USA. v. Osuna, LOPEZ-OSUN

• Decision Date: 16 March 2001
• Docket Number: D,No. 99-50627,LOPEZ-OSUN,99-50627
• Citation: 242 F.3d 1191
• Parties: (9th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DOMINGOefendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1191

242 F.3d 1191 (9th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
DOMINGO LOPEZ-OSUNA, Defendant-Appellant. No. 99-50627 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted August 9, 2000
Filed November 7, 2000
Amended March 16, 2001

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Copyrighted Material Omitted

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Martha M. Hall, DiIorio & Hall, APC, San Diego, California, for the defendant-appellant.

Anne K. Perry, (Argued), Assistant United States Attorney, San Diego, California, and Paul C. Johnson, Jr. (On the Briefs), Assistant United States Attorney, San Diego, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California Gordon Thompson, Jr., District Judge, Presiding. D.C. No.CR-99-01961-GT

Before: John T. Noonan, Stephen S. Trott, and Marsha S. Berzon, Circuit Judges.

ORDER

The Opinion filed November 7, 2000, and appearing at 232 F.3d 657 (9th Cir. 2000) is amended as follows:

1. Page 662, third full paragraph (beginning with "The government disagrees . . ."), line 6 thereof, delete "on the section 1326 charge" and replace with "on January 14, 1999".

2. Page 662, the final paragraph (beginning with "Here, Lopez waived . . ."), delete the first full sentence beginning with "Here" and ending with "government.", and replace with "Here, Lopez made a decision to permit the government to file new charges on January 14, 1999, without the need for an indictment."

3. Page 663, delete the entire paragraph beginning with "Moreover, Lopez . . ." and ending with "Speedy Trial Act.", and replace with "Lopez made a conscious decision to participate to his benefit in these other proceedings. In the alternative, he could have asserted at that time his

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speedy trial rights with respect to the initial complaint charging him with a violation of section 1326, but he chose not to. All time was excludable after Lopez waived indictment for as long as the information was pending. This excludable period began on January 14, 1999, two days before the thirty-day arrest-to-indictment period ran. Accordingly, there was no violation of the Speedy Trial Act.³"

4. Page 663, second full paragraph (beginning with "We reject . . ." and ending with "is distinguishable."), delete "Ramirez-Cortez never waived indictment on the section 1326 charge and there was no information pending on any other charges.", and replace after the colon with "no "other proceeding" was pending in which Ramirez Cortez had consented to proceed and waived indictment."

With these amendments, the panel as constituted above has voted to deny the petition for rehearing. Judges Trott and Berzon have voted to deny the petition for rehearing en banc, and Judge Noonan so recommends.

The full court has been advised of the suggestion for rehearing en banc and no judge of the court has requested a vote on it. Fed. R. App. P. 35(b).

The petition for rehearing and the petition for rehearing en banc are DENIED.

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Notes:

3. We also note that the continuances to assess Lopez's mental competency and to allow him time for effective preparation were properly granted under section 3161(h)(1)(A) and (h)(8), respectively. Nevertheless, absent Lopez's waiver of indictment and the "other proceedings" on the section 1325 information, this excludable time would not have saved the government from a Speedy Trial Act violation, because these continuances came well after the January 16, 1999 deadline.

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OPINION

TROTT, Circuit Judge:

Domingo Lopez-Osuna ("Lopez") appeals his felony conviction on a one count indictment for being a deported alien found in the United States, in violation of 8 U.S.C.S 1326 ("section 1326"). Lopez contends that his conviction should be reversed because the delay between his arrest and indictment violated the preindictment provision of the Speedy Trial Act, 18 U.S.C. S 3161(b) ("Speedy Trial Act " or the "Act"). Alternatively, Lopez asserts that the district court erred in finding a knowing and voluntary waiver of counsel and allowing him to represent himself. This court has jurisdiction pursuant to 28 U.S.C. S 1291, and we AFFIRM .

BACKGROUND

I Factual Background

On December 8, 1998, Lopez was deported to Mexico. Shortly before midnight on December 15, 1998, Border Patrol Agent Sean Huntsman found Lopez and another man lying in the bushes near Highway 94 and Bear Lake Road in San Diego County. Both men were taken into custody and transported to the Highway 94 checkpoint for processing.

At the checkpoint, Lopez was interviewed by Border Patrol Agent Jason Smith ("Smith"), who read Lopez his Miranda rights. Lopez waived these rights and made a statement to Smith. In this statement, Lopez admitted that he was a Mexican citizen, that he had been previously deported, and that henever applied for re-admittance into the United States.

II Procedural Background

Lopez was arrested on December 15, 1998. Two days later, on December 17, 1998, he was arraigned on a one count complaint charging him with a violation of "Title 8, U.S.C., section 1326 Deported Alien Found in the U.S. (Felony)." Soon thereafter, the government made Lopez an offer, which was intended to be part of a plea agreement, where the government agreed to forego charging Lopez with a violation of section 1326 if he pled guilty to one felony count and one misdemeanor count of violating 18 U.S.C. S 1325 (illegal entry) ("section 1325"). This offer, which included a stipulated sentence of 30 months, was made pursuant to the "fasttrack" program, which was meant to benefit defendants, promote efficiency, and expedite prosecution in illegal re-entry cases in the Southern District of California.

Lopez's preliminary hearing was initially scheduled for December 31, 1998, sixteen

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days after his arrest, but was continued until January 14, 1999. On January 11, 1999, Tony Cheng, a lawyer with the Federal Defenders of San Diego, Inc. and defense counsel for Lopez, informed Assistant United States Attorney John Kraemer that Lopez had accepted the government's offer to dispose of his charges. Hence, at the hearing on January 14, 1999, Lopez waived indictment and consented to proceed by way of information, which charged him with the two violations of section 1325. The information was filed on this same day, given the district court case number of 99-CR-0121-J, and the case was set for a "disposition hearing," i.e., guilty plea, on January 25, 1999.

Because the district court twice rescheduled the disposition hearing, it did not take place on...