U.S. v. Salgado-Hernandez, SALGADO-HERNANDE

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before RUBIN, POLITZ, and JOHNSON; ALVIN B. RUBIN
• Citation: 790 F.2d 1265
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jesusefendant-Appellant.
• Decision Date: 05 June 1986
• Docket Number: SALGADO-HERNANDE,D,85-2850,Nos. 85-2849

Page 1265

790 F.2d 1265 UNITED STATES of America, Plaintiff-Appellee,
v.
Jesus SALGADO-HERNANDEZ, Defendant-Appellant. Nos. 85-2849, 85-2850. United States Court of Appeals,
Fifth Circuit. June 5, 1986.

Page 1266

Lucien B. Campbell, Federal Public Defender, San Antonio, Tex., for defendant-appellant.

Ms. Sidney Powell, Asst. U.S. Atty., Helen M. Eversberg, U.S. Atty., Michael R. Hardy, Asst. U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Western District of Texas.

Before RUBIN, POLITZ, and JOHNSON, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

This appeal presents a single issue: did the district court err in refusing to dismiss with prejudice the complaint against the defendant for the government's failure to indict him within thirty days of his arrest as required by the Speedy Trial Act? Because the Act commits to the judge's discretion the decision whether to dismiss the complaint with or without prejudice, we hold that the court acted within its authority when it dismissed the complaint without prejudice.

I.

Jesus Salgado-Hernandez was arrested on August 1, 1985, for unlawfully transporting eleven undocumented aliens. A complaint was filed the same day. On September 9, Salgado filed a motion to dismiss the complaint with prejudice for the government's failure to indict him within thirty days of his arrest as required by the Speedy Trial Act. ¹ The magistrate dismissed the complaint without prejudice on September 13. Salgado appealed that decision to the district court.

On the same day that the magistrate dismissed the complaint without prejudice, the government filed an information charging Salgado with the commission of eleven counts of illegal transportation of aliens.

Page 1267

On September 17, the grand jury indicted him on three counts of these charges. ² Salgado moved to dismiss the indictment with prejudice for failure to comply with the Speedy Trial Act. The district court denied the motion and affirmed the magistrate's decision to dismiss the original complaint without prejudice.

Salgado entered a conditional plea of guilty to one count of the indictment, reserving his right to appeal the district court's affirmance of the magistrate's order and its refusal to grant his second motion to dismiss the indictment. He received a suspended five-year sentence. Salgado separately appealed each of the district court orders and the appeals were consolidated.

II.

The Speedy Trial Act of 1974 ³ establishes specific time limits for various stages of all federal criminal proceedings. Under the Act, the government must file an information or indictment within thirty days of the date of arrest or service of summons on the defendant. ⁴ If the defendant is not indicted within this time limit, the charge must be dropped. ⁵ Although dismissal is mandatory, the Act grants the trial judge the option to dismiss the complaint with or without prejudice. It states:

In determining whether to dismiss the case with or without prejudice, the court shall consider, among others, each of the following factors: the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of this chapter and on the administration of justice. ⁶

The Act does not create a presumption in favor of dismissal with prejudice when its time limits are violated, for reasons the Second Circuit has exhaustively explained in United States v. Caparella. ⁷ The statute's language mentions no presumption. Moreover, the legislative history of the Act reveals that Congress rejected a sanction of outright dismissal with prejudice in favor of a compromise that requires a court to balance the three factors listed in Sec. 3162(a)(1). The language of that section specifies the availability of both remedies. Therefore, we adhere to the statute's apparent facial meaning, and join other circuits in holding that the...