USA v. Rameriz Cortez, RAMIREZ-CORTEZ

• Decision Date: 25 May 2000
• Docket Number: RAMIREZ-CORTEZ,No. 98-50774,98-50774
• Citation: 213 F.3d 1149
• Parties: (9th Cir. 2000) UNITED STATES OF AMERICA,Plaintiff-Appellee, v. ALEJANDRO, aka Martin Ramirez-Cortez, aka Julio Ceasar Martinez, Defendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1149

213 F.3d 1149 (9th Cir. 2000)

UNITED STATES OF AMERICA,Plaintiff-Appellee, v. ALEJANDRO RAMIREZ-CORTEZ, aka Martin Ramirez-Cortez, aka Julio Ceasar Martinez, Defendant-Appellant.

No. 98-50774

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted October 14,

Filed May 25, 2000

[Copyrighted Material Omitted] David J. Zugman, Federal Defenders of San Diego, Inc., San Diego, California, for the defendant-appellant.

George D. Hardy, Assistant United States Attorney, San Diego, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; Irma E. Gonzalez, District Judge, Presiding. D.C. No.98-CR-00898-IEG.

Before: Sidney R. Thomas, Barry G. Silverman, and Kim McLane Wardlaw, Circuit Judges.

Opinion by Judge Wardlaw; Dissent by Judge Silverman

WARDLAW, Circuit Judge:

At issue is the application of the Speedy Trial Act in the context of the Southern District of California's "fast-track" program for expediting illegal re-entry cases. Alejandro Ramirez-Cortez ("Ramirez-Cortez")¹ was convicted of violating 8 U.S.C. Sec. 1326 (1994), being a deported alien found in the United States after conviction for an aggravated felony. He contends that his conviction should be reversed because the eighty-five day delay between his arrest and his indictment violated the preindictment provision of the Speedy Trial Act, 18 U.S.C. Sec. 3161(b) (1994). The district court excluded the delay from its Speedy Trial Act calculation, retroactively finding that the thirty-day preindictment time period was tolled by Ramirez-Cortez's requests for continuances. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291 (1994). Because we conclude that the exclusions of time were not supported by adequate and simultaneous findings on the record as required by our case law, we reverse.

I.

On December 4, 1997, San Diego Police officers detained Ramirez-Cortez on suspicion of driving while under the influence of alcohol. See Cal. Veh. Code S 23152 (West Supp.1999). Law enforcement officials determined that Ramirez-Cortez was in the United States illegally following a prior deportation, and so informed the Immigration and Naturalization Service ("INS"). An INS records check indicated that Ramirez-Cortez had been deported on June 24, 1997, and had prior convictions for burglary, petty theft, transportation and sale of a narcotic controlled substance, residential burglary, and false personation.

On December 24, the government obtained a one-count complaint charging Ramirez-Cortez with violating 8 U.S.C. Sec. 1326, and an arrest warrant. Ramirez-Cortez was arrested on December 30 and made his first appearance, in custody, before Magistrate Judge James F. Stiven on January 8, 1998. Magistrate Judge Stiven set a preliminary hearing for January 22.

On January 21, the day before the preliminary hearing, the government sent a proposed plea agreement to Ramirez-Cortez's attorney in accordance with the Southern District's "fast-track" policy. The fast-track policy was instituted to expedite resolution of the large number of illegal re-entry cases in the Southern District of California. See United States v. Chavez-Garcia, 16 F. Supp. 2d 1190, 1191 (S.D. Cal. 1998). As we have explained:

Under the fast-track policy, defendants [charged with violating 8 U.S.C Sec. 1326(b)] may enter a pre indictment guilty plea to a violation of [8 U.S.C.] Sec. 1326(a), which carries a 2-year sentence. The pol icy requires that the defendant waive indictment, enter a guilty plea at the first appearance before the district court, waive appeal of all sentencing issues, stipulate that the applicable guideline range exceeds the 2-year statutory maximum, stipulate to the 2-year sentence, and agree not to seek any downward adjustments or departures.

United States v. Estrada-Plata, 57 F.3d 757, 759 (9th Cir. 1995).² The fast-track timeline often necessitates continuances beyond the thirty-day pre-indictment period required by the Speedy Trial Act:

Typically, the government makes a plea offer contin gent upon acceptance prior to the issuance of an indictment. After an indictment is returned, the offer is rescinded. To allow more time for considering the offer, defendants often move to continue the pro ceedings . . . . As part of the agreement, defendants agree to exclude the continuance period from the 30 day [Speedy Trial Act] period.

Chavez-Garcia, 16 F. Supp. 2d at 1191.³

On January 22, 1998, Ramirez-Cortez, personally and through his counsel, Mayra Garcia,⁴ requested a six-week continuance of the preliminary examination to "work on a plea agreement." Magistrate Judge Stiven granted the continuance in the following exchange:

MS. GARCIA: For Mr. Ramirez-Cortez, we'd like a six-week continuance, your Honor, so we could work on a plea agreement.

THE COURT: All right, and that will take you till March 3rd. Is that agreeable?

MS. GARCIA: Yes, your Honor.

THE COURT: All right, gentlemen, counsel here today in each of your cases have requested that the hearing that was scheduled for today be delayed.

. . . .

THE COURT: Or [sic] Mr. Ramirez-Cortez, the delay would be six weeks until the 3rd of March. Are each of you in agreement with the requested delay?

THE DEFENDANTS: (Through interpreter) Yes.

THE COURT: All right. Then I'll order the time excluded and order the hearings set over . . . . The courtroom deputy filled out a pre-printed sheet which memorialized the January 22 hearing. She marked spaces indicating that time would be excluded pursuant to 18 U.S.C. Sec. 3161(h)(8)(B)(i). On March 26, Judge Stiven initialed another pre-printed form, again indicating that the period from January 22 to March 25 would be excluded under section 3161(h)(8)(B)(i).

On March 3, 1993, following the six-week continuance, Ramirez-Cortez, personally and through counsel, requested another "time waiver" and continuance of two weeks and two days so that he could "further investigate a derivative citizenship claim." Magistrate Judge Stiven ordered the time excluded and set a new preliminary hearing date of March 19, 1998. On March 19, 1998, having been informed that Ramirez-Cortez had decided not to accept the fast track disposition, Magistrate Judge Stiven reset the preliminary hearing date for March 26, 1998. On March 25, 1998, a federal grand jury returned an indictment against Ramirez-Cortez, charging him with being a deported alien found in the United States, in violation of 8 U.S.C. Sec. 1326.

On May 4, 1998, Ramirez-Cortez moved to dismiss the indictment for violation of the Speedy Trial Act. District Judge Irma E. Gonzalez denied the motion on June 1, 1999, finding that the time on the speedy trial clock had been excluded. Judge Gonzalez explained:

Judge Stiven did make a finding of excludable time. He didn't specify, I agree, all of the reasons why he was excluding time. But I can draw the infer ence, and I find that the only reason that it would have been was that it served the best interests of justice . . . . . . . it was for the defense attorney to have time to be able to consider everything that the defense attorney needed to consider in order to be able to do his or her job in advising the client.

. . . .

And so I find that there was excludable time, and so the Speedy Trial Act was tolled, because under the end-of-justice [sic] provision there is--that a judge can exclude time if the defendant needs time to investigate matters to be able to make a determi nation about the facts of the case and to go through the discovery and to prepare.

The case went to trial in July and the jury found Ramirez-Cortez guilty. Judge Gonzalez sentenced him to seventy-seven months in prison and three years supervised release. This appeal followed.

II.

We review a district court's application of the Speedy Trial Act de novo. See United States v. Hall, 181 F.3d 1057, 1061 (9th Cir. 1999). We review factual findings supporting an "ends of justice" exclusion for clear error. See United States v. Nelson, 137 F.3d 1094, 1108-09 (9th Cir.), cert. denied, 119 S. Ct. 232 (1998).

The Speedy Trial 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 such individual was arrested or served with a summons in connection with such charges." 18 U.S.C. Sec. 3161(b) (1994). However, certain "periods of delay shall be excluded in computing the time within which an information or an indictment must be filed." Id. Sec. 3161(h). The Act enumerates several specific types of excludable delay, see id. Sec. 3161(h)(1)-(7), (9), and also allows exclusion "if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial." Id. Sec. 3161(h)(8)(A). Such "ends of justice" findings must be "set[ ] forth, in the record of the case, either orally or in writing." Id. In addition, the Act states that, "in determining whether to grant a continuance," the court "shall consider" the following four nonexclusive factors:

(i) Whether the failure to grant such a continuance in the proceeding would be likely to make a continu ation of such proceeding impossible, or result in a miscarriage of justice.

(ii) Whether the case is so unusual or so complex, due to the number of defendants, the nature of the prosecution, or the existence of novel questions of fact or law, that it is unreasonable to expect adequate preparation for pretrial proceedings or for the trial itself within the time limits established by this section.

(iii) Whether, in a case in which arrest precedes indictment, delay in the filing of the indictment is caused because the arrest occurs at a time such that it is unreasonable to expect return and filing of the indictment within the period specified in section 3161(b), or because...