1 Noel's motion relied on the Act's provision 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 such individual was arrested or served with a summons inconnection with such charges." 18 U.S.C. § 3161(b) (2000). UNITED STATES of America, Plaintiff-Appellee,

v. Fritz NOEL, a.k.a. Noel Fritz, Defendant-Appellant.
No. 00-10259 Non-Argument Calendar. United States Court of Appeals,
Eleventh Circuit.

Oct. 25, 2000. Appeal from the United States District Court for the Southern District of Florida. (No. 99-00273-CR-FAM), Federico A. Moreno, Judge. Before COX, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM: In this appeal, we consider, as a question of first impression in this circuit, whether a civil detention preceding deportation triggers rights under the Speedy Tr ial Act. The appeal also presents the question of whether the appellant's civil detention offended either Federal Rule of Criminal Procedure 5(a) or the due process clause of the Constitution. We answer all questions in the negative. Appellant Fritz Noel, a native and citizen of Ha iti, was deported from the United States in 1997 for having committed an aggravated felony. In 1998, No el illegally reentered the United States. Shortly thereafter, Noel began serving a sentence based on a nother conviction, and the Florida Department of Corrections notified the Immigration and Naturalizati on Service ("INS") that Noel was a deportable alien; the INS promptly lodged a detainer against him. On March 7, 1999, Noel was committed to the custodyof the INS pursuant to the detainer to begin deportation proceedings. On March 31, 1999, the INS c onfirmed Noel's prior deportation and reinstated his earlier deportation order. On April 15, 1999, a federal gr and jury returned an indictment charging Noel with illegally reentering the United States following deportation, in violation of 8 U.S.C. § 1326(a). Noel was arrested on April 22 and made his initial appearance befo re a magistrate judge that same day. Asserting a violation of the Speedy Trial Act, 18 U.S.C. §§ 3161-74, Noel moved to dismiss the indictment. 1 The districtcourt denied the motion and Noel entered a conditional guilty plea. On appeal, Noel challenges his indictment on the grounds that: (1) it violated his rights under the Speedy Trial Act; (2) it violated Federal Rule of Crim inal Procedure 5(a); and (3) it violated Noel's due process rights under the Fifth Amendment. When a Speedy Trial Act violation is alleged, we review the district court's factual findings for clear error and its legal conclusions de novo. See Yapp v. Reno, 26 F.3d 1562, 1565 (11th Cir.1994). We review legal questions concerning the Rules of Criminal Procedure and the
Constitution de novo. See United States v. Beach, 113 F.3d 188, 189 (11th Cir.1997) (rules of criminal procedure); United States v. Van De Walker, 141 F.3d 1451, 1452 (11th Cir.1998) (constitutional claims).
We conclude that none of Noel's claims have merit. First, Noel's indictment did not run afoul of the Speedy Trial Act. Noel bases his argument on the presumption that he was arrested on March 7, 1999, whenhis INS custody began. However, "the time period for the Speedy Trial Act should begin to run only after anindividual is 'accused,' either by an arrest and charge or by an indictment." United States v. Sayers, 698 F.2d 1128, 1131 (11th Cir.1983). Noel was not charged with violating 8 U.S.C. § 1326(a) until April 15; his initial appearance before a federal magistrate followed one week later on the date of his arrest, t hus Noel's Speedy Trial rights were not violated. See United States v. Reme, 738 F.2d 1156, 1162 (11th Cir.1984) (although defendant was detained by INS on October 21, the Speedy Trial Act was not triggered until the following July when defendant was served by the U.S. Marshal with a warrant issued pursuant to the indictment). In addition, because INS detentions preceding deportation are civil in nature, they do not trigger the Speedy Trial Act. Although this court has not had occasion to address this issue, all the circuit courts to do
so have reached the same conclusion. See United States v. De La Pena-Juarez, 214 F.3d 594, 598 (5th Cir.2000); 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). We now join these circuits in holding that the Speedy Trial Act does not apply to routine INS dete ntions incident to deportation. Although routine INS detentions incident to de portation do not trigger the Speedy Trial Act, a contrary result may be warranted when detentions are used by the government, not to effectuate deportation, but rather as "mere ruses to detain a defendant for later criminal prosecution." Cepeda-Luna, 989 F.2d at 357; see also De La Pena-Juarez, 214 F.3d at 598-99 (applying same exception); Grajales-Montoya, 117 F.3d at 366 (same); United States v. Restrepo, 59 F.Supp.2d 133, 137-38 (D.Mass.1999) (same); United Statesv. Vasquez-Escobar, 30 F.Supp.2d 1364, 1367-68 (M.D.Fla.1998) (same); United States v. Okuda, 675 F.Supp. 1552, 1554-55 (D.Haw.1987) (same). We agree with the Fifth Circuit's recent decision that this exception will provide protection for de tained aliens, but that the excepti on should only be applied when "the defendant demonstrates that the primary or exclusive pur pose of the civil detention was to hold him for future criminal prosecution." De La Pena-Juarez, 214 F.3d at 598. Noel has presented no evidence that his detention w as a ruse. What evidence there is suggests rather that the INS actively pursued deportation action against Noel during his custody. Noel's reliance on VasquezEscobar is therefore unavailing; in that case the governme nt conceded that it did nothing to advance the defendant's deportation during his lengthy detention. See30 F.Supp.2d at 1368. Because there is no evidence that Noel's detention served any purpose other than f acilitating his deportation, the passage of thirty-nine days from the beginning of his civil detention to the issuan ce of the indictment did not violate the Speedy Trial
Act. Nor did Noel's indictment violate Federal Rule of Criminal Procedure 5(a). That rule provides, in pertinent part, that "an officer making an arrest unde r a warrant issued upon a co mplaint ... shall take the arrested person without unnecessary delay before th e nearest available federal magistrate judge." Fed.R.Crim.P. 5(a). In this case, Noel was indicted on April 15, arrested and taken before a magistrate on April 22, and arraigned on April 27. There was no unn ecessary delay. To the extent Noel's argument is predicated on the premise that he was arrested on Ma rch 7 when the INS took custody of him, it must fail. As we stated earlier, detentions atte ndant to deportation proceedings are civil in nature; they do not implicate Rule 5(a), which only governs criminal arrests. See Cepeda-Luna, 989 F.2d at 358; United States v. Encarnacion, 56 F.Supp.2d 151, 155 (D.P.R.1999). Finally, Noel's indictment did not interfere withhis due process rights. Although aliens are protected under the Fifth Amendment's guarantee of due process, see Wong Wing v. United States, 163 U.S. 228, 238, 16 S.Ct. 977, 981, 41 L.Ed. 140 (1896), routine INS de tentions do not offend due process. Deportation detentions do not serve to punish those detained, but merely to facilitate the deportation process. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1038-39, 104 S.Ct. 3479, 3483, 82 L.Ed.2d 778 (1984). Noel concedes the propriety of detentions necessary to effectuate deportation, but he argues that those detentions rise to the level of punishment when they exceed th e time needed for that purpose. See Vasquez-Escobar, 30 F.Supp.2d at 1370. In Noel's case, however, there is no evidence th at the thirty-nine-day detention served any purpose2 Noel suggests that "[b]ased on the government's sim ilar actions in other recent cases, there appears to be a pattern or policy of holding arrestees ... for extens ive periods of time before bringing them to federal court for an initial appearance." Appellant's Br. at 19 n. 3. This statement, and the accompanying citation to cases, does not provide a sufficient basis for us to conclude that the INS's detention of Noel was punitive and violative of due process. In addition, th e district court noted that some of the delay was caused by Noel's promise to assist the INS by providing his Haitian passport, and the subsequent time taken to obtain it. other than effectuating his deportation, nor that the detention was longer than necessary. 2 For the above reasons, we AFFIRM the conviction.