false backs to conceal hollow compartments. The
federal agents uncovered approximately 1,200 kilograms of marijuana after taking
apart the furniture. The federal agents subsequently explained that they involved
state and local authorities in the event that the federal government did not
prosecute Mr. Bocanegra. Both state and federal authorities interrogated Mr.
Bocanegra.
The federal agents contacted the U.S. Attorney’s Office again about
prosecuting the case, but an Assistant U.S. Attorney informed the agents that the
Office would not be prosecuting the case, as the amount of marijuana found fell
below their internal threshold for prosecution. Gwinnett County officers then took
Mr. Bocanegra to the Gwinnett County Detention Center, and the state charged Mr.
Bocanegra. The federal agents, however, continued to lobby the U.S. Attorney’s
Office to take the case.
On January 4, 2013, the U.S. Attorney’s Office informed state prosecutors
that they might take the case. On February 5, 2013, a federal grand jury indicted
Mr. Bocanegra, and that same day the state dismissed all pending charges against
him.
Before trial, Mr. Bocanegra filed a motion to dismiss the indictment under
the Speedy Trial Act, 18 U.S.C. § 3161, as more than 30 days had elapsed between
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his initial arrest and the indictment. After an evidentiary hearing, the district court
denied Mr. Bocanegra’s motion, finding that the government did not use the “state
criminal charges as a ‘ruse’ nor as a cloak for its delay in prosecution of federal
charges.” Mr. Bocanegra, the district court found, was not held by state authorities
“solely to answer federal charges or as an administrative device to excuse delays in
the U.S. Attorney’s Office’s charging process.” The district court, therefore,
concluded that there was no violation of the Speedy Trial Act and Mr. Bocanegra
proceeded to trial. A jury found Mr. Bocanegra guilty of possession of marijuana
with intent to distribute, in violation of 18 U.S.C. § 841.
On appeal, Mr. Bocanegra argues that the district court erred in denying his
motion to dismiss the indictment because the government violated the Speedy Trial
Act. He argues that the government did not indict him until 81 days after he was
arrested. Although he acknowledges he was in state custody following his initial
arrest, Mr. Bocanegra asserts that his state custody was “constructive federal
custody.” The district court, Mr. Bocanegra contends, erred in finding no violation
of the Speedy Trial Act.
II
We review a district court’s denial of a defendant’s motion to dismiss under
the Speedy Trial Act de novo and the district court’s factual findings on excludable
time for clear error. United States v. Harris, 376 F.3d 1282, 1286 (11th Cir. 2004).
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The Speedy Trial Act, 18 U.S.C. § 3161(b), “requires the government to file an
indictment or information against a defendant within thirty days from the date on
which he was arrested or served with a summons.” United States v. Mathurin, 690
F.3d 1236, 1239 (11th Cir. 2012). “If the thirty-day time limit is not met, the Act
entitles the defendant to dismissal of the charges contained in the initial
complaint.” Id. The issue here is not the date of the indictment, but rather the date
of Mr. Bocanegra’s arrest. Mr. Bocanegra contends he was arrested for purposes of
the Speedy Trial Act on November 16, 2012, while the government contends that
the Act was never triggered because Mr. Bocanegra was not arrested on federal
charges until after he was indicted.
Mr. Bocanegra was arrested at the direction of federal agents on November
16, 2012, and subsequently placed into state custody, as the U.S. Attorney’s Office
initially declined to prosecute him. In order for an arrest to trigger the Act,
however, that arrest must be on federal charges. See United States v. Kubiak, 704
F.2d 1545, 1548 (11th Cir. 1983) (citing United States v. Shahryar, 719 F.2d 1522,
1524–25 (11th Cir. 1983) (“For the time limit of the Act to commence a person
must be held for the purpose of answering to a federal charge.”)). See also United
States v. Skanes, 17 F.3d 1352, 1353 (11th Cir. 1994) (noting that although the
defendant was arrested on the same charges by state authorities and held in state
custody, “it was not until [the defendant] was taken into federal custody . . . that
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the time constraints of the Speedy Trial Act were triggered”); United States v. Bell,
833 F.2d 272, 277 (11th Cir. 1987) (finding that although federal authorities were
highly involved in the defendant’s initial arrest, “it was only after the federal
indictment . . . that the clock under the Speedy Trial Act began running”).
Mr. Bocanegra argues that because the agents that led the investigation and
arrested him were federal officials, his arrest was in effect a federal arrest. This
circuit’s precedent, however, is contrary to Mr. Bocanegra’s argument given the
factual findings of the district court. “[I]f one is held by state officers on a state
charge and subsequently turned over to federal authorities for federal prosecution,
the starting date for purposes of the Act is the date that the defendant is delivered
into federal custody.” Shahryar, 719 F.2d at 1525 (holding that the date of the
federal indictment, not the date of the state arrest, was the triggering date for the
Speedy Trial Act).
That a defendant’s arrest is effected by federal officers does not mean the
arrest was federal in nature if the defendant was “never taken before a federal
magistrate” nor had “federal charges ever lodged against [him] in a complaint.”
Kubiak, 704 F.2d at 1548. The application of the Act does not, as Mr. Bocanegra
contends, “depend[ ] only upon which type of agency—federal or otherwise—first
places his hands upon and detains a defendant.”
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In Kubiak, much like in Mr. Bocanegra’s case, “federal law enforcement
authorities declined prosecution in favor of the state law enforcement agency.” Id.
at 1548, n.3. We found that the defendants there “were not held to answer in
federal court until they were indicted,” despite being initially arrested by federal
officers, who also contacted federal, state, and local law enforcement agencies to
see who would prosecute the defendants. Id. State authorities initially agreed to
prosecute, but then became concerned that they lacked jurisdiction over the
defendants, and approximately four months later, the defendants were federally
indicted. The defendants argued the indictment violated the Speedy Trial Act,
because more than 30 days had passed between their initial arrest and the
indictment. Id. at 1548. We held, however, that the defendants’ initial arrest by the
coast guard did not trigger the Speedy Trial Act, because the defendants “were not
held to answer in federal court until they were indicted.” Id. at 1548, n.3.
Mr. Bocanegra nevertheless argues that the arrest was a federal arrest,
because even though he was in state custody, it was constructive federal custody.
In United States v. Russo, 796 F.2d 1443, 1450–51 (11th Cir. 1986), the defendant,
Mr. Pine, made a similar argument, asserting that the federal government’s
involvement in the investigation leading to his arrest triggered the 30-day clock in
the Speedy Trial Act, even though he was taken into state custody pending state
criminal charges. Mr. Pine argued that “he was being held by state authorities to
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answer federal charges.” Id. at 1451. We found that because Mr. Pine “was at no
time in custody to answer federal charges or under federal arrest until . . . state
charges were dismissed . . . , there was no violation of the Speedy Trial Act.” Id.We come to the same conclusion here. Mr. Bocanegra was not in constructive
federal custody simply because the team investigating his criminal conduct and
directing the initial arrest were federal officers.
Mr. Bocanegra finally argues that we should, nevertheless, construe his
initial arrest as a federal arrest on federal charges because the state detention was a
“mere ruse” to detain him for future federal charges. We have explained, in the
context of INS detentions incident to deportation, that though such “detentions are
civil in nature and do not trigger the Speedy Trial Act, . . . a contrary result may be
warranted when deportations are used by the government as ‘mere ruses to detain a
defendant for later criminal prosecution.’” United States v. Drummond, 240 F.3d
1333, 1336 (11th Cir. 2001) (citing United States v. Noel, 231 F.3d 833, 836 (11th
Cir. 2000)). In these cases, the burden is on the defendant “to establish that the
primary or exclusive purpose of the civil detention was to hold him for future
[federal] prosecution.” Id. at 1336 (internal quotation marks and citation omitted).
We have not recognized a “mere ruse” exception in the context of a state’s
detention of an individual on pending state criminal charges. Such an extension
might implicate sovereignty concerns, as “an arrest or indictment by one sovereign
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would not cause the speedy trial guarantees to become engaged as to possible
subsequent indictments by another sovereign.” United States v. MacDonald, 456
U.S. 1, 10 n.11 (1982). See also Shahryar, 719 F.2d at 1525 (“Common sense, as
well as deeply rooted concepts of federalism, dictate that the Speedy Act rules
relate only to federal and not to state custody. To hold otherwise would require our
rejection of the doctrine of dual sovereignty . . . .”).
In any event, even if the “mere ruse” exception applied to state detentions,
Mr. Bocanegra cannot establish here that his detention at Gwinnett County was a
“mere ruse” to hold him for future federal criminal charges. The district court
found that there was no ruse, and the record supports that finding. State charges
were brought against Mr. Bocanegra, and federal agents did not contact state
prosecutors. The record suggests the state officers and prosecutors were moving
forward to bring a case against Mr. Bocanegra, until those charges were dismissed
in February of 2013, when the federal government brought federal charges.
III
The district court did not err in denying Mr. Bocanegra’s motion to dismiss
the indictment under the Speedy Trial Act. We therefore affirm.
AFFIRMED.
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