USA. v. Osuna

• Decision Date: 07 November 2000
• Docket Number: LOPEZ-OSUN,No. 99-50627,D,99-50627
• Citation: 232 F.3d 657
• Parties: (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DOMINGOefendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 657

232 F.3d 657 (9th Cir. 2000)

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

[Copyrighted Material Omitted]

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.

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 he never 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 "fast track" program, which was meant to benefit defendants, promote efficiency, and expedite prosecution in illegal reentry cases in the Southern District of California.

Lopez's preliminary hearing was initially scheduled for December 31, 1998, sixteen 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 January 25, 1999, and ultimately was set for February 22, 1999, close to one month later. On February 22, 1999, Cheng told the district court that "my client is indicating that he wishes to plead without the benefit of the plea agreement. I don't believe it's in his best interest, and I would like to discuss this matter with him further." Accordingly, the district court again continued the disposition hearing, this time until March 8, 1999.

On March 8, 1999, Lopez's counsel moved for another continuance so that Lopez could be evaluated by a psychiatrist to assess his mental competency. The court granted the motion and continued the case until April 5, 1999. The district court also filed a minute order excluding from a Speedy Trial Act computation the time from March 8 to April 5 under section 3161(h)(1)(A) of the Act. This section allows time to be excluded for any proceeding to determine the mental competency of the defendant. See 18 U.S.C. S 3161(h)(1)(A).

On April 5, 1999, the planned hearing did not occur and there is no minute order in the court file continuing the hearing. The next status hearing was held on April 12, 1999. At this hearing, counsel for Lopez requested another four-week continuance, indicating that the psychiatrist appointed by the court had not yet begun the examination of Lopez. The district court continued the case and filed another minute order excluding time from April 12 to May 10 under section 3161(h)(1)(A) of the Act. On May 10, 1999, the case was again continued for the competency examination, and the district court filed another minute order finding excludable delay from May 10 to June 14 under section 3161(h)(1)(A).

On June 14, 1999, Cheng requested to be relieved, on the grounds that Lopez refused to follow his advice. When the court offered to appoint new counsel, Lopez said he wanted to represent himself. The district court then continued the matter to June 21, 1999.

On June 21, 1999, the district court found that, pursuant to the psychological exam, Lopez was competent to stand trial. After briefly discussing the pending charges with Lopez, who was representing himself, and his advisory counsel, Martha Hall ("Hall"), who had just been appointed, the court continued the matter until July 6, 1999, to give Lopez and Hall reasonable time to prepare. In addition, the court filed a third minute order, this time finding excludable delay from June 14 to July 6 under section 3161(h)(8)(B)(iv)(4) of the Act, which allows time to be excluded for "effective preparation."

At the July 6, 1999 hearing, Hall informed the court that Lopez did not want to plead guilty to the lesser charges negotiated with the government as originally planned. Accordingly, the district court set the matter for trial on July 13, 1999. On July 7, 1999, the government filed an indictment against Lopez, charging him with a violation of section 1326. The indictment was filed as a different case from the earlier information and given a new district court criminal case number, 99-CR-1961-J.

On July 12, 1999, Lopez was arraigned on the indictment. On the same day, the government made a motion to dismiss this information in the earlier case, number 99-CR-0121-J, which the court granted and vacated the scheduled trial date of July 13 1999.¹ At this time, Lopez's advisory counsel, Hall, moved to dismiss the recent indictment on the basis that the Speedy Trial Act had been violated. The district court preliminarily discussed the merits of the motion with the government and Hall. Ultimately, however, the court asked Lopez whether he wanted to have his motion heard or go to trial. The court stated "[d]o you want to go to trial tomorrow or do you want to have the motion filed by Ms. Hall, your advisor, heard probably in three to four weeks." Lopez answered the court by saying "any way he wants." In response, the court explained that the decision was up to Lopez, and continued with "[i]f we go to trial, we can't hear the motions. If we hear the motions, we can't go to trial. That's really what you have to decide." Lopez answered the court with a complete nonsequitur and said, "[o]ne time when we spoke before he said that you could not give me more than 42 months." After some further conversation between the court and Lopez, the court again posed the question to Lopez regarding the Speedy Trial Act motion and going trial, to which Lopez responded"[n]o. It's fine. Tomorrow for the trial." The court ended the exchange with "[o]kay, we'll proceed with the trial tomorrow."

The next day, July 13, 1999, Lopez represented himself during a one day jury trial on the section 1326 felony illegal re-entry charge. Lopez declined to make an opening statement and cross-examined only two witnesses. The jury found Lopez guilty on the single count charged in the indictment. On September 27, 1999, the district court sentenced Lopez to 77 months in custody, to be followed by three years of supervised release. Lopez now appeals from his conviction.

DISCUSSION

I Speedy Trial Act

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. This argument is without merit.

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).

A. Waiver

As a preliminary matter, the government argues that, because Lopez elected to proceed to trial on July 13, 1999, he waived his right to raise any argument regarding preindictment delay under the Speedy Trial Act. The government is incorrect.

Before proceeding to trial, Hall, Lopez's advisory counsel, moved to dismiss the charges against Lopez on the ground that the Speedy Trial Act had been violated. The government filed a response to Hall's motion. At this time, the district court should have ruled on the issue or set a date on which to hear argument. Rather than do either, however, the district court asked Lopez whether he wanted to have the motions heard or go to trial. It was clear, as...