Document Info

DocketNumber: 16-6231

Filed Date: 12/8/2017

Status: Non-Precedential

Modified Date: 4/17/2021

  •                                                                                      FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS                            Tenth Circuit
    FOR THE TENTH CIRCUIT                            December 8, 2017
    _________________________________
    Elisabeth A. Shumaker
    Clerk of Court
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    No. 16-6231
    v.                                                    (D.C. No. 5:15-CR-00246-R-2)
    (W.D. Okla.)
    PATRICK SAMIR ASFOUR,
    Defendant - Appellant.
    _________________________________
    ORDER AND JUDGMENT*
    _________________________________
    Before HARTZ, PHILLIPS, and MORITZ, Circuit Judges.
    _________________________________
    Defendant Patrick Samir Asfour claims that he was denied his rights under the
    federal Speedy Trial Act. His problems began when he and a companion were driving
    their two vehicles on an interstate highway. A traffic stop by the Oklahoma Highway
    Patrol (OHP) led to the discovery of firearms and drugs in the companion’s vehicle. The
    two drivers were arrested and placed in county jail. A few days later an information was
    filed in state court charging them with eight violations of Oklahoma law. The state
    preliminary hearing was postponed or continued multiple times until finally, nine months
    *
    This order and judgment is not binding precedent, except under the doctrines of law of
    the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive
    value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
    after the traffic stop, the two men were indicted in the United States District Court for the
    Western District of Oklahoma.
    Under the Speedy Trial Act a federal arrestee must be charged by federal
    indictment or information within 30 days of arrest. See 18 U.S.C. § 3161(b). Defendant
    moved in federal court to dismiss the indictment against him for failure to comply with
    that requirement, arguing that his true federal arrest occurred at the time of the traffic
    stop. He contended that the state arrest and confinement were merely a ruse to avoid the
    30-day requirement and give federal authorities extra time to pressure the drivers to
    cooperate with the prosecution. After an evidentiary hearing the district court denied the
    motion, ruling that Defendant had not shown a ruse. Defendant then entered into a plea
    bargain, agreeing to plead guilty to three counts of the indictment but reserving the right
    to appeal his motion to dismiss. Exercising jurisdiction under 28 U.S.C. § 1291, we hold
    that his appeal is without merit. The district court did not abuse its discretion in denying
    Defendant’s motion.
    I.     BACKGROUND
    On January 30, 2015, Defendant and Ben Issa Saoud were driving on Interstate 40 in
    separate vehicles. Katelyn Worstell, a pregnant 18-year old woman, was riding with
    Defendant. When OHP Trooper Clint Painter attempted to pull Saoud over, Defendant’s
    vehicle struck Painter’s patrol car. The government contends that Defendant
    intentionally hit Painter’s vehicle to draw attention away from Saoud, as he was carrying
    more than 100 pounds of marijuana and two firearms. After all three vehicles came to a
    2
    stop, another OHP trooper arrived to assist Painter, and they discovered the drugs and
    guns in Saoud’s vehicle. Defendant, Saoud, and Worstell were arrested.
    Sam Ward, a special agent with the federal Bureau of Alcohol, Tobacco, Firearms
    and Explosives (ATF), and OHP Trooper Mark Dlugokinski, who had been assigned to a
    federal Drug Enforcement Administration (DEA) task force, came to the scene to assist
    with the investigation. Although Defendant characterizes Dlugokinski as a federal
    officer, he testified otherwise and submitted an affidavit stating that his “parent agency”
    is OHP and that his primary investigative priority remains with OHP, though he
    coordinates with other agencies. R. Vol. 1 at 148. Ward testified that he became
    involved in the investigation because one of the firearms was a short-barreled rifle,
    possession of which violates federal law.
    On the day of the arrest, Ward and Dlugokinski interviewed the three suspects
    separately. Ward and Dlugokinski presented Defendant with an ATF Miranda-waiver
    form, which he signed. Three days later Dlugokinski and another OHP trooper
    interviewed Defendant, this time offering an OHP waiver form. During these interviews
    Defendant and Worstell were advised of the federal charges and sentences they could be
    facing; and on two occasions the other interviewer said that Dlugokinski was with the
    DEA.
    On February 4 the State of Oklahoma charged Defendant on eight counts,
    including assault and battery with a deadly weapon, illegal possession of firearms,
    trafficking in illegal drugs, and conspiracy to traffic in illegal drugs. There were
    significant delays in the preliminary hearing. All counsel agreed on February 25 to
    3
    postpone the hearing until March 13. On March 13, Defendant agreed to reschedule the
    hearing for April 10. On April 10 the prosecutor requested a continuance to assure the
    appearance of a witness, and the court granted a continuance to June 5, over Defendant’s
    objection. Some testimony was presented on June 5, but all parties agreed to continue the
    hearing until July 31. On that date, Defendant requested a continuance because of
    discovery issues and the court reset the hearing for October 9. The record before us is
    silent on what happened regarding the preliminary hearing scheduled for October 9.
    On November 18, Defendant was indicted in federal court. The state charges were
    dismissed a week later. On January 7, 2016, Defendant moved to dismiss the indictment
    for failure to comply with the Speedy Trial Act.
    At the evidentiary hearing on the motion, Defendant argued that his state
    prosecution was instigated by the federal government to avoid the Speedy Trial Act’s
    requirements because it wanted to keep Defendant and Saoud in county jail for several
    months to put pressure on them to cooperate, as evidenced by the delay in the preliminary
    hearing. To support his claim, Defendant played audio recordings of Dlugokinski’s
    interviews with Defendant and Worstell in which other officers identify him as a DEA
    agent and the suspects are informed of potential federal charges and sentences.
    In response, Dlugokinski clarified during the hearing that although he had worked
    with a DEA task force since November 2011, he was an OHP trooper. He also explained
    that in the interviews he used the long potential federal sentences as leverage to
    encourage Defendant and Worstell to cooperate with the state investigation. And he
    testified that his investigation was building a state case, not a federal case, until shortly
    4
    before the federal charges were brought. As for the delay of the preliminary hearing, the
    government argued that Defendant agreed to most of the continuances and requested one
    himself. It said that there was no actual evidence of collusion between state and federal
    law enforcement to detain Defendant and Saoud in preparation for a federal prosecution.
    The district court denied Defendant’s motion, finding “no evidence . . .
    whatsoever” that the state prosecution was a ruse to hold Defendant for federal
    prosecution to circumvent the Act. R., Vol. 1 at 193–94. In particular, it found that the
    officers “were trying to use the potential of a federal prosecution as leverage to get
    people to cooperate in the state prosecution . . . .” 
    Id. at 194.
    On February 23, Defendant pleaded guilty to three counts of the indictment—a
    Travel Act crime of violence, see 18 U.S.C. § 1952(a)(2); possession of marijuana with
    intent to distribute, see 21 U.S.C. § 841(a)(1); and carrying a firearm during and in
    relation to a drug-trafficking crime, see 18 U.S.C. § 924(c)(1)(A). He was sentenced to
    190 months’ imprisonment.
    II.    DISCUSSION
    We review for abuse of discretion a district court’s denial of a motion to dismiss
    for violation of the Speedy Trial Act. See United States v. Abdush-Shakur, 
    465 F.3d 458
    ,
    461 (10th Cir. 2006). This standard of review encompasses de novo review of the district
    court’s compliance with the legal requirements of the Act and review for clear error of its
    factual findings. See 
    id. The Act
    requires that “[a]ny information or indictment charging an individual with
    the commission of an offense shall be filed within thirty days from the date on which
    5
    such individual was arrested or served with a summons in connection with such charges.”
    18 U.S.C. § 3161(b). If the government fails to comply with this time limit, the charges
    in the complaint must be dismissed, with or without prejudice. See 
    id. at §
    3162(a)(1).
    The general rule is that “[a]n individual is ‘arrested’ under the Speedy Trial Act
    only when he is taken into custody after a federal arrest for the purpose of responding to a
    federal charge.” United States v. De La Pena-Juarez, 
    214 F.3d 594
    , 597 n.6 (5th Cir.
    2000). Some courts, however, have recognized a “ruse” exception to the general rule
    when a person is confined on grounds other than a federal criminal charge for the purpose
    of avoiding the requirements of the Act. Many of these cases involve confinement by
    immigration authorities. See, e.g., United States v. Garcia-Echaverria, 
    374 F.3d 440
    ,
    451–52 (6th Cir. 2004) (assuming without deciding that ruse exception would apply in
    immigration context if there was collusion between immigration and criminal-
    prosecution authorities, but facts did not support Speedy Trial Act violation); United
    States v. Dyer, 
    325 F.3d 464
    , 468 (3d Cir. 2003) (describing ruse exception in
    immigration context, but declining to decide whether to adopt it as facts did not
    demonstrate ruse); De La 
    Pena-Juarez, 214 F.3d at 598
    ; United States v. Pena-Carrillo,
    
    46 F.3d 879
    , 883 (9th Cir. 1995). A few have involved incarceration under state criminal
    authority. See United States v. Benitez, 
    34 F.3d 1489
    , 1494 (9th Cir. 1994) (“The Speedy
    Trial Act would lose all force if federal criminal authorities could arrange with state
    authorities to have the state authorities detain a defendant until federal authorities are
    ready to file criminal charges. For this reason, Speedy Trial Act time periods may be
    triggered by state detentions that are merely a ruse to detain the defendant solely for the
    6
    purpose of bypassing the requirements of the Act.”); United States v. Woolfolk, 
    399 F.3d 590
    , 596, 596 n.7 (4th Cir. 2005) (state arrest could fall under Speedy Trial Act if “the
    Government has knowledge that an individual is being held by state authorities solely to
    answer to federal charges”). At least one circuit, however, apparently refused to apply
    the exception in that context because of the independent sovereignty of the States. See
    United States v. Alvarado-Linares, 698 F. Appx. 969, 974 (11th Cir. 2017) (rejecting
    application of ruse exception to arrests or detentions under state law by state officials
    “[b]ecause state authorities at all times held sovereign discretion as to how they
    separately might handle their own prosecution or non-prosecution for state offenses”).
    This circuit has yet to rule on whether there is a ruse exception for state arrests,
    but we have adopted the ruse exception when the federal government civilly detains an
    individual to avoid Speedy Trial Act requirements. See United States v. Pasillas-
    Castanon, 
    525 F.3d 994
    , 997–98 (10th Cir. 2008) (alien held civilly by immigration
    authorities). In that circumstance we held that “[t]he ruse exception is not easily
    triggered.” 
    Id. at 998.
    A defendant must “demonstrate[] that the primary or exclusive
    purpose of a civil detention was to hold the defendant for future criminal prosecution.”
    
    Id. Moreover, “[w]ithout
    evidence of wrongful collusion for [the purpose of holding a
    defendant for future prosecution], the exception does not apply. In short, if the detaining
    authorities have a lawful basis for their civil detention, a defendant is not entitled to
    invoke the exception.” 
    Id. (footnote omitted).
    Further, the defendant must prove bad
    faith. See 
    id. n.1. Assuming
    without deciding that we would adopt a ruse exception for
    state arrests, defendants would need to meet this heavy burden of demonstrating that “the
    7
    primary or exclusive purpose of [the state detention] was to hold the defendant for future
    [federal] prosecution” and that the state authorities did not have a “lawful basis for their
    [state] detention.” 
    Id. The district
    court ruled that Defendant had not established the prerequisites for
    application of the ruse exception, and we hold that its ruling was not an abuse of
    discretion. Defendant contends that improper collusion between federal and state
    officials was demonstrated by evidence that (1) federal agents were involved in the
    investigation1; (2) his state prosecution was delayed for a number of months; and (3)
    Defendant and Worstell were threatened with federal prosecution. We are not persuaded.
    Cooperation between state and federal law-enforcement officers is a commonplace
    that makes investigations more effective and efficient (the precise reason why a state
    trooper would be assigned to a DEA task force). Cooperative investigations may result in
    state prosecution or federal prosecution, depending on many considerations. Notably,
    Defendant presents no evidence of involvement by federal prosecutors before the federal
    indictment, although even evidence of such involvement would likely reflect just
    prosecutorial cooperation rather than federal use of the state criminal-justice system as a
    mere cat’s-paw. We have held that involvement of federal criminal law-enforcement
    officers in immigration proceedings did not in itself trigger the ruse exception. See
    1
    In his appellate brief, Defendant also relies on Ward’s testimony at the pretrial
    detention hearing that he started “piecing the case together” after first interviewing
    Worstell months before federal charges were brought. R., Vol. 1 at 76–78. But this
    evidence was not presented to the district court as part of Defendant’s argument that the
    ruse exception applied, so we need not address it.
    8
    
    Pasillas-Castanon, 525 F.3d at 999
    ; see also 
    Benitez, 34 F.3d at 1493
    –95 (even when
    state arrest was result of federal investigation and federal law-enforcement officers
    detained defendants until state-law enforcement officers arrived to arrest them, district
    court did not err in finding no ruse). In any event, Dlugokinski testified (and the district
    court could credit) that the investigation was aimed at state charges until shortly before
    Defendant’s federal indictment. See 
    Benitez, 34 F.3d at 1495
    (district court did not err in
    relying on state prosecutor’s testimony that State had intended to prosecute defendants if
    federal charges were not brought soon).
    Nor do the delays in the state prosecution suggest that the state prosecution was
    engineered by federal prosecutors. Of the nearly 10 months between Defendant’s arrest
    and his federal indictment, less than two months of the continuances were over
    Defendant’s objection, and more than two months (indeed, the final continuance) was at
    Defendant’s request. There was no evidence of intentional stalling for any improper
    purpose. The district court was hardly unreasonable in being unpersuaded that the delay
    smacked of federal interference.
    Finally, warnings about possible stiff federal sentences do not show that a decision
    had been made to pursue federal prosecution. Dlugokinski gave a perfectly plausible
    reason for telling the suspects of the federal charges and sentences that could be imposed.
    It is not unheard of for investigators to try to induce cooperation by making the risks of
    noncooperation look as severe as possible. The district court credited that reason, stating
    that the officers “were trying to use the potential of a federal prosecution as leverage to
    get people to cooperate in the state prosecution.” R., Vol. 1 at 193–94. See Pasillas-
    9
    
    Castanon, 525 F.3d at 998
    (“The mere fact that the detaining authorities are aware other
    potential criminal charges are available does not trigger the [ruse] exception.”).2
    In short, the district court properly ruled that Defendant had failed to show that
    “the primary or exclusive purpose of [the state detention] was to hold [Defendant] for
    future [federal] criminal prosecution.” Pasillas-
    Castanon, 525 F.3d at 998
    . Even if we
    were to adopt the ruse exception for state detention, Defendant would not be entitled to
    relief.
    III.   CONCLUSION
    We AFFIRM the judgment below.
    Entered for the Court
    Harris L Hartz
    Circuit Judge
    2
    The government also contends that Defendant failed to show that the state arrest was
    unlawful or in bad faith, which it argues are requirements for applying the ruse exception.
    The district court did not rely on either ground and we need not address them.
    10