United States v. Asfour

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 8, 2017
• Docket: 16-6231
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT December 8, 2017 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 16-6231 v. (D.C. No. 5:15-CR-00246-R-2) (W.D. Okla.) PATRICK SAMIR ASFOUR,

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before HARTZ, PHILLIPS, and MORITZ, Circuit Judges. _________________________________

Defendant Patrick Samir Asfour claims that he was denied his rights under the

federal Speedy Trial Act. His problems began when he and a companion were driving

their two vehicles on an interstate highway. A traffic stop by the Oklahoma Highway

Patrol (OHP) led to the discovery of firearms and drugs in the companion’s vehicle. The

two drivers were arrested and placed in county jail. A few days later an information was

filed in state court charging them with eight violations of Oklahoma law. The state

preliminary hearing was postponed or continued multiple times until finally, nine months

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. after the traffic stop, the two men were indicted in the United States District Court for the

Western District of Oklahoma.

Under the Speedy Trial Act a federal arrestee must be charged by federal

indictment or information within 30 days of arrest. See 18 U.S.C. § 3161(b). Defendant

moved in federal court to dismiss the indictment against him for failure to comply with

that requirement, arguing that his true federal arrest occurred at the time of the traffic

stop. He contended that the state arrest and confinement were merely a ruse to avoid the

30-day requirement and give federal authorities extra time to pressure the drivers to

cooperate with the prosecution. After an evidentiary hearing the district court denied the

motion, ruling that Defendant had not shown a ruse. Defendant then entered into a plea

bargain, agreeing to plead guilty to three counts of the indictment but reserving the right

to appeal his motion to dismiss. Exercising jurisdiction under 28 U.S.C. § 1291, we hold

that his appeal is without merit. The district court did not abuse its discretion in denying

Defendant’s motion.

I. BACKGROUND

On January 30, 2015, Defendant and Ben Issa Saoud were driving on Interstate 40 in

separate vehicles. Katelyn Worstell, a pregnant 18-year old woman, was riding with

Defendant. When OHP Trooper Clint Painter attempted to pull Saoud over, Defendant’s

vehicle struck Painter’s patrol car. The government contends that Defendant

intentionally hit Painter’s vehicle to draw attention away from Saoud, as he was carrying

more than 100 pounds of marijuana and two firearms. After all three vehicles came to a

2 stop, another OHP trooper arrived to assist Painter, and they discovered the drugs and

guns in Saoud’s vehicle. Defendant, Saoud, and Worstell were arrested.

Sam Ward, a special agent with the federal Bureau of Alcohol, Tobacco, Firearms

and Explosives (ATF), and OHP Trooper Mark Dlugokinski, who had been assigned to a

federal Drug Enforcement Administration (DEA) task force, came to the scene to assist

with the investigation. Although Defendant characterizes Dlugokinski as a federal

officer, he testified otherwise and submitted an affidavit stating that his “parent agency”

is OHP and that his primary investigative priority remains with OHP, though he

coordinates with other agencies. R. Vol. 1 at 148. Ward testified that he became

involved in the investigation because one of the firearms was a short-barreled rifle,

possession of which violates federal law.

On the day of the arrest, Ward and Dlugokinski interviewed the three suspects

separately. Ward and Dlugokinski presented Defendant with an ATF Miranda-waiver

form, which he signed. Three days later Dlugokinski and another OHP trooper

interviewed Defendant, this time offering an OHP waiver form. During these interviews

Defendant and Worstell were advised of the federal charges and sentences they could be

facing; and on two occasions the other interviewer said that Dlugokinski was with the

DEA.

On February 4 the State of Oklahoma charged Defendant on eight counts,

including assault and battery with a deadly weapon, illegal possession of firearms,

trafficking in illegal drugs, and conspiracy to traffic in illegal drugs. There were

significant delays in the preliminary hearing. All counsel agreed on February 25 to

3 postpone the hearing until March 13. On March 13, Defendant agreed to reschedule the

hearing for April 10. On April 10 the prosecutor requested a continuance to assure the

appearance of a witness, and the court granted a continuance to June 5, over Defendant’s

objection. Some testimony was presented on June 5, but all parties agreed to continue the

hearing until July 31. On that date, Defendant requested a continuance because of

discovery issues and the court reset the hearing for October 9. The record before us is

silent on what happened regarding the preliminary hearing scheduled for October 9.

On November 18, Defendant was indicted in federal court. The state charges were

dismissed a week later. On January 7, 2016, Defendant moved to dismiss the indictment

for failure to comply with the Speedy Trial Act.

At the evidentiary hearing on the motion, Defendant argued that his state

prosecution was instigated by the federal government to avoid the Speedy Trial Act’s

requirements because it wanted to keep Defendant and Saoud in county jail for several

months to put pressure on them to cooperate, as evidenced by the delay in the preliminary

hearing. To support his claim, Defendant played audio recordings of Dlugokinski’s

interviews with Defendant and Worstell in which other officers identify him as a DEA

agent and the suspects are informed of potential federal charges and sentences.

In response, Dlugokinski clarified during the hearing that although he had worked

with a DEA task force since November 2011, he was an OHP trooper. He also explained

that in the interviews he used the long potential federal sentences as leverage to

encourage Defendant and Worstell to cooperate with the state investigation. And he

testified that his investigation was building a state case, not a federal case, until shortly

4 before the federal charges were brought. As for the delay of the preliminary hearing, the

government argued that Defendant agreed to most of the continuances and requested one

himself. It said that there was no actual evidence of collusion between state and federal

law enforcement to detain Defendant and Saoud in preparation for a federal prosecution.

The district court denied Defendant’s motion, finding “no evidence . . .

whatsoever” that the state prosecution was a ruse to hold Defendant for federal

prosecution to circumvent the Act. R., Vol. 1 at 193–94. In particular, it found that the

officers “were trying to use the potential of a federal prosecution as leverage to get

people to cooperate in the state prosecution . . . .” Id. at 194.

On February 23, Defendant pleaded guilty to three counts of the indictment—a

Travel Act crime of violence, see 18 U.S.C. § 1952(a)(2); possession of marijuana with

intent to distribute, see 21 U.S.C. § 841(a)(1); and carrying a firearm during and in

relation to a drug-trafficking crime, see 18 U.S.C. § 924(c)(1)(A). He was sentenced to

190 months’ imprisonment.

II. DISCUSSION

We review for abuse of discretion a district court’s denial of a motion to dismiss

for violation of the Speedy Trial Act. See United States v. Abdush-Shakur, 465 F.3d 458,

461 (10th Cir. 2006). This standard of review encompasses de novo review of the district

court’s compliance with the legal requirements of the Act and review for clear error of its

factual findings. See id.

The 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

5 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 charges

in the complaint must be dismissed, with or without prejudice. See id. at § 3162(a)(1).

The general rule is that “[a]n individual is ‘arrested’ under the Speedy Trial Act

only when he is taken into custody after a federal arrest for the purpose of responding to a

federal charge.” United States v. De La Pena-Juarez, 214 F.3d 594, 597 n.6 (5th Cir.

2000). Some courts, however, have recognized a “ruse” exception to the general rule

when a person is confined on grounds other than a federal criminal charge for the purpose

of avoiding the requirements of the Act. Many of these cases involve confinement by

immigration authorities. See, e.g., United States v. Garcia-Echaverria, 374 F.3d 440,

451–52 (6th Cir. 2004) (assuming without deciding that ruse exception would apply in

immigration context if there was collusion between immigration and criminal-

prosecution authorities, but facts did not support Speedy Trial Act violation); United

States v. Dyer, 325 F.3d 464, 468 (3d Cir. 2003) (describing ruse exception in

immigration context, but declining to decide whether to adopt it as facts did not

demonstrate ruse); De La Pena-Juarez, 214 F.3d at 598; United States v. Pena-Carrillo,

46 F.3d 879, 883 (9th Cir. 1995). A few have involved incarceration under state criminal

authority. See United States v. Benitez, 34 F.3d 1489, 1494 (9th Cir. 1994) (“The Speedy

Trial Act would lose all force if federal criminal authorities could arrange with state

authorities to have the state authorities detain a defendant until federal authorities are

ready to file criminal charges. For this reason, Speedy Trial Act time periods may be

triggered by state detentions that are merely a ruse to detain the defendant solely for the

6 purpose of bypassing the requirements of the Act.”); United States v. Woolfolk, 399 F.3d

590, 596, 596 n.7 (4th Cir. 2005) (state arrest could fall under Speedy Trial Act if “the

Government has knowledge that an individual is being held by state authorities solely to

answer to federal charges”). At least one circuit, however, apparently refused to apply

the exception in that context because of the independent sovereignty of the States. See

United States v. Alvarado-Linares, 698 F. Appx. 969, 974 (11th Cir. 2017) (rejecting

application of ruse exception to arrests or detentions under state law by state officials

“[b]ecause state authorities at all times held sovereign discretion as to how they

separately might handle their own prosecution or non-prosecution for state offenses”).

This circuit has yet to rule on whether there is a ruse exception for state arrests,

but we have adopted the ruse exception when the federal government civilly detains an

individual to avoid Speedy Trial Act requirements. See United States v. Pasillas-

Castanon, 525 F.3d 994, 997–98 (10th Cir. 2008) (alien held civilly by immigration

authorities). In that circumstance we held that “[t]he ruse exception is not easily

triggered.” Id. at 998. A defendant must “demonstrate[] that the primary or exclusive

purpose of a civil detention was to hold the defendant for future criminal prosecution.”

Id. Moreover, “[w]ithout evidence of wrongful collusion for [the purpose of holding a

defendant for future prosecution], the exception does not apply. In short, if the detaining

authorities have a lawful basis for their civil detention, a defendant is not entitled to

invoke the exception.” Id. (footnote omitted). Further, the defendant must prove bad

faith. See id. n.1. Assuming without deciding that we would adopt a ruse exception for

state arrests, defendants would need to meet this heavy burden of demonstrating that “the

7 primary or exclusive purpose of [the state detention] was to hold the defendant for future

[federal] prosecution” and that the state authorities did not have a “lawful basis for their

[state] detention.” Id.

The district court ruled that Defendant had not established the prerequisites for

application of the ruse exception, and we hold that its ruling was not an abuse of

discretion. Defendant contends that improper collusion between federal and state

officials was demonstrated by evidence that (1) federal agents were involved in the

investigation1; (2) his state prosecution was delayed for a number of months; and (3)

Defendant and Worstell were threatened with federal prosecution. We are not persuaded.

Cooperation between state and federal law-enforcement officers is a commonplace

that makes investigations more effective and efficient (the precise reason why a state

trooper would be assigned to a DEA task force). Cooperative investigations may result in

state prosecution or federal prosecution, depending on many considerations. Notably,

Defendant presents no evidence of involvement by federal prosecutors before the federal

indictment, although even evidence of such involvement would likely reflect just

prosecutorial cooperation rather than federal use of the state criminal-justice system as a

mere cat’s-paw. We have held that involvement of federal criminal law-enforcement

officers in immigration proceedings did not in itself trigger the ruse exception. See

1 In his appellate brief, Defendant also relies on Ward’s testimony at the pretrial detention hearing that he started “piecing the case together” after first interviewing Worstell months before federal charges were brought. R., Vol. 1 at 76–78. But this evidence was not presented to the district court as part of Defendant’s argument that the ruse exception applied, so we need not address it. 8 Pasillas-Castanon, 525 F.3d at 999; see also Benitez, 34 F.3d at 1493–95 (even when

state arrest was result of federal investigation and federal law-enforcement officers

detained defendants until state-law enforcement officers arrived to arrest them, district

court did not err in finding no ruse). In any event, Dlugokinski testified (and the district

court could credit) that the investigation was aimed at state charges until shortly before

Defendant’s federal indictment. See Benitez, 34 F.3d at 1495 (district court did not err in

relying on state prosecutor’s testimony that State had intended to prosecute defendants if

federal charges were not brought soon).

Nor do the delays in the state prosecution suggest that the state prosecution was

engineered by federal prosecutors. Of the nearly 10 months between Defendant’s arrest

and his federal indictment, less than two months of the continuances were over

Defendant’s objection, and more than two months (indeed, the final continuance) was at

Defendant’s request. There was no evidence of intentional stalling for any improper

purpose. The district court was hardly unreasonable in being unpersuaded that the delay

smacked of federal interference.

Finally, warnings about possible stiff federal sentences do not show that a decision

had been made to pursue federal prosecution. Dlugokinski gave a perfectly plausible

reason for telling the suspects of the federal charges and sentences that could be imposed.

It is not unheard of for investigators to try to induce cooperation by making the risks of

noncooperation look as severe as possible. The district court credited that reason, stating

that the officers “were trying to use the potential of a federal prosecution as leverage to

get people to cooperate in the state prosecution.” R., Vol. 1 at 193–94. See Pasillas-

9 Castanon, 525 F.3d at 998 (“The mere fact that the detaining authorities are aware other

potential criminal charges are available does not trigger the [ruse] exception.”).2

In short, the district court properly ruled that Defendant had failed to show that

“the primary or exclusive purpose of [the state detention] was to hold [Defendant] for

future [federal] criminal prosecution.” Pasillas-Castanon, 525 F.3d at 998. Even if we

were to adopt the ruse exception for state detention, Defendant would not be entitled to

relief.

III. CONCLUSION

We AFFIRM the judgment below.

Entered for the Court

Harris L Hartz Circuit Judge

2 The government also contends that Defendant failed to show that the state arrest was unlawful or in bad faith, which it argues are requirements for applying the ruse exception. The district court did not rely on either ground and we need not address them. 10