United States of America v. Eladio Cruz

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ELADIO CRUZ,
Defendant - Appellant.
No. 13-50606
D.C. No. 3:12-cr-00654-JLS-1
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
Argued and Submitted October 19, 2015
Pasadena, California
Before: KLEINFELD, RAWLINSON, and NGUYEN, Circuit Judges.
Eladio Cruz appeals his conviction for attempted entry after deportation
without consent, in violation of 8 U.S.C. § 1326(a)-(b). We have jurisdiction
FILED
DEC 17 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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pursuant to 28 U.S.C. § 1291. Because we conclude that the Speedy Trial Act was
violated, we reverse and remand.1
1. Contrary to the government’s contention, Cruz’s February 24, 2012 pro
forma discovery motion was not continued until June 22, 2012. At most, the
discovery motion was continued to May 25, 2012, pursuant to either the defense’s
request or the parties’ joint stipulation. The continuances thereafter – so far as the
record shows – had nothing to do with Cruz’s discovery motion; rather, they
related to Cruz’s motion to dismiss the indictment for invalid deportation. See
United States v. Sutter, 340 F.3d 1022, 1032 (9th Cir. 2003) (“[U]nless
consideration of the motion is continued until a date certain or the happening of an
event certain, the motion is deemed under advisement.”). There is no indication in
the record of any ongoing, live discovery disputes that the court needed to resolve,
nor any indication that the continuances on or after May 25 were related to
discovery issues raised in Cruz’s motion. See id. at 1028 (noting that, in the
absence of a pending discovery dispute on which the court needs to rule, official
1We do not address Cruz’s other challenges to his conviction. See United
States v. Lewis, 349 F.3d 1116, 1117 (9th Cir. 2003) (per curiam).
2

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docket continuances and ongoing discovery alone are insufficient to toll the
Speedy Trial Act clock).2
2. We also reject the government’s argument that the discovery motion was
pending for about 17 months and finally taken “under advisement” by the court on
either July 28, 2013 (when the government finally responded to the motion), or on
August 2, 2013 (when the district court addressed the motion). “[I]t is
disingenuous for the government to assert that this particular ‘live [discovery]
issue’ traces back to the [earlier] hearing” because the record is devoid of anything
evidencing further discovery disputes at “the close of” the 2012 hearing. See
Sutter, 340 F.3d at 1028-29, 32 (alterations supplied). After May 25, 2012, the
district court did not schedule any future hearings, request any additional filings, or
indicate an “event certain” that would have disposed of the discovery motion. See
Henderson v. United States, 476 U.S. 321, 329 (1986) (“Without the promptness
requirement in [18 U.S.C. § 3161(h)(1)(F)], a court could exclude time beyond [18
2The government argued for the first time on appeal that the discovery
motion had been continued to June 22, 2012 (i.e. that only 65 days had elapsed
under the Speedy Trial Act) and that Cruz had waived any challenge to the 10
non-excludable days that elapsed after the court denied his Speedy Trial Act
motion but before his trial date. We need not reach the issue of waiver, but note
that because the government failed to raise this argument below, Cruz had no
reason to challenge this period of delay. See Portman v. County of Santa Clara,
995 F.2d 898, 910 (9th Cir. 1993) (appellate court is not obligated to affirm on
alternative ground).
3

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U.S.C. § 3161(h)(1)(J)]’s 30-day ‘under advisement’ provision simply by
designating the additional period as time ‘from the filing of the motion’ through its
‘disposition’ under subsection (F).”); Sutter, 340 F.3d at 1032 (“[A] pro forma
discovery motion ‘continued’ merely ‘in case’ future discovery disputes arise is
under advisement, because the motion is not set for a hearing nor is the court
awaiting any ascertainable materials.”).
3. Accounting for the other undisputed, non-excludable periods of delay,
more than 70 days elapsed between Cruz’s arraignment and trial. Accordingly, the
pretrial delay in this case violated the Speedy Trial Act, and the indictment must be
dismissed. See 18 U.S.C. § 3162(a)(2).
We reverse and remand to allow the district court to determine in the first
instance whether the indictment should be dismissed with or without prejudice,
pursuant to the factors specified in 18 U.S.C. § 3162(a)(2). See United States v.
Jordan, 915 F.2d 563, 566 (9th Cir. 1990).
REVERSED AND REMANDED.
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