Unpublished Disposition, 852 F.2d 1290 (9th Cir. 1987)

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U.S. Court of Appeals for the Ninth Circuit - 852 F.2d 1290 (9th Cir. 1987)

No. 87-1347.

United States Court of Appeals, Ninth Circuit.

Before SCHROEDER and WIGGINS, Circuit Judges, and ALBERT LEE STEPHENS, Jr.,**  District Judge.

MEMORANDUM* 

Elias Rodriguez-Delgado appeals his jury conviction under 8 U.S.C. § 1326, being a deported alien found in the United States. He contends that the Government violated the speedy trial provision of the Interstate Agreement on Detainers Act (IADA) and that the district court abused its discretion in denying his request for an evidentiary hearing. We affirm.

While Rodriguez-Delgado was incarcerated for possession of heroin, the INS discovered that he was an illegal alien. The INS lodged an immigration detainer on October 10, 1986, but did not issue an order to show cause until July 9, 1987. Rodriguez-Delgado was released from prison on July 16, 1987, and was turned over to the INS. He was indicted on July 24, 1987.

Rodriguez-Delgado contends that the Government violated the IADA by waiting until he had finished his prison term before filing criminal charges against him. The IADA requires a speedy trial within 180 days. The IADA provides, in relevant part:

Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party State, and whenever during the continuance of the term of imprisonment there is pending in any other party State any untried indictment, information, or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred and eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information, or complaint....

18 U.S.C. app. Sec. 2.

In United States v. Bottoms, we addressed an analogous situation, concluding that the speedy trial provision of the IADA did not apply. 755 F.2d 1349 (9th Cir. 1985). In Bottoms, a United States Marshal filed a formal detainer against an incarcerated felon, based upon an arrest warrant. Five months later, the Marshal brought an indictment. The defendant alleged that he had been denied his speedy trial rights under the IADA. We rejected the defendant's argument.

[T]he statutory language does not apply to someone in [the defendant's] situation. While he was subject to detainers, they were not detainers as the word is defined in the Act. Article I of the IADA refers to "detainers based on untried indictments, informations, or complaints." [citation omitted] It is clear that during the period prior to March 1984, the detainers were not supported by any indictment or information, or by any "complaint" as that word is defined in Fed. R. Crim. P. 3. He was being detained by virtue of the arrest warrant and the Marshal's advice reciting the authority of that warrant. Once he was indicted, he was brought to trial within the time required by the Act.

Id. at 1350. There was no untried indictment, information, or complaint in this case, and therefore under our Bottoms precedent, the speedy trial provision of the IADA does not apply.

Rodriguez-Delgado's remaining argument is that the district court abused its discretion in denying his request for an evidentiary hearing. He contends that the Government knowingly and deliberately waited before filing criminal charges, pursuant to a policy designed to evade the speedy trial requirements of the IADA. Since this detainer was not subject to the IADA's speedy trial provisions, such an evidentiary hearing was unnecessary.

AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 **

Honorable Albert Lee Stephens, Jr., Senior U.S. District Judge for the Central District of California, sitting by designation