Collusion Course

United States v. Guevara-Umana, No. 07-1410-cr (2d Cir. August 15, 2008) (Leval, Calabresi, Pooler, CJJ) (per curiam)

Guevara was deported in 1999. By 2004, he was back; on February 21, 2004, he was charged with grand larceny in New York State. That same day, ICE filed an immigration detainer. On March 4, 2004, ICE filed a Record of Deportable Alien and, the next day, it served Guevara with a notice of intent to reinstate the previous deportation order.

On May 6, 2004, Guevara pled guilty in state court and, four days later, ICE confirmed that he was the same person deported in 1999. On May 21, 2004, an ICE agent wrote a memorandum to Guevara’s A-file that indicated that he had begun an investigation into whether Guevara was an illegal reentrant. This memorandum indicated that a complaint had been authorized by an AUSA.

On June 3, 2004, Guevara was sentenced to time served on the larceny, but remained in state custody on the ICE detainer until September 24, 2004, when ICE obtained proof that he had not received permission to reenter. Six days later, he was presented on a federal complaint charging him with illegal reentry, and he was indicted on October 26, 2004. In the district court, Guevara moved to dismiss the indictment under the Speedy Trial Act (the “STA”), claiming that he had not been indicted within thirty days of his arrest. The district court denied the motion.

On appeal, the circuit affirmed. While it is true that the STA requires that a suspect be indicted within thirty days of his arrest, “ordinarily detention by the immigration authorities does not constitute an arrest in connection with a federal criminal offense,” and hence does not “normally trigger the Act’s thirty-day arrest-to-indictment time limit.”

The court recognized that other circuits have held there is an exception to this in “cases of collusion between [immigration] officials and criminal authorities, where the civil detention is merely a ruse to avoid the requirements of” the STA, and held that a “ruse exception is appropriate.” Here, however, Guevara did not satisfy the ruse exception’s requirements. The mere collaboration between ICE and the USAO for the purposes of a criminal investigation does not by itself establish collusion for the purpose of evading the STA. The court noted that the USAO “moved quickly to procure an indictment” after it confirmed that Guevara did not have permission to reenter, thus he “failed to show a sufficient connection between the subsequent prosecution and continued detention.”