NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v. EDGAR EUSEBIO GONZALEZ, AKA Edgar Gonzalez Gonzalez,

Defendant

- Appellant. No. 19

- 50008
D.C. No. 2:18

- cr - 00416

- RGK

- 1

MEMORANDUM *

Appeal from the United States District Court for the Central District of California R. Gary Klausner, District Judge, Presiding Argued and Submitted November 14, 2019

Pasadena, California Before: FERNANDEZ, M. SMITH, and MILLER, Circuit Judges. Edgar Eusebio Gonzalez appeals his conviction for being an alien found in
the United States after ha ving been deported, in violation of 8 U.S.C. § 1326(a) , (b)(1) . We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand for an evidentiary hearing to evaluate Eusebio Gonzalez ’s claim under the Speedy
Trial Act

.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3. 

# FILED

MAR 18 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

Eusebio Gonzalez challenges the district court’s denial of his motion to
dismiss the indictment for a violation of the Speedy Trial Act, which requires that
an indictment or information be filed “within thirty days from the date on which
such individual was arrested or ser ved with a summons in connection with such charges.” 18 U.S.C. § 3161(b). Eusebio Gonzalez was arrested by I mmigration and
C ustoms E nforcement officers and placed in administrative detention on May 24, 2018, arraigned on June 7, 2018, and indicted on July 3, 2018

— 40 days after his administrative arrest, but only 26 days after his criminal arrest. Ordinarily, the two
weeks that Eusebio Gonzalez spent in administrative detention would not count against the statute ’s 30

- day clock. See United States v. Cepeda

- Luna , 989 F.2d 353, 35 5 (9th Cir. 1993)

. That detention would count , however, if it was a “ mere

ruse [] to detain [him] for later criminal prosecution .” Id. at 357. In the district court, Eusebio Gonzalez sought a hearing on his claim that his
admini strative detention was a ruse , but t he district court did not conduct one

. Although the government contends that Eusebio Gonzalez waived his request for a hearing on appeal, we conclude that he has sufficiently challenge d the district court’s determination that a hearing was not required , including because he challenged the district court’s decision d enying him an opportunity to cross

examine the relevant government agents. An evidentiary hearing is required “when the moving papers allege facts3

with sufficient definiteness, clarity, and specificity to enable the trial court to conclude that contested issues of fact exist.” United States v. Howell , 231 F.3d 615, 620 (9th Cir. 2000). We conclude that Eusebio Gonzalez satisfied that
standard , and ac cordingly that the district court abused its discretion by failing to conduct an evidentiary hearing . In particular, the ICE agent who coordinated with
the U nited States Attorney’s Office on Eusebio Gonzalez ’s prosecution testified
that previously deport ed aliens like Eusebio would ordinarily be deported within a day or two of the reinstatement of their removal order. ICE reinstated Eusebio
Gonzalez ’s removal order on May 24, 2018 , b ut it nevertheless detained Eusebio
Gonzalez for two weeks until his crimin al arraignment on June 7, 2018. The
district court found that there was “no evidence that the USAO coordinated with ICE agents” on the decision to detain Eusebio Gonzalez between his civil arrest and his criminal arraignment. But the fact that ICE prolonge d Eusebio Gonzalez ’s
detention beyond the one

- or two

- day period typical for reinstatements of removal significantly undercuts this finding ; in the absence of testimony from the relevant government officials, the record suggests no other explanation for th e delay

. We note that in United States v. Mejia

- Hernandez , No. CR 18

- 588

- FMO (C.D. Cal. Feb. 20, 2020) , which involved the same ICE officer and Special
Assist ant United States Attorney who prosecuted Eusebi o Gonzalez , the district
court conducted an evidentiary hearing and found evidence of collusion between4

ICE and the U nited States Attorney’s O ffice

. H ad Eusebio Gonzalez been able to develop the record throug h cross

- examination, he m ight have been able to adduce
similar evidence here. T he district court should permit Eusebio Gonzalez to elicit testimony on that question on remand.
VACATED and REMANDED

.