United States v. Alvarez-Perez
2010 U.S. App. LEXIS 25977
| 9th Cir. | 2010Background
- Alvarez was arrested May 12, 2007 and charged May 15 on a 1326 complaint;
- He waived indictment and information was filed;
- An indictment followed on June 27, 2007, with a separate case number;
- A change-of-plea hearing was set and then vacated;
- The district court set a 70-day Speedy Trial Act clock ending Sept 26, 2007;
- Trial occurred January 20, 2009, after extensive pretrial motions and excluded time.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When does the STA clock begin for a plea-not-guilty case? | Alvarez argues clock starts July 18 (indictment). | Government asserts clock begins June 12 (information). | Clock starts June 12; June 27 start adopted for practical purposes. |
| Does an indictment after dismissal restart the STA clock? | Indictment is a new charging device, restarting clock. | Indictment and information are equivalent; clock does not restart. | Indictment did not restart the STA clock; clock transferred with charges. |
| Are time periods between June 27 and July 18 excludable under the STA? | Time before July 18 should be counted as non-excludable. | Time may be excludable as proceedings concerning the defendant. | 20 days ruled non-excludable; overall 72-day period violated STA. |
| Is Alvarez's STA dismissal motion timely when raised orally before trial? | Motion timely under 18 U.S.C. § 3162(a)(2). | Oral motion should be treated as timely; district court should consider. | Oral motion could be entertained; district court should have considered it. |
| Should the indictment be dismissed with or without prejudice? | Dismissal with prejudice justified by violation. | Dismissal without prejudice appropriate given factors. | Indictment dismissed without prejudice; remanded for dismissal. |
Key Cases Cited
- United States v. Duque, 62 F.3d 1146 (9th Cir. 1995) (re-indictment after dismissal does not restart STA clock)
- United States v. Karsseboom, 881 F.2d 604 (9th Cir. 1989) (superseding indictment does not restart STA clock)
- United States v. Arellano-Rivera, 244 F.3d 1119 (9th Cir. 2001) (Arellano-Rivera: other proceedings exception when charges differ)
- United States v. Lopez-Osuna, 242 F.3d 1191 (9th Cir. 2001) (different charges; exclusion after waiver of indictment)
- Solorzano-Rivera, 368 F.3d 1073 (9th Cir. 2004) (plea withdrawn; exclusion for proposed plea consideration)
- United States v. Ramirez-Cortez, 213 F.3d 1149 (9th Cir. 2000) (time exclusion for plea negotiations when hearing set)
- Haiges v. United States, 688 F.2d 1273 (9th Cir. 1982) (trigger date for STA computation)
- United States v. Medina, 524 F.3d 974 (9th Cir. 2008) (exclusion of time where court hearings affect schedule; ends justify)
- United States v. Shetty, 130 F.3d 1324 (9th Cir. 1997) (oral STA motions considered timely if raised before trial)
- Spagnuolo v. United States, 469 F.3d 39 (1st Cir. 2006) (discussion of motion timing under STA)
- United States v. Berberian, 851 F.2d 236 (9th Cir. 1988) (STA strict; no waiver after trial start)
- Taylor v. United States, 487 U.S. 326 (1988) (factors for dismissal with/without prejudice)
- United States v. Clymer, 25 F.3d 824 (9th Cir. 1994) (dismissal with prejudice exceptional; here, prejudice minimal)