U.S. v. Alvarez-Perez

• Citation: 629 F.3d 1053
• Decision Date: 22 December 2010
• Docket Number: No. 09-50334,09-50334
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Francisco ALVAREZ-PEREZ, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

629 F.3d 1053

UNITED STATES of America, Plaintiff-Appellee,

v.Francisco ALVAREZ-PEREZ, Defendant-Appellant.

No. 09-50334.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 4, 2010.

Filed Dec. 22, 2010.

Bridget L. Kennedy (argued), Federal Defenders of San Diego, Inc., San Diego, CA, for the defendant-appellant.

Karen P. Hewitt, United States Attorney, Bruce R. Castetter, Assistant United States Attorney, Chief, Appellate Section, Criminal Division, and Victor P. White (argued), Assistant United States Attorney, San Diego, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California, Marilyn L. Huff, District Judge, Presiding. D.C. No. 3:07-CR-01661-H-1.

Before: ALEX KOZINSKI, Chief Judge, KIM McLANE WARDLAW, Circuit Judge, and JAMES K. SINGLETON, Senior District Judge.^*

OPINION

SINGLETON, Senior District Judge:

Francisco Alvarez-Perez ("Alvarez") appeals his conviction of being a deported alien found in the United States in violation of 8 U.S.C. § 1326. Alvarez contends that his prosecution violated the Speedy Trial Act ("STA") because the permitted 70-day period was exceeded.

FACTS

The material facts are largely undisputed. Alvarez was arrested on May 12, 2007. On May 15, 2007, he was charged in a complaint with a violation of 8 U.S.C. § 1326. The parties immediately began to discuss a disposition, apparently intending to proceed under the district's fast-track procedure. Alvarez waived his right to indictment, the government filed an information, and Alvarez entered a plea of not guilty. Alvarez filed a written notification of his intent to plead guilty, and the court scheduled a change of plea hearing. Sometime between June 12 and June 27 Alvarez decided not to change his plea to guilty. In response, on June 27, 2007, the government filed an indictment obtained from the Grand Jury charging Alvarez with violations of 8 U.S.C. § 1326, in a separate proceeding with a separate case number. The change of plea hearing was vacated on July 6, 2007, and the information in the previous case remained pending. Alvarez was arraigned on the indictment on July 18, 2007, and at that time, the information was dismissed without prejudice at the government's request.

On August 14, 2007, Alvarez gave a second notice of intent to change his plea, and a hearing was scheduled for the following day, August 15, 2007. At the hearing Alvarez again changed his mind and informed the court that he did not want to plead guilty. A status conference was set for August 24, 2007, to determine whether Alvarez wished to file motions. At that hearing the district court, relying on the July 18, 2007, arraignment to trigger the STA clock, specified September 26, 2007, (70 days after July 18) as the last day for trial under the STA. Alvarez did not object to this date. On September 10, 2007, Alvarez began to file his pretrial motions. The parties agree that all time between September 10, 2007, and when Alvarez was tried on January 20, 2009, was properly excluded. 18 U.S.C. § 3161.

STANDARD OF REVIEW

We review the district court's disposition of an STA issue for clear error asto factual findings and de novo as to application of legal standards. United States v. Henderson, 746 F.2d 619, 622 (9th Cir.1984), aff'd, 476 U.S. 321, 106 S.Ct. 1871, 90 L.Ed.2d 299 (1986).

DISCUSSION

The government argues that the STA clock began to run on July 18, 2007, when Alvarez was arraigned on the indictment. If so, 51 non-excludable days accrued on September 10, 2007, and trial was timely. In contrast, Alvarez argues that the STA clock began to run on June 27, 2007. By this calculation—after automatically excluding the date of the indictment, arraignment, and the two days devoted to Alvarez's second notice of his intent to plead guilty ¹—a period of 72 non-excludable days accrued on September 10, 2007, and the STA was violated.

The Speedy Trial Act, 18 U.S.C. § 3161(c)(1), provides, in relevant part:

In any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs.

In this case, Alvarez made his first appearance on the 8 U.S.C. § 1326 complaint on May 15, 2007, and the information was filed on June 12, 2007. Under the plain language of the STA, June 12, 2007, is the trigger date. See Haiges, 688 F.2d at 1274. The government contends, however, that the indictment, not the information, is the relevant charging document. It further argues that the indictment did not become the "pending" charge for STA purposes until July 18, when the information, which had been the relevant charging document up to that point, was dismissed. See 18 U.S.C. § 3161(c)(1).

But here there is only one charge: Alvarez was charged in a complaint with a violation of § 1326, he waived his right to an indictment and pleaded not guilty to an information charging the same violation of § 1326. When Alvarez declined to change his plea to guilty, the government obtained an indictment charging him with the same violation of § 1326. The government does not contend that Alvarez made multiple illegal entries into this country that were separately charged, nor did it add new claims or join new defendants.

Nor do we see any reason to assign any significance to the fact that the earlier information and the subsequent indictment were assigned different case numbers. To credit the government's argument would be to elevate form over substance and violate the clear intent of Congress. Were we to uphold the government's theory, the government in every case could extend the STA's time limits by indicting, dismissing, and reindicting under new case numbers. Thus, June 12, 2007, the date the information was filed, is the trigger date for the STA.

The formal dismissal of the information and subsequent filing of an indictment on the same charge do not suggest otherwise.The STA treats informations and indictments as equivalents. See, e.g., 18 U.S.C. § 3161(b) ("information or indictment"); id. § 3161(c)(1) (same); id. § 3161(d)(1) ("indictment or information"). Thus, the subsequent indictment was akin to a superseding indictment or a re-indictment, depending on whether the indictment was filed before or after the information was dismissed. This distinction is meaningless here, however, because either a re-indictment or superseding indictment would inherit the previous STA clock. See United States v. Duque, 62 F.3d 1146, 1150 (9th Cir.1995) (re-indictment after government dismisses initial indictment does not restart STA clock); United States v. Karsseboom, 881 F.2d 604, 606 (9th Cir.1989) (superseding indictment charging same offenses does not restart STA clock). Accordingly, the filing of the indictment on the same charge did not start a new clock for the purposes of the STA.

For practical purposes, however, we can consider June 27, 2007, to be the trigger date, as Alvarez concedes that any time devoted to the fast-track proceedings before June 27 is properly excluded. Although, in general, time devoted to plea negotiations is not automatically excluded, see United States v. Ramirez-Cortez, 213 F.3d 1149, 1155 (9th Cir.2000); other circuits have found the situation to be different where the defendant notifies the court that negotiations have resulted in an agreement and, as a result, the court sets a change of plea hearing. See United States v. Rector, 598 F.3d 468, 472 (8th Cir.2010); see also United States v. Santiago-Becerril, 130 F.3d 11, 19-20 (1st Cir.1997), abrogated on other grounds by United States v. Barnes, 251 F.3d 251 (1st Cir.2001); Jenkins, 92 F.3d at 440. In that situation, the time until the hearing is held to be excluded either under § 3161(h)(1)(G) because it is "delay resulting from consideration by the court of a proposed plea agreement" or under 18 U.S.C. § 3161(h)(1)(D) as a "pretrial motion." We therefore treat June 27 as the effective start date. See United States v. Medina, 524 F.3d 974, 978-79 (9th Cir.2008) (discussing exclusion of time where a pretrial motion requires a hearing).

The government reasons, in the alternative, that even if June 27 triggered the STA clock, all of the time devoted to the information before its dismissal on July 18 constituted "other proceedings concerning the defendant" and was properly excluded for purposes of the STA. See 18 U.S.C. 3161(h)(1). The government relies on United States v. Arellano-Rivera, 244 F.3d 1119 (9th Cir.2001), and United States v. Lopez-Osuna, 242 F.3d 1191 (9th Cir.2001), arguing that these cases are factually indistinguishable from the instant case. In both cases, the defendant initially was charged in a complaint with a violation of 8 U.S.C. § 1326. Within the 30 days allowed for the filing of an indictment, each of the defendants waived indictment and agreed to proceed by information, and, in exchange, prosecutors agreed to pursue less serious charges under 8 U.S.C. § 1325. The defendants indicated they would plead not guilty while the parties completed plea negotiations under a fast-track procedure. Each defendant subsequently changed his mind and declined to plead guilty. In each case, the government then substituted an indictment charging the defendants with violations of 8 U.S.C. § 1326. However, in each case the government did not obtain the § 1326 indictment within the 30-day time period allotted by the STA. 18 U.S.C. § 3161(b). Nevertheless, we determined that a significant portion of the intervening time was excludable as delay resulting from "other proceedings" concerning the defendant under 18 U.S.C. § 3161(h)(1). See Arellano-Rivera, 244 F.3d at 1124; Lopez-Osuna, 242 F.3d at 1198. In light of the differentsets of...