U.S. v. Solorzano-Rivera

• Decision Date: 21 May 2004
• Docket Number: No. 03-10284.,03-10284.
• Citation: 368 F.3d 1073
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ricardo SOLORZANO-RIVERA, aka Fernando Solorzano-Rivera, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

368 F.3d 1073

UNITED STATES of America, Plaintiff-Appellee, v. Ricardo SOLORZANO-RIVERA, aka Fernando Solorzano-Rivera, Defendant-Appellant.

No. 03-10284.

United States Court of Appeals, Ninth Circuit.

Submitted March 8, 2004.^*

Filed May 21, 2004.

COPYRIGHT MATERIAL OMITTED

Atmore L. Baggot, Apache Junction, AZ, for the defendant-appellant.

John R. Lopez, IV, Assistant United States Attorney, Phoenix, AZ, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona; Earl H. Carroll, District Judge, Presiding. D.C. No. CR-03-00104-EHC.

Before: HALL and GRABER, Circuit Judges, and WEINER,^** Senior District Judge.

CYNTHIA HOLCOMB HALL, Circuit Judge.

Ricardo Solorzano-Rivera appeals his conviction of illegal reentry into the United States under 8 U.S.C. § 1326. He contends that the government violated his rights under the Speedy Trial Act of 1974, 18 U.S.C. §§ 3161 and 3162, and that the district court erred in instructing the jury that the defendant had the burden of proving duress by a preponderance of the evidence.

We exercise jurisdiction under 28 U.S.C. § 1291 and affirm the district court. Solorzano's arguments concerning the Speedy Trial Act fail. First, not more than 30 days elapsed between his arrest and indictment. The speedy trial clock was tolled under 18 U.S.C. § 3161(h)(1)(I) because the court was considering the plea agreement from October 16, 2002, to January 21, 2003. Second, not more than 70 days elapsed between Solorzano's indictment and trial. Under 18 U.S.C. § 3161(i), Solorzano was deemed indicted on January 24, 2003 — the date on which the order allowing him to withdraw his guilty plea became final — and his trial commenced on February 25, 2003. In addition, the district court's jury instructions regarding duress were proper. Solorzano bore the burden of establishing duress because his duress claim was an affirmative defense put forth to excuse the offense, not to negate an element of the offense.

I. FACTS

Solorzano was arrested near San Luis, Arizona, on September 13, 2002. On October 8, 2002, the government filed an information charging him with illegal reentry. Solorzano waived indictment and pleaded guilty that same day. On October 16, 2002, the magistrate judge granted the government a 30-day extension to indict the defendant and scheduled sentencing for January 21, 2003.

On January 8, 2003, Solorzano moved to withdraw his guilty plea. The district court granted the motion on January 21, 2003, setting a trial date of February 19, 2003. A grand jury indicted Solorzano on February 5, 2003.

On February 8, 2003, Solorzano moved to dismiss the indictment under the Speedy Trial Act. The district court denied the motion on February 18. Trial commenced on February 25.

At trial Solorzano testified that, immediately before he entered the United States, Mexican police harassed him, took his watch as a bribe, and hit him with the butt of a handgun. He testified that he was afraid for his life and, chased by the police, he jumped over the 15-foot-high border fence, hurting his foot in the process. This testimony was central to his duress defense.

The border patrol agent who apprehended him testified that Solorzano had no visible marks or injuries when he was discovered. Solorzano did not complain of any injuries and did not say that he was fleeing from a threat, the agent testified. A second agent who booked Solorzano testified that Solorzano spontaneously said he was paroled into the United States on federal charges, but that he offered no proof of this.

The first agent took the stand again after the defense rested. He testified that after Solorzano was booked, Solorzano said that he was paroled into the United States and that he had left his parole documents, which he alleged allowed him to be in the country, in a slot by the air conditioning unit in the back of the agent's truck. But the agent testified that he did not see any documents in the slot when he shined his flashlight there.

The jury found Solorzano guilty of illegal reentry on February 26, 2003. The district court sentenced him to 77 months' imprisonment on May 27, 2003, enhancing the sentence under 8 U.S.C. § 1326(b)(2) because Solorzano had been previously removed after being convicted of an aggravated felony. This appeal followed.

II. STANDARDS OF REVIEW

"We review the district court's disposition of a Speedy Trial Act issue for clear error as to factual findings and de novo as to application of legal standards." United States v. Brickey, 289 F.3d 1144, 1150 (9th Cir.2002) (internal quotation marks omitted). We review de novo whether the district court's instructions to the jury correctly stated the law. United States v. Stapleton, 293 F.3d 1111, 1114 (9th Cir.2002).

III. ANALYSIS

A. Speedy Trial Act

i. Time between arrest and indictment; exclusion of time under 18 U.S.C. § 3161(h)(1)(I)

Solorzano's first Speedy Trial Act argument concerns the allegedly untimely filing of the indictment. The Speedy Trial Act requires that a federal indictment be filed within 30 days after arrest, or else the charge must be dismissed. 18 U.S.C. §§ 3161(b), 3162(a)(1). Under 18 U.S.C. § 3161(h), however, certain periods of delay shall be excluded when computing the 30 days, including "delay resulting from consideration by the court of a proposed plea agreement." 18 U.S.C. § 3161(h)(1)(I).

Solorzano was arrested on September 14, 2002. He claims that the government was required to indict him by "approximately November 14, 2002," or within 60 days after his arrest. (Upon the parties' joint motion, a magistrate judge ordered the time period for indictment extended from 30 to 60 days.)

We are not persuaded that the 60-day period had expired when Solorzano was indicted on February 5, 2003.

We hold that the period of time from October 8, 2002, when Solorzano entered his guilty plea, until January 21, 2003, when the district court accepted Solorzano's withdrawal of that plea, was properly excluded from the statutory period to indict under 18 U.S.C. § 3161(h)(1)(I). The Speedy Trial Act provides in part:

The following periods of delay shall be excluded in computing the time within which an information or an indictment must be filed ...:

(1) Any period of delay resulting from other proceedings concerning the defendant, including but not limited to —

. . . .

(I) delay resulting from consideration by the court of a proposed plea agreement to be entered into by the defendant and the attorney for the Government[.]

18 U.S.C. § 3161(h).

In this case, the proposed plea agreement was before the district court for "consideration" as of October 8, 2002, when Solorzano entered it. Solorzano moved to withdraw the plea¹ on January 8, 2003, and the court granted his motion on January 21, 2003.² At that time, the period of exclusion ended — the plea agreement was no longer under consideration by the court. With this time excluded, the speedy trial clock ran only from September 14, 2002, to October 8, 2002-25 days — and from January 21, 2003, to February 5, 2003-16 days. The 41-day total is less than the 60-day period authorized by the magistrate judge's 30-day extension of the period for indictment.

Solorzano argues that the October 8-to-January 21 period should not be excluded for two reasons. First, he argues that the Speedy Trial Act does not provide for the exclusion of time periods related to plea negotiations, citing McNeely v. Blanas, 336 F.3d 822, 828 n. 7 (9th Cir.2003). Even if correct, this argument would not avail Solorzano. As of October 8, 2002, the parties were no longer negotiating the plea agreement, but had submitted it to the court.

Second, Solorzano argues that § 3161(h)(1)'s reference to "other proceedings" limits the exclusions of time available under that subsection to proceedings involving a different charge. To support this proposition he cites United States v. Arellano-Rivera, 244 F.3d 1119 (9th Cir.2001), and United States v. Lopez-Osuna, 242 F.3d 1191 (9th Cir.2000). Solorzano correctly notes that these cases involved excludable delay caused by proceedings under a charge different from the charge on which the defendants were ultimately indicted. Arellano-Rivera, 244 F.3d at 1121; Lopez-Osuna, 242 F.3d at 1194-95. But we did not hold that this fact was a necessary prerequisite to excluding a period of delay under § 3161(h)(1). Instead, we affirmed the exclusions of time in Arellano-Rivera and Lopez-Osuna under § 3161(h)(1)(D), a subsection that expressly excludes "delay resulting from trial with respect to other charges" from the time period for indictment. Arellano-Rivera, 244 F.3d at 1124; Lopez-Osuna, 242 F.3d at 1197-98. Section 3161(h)(1)'s phrase "other proceedings concerning the defendant" did not control our holdings.

As we indicated in Lopez-Osuna, the circumstances described in §§ 3161(h)(1)(A)-(J) are themselves examples of "other proceedings," rather than types of events occurring within other proceedings relating to a different charge. See Lopez-Osuna, 242 F.3d at 1197. The latter interpretation is foreclosed by § 3161(h)(1)(D), which refers specifically to "other charges against the defendant." This subsection would be superfluous if Congress had intended "other proceedings concerning the defendant" in § 3161(h)(1) to mean only proceedings involving a different charge from that contained in the eventual indictment. "`[W]e should avoid an interpretation of a statute that renders any part of it superfluous....'" Cheema v. INS, 350 F.3d 1035, 1041 (9th Cir.2003) (quoting Nevada v. Watkins, 939 F.2d 710, 715 (9th Cir.1991)). In fact, other than in subsection (D), § 3161(h)(1) says nothing about other charges. The plain meaning of § 3161(h)(1)(I) is that the speedy trial clock shall be tolled while the court considers a plea agreement on a charge contained in the eventual indictment. See United States v. Perez-Reveles, 715 F.2d 1348, 1352 n. 4 (9th Cir.1983) (sug...