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United States v. Dyer

April 18, 2003

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

Before: Roth, Fuentes and Aldisert, Circuit Judges

The opinion of the court was delivered by: Roth, Circuit Judge

PRECEDENTIAL

Argued on January 14, 2003

OPINION OF THE COURT

Defendant Winston Dyer appeals his judgment of conviction for unlawful re-entry 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 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 re-entry 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 re-enter the United States following his initial deportation. In a report dated November 2, Agent McCall recommended that Dyer be prosecuted for illegal re-entry. On November 3, the United States Attorney's Office accepted the case for prosecution.

Dyer was indicted on November 28, 2000, for illegal re-entry 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 re-entry cases are prosecuted, some are not, usually because paperwork was 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 ...


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