UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 98-41565

____________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FRANKLIN DE LA PENA-JUAREZ,

also known as Carlos Ottoniel De La Pena,

Defendant-Appellant.

______________________________________________________

___________

No. 99-20479

___________

UNITED STATES OF AMERICA

,

Plaintiff-Appellee,

versus

GAMALIEL AGUIRRE-TIBRA,

Defendant-Appellant.1 De La Pena-Juarez was convicted of aggravated assault on June 28, 1999 and placed

on probation for that offense the following day. Accordingly, after June 29, 1998, De La Pena-Juarez

was only being held in custody by virtue of the INS detainer.

-2- Appeals from the United States District Court

For the Southern District of Texas

June 13, 2000

Before EMILIO M. GARZA, DEMOSS, and STEWART, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Franklin De La Pena-Juarez (“De La Pena-Juarez”) appeals the district court’s denial of his

motion to dismiss his indictment based upon a violation of the Speedy Trial Act, 18 U.S.C. § 3161(b).

Gamaliel Aguirre-Tibra (“Aguirre-Tibra”) also seeks review of the district court’s denial of his motion

to dismiss his indictment based upon a Speedy Trial Action violation. Because these cases raise an

identical issue of law, we consolidate them for the purposes of this opinion. For the reasons set out

below, we affirm the judgments of the district courts.

I

A

De La Pena-Juarez, a citizen of Guatemala, was deported from the United States in 1994 after

being convicted of a drug offense in a Florida state court. On June 29, 1998, the Immigration and

Naturalization Service (“INS”) discovered that De La Pena-Juarez was being held in a Brownsville,

Texas jail on charges of aggravated assault. 1 On the same day, following an INS interview during

which De La Pena-Juare z info rmed an INS agent that he had previously been deported, the agent

placed a civil detainer on De La Pena-Juarez. De La Pena-Juarez was subsequently held in custody-3-

at an INS detention center in Los Fresnos, Texas between approximately June 29 and July 14.

On July 14, 1998, the INS filed criminal charges against De La Pena-Juarez based on illegal

reentry into the United States in violation of 8 U.S.C. § 1326. After he was indicted on this charge

on August 4, De La Pena-Juarez filed a motion to dismiss the indictment, alleging a violation of the

Speedy Trial Act. Specifically, De La Pena-Juarez argued that more than thirt y days had passed

between his “civil arrest” on June 29 and his indictment for illegal reentry on August 4. The district

court denied the motion, basing its ruling “primarily upon the fact that this Judge, this Court, [was]

satisfied that the det ention of the defendant until July 14, 1998, was not predicated upon actual

criminal charges being filed against [De La Pena-Juarez].” De La Pena-Juarez entered a conditional

guilty plea to the illegal-reentry charge, preserving his right to appeal the court’s ruling on his motion

to dismiss. After his conviction and sentencing, De La Pena-Juarez filed this timely appeal.

B

Aguirre-Tibra, a citize n o f Mexico, was deported from the United States in 1993 after

pleading guilty to aggravat ed assault with a deadly weapon. Sometime thereafter, he illegally

reentered the United States.

On November 16, 1997, Aguirre-Tibra was arrested for unlawfully c a rrying a weapon in

Harris County, Texas. On December 7, during his pretrial detention, Aguirre-Tibra was interviewed

by INS Agent Smith, and Aguirre-Tibra admitted that (1) he was in the United States illegally, (2)

he was a Mexican national, and (3) he had a prior felony conviction. Agent Smith filed a detainer on

Aguirre-Tibra that afternoon. After the interview, Agent Smith ran a computer search to locate and

order Aguirre-Tibra’s alien file (“A file”).

On December 30, 1997, Aguirre-Tibra pleaded guilty to the state weapons charge and was2 Both parties state that, for t he mo st part, the Investigations Branch functions

independently of the Deportations Branch. According to the government, the Investigations Branch

has no authority to prevent the Deportations Branch from proceeding with deportation of an alien.

The government concedes, however, that it is “unusual for the Deportations Branch to deport an alien

who is the subject of an investigation that could result in a criminal charge. But in at least one

instance, the Deportations Branch deported an alien who had already been indicted but had not yet

been transferred to the marshal’s custody.”

3 The INS received this document on September 15.

-4- sentenced to one year imprisonment. He completed the sentence, and on May 16, 1998, AguirreTibra was released into INS custody. At that time, INS agents detained him on civil depo rt at ion

charges. Later that day, Agent David Jennings of the INS Investigations Branch 2 interviewed

Aguirra-Tibra, who again admitted to his illegal re entry as a previously-deported felon. Agent

Jennings then fingerprinted Aguirre-Tibra and prepared a notice of intent to reinstate the prior order

of deportati on. Aguirre-Tibra was then transferred to an INS detention center in Houston. AguirreTibra’s alien file was placed in a red folder and sent to the Deportations Branch. According to both

parties, a red folder indicates that the Investigations Branch is investigating the detainee for possible

criminal prosecution.

Accordi ng t o the government, once a deportable alien is placed in detention, the

Investigations Branch and the Deportations Branch of the INS work independently. Here, between

August 6 and September 11, agents in t he Invest igations Branch (1) ordered a certificate of

nonexistence of record, a document that would confirm whether or not Aguirre-Tibra had applied to

the Attorney General for permission to reenter the United States, 3 and (2) examined Aguirre-Tibra’s

fingerprints to confirm that they matched the fingerprints on the original warrant of deportati on. On

September 11, 199 8, t he Investigations Branch referred Aguirre-Tibra’s case to the United States4 Age nt Jennings testified that the delay in referring the case to the U.S. Attorney’s

Office was due largely to a backlog of cases and flurry of transfers within the Investigations Branch.

He further testified that he was unable to perform a fingerprint analysis until he received the proper

training in July 1998.

5 Agent Jennings testified that the 45-day delay between the forwarding of the file to

the U.S. Attorney and the return of the indictment was due to the “overwhelming workload” at the

U.S. Attorney’s Office.

-5- Attorney’s Office for prosecution. 4 On October 26, 1998, Aguirre-Tibra was indicted for illegal

reentry after deport ation. Three day s later, on October 29, Aguirre-Tibra was arrested on the

indictment by the United States Marshal and taken into federal criminal custody. 5

The Deportations Branch took no acti on to deport Aguirre-Tibra until December 11, 1998,

when it issued an order of deportati on. Agent Jennings attributed the delay in deportation to the

backlog of cases in the Deportations Branch and the fa ct t hat the Investigations Branch was

investigating the possibility of recommending criminal charges against Aguirre-Tibra.

On January 19, 1999, Aguirre-Tibra filed a motion to dismiss the indictment based on an

alleged violation of the Speedy Trial Act. He claimed that the speedy trial clock began to run on May

16, 1998, when he was first placed in INS custody. The district court denied his motion.

Aguirre-Tibra was subsequently convicted of illegal reentry and sentenced to forty-five

month s imprisonment and three years of supervised release. Without objection by either side, the

district court also ordered at the sentencing hearing that 50% of Aguirre-Tibra’s prison earnings be

sent to his family to help care for his children. Aguirre-Tibra filed this timely appeal.

II

On appeal, both De La Pena-Juarez and Aguirre-Tibra argue that the district court erred in

denying their motions to dismiss under §§ 3161(b) and 3162(a)(1) of the Speedy Trial Act because6 An individual is “arrested” under t he Speedy Trial Act only when he is “taken into

custody after a fede ral arrest for the purpose of responding to a federal charge.” U nited States v.

Johnson , 815 F.2d 309, 312 (5th Cir. 1987).

-6- more than thirty days elapsed between their civil detentions and their criminal indictments. With

respect to De La Pena-Juarez, the government argues that the “speedy trial time clock” did not start

running until July 14, the date that the INS officially filed charges against De La Pena-Juarez, and,

accordingly, his indictment was timely under the Speedy Trial Act. With regards to Aguirre-Tibra,

the government argues that the time clock did not begin to run until October 29, 1998, the date on

which Aguirre-Tibra was arrested and detained on a federal charge of illegal reentry after deportati on.

We review the district court’s factual findings regarding a Speedy Trial Act motion for clear error and

its legal conclusions de novo

. See United States v. Bailey , 111 F.3d 1229, 1235 (5th Cir. 1997).

The Speedy Trial Act requires federal authorities to indict and try an incarcerated individual

within a certain time period after his arrest. Of particular relevance to this case, § 3161(b) provides

that “[a]ny information or indictment charging an individual with the commission of an offense shall

be filed within thirty da ys from the date on which such individual was arrested or served with a

summons in connection with such charges.” 6 18 U.S.C. § 3161(b). Failure to comply with the time

limit s set out in the Act results in dismissal of charges. S ee 18 U.S.C. § 3162(a)(1) (“If, in the case

of any individual against whom a complaint is filed charging such individual with an offens e, no

indictment or information is filed within t he t ime limit required by section 3161(b) as extended by

section 3161(h) of this chapter, such charge against that individual contained in such complaint shall

be dismissed or otherwise dropped.”).

As a general rule, the provisions of the Speedy Trial Act do not apply to civil detentions. S ee

United States v. Hausman , 894 F.2d 686, 688-89 (5th Cir. 1990) (“In addition, Hausman suggests-7-

that the perfections of § 3161(b) should have been triggere d by t he filing of the federal detainer

against him. We have rejected this argument in both U nited States v. Johnson and in United States

v. Taylor .”) (internal citations omitted). On its face, the thirty-day requirement applies only to an

indictment issued in connection with the offense for which the defendant was arrested. S ee 18 U.S.C.

§ 3161(b); United States v. Cepeda-Luna

, 989 F.2d 353, 355 (9th Cir. 1993). “Offense” is defined

as “any Federal criminal offense.” 18 U.S.C. § 3172(2).

Several courts have applied this proposition to the immigration context, holding that the

Speedy Trial Act is not implicated when a defendant is detained on civil deportati on charges. S ee,

e.g., United States v. Grajales-Montoya

, 117 F.3d 356, 366 (8th Cir. 1997); United States v. CepedaLuna

, 989 F.2d 353, 355-56 (9th Cir. 1993) (“Consistent with these cases, we hold that the Speedy

Tri al Act is not implicated when a defendant is detained on civil charges by the Immigration and

Naturalization Service.”); United States v. Restrepo

, 59 F. Supp. 2d 133, 137 (D. Mass. 1999).

Havin g never before addressed this precise issue in a published opinion, we now find this to be a

reasonable application of the general rule. C f. United States v. Minister David Iredia

, No. 95-20657

(5th Cir. December 11, 1995) (unpublished) (holding that civil arrest in connection with INS’s lawful

function regarding deportati on did not implicate Sp eedy Trial Act even though defendant was

subsequently charged with unlawful reentry).

In United States v. Cepeda-Luna

, the Ninth Circuit carved out an exception to this rule. the

requirements of the Speedy Trial Act, the cou rt determined, “would lose all meaning if federal

criminal authoriti es co uld co llude with civil or state officials to have those authorities detain a

defendant pending federal charges solely for the purpose of bypassing the requirements of the Speedy

Trial Act.” C epeda-Luna

, 989 F.2d at 357. Thus, the court held that the Speedy Trial Act was-8-

tri ggered by “civil detentions which are mere ruses to detain a defendant for later criminal

prosecution.” i d. at 357; see also Grajales-Montoya

, 117 F.3d at 366 (same). Under this exception,

several courts have held t hat an INS arrest triggers the Speedy Trial Act’s time clock where the

administrat ive and criminal charges against the defendant are identical such that the detention is

simply used as a “s ubst itute for criminal arrest.” R estrepo

, 59 F. Supp. 2d at 137 (“[W]hile a civil

detention by the INS alone does not necessarily trigger the Speedy Trial Act, where that period of

detention is used primarily or exclusively to develop criminal charges invo lving the conduct on which

the civil arrest was based, the time limit established by the Speedy Trial Act begins running on the

date of the civil arrest.”); see also U nited States v. Vasquez-Escobar , 30 F. Supp. 2d 1364, 1367

(M.D. Fla. 1998) (holding that Speedy Trial Act was triggered where INS held defendant solely for

illegally reentry and then criminally charged him with same); United States v. Okuda , 675 F. Supp.

1552, 1554-55 (D. Haw. 1987) (holding, pre- C epeda Luna

, that where basis of INS arrest was same

criminal charge, INS detention triggered the thirty-day speedy trial time clock).

We agree with these courts that civil detention should not be used as a delay tactic. We view

the “ruse exception” a s an effect ive way of protecting against the possibility of collusion between

federal criminal authorities and civil or state officials. C epeda-Luna

, 989 F.2d at 356. However, we

will only apply this exception where the defendant demonstrates that the primary or exclusive purpose

of the civil detention was to hold him for future criminal prosecution. C f. United States v. Johnson

,

29 F.3d 940 , 945 (5th Cir. 1994) (“As noted above, the defendant has the burden of providing

adequate proof to support his motion to dismiss [for a violation of the Speedy Trial Act].”)

A-9-

De La Pena-Juarez argues that the facts of th is case place it squarely within the ruse

exception. More specifically, he argues that on June 29, the date of the civil detainer, the INS knew

that De La Pena-Juarez had illegally reentered the country. He contends that “[b]ecause Mr. De La

Pena-Juarez’s INS arrest and criminal prosecution w ere for the same offense and because his INS

detention was for reasons primarily and exclusively related to his criminal case, the Speedy Trial Act

began to run with his civil arrest.” In effect, he contends that the INS’s civil det ainer was a

substitute for criminal prosecution.

There is insufficient evidence in the record to support his contention that the civil arrest was

a “mere ruse” to detain him for criminal charges of illegal reentry. As an initial matter, De La PenaJuarez presents absolutely no evidence of collusion between the INS and criminal officials. Most

notably, however, it is not clear to us that the administrative and criminal charges filed against De

La Pena-Juarez were in fact identical. While there is no question that (1) the INS agent who

interviewed De La Pena-Juarez was on notice that he had been previously deported, and (2) the INS

verified De La Pena-Juarez’s prior deportati on between June 29 and July 14, there is no evidence that

illegal reentry formed the only—or even the primary—basis for the civil detainer. At De LaPenaJuarez’s rearraignment, the INS agent testified only that “on June 29th INS interviewed [De La PenaJuarez] and they found out that he was an illegal alien. At that point an INS civil detainer was placed

on him.” He further testified that at the time of the civil detention, the INS did no t have enough

information to charge De La Pena-Juarez wit h illegal reentry. Nor has De La Pena-Juarez

demonstrated that there was no other possible reason for his civil detention. These facts stand in

stark contrast to those of several of the cases cited by De La Pena-Juarez in which it is clear that,

from the date of civil detention, the INS was holding the defendant for the very same reasons that it-10-

ultimately prosecuted him. S ee, e.g., Restrepo

, 59 F. Supp. 2d at 136 (finding that administrative and

criminal charges were identical where, on day of civil arrest, INS noted under defendant’s fingerprint

sheet that (1) he was being charged with reentry after deportati on and (2) he was being “detained by

INS pending prosecution/removal”); Vasquez-Escobar

, 30 F. Supp. 2d at 1367 (findi ng that the

government “admit[ted] that it was not holding [the defendant] to effectuate his deportation under

§ 241(a)(5). Instead, it held him . . . for illegally reentering the United States, specifically to provide

the government the time and evidence necessary to establish his ‘guilt beyond a reasonable doubt’ for

an identical criminal charge of illegally reentering the United States under 8 U.S.C. § 1326(a).”).

Absent a showing that the INS civilly detained De La Pena-Juarez solely based upon his illegal

reentry into the United States, we find that the district cou rt did no t clearly err in finding that the

INS’s decision to detain him was not predicated upon actual criminal charges being filed against him.

See Bailey , 111 F.3d at 1235.

De La Pena-Juarez has not demonstrated that he was “arrested” for illegal reentry under the

Speedy Trial Act on June 29. Accordingly, the speedy trial time clock began to run on July 14, and

De La Pena-Juarez’s indictment fell within the time period set out in § 3161(b).

B

Similarly, Agui

rre-Tibra argues that the facts of his case show that his INS detention was

merely an end-run around the requirements of the Speedy Trial Act. More specifically, he contends

that on May

16, t he day t hat he was taken into INS custody , the INS knew that he had been

previously deported and that he had illegally reentered the country. The INS, he argues, could have

either presented his case to the United States Attorney for prosecution or deported him at that time.

The five-month detention before his indictment, Aguirre-Tibra contends, was for reasons “primarily-11-

and exclusively” related to his criminal case.

While this case presents a closer question, we again find that there is no clear evidence that

Aguirre-Tibra was civilly detained primarily to hold him for future prosecution. Although it is clear

that by May 16, Aguirre-Tibra had told INS agents that he had illegally reentered the United States,

it is not clear that illegal reentry formed the primary basis for his civil detention. Indeed, AguirreTibra does not even allege that the INS had no other reason to detain him, and, under the facts of this

case, the INS clearly could have detain ed him based on his convictions as an aggravated felon.

Compare Vasquez-Escobar

, 30 F. Supp. 2d at 1367 (finding that civil detention was a “ruse” where

defendant was taken into INS custody solely based on illegal reentry charges and then subsequently

prosecuted for same), with Cepeda-Luna

, 989 F. 2d at 357 (finding that ruse exception did not apply

where defendant was originally detained as aggravated felon and ultimately criminally charged with

illegal reentry).

While Agent Jennings testified that the delay in deportation was due in part to the fact that

t he Investigations Branch was considering recommending filing criminal charges against AguirreTibra, he also testified that the delay was due in at least equal part to the backlog of cases in the

Deportations Branch. Beyond this, there is no evidence that the Investigations Branch encouraged

the Deportations Branch to delay deportati on so that it could further investigate cri minal reentry

charges. To the contrary , the government states—and Aguirre-Tibra does not cont est—that the

branches of the INS rarely work together once defendant has been detained. Taken as a whole, we

do not believe that the evidence in the record supports a finding that Aguirre-Tibra’s detention was

“used primarily or exclusively to develop criminal charges involving the conduct on which the civil

arrest was based.” Restrepo , 59 F. Supp. 2d at 138-38.-12-

Finally, we agree with the district court that Aguirre-Tibra presents no evidence of collusion

between the United States Att o rney’s Office and the INS. There is no evidence that the U.S.

Attorney was even aware of Aguirre-Tibra’s detention prior to September 1 , 1998, l et al one

encouraging the INS to detain him. S ee Cepeda-Luna

, 989 F.2d at 355 (“Thus, there is no evidence

of collusion between federal criminal and civil authorities which would mandate the application of the

provisions of the [Speedy Trial] Act to civil detentions.”). The fact that federal criminal authorities

might have known about Ag uirre-Tibra’s detention after that date does not necessarily support a

conclusion that they colluded with the INS to detain Aguirre-Tibra. S ee id. at 355 (“This circuit has

repeatedly declined to apply the Speedy Trial Act in situations where the defendant’s detention is not

pursuant to federal criminal charges, even though federal criminal authorities may be aware of and

even involved with that detention.”). Rather, here, Agent Jennings testified that the forty-five day

delay fo llowing INS’s referral of the case was due to the heavy workload at the United St at es

Attorney’s Office.

Taking all of the evidence into account, and keeping in mind the proper standard of review,

we do not believe that the district court clearly erred in finding that (1) Aguirre-Tibra’s detention was

due, at worst, to oversight and incompetence on the part of the INS, and, therefore (2) the speedy

trial clock began running on October 29, the date of Aguirre -Tibra’s arrest. We, like the court in

Cepeda-Luna

, are sympathetic to the plight of defendants who are detained for long periods of time

simply due t o government inefficiency, s e e Cepeda-Luna

, 989 F.2d at 358. However, absent

evidence of collusion, the Speedy Trial Act is no t t he proper remedy for resolving a delay of this

nature in the civil context. See id. at 358.

III-13-

Aguirre-Tibra also argues that the district court lacked the authority to require as a condition

of his sentence that fifty-percent of his prison earnings be garn ished t o support his children. The

government contends that the garnishment was a recommendation, not a mandate, to the Bureau of

Prisons (“BOP”) and therefore fell within the court’s authority. Since Aguirre-Tibra failed to object

to the sentence as pronounced in the district court, we review his challenge for plain error only. S ee

United States v. Maldonado , 42 F.3d 906, 909-12 (5th Cir. 1995).

At sentencing, the district court stated:

Although you do not have the abilit y to pay a fine and I waive the fine

. . . I do order

that 50 percent of any of the earnings that you are able to earn in prison

. . . must be

sent to your family to help care for your children.

The court then ordered that Aguirre-Tibra be housed in a facilit y close to Houston, but then

recognized that it could not “order” such a provision, but only “recommend” it. The court’s written

judgment explicitly states that the both the garnishment and the housing provisions of the sentence

were “recommendations to the Bureau of Prisons.”

As a general rule, when a written sentence is in conflict with the oral pronouncement, the oral

pronouncement controls. See Scott v. United States

, 434 F.2d 11, 20 (5th Cir. 1970). However, it

is the district court’s intention that ultimately determines the final judgment. See United States v.

Kindrick

, 576 F.2d 675, 677 (5th Cir. 1978). Thus, if instead of a conflict, there is merely an

ambiguity between the two sentences, the entire record must be examined in order to ascertain the

district court’s true intent. See Scott , 434 F.2d at 20.

At the sentencing hearing, the judge, after ordering that fifty-percent of Aguirre-Tibra’s prison

earnings be sent to his family, started to order that Aguirre-Tibra be designated to a certain facilit y.

He then corrected himself, acknowledging the court’s lim it ed ability to “order” conditions of-14-

imp risonment. The court’s written judgment recommended to the BOP that (1) half of AguirreTibra’s institutional earnings be garnished and forwarded to his family and (2) Aguirre-Tibra be sent

to a facilit

y as close to Houston as possible. Taken as a whole, t he evidence supports the

government’s argument that the court intended the garnishment of funds as a recommendation rather

than an order. This recommendation was not binding upon the BOP, and, accordingly, it is not an

order from which Aguirre-Tibra can appeal. S ee United States v. Pineyro

, 112 F.3d 43, 45 (2d Cir.

1997) (holding that “non-binding recommendation does not fit within the class of final orders

appealable either under 28 U.S.C. § 1291 (final decisions of district courts) or 18 U.S.C. § 3742 (final

sentencing orders)”). The sentence imposed by the district court is therefore affirmed.

IV

For the reasons set out abo ve, we find that the district court properly denied De La PenaJuarez’s motion to dismiss his indictment, and his guilty-plea conviction based upon this indictment

is AFFIRMED (Docket No. 98-41565). We also AFFIRM the district court’s (1) denial of AguirreTibra’s motion to dismiss his indictment and (2) garnishment of Aguirre-Tibra’s prison earnings

(Docket No. 99-20479).