United States v. Espinoza

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 01-40653
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MARTIN MARTINEZ-ESPINOZA,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________
July 17, 2002
Before SMITH, BENAVIDES, AND PARKER,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Martin Martinez-Espinoza (“Espinoza”) ap-
peals, on the basis of a violation of the Speedy
Trial Act (“STA”), his conviction of attempted
illegal reentry in violation of 8 U.S.C. § 1326.
We reverse and remand.
I.
On November 21, 2000, Espinoza
approached the border at a bridge and
presented immigration officials with a legal
resident alien card (form I-551) seeking entry.
A check of his record revealed an earlier
deportation after a conviction of aggravated
assault with a deadly weapon. On November
22, the government filed a complaint charging
Espinoza with “attempting to enter” the Unit-
ed States. A grand jury returned an indictment
on December 19, charging Espinoza with
being “found in” the United States.1
1 Both offenses are violations of 8 U.S.C.
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2
On February 21, 2001, Espinoza appeared
in court, prepared to enter a plea of guilty.
The court, however, noted the inconsistency
between t he charge and the indictment and
suggested that Espinoza and the government
work out a solution.2 That same day, a grand
jury returned a superseding indictment,
charging Espinoza with “attempting to enter”
the United States.
At the bench trial on this charge, Espinoza
moved to dismiss the indictment for violation
of the STA.3 The court denied the motion and
found Espinoza guilty of the charge in the
superseding indictment.
1(...continued)
§ 1326(a):
Subject to subsection (b) of this section, any
alien whoSS
(1) has been denied admission,
excluded, deported, or removed or
has departed the United States
while an order of exclusion,
deportation, or removal is
outstanding, and thereafter
(2) enters, attempts to enter, or is
at any time found in, the United
States, unless (A) prior to his re-
embarkation at a place outside the
United States or his application
for admission from foreign con-
tiguous territory, the Attorney
General has expressly consented
to such alien’s reapplying for ad-
mission; or (B) with respect to an
alien previously denied admission
and removed, unless such alien
shall establish that he was not
required to obtain such advance
consent under this chapter or any
prior Act.
8 U.S.C. § 1326(a).
2 Rule 11, FED. R. CRIM. P., requires the district
court to determine the accuracy of a plea before
accepting it: “Notwithstanding the acceptance of
a plea of guilty, the court should not enter a
judgment upon such a plea without making such
inquiry as shall satisfy it that there is a factual
(continued...)
2(...continued)
basis for the plea.” FED. R. CRIM. P. 11(f).
3 The Act mandates dismissal if the time limit
between charging and indictment is exceeded:
If, in the case of any individual against
whom a complaint is filed charging such in-
dividual with an offense, no indictment or
information is filed within the time limit
required by section 3161(b) as extended by
section 3161(h) of this chapter, such charge
against that individual contained in such
complaint shall be dismissed or otherwise
dropped.
8 U.S.C. § 3162(a). For Espinoza, this time limit
was thirty days:
Any information or indictment charging an
individual with the commission of an offense
shall be filed within thirty days from the
date on which such individual was arrested
or served with a summons in connection
with such charges. If an individual has been
charged with a felony in a district in which
no grand jury has been in session during
such thirty-day period, the period of time for
filing of the indictment shall be extended an
additional thirty days.
8 U.S.C. § 3161(b).

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II.
A.
We review interpretations of the STA de
novo. We accord clear-error deference to re-
lated factual questions. United States v. De La
Peña-Juarez, 214 F.3d 594, 597 (5th Cir.),
cert. denied, 531 U.S. 983, and cert. denied
531 U.S. 1026 (2000).
B.
The STA requires dismissal where an in-
dictment is filed more than a specified number
of days after the charge. 18 U.S.C. § 3162(a).
In Espinoza’s case, that limit was thirty days.
18 U.S.C. § 3161(b). Espinoza was charged
on November 22, 2000; the first indictment
was handed down on December 19 and the
second on February 21. In United States v.
Giwa, 831 F.2d 538, 541-42 (5th Cir. 1987),
we adopted a narrow reading of the dismissal
language in § 3162(a). Thus, “dismissal of the
charge is required only if an indictment is
secured more than 30 days from the filing of a
complaint and contains identical charges.”
United States v. Perez, 217 F.3d 323, 327 (5th
Cir.) (emphasis added), cert. denied, 531 U.S.
973 (2000). Where, as here, there is both a
timely and an untimely indictment, the first
instrument will toll the STA clock only if the
indictments charge an identical offense. Id.
at 328.4
The purpose behind this requirement in the
STA is to put the defendant on notice as to the
offense he must defend against at trial. Id. at
329.5 This comports with Supreme Court jur-
isprudence teaching that one of the key
purposes of reviewing for sufficiency of an
indictment is to ensure notice to the accused of
the conduct forming the basis of the charge.
Russell v. United States, 369 U.S. 749, 763
(1962); Hagner v. United States, 285 U.S.
427, 431 (1932). This purpose cannot be
served where the indictment the government
offers to toll the STA clock alleges an offense
different from that shown in the superseding
indictment. We therefore must determine
whether the charged conduct in the two
indictments constitutes the same “offense” for
purposes of the STA.
In an almost identical situation, we have ap-
plied the same-offense test from the Supreme
Court’s double jeopardy jurisprudence. In
United States v. Bailey, 111 F.3d 1229 (5th
Cir. 1997), we were faced with the question
whether, for purposes of the STA, charges
contained in an original information referenced
the same offense as did the charges in a later-
4 The indictments, though, need not allege iden-
tical facts. As Perez demonstrates, minor var-
iations in the facts alleged in the indictments will
not prevent an initial indictment from tolling the
STA clock. Perez, 214 F.3d at 328; see also
United States v. Mitchell, 723 F.2d 1040, 1044-45
(1st Cir. 1983) (holding that additional facts in
superseding indictment filed more than thirty days
after arrest did not violate STA). We express no
opinion on the permissible variance of facts be-
tween indictments, because the issue is not before
(continued...)
4(...continued)
us.
5 See also United States v. Berry, 90 F.3d 148,
151 (6th Cir. 1996) (stating that the “purpose of
the thirty-day rule is to ensure that the defendant is
not held under an arrest warrant for an excessive
period without receiving formal notice of the
charge against which he must prepare to defend
himself”); United States v. McCown, 711 F.2d
1441, 1447 (9th Cir. 1983) (noting that purpose of
the STA time limit is to “apprise defendant of the
charges against which he must be prepared to
defend himself”).

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filed indictment.6 We held that the charges in
the information and the indictment constituted
different offenses because they failed the
“same elements” test of United States v.
Blockburger, 284 U.S. 299 (1932). Bailey,
111 F.3d at 1236.
Under Blockburger, 284 U.S. at 304, “the
test to be applied to determine whether there
are two offenses or only one is whether each
provision requires proof of an additional fact
which the other does not.” That is, where the
conduct charged in an initial accusatory
instrument, and a subsequent indictment
produces congruent Venn circles, the conduct
is the same “offense” for purposes of
§ 3161(b). The question remains: Does the
conduct charged i n Espinoza’s two
indictments amount to the same offense?
We have answered this question in a
different context. In United States v. Angeles-
Mascote, 206 F.3d 529 (5th Cir. 2000), we
faced a sufficiency challenge to a plea of guilty
of being “found in” the United States after
deportation in violation of 8 U.S.C. § 1326(a).
On plain error review, we refused to uphold
the plea of guilty where the stipulated facts
supported only a charge of attempting to
enter. Id. at 531.7
If a guilty plea to being “found in” the
United States cannot be supported, even on
plain error, by facts amounting to attempted
entry, the offenses contain different elements.
Because the offenses contain different
elements, they are different offenses under
Blockburger. As different offenses, they
cannot be substituted one for the other to toll
the STA’s thirty-day clock. Thus, the original
indictment, alleging that Espinoza was “found
in” the United States, did not stop the ticking
started on November 22, when the
government charged him with attempting to
enter the United States. The superseding
indictment of February 21 was too late.
III.
Our resolution of Espinpza’s STA claim
does not end the matter. The dismissal
sanction contained in § 3162 leaves to the
court’s discretion whether to dismiss with or
without prejudice. 18 U.S.C. § 3162(a)(1).
This discretion is channeled through three
factors, consideration of which is mandatory:
(1) the seriousness of the offense, (2) the facts
and circumstances of the case which led to the
dismissal, and (3) the impact of a reprosecuti-
on on the administration of the STA and on
the administration of justice. Id.; United
States v. May, 819 F.2d 531, 533 (5th Cir.
1987).8 Our usual practice is to remand for
6 See also United States v. Hsin-Yung, 97 F.
Supp. 2d 24, 30 (D.D.C. 2000) (citing Bailey with
approval and concluding the charged offenses were
not the same because “they have different elements,
proscribe different forms of conduct, and carry
different penalties”).
7 Cf. United States v. Cardenas-Alvarez, 987
F.2d 1129, 1132-33 (5th Cir. 1993) (recognizing
difference in elements between offense of actual
entry and attempted entry). It is of no moment that
the two indictments reference the same statute. In
(continued...)
7(...continued)
Bailey, “the information and indictment in the
instant action each charge a violation of § 662.
But . . . each charge in the instant action is
different despite the shared reference to § 662
because the information charges a misdemeanor
and the indictment charges a felony.” Bailey, 111
F.3d at 1236 n.6.
8 The Act, though, expresses no preference for
one remedy over the other. Johnson, 29 F.3d at
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the district court to consider the factors.
United States v. Alford, 142 F.3d 825, 830
(5th Cir. 1998).
We have not, however, blindly followed
this rule. For example, in United States v.
Johnson, 29 F.3d 940 (5th Cir. 1994), we saw
“no good reason to remand” where there were
“no questions of fact to be explored by the dis-
trict court.” Id. at 946.9 Espinoza’s case,
however, fits into the usual pattern, requiring
remand.
Espinoza’s prior conviction, which exposed
him to § 1326(a) liability, was of aggravated
assault with a deadly weapon. Thus, a
conviction of attempted reentry would expose
him to a term in prison of up to twenty years.
18 U.S.C. § 1326(b)(2). A sentence of this
length constitutes a serious charge.10 Espino-
za’s offense qualifies as serious.
The second factor, the circumstances of
dismissal, “requires consideration of the Gov-
ernment’s reason for having violated the Act.”
May, 819 F.2d at 533. Normally, the burden
is on the government to explain the violation.
Id. The district court, though, found no
violation of the act, so there was no chance for
the government to offer an explanation.
The apparent cause of the delay was
negligence by the government in citing the
wrong § 1326 offense.11 This cuts both ways:
Although it means the government did not
delay to gain a tactical advantage,12 it also
places the entire fault for the delay on the
shoulders of the prosecution.13
The final § 3162 factor requires
consideration of the broad policy aims of the
STA and the act at issue in the underlying
criminal prosecution. This factor encompasses
three concerns, “the defendant’s right to a
timely trial; the deterrent effect of a prejudicial
dismissal on the Government’s repeated
violations of speedy trial requirements; and the
public’s interest in bringing [the accused] to
trial.” United States v. Blevins, 142 F.3d 223,
226 (5th Cir. 1998).
The error had no impact on Espinoza’s
right to a timely trial; everything was
8(...continued)
945.
9 See also United States v. Blackwell, 12 F.3d
44, 48 (5th Cir. 1998) (finding “no acceptable al-
ternative” on the facts of that case); United States
v. Velasquez, 890 F.2d 717, 720 (5th Cir. 1990)
(declining to remand because the length of Velas-
quez’s sentence would be unaffected and we saw
no reason for “further consideration by the district
court”).
10 United States v. Castle, 906 F.2d 134, 138
(5th Cir. 1990) (offense punishable by twenty
years a serious offense); United States v. Peeples,
811 F.2d 849, 850-51 (5th Cir. 1987) (fifteen
years a serious offense); United States v. Melgui-
zo, 824 F.2d 370, 371 (5th Cir. 1987) (ten years a
serious offense).
11 Even if the government were to proffer this
explanation, Espinoza would be entitled to
“subpoena relevant documents [and] call
Government officials” in an effort to show this
reason was pretextual. May 819 F.2d at 533.
12 See United States v. Salgado-Hernandez 790
F.2d 1265, 1268 (5th Cir. 1986) (explaining that
negligence is ordinarily a circumstances favoring
dismissal without prejudice).
13 See May, 819 F.2d at 533 (reasoning that
where the fault lies entirely with the government,
this factor favors dismissal with prejudice).

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proceeding apace on the assumption the first
indictment was proper. It was only when the
court pointed out the mistake that any
concerns arose regarding the STA.
There is nothing to indicate that the
government repeatedly violates the STA. The
government’s negligence, though, merits some
consequence. This does not mean that
dismissal with prejudice is the only route.
Even dismissal without prejudice imposes
some costs on the government.
Dismissal without prejudice is not a
toothless sanction: it forces the
Government to obtain a new indictment
if it decides to reprosecute, and it
exposes the prosecution to dismissal on
statute of limitations grounds. Given
the burdens borne by the prosecution
and the effect of delay on the
Government’s ability to meet those
burdens, substantial delay well may
make reprosecution, even if permitted,
unlikely. If the greater deterrent effect
of barring reprosecution could alone
support a decision to dismiss with
prejudice, the consideration of the other
factors identified in § 3162(a)(2) would
be superfluous, and all violations would
warrant barring reprosecution.
United States v. Taylor, 487 U.S. 326, 342
(1988).14 Finally, the public’s interest in bring-
ing Espinoza to trial is high, because his
alleged crime is itself premised on a prior ag-
gravated assault.
Summing these factors, we conclude that
the proper course is remand so the district
court can evaluate these statutory factors, aid-
ed by its greater familiarity with the case. Our
analysis of the § 3162 factors reveals that the
district court is “best situated” to evaluate the
nature of the dismissal in the first instance.
United States v. Willis, 938 F.2d 60, 64 (5th
Cir. 1992).
Accordingly, we REVERSE Espinoza’s
conviction and REMAND to the district court
to determine whether the dismissal should be
with or without prejudice.
14 The Court also noted that the act authorizes
direct sanctions against the prosecutor in the form
of fines, sanctions, or reports to the appropriate
disciplinary committee. Taylor 487 U.S. at 342
n.14 (citing 18 U.S.C. § 3162(b)(C), (D), (E)).

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