U.S. v. Perez-Perez

337 F.3d 990

UNITED STATES of America, Appellee v. Jose PEREZ-PEREZ, also known as Felix Zarate-Velazquez, Appellant.

No. 03-1459.

United States Court of Appeals, Eighth Circuit.

Submitted: June 11, 2003.

Filed: July 30, 2003.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Stephen Douglas Marso, argued, Des Moines, IA, for appellant.

Edwin F. Kelly, argued, Asst. U.S. Atty., Des Moines, IA (Andrew H. Kahl, Asst. U.S. Atty., on the brief), for appellee.

Before MORRIS SHEPPARD ARNOLD, HEANEY, and RILEY, Circuit Judges.

RILEY, Circuit Judge.

Jose Perez-Perez (Perez) entered a conditional guilty plea to illegal reentry following deportation, in violation of 8 U.S.C. § 1326(a). The district court¹ sentenced him to 46 months imprisonment. Perez appeals his conviction and sentence, arguing (1) all evidence of his identity should have been suppressed; (2) his constitutional and statutory rights to a speedy trial were violated; and (3) the statutory sentence enhancement based on his prior conviction violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We affirm.

I. BACKGROUND

On April 3, 2002, Perez was arrested during the execution of a search warrant at a business, Kora Fashions. Perez drove into the parking lot and the agents of the drug task force immediately took him inside. An Immigration and Naturalization Service (INS) agent, Jose Aponte (Aponte), informed Perez of his Miranda rights in Spanish and asked Perez questions. Perez incriminated himself by admitting his identity and legal status as an alien. Since Perez was taken into custody only because of his appearance outside a business during business hours, the district court held law enforcement did not have probable cause to arrest Perez, and his arrest was an illegal seizure under the Fourth Amendment.

Perez was held in the Polk County jail on state drug charges. On April 16, civil deportation proceedings began and Perez was in INS custody. Aponte determined Perez had been involved in a 1996 state forgery crime and informed state officials. Without the knowledge of the U.S. Attorney's Office, Perez was then returned to Polk County custody, where he was arraigned and later pled guilty to the forgery.

On April 24, a federal grand jury indicted Perez for illegal reentry following deportation. Because he was in state custody, Perez was not arraigned on the federal charge until July 11, 2002. After the district court denied Perez's motion to dismiss, and denied, in part, his motion to suppress identity evidence, Perez entered a conditional plea of guilty on November 1, 2002, and on February 7, 2003, was sentenced under 8 U.S.C. § 1326(a) and (b)(2).

II. DISCUSSION

A. Fourth Amendment — Identity Evidence

We will not reverse the district court's decision regarding a motion to suppress "unless it is not supported by substantial evidence on the record; it reflects an erroneous view of the applicable law; or upon review of the entire record, the appellate court is left with the definite and firm conviction that a mistake has been made." United States v. Layne, 973 F.2d 1417, 1420 (8th Cir.1992). On a motion to suppress, we review the district court's findings of fact for clear error; however, we review de novo the district court's ultimate legal conclusions drawn from the facts. United States v. Rodriguez-Arreola, 270 F.3d 611, 615 (8th Cir.2001).

The matter before us is a legal issue: whether the exclusionary rule requires suppression of identity evidence obtained after an unlawful arrest, even though such evidence was obtained as part of an unrelated legal proceeding. Perez argues all evidence of his identity discovered after his illegal arrest-during the deportation and unrelated state court proceedings-should be suppressed because of his illegal arrest and INS questioning. Although Perez does not challenge the legality of the state forgery charge and conviction, he argues the separate nature of the state proceeding did not act to dissipate the taint of the initial illegal arrest under the attenuation doctrine. The district court held all identity evidence which existed before Perez's arrest and all identity evidence obtained after the start of civil deportation proceedings was admissible because the evidence was not tainted by the unlawful arrest.

It is no surprise "[t]he `body' or identity of a defendant or respondent in a criminal or civil proceeding is never itself suppressible as a fruit of an unlawful arrest, even if it is conceded that an unlawful arrest, search, or interrogation occurred." INS v. Lopez-Mendoza, 468 U.S. 1032, 1039, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984). However, identity evidence, specifically fingerprints, taken as a fruit of a Fourth Amendment violation should be suppressed. United States v. Guevara-Martinez, 262 F.3d 751, 756 (8th Cir.2001). In Guevara-Martinez, we determined that since the fingerprints were taken during an illegal detention after the suspect talked to an INS agent, rather than part of routine booking, they should be suppressed. We noted, however, "untainted fingerprints" could be obtained in the civil deportation proceeding. Id. We refused to reverse the suppression, even though the untainted prints could be made at any time. Id.; see also Rodriguez-Arreola, 270 F.3d at 618-19 (prosecution may proceed with untainted evidence of identity).

Here, the civil deportation proceeding had already started, providing "untainted" identity evidence. Other untainted identity evidence existed from the state court proceedings. Thus, we affirm the district court's denial of Perez's motion to suppress the identity evidence obtained after the civil deportation proceedings began.

B. Speedy Trial

1. Speedy Trial Act

"In the context of the Speedy Trial Act, we review the district court's findings of fact for clear error and the district court's legal conclusions de novo." United States v. Van Someren, 118 F.3d 1214, 1216 (8th Cir.1997). "If a defendant is not brought to trial within the time limit required by section 3161(c) as extended by [the excluded delays of] section 3161(h), the information or indictment shall be dismissed on motion of the defendant." United States v. Blankenship, 67 F.3d 673, 675 (8th Cir.1995) (alteration in original) (quoting 18 U.S.C. § 3162(a)(2)). Essentially, a defendant's trial must occur within 70 days of his indictment or first appearance, whichever occurs later. 18 U.S.C § 3161(c)(1). However, certain periods of time may be excluded, including "delay resulting from trial with respect to other charges against the defendant." 18 U.S.C. § 3161(h)(1)(D); see United States v. Goodwin, 612 F.2d 1103, 1105 (8th Cir. 1980) (the period a defendant is "awaiting trial" in state court is excluded).

Perez was indicted for illegal reentry on April 24, 2002. Although Perez was not in attendance, his attorney appeared at the arraignment scheduled for April 26. The arraignment was continued when the district court learned Perez was in state custody. Perez argues the Speedy Trial Act was violated because the speedy trial clock began to run on April 26, and he was not tried by July 5, the 70th day thereafter. However, because Perez was in state custody, he was not arraigned on the federal charge on April 26. Perez was arraigned on the federal charge on July 11, 2002. Therefore, the speedy trial clock began to run on July 11, 2002, pursuant to § 3161(c)(1). Perez acknowledges no other potential violation occurred. Because we find no clear error in the determination of when Perez's arraignment occurred, and no legal error, we affirm the district court's denial of Perez's motion to dismiss the indictment based on a Speedy Trial Act violation.

2. Sixth Amendment

It is rare when the Sixth Amendment has been violated, but the Speedy Trial Act has not. See United States v. Sprouts, 282 F.3d 1037, 1042 (8th Cir.2002). The Supreme Court identified four factors to consider when applying a Sixth Amendment balancing test to a pretrial delay: the length of delay, the reason for delay, whether the defendant asserted the right to a speedy trial, and whether the defendant suffered any prejudice. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

"[T]he Sixth Amendment right to a speedy trial attaches at the time of arrest or indictment, whichever comes first, and continues until the trial commences," and no Sixth Amendment right to a speedy trial arises until charges are pending. Sprouts, 282 F.3d at 1042 (citation omitted). Perez argues "attachment" occurred on April 15, when the U.S. Attorney's office notified the INS of the imminent criminal prosecution. Alternatively, Perez argues attachment occurred either on April 16, when civil deportation proceedings began, or on April 24, when he was indicted.

A delay approaching one year may meet the threshold for presumptively prejudicial delay requiring a speedy trial inquiry. See Doggett v. United States, 505 U.S. 647, 652 n. 1, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992); United States v. Walker, 92 F.3d 714, 717 (8th Cir.1996) (37 month delay presumptively prejudicial); cf. United States v. Patterson, 140 F.3d 767, 772 (8th Cir.1998) (five-month period between detention and trial on drug charges, interrupted by pretrial motions, "was not sufficiently long to be presumptively prejudicial"); United States v. McFarland, 116 F.3d 316, 318 (8th Cir. 1997) (delay just over seven months did not trigger Sixth Amendment analysis). Perez argues the five-month delay between his arrest and the first trial date, September 3, shows presumptive prejudice because of the relatively simple aspects of a § 1326 case. We disagree. Five months is not a presumptively prejudicial delay; therefore, we need not examine the remaining three Barker elements. Doggett, 505 U.S. at 651-52, 112 S.Ct. 2686; Sprouts, 282 F.3d at 1043.

Nevertheless, we will respond to Perez's allegations of specific prejudice and intentional delay....