### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-20220

UNITED STATES OF AMERICA, Plaintiff - Appellee
v. HUGO ORTIZ, Defendant - Appellant

Appeal from the United States District Court for the Southern District of Texas

Before DAVIS, SMITH, and DENNIS, Circuit Judges. DENNIS, Circuit Judge: The Speedy Trial Act requires that “[a]ny information or i n d i c t m ent charging an individual with the commission of an offense shall be f iled within thirty days from the date on which such individual was arrested or served with

a summons in connection w i t h s u c h charges.” 18 U.S.C. § 3161(b). The Act f u r ther provides that “[i]f, in the case of any individual against w h o m a complaint is filed charging such individual with an o f f e n se, 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.” Id. § 3162(a)(1). The government concedes that it filed the indictment against the defendant in this case, Hugo Ortiz, beyond this 30-day deadline. However, it contends that U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

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this period o f delay resulted from the absence of “an essential witness,” Santos Diaz-Soto, one of Ortiz’s co-conspirators, and therefore, is excluded from the 30-day limit. See id. § 3161(h) ( 3 ) (A)

. W e agree with Ortiz that the government has failed to show that Diaz-Soto was an “essential witness” for the
purposes of obtaining a grand jury indictment against Ortiz, and therefore, that the indictment was filed beyond t h e t i m e allowed by the Speedy Trial Act. Accordingly, the charges against Ortiz must be dismissed. See id. § 3162(a)(1). Therefore, we REVERSE Ortiz’s conviction, V A C ATE his sentence, and REMAND the case so that the district court can determine whether to dismiss the case with or without prejudice. 1 I. On September 11, 2009, an o f f

- duty Texas Alcoholic Beverage Commission officer was working as a body guard for a traveling j e w e l r y salesman in the Galleria Area of Houston when he was robbed at gunpoint by two men. The officer shot both men, who managed to esca p e. One of the suspects, Santos Diaz-Soto, was brought to an area hospital , and was later arrested. He confessed to a conspiracy with Ortiz and others to commit the robbery. Houston Police Department officers arrested Ortiz a f e w d a ys later. On December 9, Ortiz was transferred to f e d e r a l custody, and he made his initial appearance before a federal magistrate judge that same day; two days later, the magistrate denied Ortiz bon d

. On January 13, 2010, the government filed a two-count in di c t m ent charging Ortiz, Diaz-Soto, and two other co-defendants with interference with commerce by robbery in violation of 18 U.S.C. § 1951(a), and conspiracy to commit the same offense.

Or tiz als o rais es se veral chall enges to his se nten ce, how ever, we need not reac h thos e 1 iss ues beca use we vacat e Or tiz’ s se nten ce as a cons equenc e of the governm ent’ s fai lure to fil e the indi ctm ent wi thin the tim e p res cribedby the Sp eed y Tri al Act. 2 Case: 11-20220 Document: 00511922555 Page: 2 Date Filed: 07/16/2012No. 11-20220

Ortiz moved to dismiss the charges under the Speedy Trial Act, 18 U.S.C. § 3161 et seq. , because it wa s f i l e d more than thirty days after he was transferred to federal custody. The gover n m e n t conceded that the indictment

was filed pas t the 30-day deadline set by the Act, see 18 U.S.C. § 3161(b), but argued that the charges should not be dismissed. Specifically, the government contended that Diaz

- S o t o was “an essential witness” under 18 U.S.C. § 3161(h) ( 3 ) (A), and because he had posted bond and fled before Ortiz was indicted, his absence tolled the 30-day period. The district court found that the government had been diligent in attempting to locate Diaz-Soto, and that he was “absent” within the meaning of the Speedy Trial Act. United States v. Ortiz , No. H-10-12-1, 2010 WL 2557679, at *2 (S.D. Tex. June 22, 2010) (unpublished). The court also determined that Diaz-Soto was an essential witness, regardless of the fact that the government had been able to obtain an indictment without him. Id. at *3. The court explained: “Diaz-Soto, of course, would have been very unlikely to testify before the grand jury without a promise of immunity fr o m the Government. Nonetheless, the fact that Diaz-Soto was a fugitive and might not be available to testify at trial greatly limited the Government’s ability to present the case to a grand jury.” Id. Accordingly, the court denied O r t i z’s motion to dismiss the charges. Id. Ortiz entered a conditional guilty plea to both counts of the i n d i c t ment, reserving the right to appeal the court’s Speedy Trial Act decision. 2

Aft er the dis tri ct cour t deni ed his mo tio n to dis mi ss unde r the Sp eed y Trial Act, Or tiz 2 fil ed a mo tio n to “not if[y] the Court and the Go vernm ent that he wi she s to ple ad guilty to the pr es ent off

ens e p urs uant to [Fed eralRule of Crim inal Proc edur e] 11( a)( 2), ” wh ich pe rm its a def enda nt to ente r “a cond itio nal p l e a” that res erves “th e right to have an app ellat e cour t revie w an adver se det erm inati on of a sp ecif ied pr etr ial mo tio n,” Fed. R. Crim P. 11(a)( 2). Or tiz’ s mo tio n s tat ed thathe“ wi she s to pr es erve hisap pel late right s to enablean app ellat e cour t to revie w the Court ’s adver se det erm inati on of Mr

. Or tiz’ sp eed y t r i al mo tio n.” The governm ent did not opp os e the mo tio n and the dis tri ct cour t grant ed it. At the rear raignm ent, bef ore Or tiz ente red his ple a, Or tiz’ s att orne y st ated , “I alre ady fil ed my pr evious Rule 11(a)( 2) [m oti on] , wh ich I think the Court grant ed” ; and the gover n m ent did not objec t. The 3 Case: 11-20220 Document: 00511922555 Page: 3 Date Filed: 07/16/2012No. 11-20220 II. “‘We review the district court’s factual findings supportin g it s S p e e dy Trial Act ruling fo r c l e ar error and its legal conclusions de novo .’” United States v. Burrell , 634 F.3d 284, 290 (5th Cir. 201 1) (quoting United States v. Green , 508 F.3d 195, 199 (5th Cir. 2007)). The Speedy Trial Ac t r e q u ires that “[a]ny information or indictment charging an individual with the commission of an offense shall be filed w ithin thirty days from the date on which such individual was arrested or served with

a summons in connection wit h s u c h c h a r ges.” 18 U.S.C. § 3161(b). “The Act contains two main time limits: th e l i mit in § 3161(b) running from arrest or

summons t o i ndictment, and the seventy-day limit in § 3161(c) running from indictment to trial.” United States v. DeJohn , 368 F.3d 533, 538 (6th Cir. 2004). “The purpose of the former, the thirty-day limit at issue in this case, is to insure that individuals will not languish in jail or o n bond without being formally indicted on particular charges.” Id. The Act further provides t h a t “[t]he following periods of delay shall be excluded in computing the time within which

an information or an indictment must be filed[:]

. . . Any period of delay resulting from the absence [of] . . . an essential witness.” 18 U.S.C. § 316 1(h)(3)(A). The government concedes that the indictment was filed beyond the 30-day deadline prescribed by the Speedy Trial Act, but contends that Diaz-Soto was an essential witness and that his absence, as a fugitive, tolled the 30-day time limit for filing Ortiz’s indictment. Ortiz submits four arguments in response: (1) that the essential witness exclusion only applies to the trial timeline, and not to the indictment timeline; (2) that Diaz-Soto could not qualify as an essential witness

governm ent conc ede s thatO rti z p res ervedt he Sp eed y Trial Act iss ue forap pea l. Weagr ee, how ever, wi th the governm ent that Or tiz did not res erve the right to app eal the dis tri ct cour t’s pr etr ial det erm inati on t h at ther e wa s pr obable caus e for his arr es t. See Uni ted States v. Sanc hezG uer rero , 546 F.3d328 , 331 (5t h Cir

. 2008)

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because he was a co-defendant; (3) that Diaz-Soto was not an essential witness because his testimo n y w a s n o t needed to obtain an indictment from the grand jury; and (4) that Diaz-Soto was not “absent” within the meaning of the Speedy Trial Act. We agree with Ortiz on t h e th i r d p o int, that Diaz-Soto was not “an essential witness” because his testimony was not necessary to obtain a grand jury indictment, and thus, do not need to reach his other arguments. The Speedy Tri al Act do e s no t d efine “essential witness,” and although this court has not had occasion to expound this term, several of our sister ci r c uits have. See United States v. Miles , 290 F.3d 1341 (11th Cir. 2002); United States v. Hamilton , 46 F.3d 271 (3d Cir. 1995); United States v. McNeil , 911 F.2d 768 (D.C. Cir. 1990); United States v . Eagle Hawk , 815 F.2d 1213 (8th Cir. 1987); United States v. Marrero , 705 F.2d 652 (2d Cir. 1983). All of those courts began by noting that the Senate Judiciary Committee report accompanying the Speedy Trial Act provides the following explanation: “ B y an ‘essential witness’ the Committee means a witness so essential to the p r o c eeding that continuation without the witn e s s w o u ld either be impossible or would likely result in a miscarriage of justice.” S. Rep. No. 93-1021, at 37 (1984), re printed in 1984 U.S.C.C.A.N. 7401; see Miles , 290 F.3d at 1350; Hamilton , 46 F.3d at 277; McNeil , 911 F.2d at 7 7 3; Eagle Hawk , 815 F.2d at 1218; Marrero , 705 F.2d at 656. “If, h o w ever , th e witness’s anticipated testimony will be merely cumulative,

or substantially irrelevant, that witness should be deemed non-essential.” Eagle Ha w k , 815 F.2d at 1218; Miles , 290 F.3d at 1350 (quoting the same statement from Eagle Hawk , 815 F.2d at 1218); Hamilton , 46 F.3d at 277 (“[I]f the witness’s testimony will b e m erely cumulative or substantially irrelevant, the witness should not be deemed essential.” (citing Eagle Hawk , 815 F.2d at 1218)); McNeil , 911 F.2d at 774 (“While Simms’s testimony may hav e added something to the Government’s case in this regard, it clearly was cumulative, not essential.”); see also Marrero , 705 F.2d at 656 (“The legislative history reveals that by [‘essential

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witness’] Congress meant to refer to witnesses w h ose testimony would be extremely important to the proceeding, perhaps providing proof that was not otherwise attainable.”). Diaz-Soto’s statement to the police implica t i n g O rtiz would have been admissible in the grand jury without his testimony, see Fed. R. Evid. 1101(d)(2) (the rule against hearsay does not apply in grand-jury proceedi n g s ) , a nd therefore, because his testimony would have be e n merely cumulative for the
purpose of obtaining a grand jury indictme nt , w e h ave no trouble concluding that Diaz-Soto was not an essential witness to that proceeding. The government and the district court erroneousl y c o n f late the question of whether a witness is essential for the purposes of obtaining a conviction at trial , with the distinct question of whether a witness is essential for the purpose of obtaining a grand jury indictment

. See Ortiz , 2010 WL 2557679, at *3 (“[T]he fact that Diaz-Soto

was a fugitive and might not be available t o t e s t i f y at trial greatly limited the Government’s ability to present the cas e t o a grand jury .” (emphases added)). “[A]n ‘essential witness’

. . . means a witness so essential to the proceeding

. . . .” S. Rep. No. 93-1021, at 37 (emphasis added). The distinction between a grand jury p r oceeding and trial matters because an essential witness for one is not necessarily an essential witness for the other. The indictment timeline and the trial timeline serve different purposes. See DeJohn , 368 F.3d a t 5 3 8 (“The
purpose of the [indictme n t t i m e l i n e ]

. . . is to insure that individuals will not languish in jail or on bond without being formally indicted on particular charges.”). Moreover, the evidentiary rules that apply i n each proceeding are distinct, and, in turn, affect whether a witness is essential to the particular
procee d ing. Here, Diaz-Soto’s testimony implicating Ortiz may have been essential to the Government’s case against Ortiz at trial , where Diaz-Soto’s outof-court confession would have likely been excluded as hearsay, see Fed

. R

. Evid. 802, and barred by the Confrontation Clause, see Crawford v. Washington , 6 Case: 11-20220 Document: 00511922555 Page: 6 Date Filed: 07/16/2012No. 11-20220

541 U.S. 36 (2004)

. B u t t he issue here is whether Diaz-Soto was an essential witness to obtain an indictm e n t from the grand jury. As the government concedes, Diaz-Soto’s hearsay conf e s s io n could readily have been conveyed to the grand jury without his testimony b e c a u se in grand jury proceedings—where t h ere is no confrontation right—hearsay evidence is admissible, see Fed. R. Evid. 1101(d)(2), and may alone support an indictment, see Cost e l lo v . U nited States , 3 5 0 U

. S

. 3 59 (1956). Thus, Diaz-Soto’s testimony would have been merely cumulative in the grand jury, and therefore, he was n o t a n e ssential witness to that proceeding. See, e.g. , McNeil , 911 F.2d at 774 (“While Simms’s testimony may have added something to the Government’s case in this regard, it clearly was cumulative, not essential.”). The essential witness exclusion is the only reason cited by the government for excusing its failure to file the indictment against Ortiz within the 30-day period as required by the Speedy Trial Act. Since that exclusion does not apply here, the government failed to comply with the statutory deadline for filing the i n d i c t m e n t

. The Speedy Trial Act provides that “[i]f, in the case of any individual against whom a complaint is filed charging such individual 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 co m p l a i nt shall be dismissed or otherwise dropped.” 18 U.S.C. § 3162(a)(1). The Act further provides that “[i]n d e t ermining whether to dismiss the case with or without prejudice, the cour t shall consider, among others, each of the following factors: the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administrat ion of this chapter and on the administration of justice.” Id. “‘[T]he statute leaves to the court’s discretion,’” based on consideration of these factors, “‘w h ether to dismiss the [case] with or without prejudice,’” and “‘[o]ur usual practice is to remand for the district court

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t o c o n s i d er the factors.’” Burrell , 634 F.3d at 293 (quoting United States v. Stephens , 489 F.3d 647, 657-58 (5th Cir. 2 007)). Accordingly, we REVERSE Ortiz’s conviction, VACATE his sentence, and REMAND the case for the district court to determine whether to dismiss the

case with or without prejudice, giving proper consideration to the factors s e t forth in 18 U.S.C. § 3162(a)(1).

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