## IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________



### m 01-40653

_______________



### U NITED 

### S TATES OF 

### A MERICA

,



### Plaintiff-Appellee,

VERSUS



### M ARTIN 

### M ARTINEZ 

### -E SPINOZA



### ,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________

July 17, 2002

Before S MITH

, B ENAVIDES

, AND P ARKER

, Circuit Judges.

J ERRY E. S MITH , Circuit Judge:

Martin Marti nez-Espi

noza (“Espinoza”) appeals, 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 No vember 21, 2000, Espinoza

approached the b o rder at a bridge and presented immigration o fficials wit h a legal

resident alien card (form I-551) seeking entry.

A check of his record revealed an earlier

deportati on after a conviction of ag g ravated

assault with a deadly weapon. On November

22, the government filed a complaint charging

Espinoza with “attempting to enter” the United States. A grand jury returned an indictment

on December 19, charging Espinoza wit h

being “found in” the United States. 1

1 Both offenses are violations of 8 U.S.C.

(continued...)2

On February 21, 2001, Espinoza appeared

in court, prepared to enter a p l ea of guilty.

The court, however, noted the inco nsistency

betw een t he charge and the indictment and

s uggested that Espinoza and the government

work out a solution. 2 That same day, a grand jury returned a supe rseding 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 who SS

(1) has been denied a dmission,

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 a ny time found in, the United

States, unless (A) prior to his reembarkation at a place outside the

United S tates or his application

for admission from foreign contiguous territory, the Attorney

General has expressly co nsented

to such alien’s reapplying for admission; or (B) with respect to an

alien previously denied admission

and removed, unless such alien

shall establish that he was not

required to o b tain such advance

consent under this chapter or any

prior Act.

8 U.S.C. § 1326(a).

2 Rule 11, F ED

. R. C RIM

. P., requires the district

court to determine the accura cy of a plea before

accepting it: “Notwithstanding the acceptance of

a plea of guilty, the court s h ould not enter a

judgment upon

such a plea without making such

inquiry as shall s atisfy it that there is a factual

(continued...) 2 (...continued)

basis for the plea.” F ED

. R. C RIM

. 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 individ ua l with an offense, no indictment or

information is fil ed within the time limit

required by section 3161(b) as extended by

section 3161(h) of this chapter, such charge

against th a t individual contained in such

complaint shall be dismi ssed or otherwise

dropped.

8 U.S.C. § 3162(a). For Espinoza, this time limit

was thirty days:

Any inf o rmation 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 b een 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).3 II.

A.

We review interpretation s of the STA d e

novo . We accord clear-error deference to related factual questions. U

nited States v. De La

Peña-Juarez

, 214 F .3d 594, 597 (5th Ci r.),

cert. denied

, 531 U.S. 983, and c e rt. denied

531 U.S. 1026 (2000).

B.

The STA requires dismissal w here an indictment 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 ; t he first indictment

was handed down on December 19 an d the

second on Februa ry 21. In U nited 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 identic al 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

t imely and an untimely indictment, the first

inst rument will toll the STA clock only if the

indictments charge an identical offense. I d.

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. I d

. at

329. 5 This comports with Supreme Court jurisprudence teaching th at one of the key

purposes of re viewing for sufficiency of an

indictment is to ensure notice to the accused of

the conduct forming the basis of the charg e

. Russell v. United S tates , 369 U.S. 749, 763

(1962); Hagner v. United States

, 285 U.S.

427, 43 1 (1932). This purpose cannot be

served where the indictment the gove rnment

offers to toll the STA clock alleges an offense

different from that shown in the superseding

ind ict ment. 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 applied the same-offense test from the Supreme

Court’s double jeopardy jurisprudence. In

United States v. Bailey, 111 F.3d 1229 (5th

C ir. 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 later4 The indictments, though, need not allege identi c al facts

. As P erez demonstrates, minor variations in the facts alleged in the i ndictments will

not prevent an initial indictment from tolli ng the

STA clock. P erez

, 214 F.3d at 328; s ee also

United States v. Mitchell

, 723 F.2d 1040, 1044-45

(1st Cir. 1983) (h olding that additional facts in

superseding indictment filed more than thirty days

after arrest did not violate S TA). We express no

op i nion on the permissible variance of facts between 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. 1 996) (stating that the “purpose of

the thirty-day rule is to ensure that the defendant is

not held under an arrest wa r rant for an excessive

period without receiving formal no tice of the

cha r ge against which he must prepare to defend

himself”); United States v. McCown, 7 11 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”).4

filed indictment. 6 We held that the charges in

the information and the indictment constituted

different o ffenses because they failed the

“same elements” test of United States v.

B lockburger , 284 U.S. 299 (1932). B ailey

, 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 wh ether each

provision requires proof of an additional fact

which the other does not.” That is, where the

conduct charged in an init ial accusatory

instrument, and a subsequent indictment

produces congruent Venn circles, the conduct

is the same “of

fense” for purposes of

§ 3161(b). The question remains: Does the

conduct charged i n Espi noza’s two

indictments amount to the same offense?

We have answered this question in a

different context. In U

nited States v. AngelesMascote

, 206 F.3d 529 (5th Cir. 2000), we

faced a sufficiency challenge to a plea of guilty

o f being “found in” the United States after

deportati on in violation of 8 U.S.C. § 1326(a).

On plain error review, we refused to uphold

the plea of guilty where the stipul ated f acts

supported only a charge of attempting to

enter. Id . at 531. 7 If a guilty plea t o 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

B lockburger. A s 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 attem pti ng to

ente r t he United States. The superseding

indictment of February 21 was too late.

III.

Ou r resolution of Espinpza’s STA claim

does not end the matter. The dismissal

sanc t io n contained in § 3162 leaves to the

court’s discretion whether to dismiss with or

without prej udice. 18 U.S.C. § 3162(a)(1).

This discreti o n 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 reprosecution on the admi nist ration of the STA and on

the administration of justice. I d .; U nited

States v. May

, 819 F.2d 531, 533 (5th Cir.

1987). 8 Our usual practice is to remand for

6 See also United Sta tes 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 for ms of conduct, and carry

different penalties”).

7 Cf. United States v. Cardenas-Alvarez , 987

F.2 d 1129, 1132-33 (5th Cir. 1993) (recognizing

d ifference in elements between offense of a ctual

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 th e instant action is

different despite the shared reference to § 662

because the information charges a misde meanor

and the indictment charges a felony.” B ailey

, 111

F.3d at 1236 n.6.

8 The Act, though, expresses no preference for

one remedy over the other. J ohnson

, 29 F.3 d at

(continued...)5

th e district court to consider the factors.

United States v. Alford, 142 F.3d 825, 830

(5th Cir. 1998)

.

We have n o t , however, blindly followed

this rule. For example, in U nited 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 district co urt.” I

d

. at 946. 9 Espinoza’s case,

however, fits into the usual pattern, requiring

remand.

Espinoza’s prior conviction, which exposed

him to § 1326(a) liabilit y, was o f 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 o f this

length constitutes a serious charge. 10 Espinoza’s offense qualifies as serious.

The second factor, the circumstances of

dismissal, “requires consideration of the Government’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 governmen t in citing the

wrong § 1326 offense. 11 This cuts both ways:

Althoug h it means the government did not

delay t o gain a tactical advantage, 1 2 it also

places the entire fault for t he delay on the

shoulders of the prosecution. 13

The final § 3162 facto r requires

consideration of the broad poli c y 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

t imely 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.” U nited States v. Blevins

, 142 F.3d 223,

226 (5th Cir. 1998).

The error had no impact on Espinoza’s

right to a t imely trial; everythin g was 8 (...continued)

945.

9 See also United States v. Blackwell

, 12 F.3d

44, 48 (5th Cir. 1998) (finding “no acceptable alternative” on the facts of that case); United States

v. Velasquez

, 890 F.2d 717, 720 (5th C ir. 1990)

(declining to remand because the len g th of Velasquez’s sentence w ould 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 puni shable 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. Melguizo

, 824 F.2d 370, 371 (5th Cir. 1987) (ten years a

serious offense). 11 Even if the government were to proffer this

explanation, E spinoza would be entitled to

“subpoena re levant 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 S ee May

, 819 F.2d at 533 (reasoning that

where the fault lies entirely with the government,

this factor favors dismissal with prejudice).6

proceeding apace on the assumpt io n 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 t o indicate that the

government repeatedly violates the STA. The

government’s negligence, though, merits some

consequence. This does not mean that

dismissal with pr ejudice is the only route.

E ven dismissal without prejudice impo ses

some costs on the government.

Dismissal wit hout prejudice is not a

toothless sanction: it forces the

Government to obtain a new indictment

if it decides to reprosecute, a nd it

exposes the prosecution to dismissal on

statute of limitation s grounds. Given

the burdens borne by the pro secuti on

and the effect of delay on t he

Governme nt ’s ability to meet those

burdens, s ubstantial delay well may

make reprose cut ion, even if permitted,

unlikely. If the greater deterrent effect

of barring reprosecuti o n could alone

s upport a decision to dismiss w ith

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 bringing Esp ino za to trial is high, because his

alleged crime is itself premised on a prior aggravated assault. Summing these factor s, we conclude that

the proper course is remand so the d i strict

court can evaluate these statutory factors, aided by its greater familiarit

y 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 t he 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 dism issal 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. T a y lor 487 U.S. at 342

n.14 (citing 18 U.S.C. § 3162(b)(C), (D), (E)).