Opposition Brief — Miguel Alvarado-Linares, Petitioner v. United States
Supreme Court briefMar 16, 2018
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No. 17-6116
________________________________________________________________
________________________________________________________________
IN THE SUPREME COURT OF THE UNITED STATES
_______________
MIGUEL ALVARADO-LINARES, PETITIONER
v.
UNITED STATES OF AMERICA
_______________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_______________
BRIEF FOR THE UNITED STATES IN OPPOSITION
_______________
NOEL J. FRANCISCO
Solicitor General
Counsel of Record
JOHN P. CRONAN
Principal Deputy Assistant
Attorney General
DAVID B. GOODHAND
Attorney
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
________________________________________________________________
________________________________________________________________
QUESTIONS PRESENTED
1.
Whether the district court correctly determined that the
indictment in this case sufficiently alleged that petitioner, a
member
of
the
international
MS-13
gang,
was
connected
court
correctly
to
a
racketeering enterprise.
2.
Whether
the
district
rejected
petitioner’s claim that his arrest and detention on state charges
should be treated as a federal arrest for purposes of the Speedy
Trial Act of 1974, 18 U.S.C. 3161(b).
(I)
IN THE SUPREME COURT OF THE UNITED STATES
_______________
No. 17-6116
MIGUEL ALVARADO-LINARES, PETITIONER
v.
UNITED STATES OF AMERICA
_______________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_______________
BRIEF FOR THE UNITED STATES IN OPPOSITION
_______________
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1-16) is not
published in the Federal Reporter but is reprinted at 698 Fed.
App’x 969.
The order of the district court denying petitioner’s
motions is not published in the Federal Supplement but is available
at 2012 WL 1632048.
JURISDICTION
The judgment of the court of appeals was entered on June 20,
2017.
15,
The petition for a writ of certiorari was filed on September
2017.
The
jurisdiction
28 U.S.C. 1254(1).
of
this
Court
is
invoked
under
2
STATEMENT
Following a jury trial in the United States District Court
for the Northern District of Georgia, petitioner was convicted of
conspiracy
under
the
Racketeer
Influenced
and
Corrupt
Organizations Act (RICO), with an enhancement for murder, in
violation of 18 U.S.C. 1962(d), two counts of murder in aid of
racketeering, in violation of 18 U.S.C. 2 and 1959(a)(1), two
counts of attempted murder in aid of racketeering, in violation of
18 U.S.C. 2 and 1959(a)(3), and four counts of using a firearm
during those four crimes of violence, in violation of 18 U.S.C. 2
and
924(c)(1).
imprisonment.
He
was
sentenced
Pet. App. 1-4 & n.1.
to
life
plus
85
years
of
The court of appeals affirmed.
Id. at 1-16.
1.
Petitioner was the leader of a local Mara Salvatrucha 13
(MS-13) affiliate (or “clique”) operating in the Atlanta area.
Pet. App. 2; Gov’t C.A. Br. 8-11.
“pool of ‘gang guns.’”
Pet. App. 2.
participated in two murders.
October
2006,
Petitioner’s clique shared a
petitioner
In addition, petitioner
Id. at 3; Gov’t C.A. Br. 11-13.
“directed
and
participated
in
In
the
execution-style murder of a fellow gang member” whom petitioner
suspected of being a police informant.
C.A. Br. 11-12.
Pet. App. 3; see Gov’t
In December 2006, petitioner “directed” another
gang member to commit a murder “as the price of being allowed to
leave” the MS-13 gang and selected the “rival gang member to be
murdered.”
Pet. App. 3; Gov’t C.A. Br. 12-13.
3
On
January
24,
2009,
state
law
enforcement
arrested
petitioner on a state murder warrant, and a local magistrate judge
ordered petitioner detained.
Pet. App. 8; Gov’t C.A. Br. 23.
On
October 27, 2009, a federal grand jury indicted petitioner on the
charge of possession of a firearm by an alien unlawfully in the
United States, in violation of 18 U.S.C. 922(g)(5).
Ibid.
State
authorities subsequently moved to dismiss the state murder charge.
Pet. App. 8; Gov’t C.A. Br. 23; D. Ct. Doc. 542, at 2 (May 13,
2011).
On
November
4,
2009,
federal
authorities
arrested
petitioner and took him into custody on the federal firearm charge,
and he was arraigned that same day.
Ibid.; see D. Ct. Doc. 627,
at 2 (Nov. 14, 2011).
On February 24, 2010, a federal grand jury in the Northern
District
of
petitioner
Georgia
and
25
returned
others,
a
separate
charging
them
stemming from their activities with MS-13.
Pet. App. 8.
indictment
with
violent
against
crimes
Gov’t C.A. Br. 23;
Specifically, the grand jury charged petitioner with
one count of RICO conspiracy, in violation of 18 U.S.C. 1962(d),
alleging (inter alia) that petitioner was a member of a criminal
organization
(the
MS-13
gang),
whose
members
“constituted
an
enterprise,” that is, “a group of individuals associated in fact,
the activities of which affected interstate and foreign commerce.”
D. Ct. Doc. 1, at 7-8 (Feb. 24, 2010).
The grand jury also charged
petitioner with three counts of aiding and abetting a violent crime
(murder)
in
aid
of
racketeering,
in
violation
of
18
U.S.C.
4
1959(a)(1) and (2); three counts of aiding and abetting the use
and carrying of a firearm during those murders, in violation of
18 U.S.C. 2, 924(c), and 924(j); four counts of aiding and abetting
a violent crime (attempted murder) in aid of racketeering, in
violation of 18 U.S.C. 2 and 1959(a)(5); and four counts of aiding
and abetting the use and carrying of a firearm during those
attempted murders, in violation of 18 U.S.C. 2 and 924(c).
C.A. Br. 4-6.
Gov’t
On March 5, 2010, the district court arraigned
petitioner on the superseding indictment, D. Ct. Doc. 627, at 2,
and dismissed the initial indictment’s charge of possession of a
firearm by an alien unlawfully in the United States, Gov’t C.A.
Br. 23.
2.
In advance of trial, petitioner moved to dismiss the
RICO conspiracy count, contending that the indictment failed to
“demonstrate
the
link
with
interstate
commerce
necessary
to
establish a federal crime.”
D. Ct. Doc. 377, at 24 (Sept. 3,
2010).
A
recommended
motion.
The magistrate judge found that the indictment adequately
magistrate
judge
denying
petitioner’s
alleged “that the underlying criminal acts affected interstate
commerce” and that petitioner and his co-defendants were “members
of a racketeering enterprise” and participated in a pattern of
racketeering activity, “including the commission of multiple acts
of murder, kidnapping, and robbery.”
D. Ct. Doc. 628, at 4 (Nov.
14, 2011). “[A]ll of [that], taken together,” the magistrate judge
determined, “state[d] a claim under RICO.” Ibid. He further noted
5
that petitioner could “raise this issue at trial or on appeal” if
the government failed to adduce sufficient evidence of an effect
on commerce.
Ibid.
The district court adopted the magistrate
judge’s recommendation.
Petitioner
D. Ct. Doc. 721, at 2 (May 8, 2012).
subsequently
moved
to
dismiss
the
indictment
against him in its entirety based on an alleged violation of the
Speedy Trial Act of 1974 (STA), 18 U.S.C. 3161(b).
542.
D. Ct. Doc.
Citing certain e-mail communications between state and
federal authorities, petitioner asserted that his state detention
was a “ruse” designed to bypass the STA’s requirement that an
indictment be filed within 30 days of a defendant’s federal arrest,
and that his federal arrest thus “functionally occurred” on the
date of his state arrest.
Id. at 6; see 18 U.S.C. 3161(b).
The
magistrate judge recommended that the district court deny this
motion as well.
the
D. Ct. Doc. 627.
correspondence
only
The magistrate judge found that
“show[ed]
that
the
state
law
enforcement authorities were aware that the federal authorities
were investigating; that federal charges against [petitioner] were
contemplated; and that, in the event of such charges, the state
charge would likely be dismissed.”
Id. at 3.
The magistrate judge
thus determined that petitioner had not demonstrated “substantial
or extensive involvement of the federal government in the state
murder
charges,”
let
alone
“that
the
state
charges
were
orchestrated by the federal government as a ruse for the purpose
of holding [him] pending the filing of its charges.”
Id. at 5.
6
The district court adopted the magistrate judge’s recommendation.
D. Ct. Doc. 721, at 1.
After a joint trial with several other individuals indicted
for MS-13 activities, the jury found petitioner guilty of RICO
conspiracy, two counts of murder in aid of racketeering, two counts
of attempted murder in aid of racketeering, and four counts of
using a firearm during those four crimes of violence.
Presentence
Investigation Report (PSR) ¶ 40; Pet. App. 3-4. The district court
sentenced petitioner to concurrent life sentences on each of the
conspiracy and murder counts; concurrent 20-year sentences on the
attempted murder counts; and four terms of years on the remaining
counts, to be served consecutively to each other and to all other
sentences.
3.
Pet. App. 3-4 & nn. 1-2.
The court of appeals affirmed in an unpublished per
curiam opinion.
Pet. App. 1-16.
“Having reviewed the detailed and extensive indictment,” the
court of appeals found “wholly without merit” petitioner’s claims
that the indictment failed (a) “to allege facts that could support
the
existence
demonstrating
of
a
an
‘association
in
fact’
RICO
enterprise”;
and
(b)
substantial effect on interstate commerce.”
for
“to
purposes
of
demonstrate
a
Pet. App. 7.
The court of appeals also rejected petitioner’s STA claim,
noting that “[i]t is long and well-settled in this Circuit that,
notwithstanding
any
coordination
between
state
and
federal
officials, the time within which federal authorities must indict
7
a defendant under the Speedy Trial Act is measured by the date of
the federal arrest, not any state arrest.”
Pet. App. 9.
Although
the court noted that it had recognized “the possibility of a narrow
‘ruse’ exception,” it emphasized that the exception would be
“limited to a situation in which federal immigration officials
detain an immigrant ostensibly to remove him from the country,
while in reality they actually hold him solely for the purpose of
bringing federal criminal charges.”
petitioner’s
case
presented
a
Ibid.
different
It observed that
situation,
involving
“state confinement on state charges followed by federal arrest and
indictment on federal charges.”
Id. at 10.
“Because state
authorities at all times held sovereign discretion as to how they
separately might handle their own prosecution or non-prosecution
for state offenses,” the court reasoned, “it was not error to deny
relief as to this issue.”
Ibid.
Finally, the court determined
that the district court did not abuse its discretion in denying
petitioner an evidentiary hearing on the STA claim “given the
strength of the government’s position.”
Ibid.
ARGUMENT
Petitioner contends (Pet. 17-31) that the district court
erred in denying his two motions to dismiss.
correctly
rejected
those
factbound
The court of appeals
contentions.
Petitioner
asserts no conflict in the circuits, but instead alleges only an
error on the facts of his particular case.
warranted.
See Sup. Ct. R. 10.
No further review is
8
1.
Although he does not challenge the sufficiency of the
evidence presented at trial, petitioner contends (Pet. 18-26) that
the indictment failed to allege:
(a) the existence of a RICO
association-in-fact enterprise, or (b) that enterprise’s effect on
interstate commerce.
a.
This
Court
Petitioner’s contentions lack merit.
has
explained
that
“an
indictment
is
sufficient if it, first, contains the elements of the offense
charged and fairly informs a defendant of the charge against which
he must defend, and, second, enables him to plead an acquittal or
conviction in bar of future prosecutions for the same offense.”
Hamling v. United States, 418 U.S. 87, 117 (1974).
“It is
generally sufficient that an indictment set forth the offense in
the words of the statute itself, as long as ‘those words of
themselves fully, directly, and expressly, without any uncertainty
or ambiguity, set forth all the elements necessary to constitute
the offen[s]e intended to be punished.’”
Ibid. (quoting United
States v. Carll, 105 U.S. 611, 612 (1882)); see also United States
v. Resendiz-Ponce, 549 U.S. 102, 109 (2007) (stating that an
“indictment parroting the language of a federal criminal statute
is often sufficient”).
b.
The RICO statute prohibits, inter alia, conspiracy to
engage in certain racketeering activities in connection with an
“enterprise.”
18 U.S.C. 1962; see 18 U.S.C. 1963(a).
The statute
defines an “enterprise” to include “any individual, partnership,
corporation, association, or other legal entity,” as well as “any
9
union or group of individuals associated in fact although not a
legal entity.”
18 U.S.C. 1961(4).
This Court has explained that
“an association-in-fact enterprise is simply a continuing unit
that functions with a common purpose.”
Boyle v. United States,
556 U.S. 938, 948 (2009); see United States v. Turkette, 452 U.S.
576, 583 (1981) (“The enterprise is * * * a group of persons
associated together for a common purpose of engaging in a course
of conduct.”).
As the court of appeals correctly determined, petitioner’s
indictment adequately charged such an enterprise.
Pet. App. 7.
The RICO conspiracy count stated that petitioner and his codefendants “did agree to conduct and participate directly and
indirectly, in the conduct of the affairs of [an] enterprise,” MS13, “through a pattern of racketeering activity * * * which
consisted
of
multiple
kidnapping, and robbery.
further
charged
that
threats
or
acts”
involving
D. Ct. Doc. 1, at 6.
MS-13
is
“a
national
and
murder,
The indictment
international
criminal organization with approximately 10,000 members regularly
conducting gang activities.”
Id. at 3.
The indictment alleged
that the “purposes of the MS-13 enterprise” include preserving its
power and territory, promoting its activities such as “robberies
[and] drug trafficking,” and “[p]roviding financial support and
information to gang members.”
Id. at 8-9.
The indictment also
alleged that MS-13 is “organized into ‘cliques,’” such as the one
petitioner led, and that MS-13 members “hold meetings,” “learn and
10
abide by the rules and code of conduct of the enterprise,” and
agree to procure firearms, commit acts of violence, and execute
robberies.
Id. at 4, 9-10.
The indictment stated that MS-13 thus
“constituted an ongoing organization whose members functioned as
a continuing unit for a common purpose of achieving the objectives
of the enterprise.”
Id. at 8.
And the indictment charged that
the “leadership, members and associates” of MS-13 “constituted an
enterprise, as defined by Title 18, United States Code, Section
1961(4), that is, a group of individuals associated in fact, the
activities of which affected interstate and foreign commerce.”
Id. at 7.
Petitioner’s argument that the indictment failed to allege
the
existence
of
an
enterprise
distinct
from
the
pattern
racketeering activity (Pet. 21-22) accordingly lacks merit.
of
The
indictment contained detailed factual information regarding the
enterprise that was the basis for the charges against petitioner
and more than sufficed to plead the requisite RICO-enterprise
element.
c.
Petitioner also renews his argument (Pet. 23-26) that
the indictment failed to adequately plead the interstate-nexus
element of RICO conspiracy. A violation of RICO requires that the
relevant enterprise’s activities affect interstate commerce.
See
18
that
U.S.C.
1962(c).
The
indictment
accordingly
alleged
petitioner and others were “associated with an enterprise,” MS13, “which was engaged in, and the activities of which affected,
11
interstate
and
foreign
commerce,”
in
violation
of
18
U.S.C.
1962(c), and then alleged more specific facts about the enterprise
and its activities.
D. Ct. Doc. 1, at 6; see id. at 10-17
(describing overt acts).
That
was
sufficient
interstate commerce.
to
plead
the
requisite
effect
on
This Court has recognized that even an
indictment that merely “set[s] forth the offense in the words of
the statute itself” is adequate where, as here, those words clearly
“set forth all the elements necessary to constitute the offen[s]e,”
Hamling, 418 U.S. at 117 (citation omitted); see Resendiz-Ponce,
549 U.S. at 109 (stating that an “indictment parroting the language
of a federal criminal statute is often sufficient”).
Indeed, to
the government’s knowledge, every circuit that has considered the
issue
has
held
that
a
general
allegation
of
the
effect
on
interstate commerce is sufficient in a RICO indictment. See, e.g.,
United States v. Fernandez, 388 F.3d 1199, 1217 (9th Cir. 2004)
(indictment “adequately pled the interstate nexus required by the
RICO statute” because it charged that the “Mexican Mafia was an
enterprise, ‘which is engaged in, and whose activities affect,
interstate
and
foreign
commerce’”)
(citation
omitted),
cert.
denied, 544 U.S. 1009, 544 U.S. 1041, and 544 U.S. 1043 (2005),
and opinion modified, 425 F.3d 1248 (2005); United States v.
Doherty, 867 F.2d 47, 68 (1st Cir.), cert. denied, 492 U.S. 918
(1989); United States v. Diecidue, 603 F.2d 535, 547 (5th Cir.
1979), cert. denied, 445 U.S. 946, and 446 U.S. 912 (1980).
The
12
recent Commerce Clause cases petitioner cites (Pet. 23-26) provide
no support for his argument that the charges in this case require
the indictment to allege additional facts.
unpublished
decision
rejecting
The court of appeals’
petitioner’s
challenge
to
the
sufficiency of the indictment in his particular case accordingly
does not warrant this Court’s review.
2.
Petitioner separately renews his claim (Pet. 26-31) that
the government violated the STA by failing to indict him within 30
days of his arrest on the state murder charge.
Specifically, he
asserts, as he did below, that “federal authorities orchestrated
and manipulated delays in the state court proceedings on similar
charges such that [he] would remain in custody until federal
authorities were ready to present their charges to the [federal]
Grand Jury.”
Pet. 26-27.
The
requires
STA
This claim is also without merit.
the
government
to
file
an
indictment
“charging an individual with the commission of an offense * * *
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) (emphasis added); see generally United States v.
Tinklenberg, 563 U.S. 647, 652-656 (2011).
As the text makes
clear, in order for that 30-day time limit to apply, the arrest
must be related to the federal criminal charges in the indictment.
See United States v. Cepeda-Luna, 989 F.2d 353, 355-356 (9th Cir.
1993) (“The thirty-day requirement applies to an indictment issued
in
connection
with
the
offense
for
which
the
defendant
was
13
arrested.”); United States v. Reme, 738 F.2d 1156, 1162 (11th Cir.
1984) (“The time limitation for indicting an accused does not begin
to run if the accused is arrested for an unrelated offense.”)
(citation omitted), cert. denied, 471 U.S. 1104 (1985).
An arrest
by state authorities on a state charge thus will not generally
trigger the time limits in the Act, even where the federal charges
are based on the same conduct spurring the state arrest.
See,
e.g., United States v. Robertson, 810 F.2d 254, 256 (D.C. Cir.
1987) (“It is beyond dispute that [18 U.S.C.] 3161(b) does not
prevent the government from indicting a defendant on federal
charges more than thirty days after his arrest on similar state
charges.”); United States v. Shahryar, 719 F.2d 1522, 1525 (11th
Cir. 1983) (per curiam) (“[I]f one is held by state officers on a
state charge and subsequently turned over to federal authorities
for federal prosecution, the starting date for purposes of the Act
is
the
date
that
the
defendant
is
delivered
into
federal
custody.”); United States v. Iaquinta, 674 F.2d 260 (4th Cir.
1982).
“Common sense, as well as deeply rooted concepts of
federalism dictate that the Speedy [Trial] Act rules relate only
to federal and not to state custody.”
Shahryar, 719 F.2d at 1525.
A number of courts of appeals have suggested that an exception
to the rule that the 30-day speedy-trial clock only begins upon a
federal criminal arrest may exist when a person is confined on
other grounds for the purpose of avoiding the STA’s requirements.
Although courts have generally alluded to this “ruse” exception in
14
cases
involving
civil
detention
by
federal
immigration
authorities, see, e.g., United States v. Pasillas-Castanon, 525
F.3d 994, 998 (10th Cir. 2008); United States v. Noel, 231 F.3d
833, 836 (11th Cir. 2000) (per curiam), cert. denied, 531 U.S.
1200 (2001); United States v. De La Pena-Juarez, 214 F.3d 594, 598
(5th Cir.), cert. denied, 531 U.S. 983, and 531 U.S. 1026 (2000);
Cepeda-Luna, 989 F.2d at 357, a few courts have suggested that the
exception might also apply to a state’s detention of an individual
on pending state criminal charges, see, e.g., United States v.
Richardson, 780 F.3d 812, 817 (7th Cir. 2015), cert. denied, 137
S. Ct. 654 (2017); United States v. Woolfolk, 399 F.3d 590, 596
(4th Cir. 2005); United States v. Benitez, 34 F.3d 1489, 1495 (9th
Cir. 1994), cert. denied, 513 U.S. 1197 (1995).
None of those
cases, however, actually found such a ruse.
This Court has not itself recognized a ruse exception to the
STA.
See Pet. App. 9-10.
But even assuming such an exception
existed, and applied to a detention under state law by state
officials, the court of appeals’ disposition of petitioner’s claim
was correct.
Courts of appeals have indicated that a “ruse” will
be found only if the “primary or exclusive purpose” of the state
detention “was to hold [defendant] for future [federal criminal]
prosecution.” United States v. Drummond, 240 F.3d 1333, 1336 (11th
Cir. 2001) (per curiam) (citation omitted); see De La Pena-Juarez,
214 F.3d at 598 (“[W]e will only apply this exception where the
defendant demonstrates that the primary or exclusive purpose of
15
the
*
*
*
detention
was
to
hold
him
for
future
criminal
prosecution.”); Benitez, 34 F.3d at 1494 (“Speedy Trial Act time
periods may be triggered by state detentions that are merely a
ruse to detain the defendant solely for the purpose of bypassing
the requirements of the Act.”).
Here, the district court found that petitioner failed to make
that showing.
See D. Ct. Doc. 627, at 5 (stating that petitioner
had not shown that the “state charges were orchestrated by the
federal government as a ruse”). Rather, the magistrate judge found
that petitioner had demonstrated only that state officials were
“aware” that federal prosecutors were investigating petitioner;
that federal charges were “contemplated”; and that, if such charges
were brought, the “state charges would likely be dismissed.”
at 3.
Id.
But the “mere fact that the detaining authorities are aware
other potential criminal charges are available does not trigger
the [ruse] exception,” even in the circuits that recognize it.
Pasillas-Castanon, 525 F.3d at 998; cf. United States v. Russo,
796 F.2d 1443, 1450-1451 (11th Cir. 1986) (concluding that there
was no STA violation based on defendant’s time in state custody,
notwithstanding
that
“the
[federal]
government
may
have
been
extensively involved in the ongoing investigation of [his] case”).
Petitioner
identifies
no
basis
for
concluding
that
the
district court’s “finding that there was no collusion or ruse on
the part of the Government” is “clearly erroneous.”
United States
v. Pena-Carrillo, 46 F.3d 879, 883 (9th Cir.), cert. denied, 514
16
U.S. 1122 (1995); see United States v. Badru, 97 F.3d 1471, 1476
(D.C. Cir. 1996) (“[W]e find no clear error in the district court’s
finding that there was no evidence of collusion, as distinct from
intergovernmental
cooperation
between
state
and
federal
law
enforcement officials, that would implicate [defendant’s] right to
a speedy trial under 18 U.S.C. § 3161(b).”), cert. denied, 520
U.S. 1150, and 520 U.S. 1213 (1997).
And “given the strength of
the government’s position * * * and the absence of authority to
support [petitioner’s] theory,” the court of appeals correctly
rejected petitioner’s claim that the district court abused its
discretion in denying an evidentiary hearing.
Pet. App. 10.
At
all
challenge
the
events,
petitioner’s
wholly
factbound
to
district court’s findings would not warrant this Court’s review.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
NOEL J. FRANCISCO
Solicitor General
JOHN P. CRONAN
Principal Deputy Assistant
Attorney General
DAVID B. GOODHAND
Attorney
MARCH 2018
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