2003 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-18-2003

USA v. Dyer

Precedential or Non-Precedential: Precedential

Docket 02-1046

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Recommended Citation

"USA v. Dyer" (2003). 2003 Decisions. Paper 578.

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PRECEDENTIAL

Filed April 18, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 02-1046

UNITED STATES OF AMERICA

v.

WINSTON DYER,

Appellant

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Criminal Action No. 00-cr-00702-1)

District Judge: Honorable Robert F. Kelly

Argued on January 14, 2003

Before: ROTH, FUENTES and ALDISERT, Circuit Judges

(Opinion filed April 18, 2003)

Robert A. Zauzmer, Esquire (Argued)

Floyd J. Miller, Esquire

615 Chestnut Street, Suite 1250

Philadelphia, PA 19106

Counsel for Appellee

Robert Epstein, Esquire (Argued)

Federal Court Division

Curtis Center, Independence

Square West, Suite 540 West

Philadelphia, PA 191076

Counsel for Appellant
OPINION OF THE COURT

ROTH, Circuit Judge:

Defendant Winston Dyer appeals his judgment of

conviction for unlawful reentry into the United States after

a previous deportation in violation of 8 U.S.C. § 1326. He

argues that the District Court erred in denying his motion

to dismiss the indictment under the Speedy Trial Act, 18

U.S.C. § 3161(b) and Fed. R. Crim. P. 5(a), and in failing to

indicate the reasons for its denial of his request for a

downward departure. For the reasons stated below, we will

affirm. 

I. Facts and Procedural History

Dyer, a Jamaican national, legally entered the United

States on December 15, 1987. In 1988, he was arrested by

the Philadelphia Police Department with sixty-one packets

of cocaine, a small amount of marijuana, and a firearm.

Following conviction, the Court of Common Pleas of

Philadelphia County sentenced Dyer on September 18,

1989, to two to four years imprisonment for delivery of a

controlled substance (cocaine), and two years probation for

simple assault. On January 25, 1992, as a result of this

conviction, the Immigration and Naturalization Service (INS)

ordered Dyer deported. Dyer was deported and

subsequently reentered the United States without

permission from the United States Attorney General. 

On October 18, 2000, INS Special Agent Patrick McCall

encountered Dyer at 6404 Rising Sun Avenue in

Philadelphia. Agent McCall was at that address with a

member of the Baltimore City Police Department to arrest

a female Jamaican national in a matter not involving Dyer.

Upon entering the building, Agent McCall encountered

Dyer, along with another Jamaican national, in the

basement. Agent McCall identified himself as a special

agent with the INS and asked Dyer about his citizenship.

Dyer responded that he was a citizen of Jamaica and

provided Agent McCall with an alien registration card. A

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computer verification check of the card revealed that Dyer

had previously been deported because of a drug

distribution conviction. Dyer admitted the deportation and

the drug conviction. Dyer also admitted a marijuana

conviction. Agent McCall presented Dyer with a

Reinstatement of Deportation Notice, which reinstated his

former warrant of deportation. According to Agent McCall,

Dyer was taken into custody for two reasons. First, Dyer

admitted that he was currently on probation in the City of

Philadelphia for a marijuana conviction, a status which

would make him deportable. Second, the INS duty agent

informed Agent McCall that Dyer had a conviction in the

City of Philadelphia for delivery of cocaine for which he had

served one to three years. 

The following day, October 19, Agent McCall contacted

the United States Attorney’s Office “[f]or criminal

prosecution for reentry after deportation.” The United

States Attorney’s Office did not respond to Agent McCall

until October 24. On October 25, Agent McCall compared

the fingerprints of the individual sentenced on September

18, 1989, for delivery of a controlled substance with the

fingerprints obtained from Dyer on October 18. The result

of the comparison convinced Agent McCall that Dyer was

the same individual who previously had been convicted of

cocaine distribution. On October 26, Agent McCall obtained

a Certificate of Nonexistence of Records, which showed no

record that Dyer had ever applied to the United States

Attorney General for permission to reenter the United

States following his initial deportation. In a report dated

November 2, Agent McCall recommended that Dyer be

prosecuted for illegal reentry. On November 3, the United

States Attorney’s Office accepted the case for prosecution.

Dyer was indicted on November 28, 2000, for illegal

reentry after deportation without the Attorney General’s

permission in violation of 8 U.S.C. § 1326. Dyer moved to

dismiss the indictment pursuant to the Speedy Trial Act.

The District Court held a hearing, at which Agent McCall

testified that an individual who illegally reenters the United

States can be either prosecuted or deported without

prosecution. While most illegal reentry cases are

prosecuted, some are not, usually because paperwork was

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not properly filed or documents are missing from the file.

Agent McCall testified that he handles criminal and

administrative matters at INS and that there is a separate

deportation section. When an illegal reentrant is deported

without prosecution, the deportation section, not the

criminal and administrative section, arranges the

deportation. 

Agent McCall testified at the Speedy Trial Act hearing

that, once Dyer was taken into custody, the deportation

section was notified. Before the deportation section could

deport Dyer, it had to contact the Jamaican consulate in

order to obtain travel documents. Agent McCall testified

that he was aware that it typically takes six months to

deport someone to Jamaica. However, he was not familiar

with the procedures followed by the deportation section,

and, while he was investigating whether to recommend

criminal prosecution or deportation without prosecution, he

did not know what steps, if any, the deportation section

was taking to arrange for Dyer’s deportation. 

Agent McCall admitted that, at some time subsequent to

the filing of the indictment, he became aware that the

deportation section never obtained travel documents

because this case became a criminal matter. On redirect

examination, the following exchange occurred: 

Q Okay. And the reason those documents were never

requested by the INS is because this was a criminal

matter that would then later on after the

completion of a sentence or prosecution, then you

would initiate the deportation procedure by asking

for those papers, correct?

A Correct. 

Q And that hasn’t been done because this is a

criminal matter?

A Yes. 

****

The Court: Do you know that those documents

weren’t requested?

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The Witness: Yes, Your Honor. He has not been

formerly presented to the Jamaican

consulate for travel documents.

Agent McCall also admitted that, shortly after taking

Dyer into custody, he subjectively came to believe that this

case was a criminal matter. Agent McCall testified that,

while he intended that Dyer be deported at the time he gave

Dyer the Reinstatement of Deportation Notice, by the

following day, he considered this case a criminal matter.

During redirect examination by Dyer’s attorney, the

following exchange took place: 

Q And [this case] has always in your mind been a

criminal matter?

A It was a criminal matter on October 19th when I

presented it to the U.S. Attorney’s Office. 

However, even though Agent McCall had subjectively

thought this case might be a criminal matter since October

19, 2000, the case did not actually become a criminal

matter until later. Agent McCall testified that “I thought it

was a criminal matter [shortly after Dyer was taken into

custody, but] it didn’t become a criminal matter until all

the elements were received, one of which was the

certification, no permission to reenter the United States,

which I received on the 26th of October.” 

Following the Speedy Trial Act hearing, the District Court

denied the motion to dismiss. Dyer pled guilty but expressly

reserved the right to appeal the District Court’s denial of

his Speedy Trial Act motion. 

On January 4, 2002, Dyer was sentenced to 41 months

imprisonment, which is at the bottom of the U.S.

Sentencing Guidelines range. At sentencing, Dyer’s attorney

made the following statement on Dyer’s behalf:

He received a conviction a dozen years ago and he

came back in the country to work in a legal sense. He

was here illegally, but he was working in a legal sense.

It’s something that the Court may consider, whether

this case falls within the heartland of whether or not

these laws were appropriate to Mr. Dyer, the ones that

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are so — in his sense they seem draconian because he

comes back here to work and not to conduct himself in

an illegal manner, and that’s why he’s getting a

sentence which is 200 percent greater than would

otherwise be received, because we don’t want people

[to] come in here and ply in illegal trade.

But Mr. Dyer was not here to ply in illegal trade. He

was here to work, albeit he was here illegally. I think

that the Court should take that into consideration

when sentencing, and if the Court did find that it was

outside of the heartland of cases that we wish to

approach with this 200 percent increase, I believe the

Court is able to fashion a sentence below those

Guidelines. 

If the Court does not decide to do that, we would

certainly ask the Court to sentence Mr. Dyer to at least

at the bottom of the Guidelines, which is 41 months. 

When Dyer addressed the sentencing judge directly, he

stated that he thought he could return to the United States

four or five years after his deportation. The sentencing

judge then imposed sentence, without addressing the

appropriateness of a downward departure. Dyer did not

object at the sentencing hearing to the judge’s failure to

address the issue of departure. Dyer timely filed a notice of

appeal.

II. Jurisdiction and Standard of Review 

The District Court had jurisdiction over this criminal case

involving offenses against the laws of the United States

pursuant to 18 U.S.C. § 3231. We have jurisdiction under

28 U.S.C. § 1291. The District Court’s construction of the

statutory provisions of the Speedy Trial Act and Rule 5(a)

are subject to plenary review. We review the District Court’s

conclusions of fact for clear error. United States v. Lattany,

982 F.2d 866, 870 (3d Cir. 1992). As for the failure to

address the downward departure, which was not objected

to, we review unpreserved challenges for plain error. See

e.g. United States v. Vonn, 535 U.S. 55 (2002). 

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III. Discussion

A. Speedy Trial Act

The Speedy Trial 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 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 Speedy Trial Act requires the dismissal of charges

in the complaint, with or without prejudice. 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

offense, no indictment or information is filed within the

time 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.”); see also United States v. Oliver,

238 F.3d 471, 473 (3d Cir. 2001). 

In this case, Agent McCall took Dyer into custody

pursuant to civil authority. It is undisputed that Agent

McCall came across Dyer by chance, while investigating an

unrelated matter. He was not acting pursuant to an arrest

warrant when he arrested Dyer, and he did not intend to

arrest him when he went to 6404 Rising Sun Avenue.

Rather, when Agent McCall took Dyer into custody, he gave

Dyer a Reinstatement of Deportation Notice, which

indicated that Agent McCall was detaining Dyer pursuant

to civil authority. This Court has not addressed the issue of

whether a civil detention triggers the Speedy Trial Act’s

thirty day time limit. According to the language of the Act,

it applies only to an indictment issued in connection with

the “offense” for which the defendant was “arrested.” 18

U.S.C. § 3161(a)(1). The Act defines “offense” as a criminal

offense. 18 U.S.C. § 3172(2). For that reason, we will follow

the other Courts of Appeals that have considered the issue

and hold that a civil detention, including INS civil

detention, does not trigger the Speedy Trial Act’s thirty day

time limit. See United States v. Garcia-Martinez, 254 F.3d

16, 19 (1st Cir. 2001); United States v. De La Pena-Juarez,

214 F.3d 594, 597 (5th Cir.), cert. denied, 531 U.S. 983

(2000); United States v. Grajales-Montoya, 117 F.3d 356,

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366 (8th Cir.), cert. denied, 522 U.S. 1007 (1997); United

States v. Cepeda-Luna, 989 F.2d 353, 355-56 (9th Cir.

1993); United States v. Noel, 231 F.3d 833, 836 (11th Cir.

2000), cert. denied, 531 U.S. 1200 (2001). 

Dyer does not contest that civil detention by the INS

generally does not trigger the Speedy Trial Act’s thirty day

time limit or that he was taken into custody pursuant to

civil authority. Rather, he argues that, in this case, the

Speedy Trial Act’s time limit began to run when the INS

took him into custody under the “ruse exception”

recognized by some Courts of Appeals. See Garcia-Martinez,

254 F.3d at 20; De La Pena-Juarez, 214 F.3d at 598-99;

Cepeda-Luna, 989 F.2d at 357-58; Noel, 231 F.3d at 836.

We do not at this time need to decide whether to recognize

the ruse exception. Even if we were to conclude that the

exception is a valid one, Dyer has not shown that he would

be entitled to invoke it under the circumstances of this

case. See Grajales-Montoya, 117 F.3d at 366 (declining to

reach the issue of whether to recognize the ruse exception

because a defendant clearly did not qualify for the

exception). 

Under the ruse exception, a civil detention triggers the

Speedy Trial Act’s time limit when federal criminal officials

collude with civil authorities to detain an individual

pending criminal charges, such that the primary or

exclusive purpose of civil detention is to hold the individual

for future prosecution. See Garcia-Martinez, 254 F.3d at 20;

De La Pena-Juarez, 214 F.3d at 598-99; Grajales-Montoya,

117 F.3d at 366; Cepeda-Luna, 989 F.2d at 357-58; Noel,

231 F.3d at 836. Dyer cites District Court cases which

suggest that the ruse exception applies when the INS holds

an illegal reentrant while it investigates and decides

whether the reentrant should be prosecuted or deported

without prosecution. See United States v. Vasquez-Escobar,

30 F. Supp. 2d 1364, 1367 (M.D. Fla. 1998); United States

v. Pena, 73 F. Supp. 2d 56, 59 (D. Mass. 1999); United

States v. Okuda, 675 F. Supp. 1552, 1554-55 (D. Haw.

1987); United States v. Osunde, 638 F. Supp. 171, 174

(N.D. Cal. 1986). However, subsequent cases from the

Courts of Appeals make it clear that the Speedy Trial Act’s

time limit is not triggered by the fact that the INS is

8
conducting a reasonable investigation in order to decide

whether the reentrant should be prosecuted or deported

without prosecution. Garcia-Martinez, 254 F.3d at 19-20;

United States v. Drummond, 240 F.3d 1333, 1336 (11th Cir.

2001). 

In this case, Agent McCall conducted a prompt

investigation to determine whether Dyer should be

prosecuted or deported without prosecution. The day after

taking Dyer into custody, Agent McCall contacted the

United States Attorney’s Office to inform officials there that

Dyer might be eligible for prosecution for reentry after

deportation. Within a week of detention, Agent McCall had

determined, based on a fingerprint comparison, that Dyer

had been convicted of a drug distribution crime and

deported for that crime. The following day, Agent McCall

obtained a Certificate of Nonexistence of Records, which

showed no record that Dyer had ever applied to the United

States Attorney General to reenter the United States. It was

only at this point, according to Agent McCall’s testimony,

that there was a sufficient basis to conclude that Dyer

could be prosecuted for illegal reentry. The following week,

on November 2, Agent McCall prepared a report

recommending that Dyer be prosecuted for illegal reentry.

The day after Agent McCall prepared this report, the United

States Attorney’s Office accepted the case for prosecution.

Dyer was indicted on November 28. Thus, within 15 days of

taking Dyer into civil detention, the INS came to the

conclusion that there was a sufficient basis to prosecute

rather than deport him; within 16 days of civil detention,

the United States Attorney’s Office accepted the case for

prosecution; and within 41 days of civil detention Dyer was

indicted. We conclude that this prompt handling of Dyer’s

case by Agent McCall would not invoke the ruse exception

even if we were to adopt it. See Noel, 231 F.3d at 837

(holding that the passage of 39 days from the date of civil

detention to indictment did not suggest that the detention

was a ruse).1

1. Dyer argues that the INS did not need to conduct an investigation into

whether he should be prosecuted or deported without prosecution

because he confessed that he had illegally reentered the country when

9
Dyer makes much of the fact that Agent McCall contacted

the United States Attorney’s Office the day after Dyer was

in custody to inform the United States Attorney’s Office that

Dyer might be subject to criminal prosecution. However,

“the fact that federal [criminal law enforcement] officials are

aware of, and perhaps slightly involved in, the deportation

proceedings . . . would not establish, as a matter of law, the

requisite collusion.” Grajales-Montoya, 117 F.3d at 366-67;

see also De La Pena-Juarez, 214 F.3d at 600 (“The fact that

federal criminal authorities might have known about [a

person]’s detention . . . does not necessarily support a

conclusion that they colluded with the INS to detain” that

person); Garcia-Martinez, 254 F.3d at 18, 20 (holding that

there was no evidence of collusion, or that the sole or

primary purpose of detention was to prepare for criminal

prosecution, even though INS officials contacted the United

States Attorney’s Office to refer a case for criminal

prosecution more than thirty days prior to the issuing of an

indictment). 

Nor does the fact that Agent McCall subjectively believed

that this could be a criminal matter when he contacted the

United States Attorney’s Office qualify this case for the ruse

exception. In United States v. Seals, the Court of Appeals

for the District of Columbia recognized that the Speedy

Trial Act’s time limit is not triggered because an

investigating official contemplates filing federal criminal

charges against a person who is in a type of detention that

does not otherwise trigger the Speedy Trial Act’s time limit.

See 130 F.3d 451, 455 (D.C. Cir. 1998) (holding that the

Speedy Trial Act’s time limit is not triggered when a person

is taken into state custody, and the fact that federal

officials involved in the state arrest intended to bring

federal charges did not qualify the state detention for the

ruse exception articulated in Cepeda-Luna). 

Agent McCall took him into custody. However, this confession was not a

sufficient basis upon which to decide whether Dyer should be prosecuted

or deported without prosecution, and it was more than reasonable for

Agent McCall to verify Dyer’s claims. See Garcia-Martinez, 254 F.3d at

20 (holding that INS investigators acted with reasonable diligence by

verifying information contained in a computer database, which could

have been erroneous). 

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In summary, because Dyer’s initial detention by Agent

McCall was civil, not criminal, the Speedy Trial Act was not

implicated during the period that Dyer was in INS custody.

We need look no further.

B. Federal Rule of Criminal Procedure 5(a)

Moreover, since Dyer was under civil detention rather

than criminal arrest, his claim that the government violated

Fed. R. Crim. P. 5(a) by not bringing him before a

Magistrate Judge within a reasonable time of his detention

lacks merit. Fed. R. Crim. P. 5(a) requires that a defendant

who is arrested be brought before a Magistrate Judge

“without unnecessary delay.” However, Fed. R. Crim. P. 5(a)

only applies to criminal arrests, it does not apply to INS

civil detention. See Cepeda-Luna, 989 F.2d at 358; see also

United States v. Tejada, 255 F.3d 1, 3-4 (1st Cir.), cert.

denied, 534 U.S. 1068 (2001). In this case, as discussed

above, Agent McCall placed Dyer under INS civil detention,

not criminal arrest, on October 18. Dyer was not under

criminal arrest prior to his indictment. Thus, a preliminary

hearing pursuant to Fed. R. Crim. P. 5(a) was not required

because “the purpose of a preliminary hearing [pursuant to

Fed. R. Crim. P. 5(a)] is to afford an arrested person a

prompt determination as to whether there is probable cause

to hold him for grand jury action. . . . This purpose is

served, and the hearing rendered unnecessary, by the

return of an indictment.” United States v. Dorsey, 462 F.2d

361, 363 (3d Cir. 1972) (quotation omitted).2

C. Downward Departure Motion

Dyer claims that this case is not within the heartland of

the United States Sentencing Guidelines for the offense of

illegal reentry because he had reentered the United States

2. Further, even if the government had violated Fed. R. Crim. P. 5(a), the

remedy for such a violation is not dismissal of the indictment. Rather,

since the provisions of Fed. R. Civ. P. 5(a) are procedural, not

substantive, “the sanction imposed by federal courts for failure to comply

with Rule 5(a) is suppression of statements taken during the period of

‘unnecessary delay.’ ” Govt. of the Virgin Islands v. Gereau, 502 F.2d 914,

923 n. 5 (3d Cir. 1974). In the present case, Dyer does not seek to

suppress any incriminating statements, so this remedy would be

inapplicable. 

11
to obtain legal employment and he thought he could reenter

legally after four or five years from his deportation. As an

initial matter, Dyer did not formally move for a departure.

At sentencing, Dyer’s attorney stated that:

I think that the Court should take [the fact that this

case was outside the heartland] into consideration

when sentencing, and if the Court did find that it was

outside of the heartland of cases . . . , I believe the

Court is able to fashion a sentence below those

Guidelines. If the Court does not decide to do that, we

would certainly ask the Court to sentence Mr. Dyer to

at least the bottom of the Guidelines . . . . 

While his attorney did not use the “magic words” downward

departure, he clearly was requesting such a departure.

United States v. Brannan, 74 F.3d 448, 452 (3d Cir. 1996).

Dyer’s attorney did not, however, object when the District

Court sentenced Dyer without making any reference to the

request for departure. 

Under these circumstances, there is no need to remand

for clarification of the District Court’s basis for denying this

motion, even though the District Court did not indicate

why, in effect, it did so. It is evident from the language of

8 U.S.C. § 1326 that the motive of the illegal entrant in

reentering is irrelevant to the commission of the offense. We

surmise that few illegal reentrants would admit that they

reentered for any purpose other than a legal one. Indeed, a

legal purpose for an illegal reentry has been held to be

insufficient to warrant a downward departure. See United

States v. Abreu-Cabrera, 64 F.3d 67, 76 (2d Cir. 1995)

(holding that defendant who returned illegally to visit his

family not entitled to a downward departure). Because it is

clear from the record that this case does not fall outside of

the heartland, no plain error was committed when the

District Court did not grant a downward departure. We do

not need to remand for further explanation. See United

States v. Mummert, 34 F.3d 201, 205 (3d Cir. 1994). 

IV. Conclusion

For the reasons stated above, the judgment of the District

Court will be affirmed.

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A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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