UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 95-20281

__________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE VIRGILIO REYES, ALSO KNOWN AS JOSE RAFAEL GARCIA,

Defendant-Appellant.

______________________________________________

Appeal from the United States District Court for the

Southern District of Texas

______________________________________________

December 19, 1996

Before REAVLEY, GARWOOD, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

Defendant-Appellant, Jose Virgilio Reyes, principally appeals

his conviction of using or carrying a firearm during and in

relation to a drug-trafficking crime in violation of 18 U.S.C. §

924(c)(1). Reyes claims that reversal of his conviction is

mandated because the evidence at trial was insufficient to support

the jury’s verdict and because the district court’s instructions to

the jury constituted a co nstructive amendment of the indictment.

Reyes also contends that his prosecution was b arred because the

government dismissed the original federal complaint against him2

solely to avoid the requirements of the Speedy Trial Act of 1974,

as amended, 18 U.S.C. § 3161 et seq. We affirm.

I. Background

On September 24, 1992, Jose Virgilio Reyes was a rrested and

charged with state firearm and drug offenses arising out of an

incident at a Greyhound Bus Terminal in Houston, Texas. On

September 25, 1992, Reyes was charged in a federal criminal

complaint with a variety of similar offenses arising out of the

same incident. Reyes was incarcerated by state authorities from

the time of his arres t until his state sentencing on January 5,

1993, when he was sentenced to an eight-year term of imprisonment

in the Texas Department of Criminal Justice. Reyes was released on

parole in September 1993.

On January 12, 1994, the government filed a motion to dismiss

the federal criminal complaint filed against Reyes without

prejudice under Federal Rule of Criminal Procedure 48(a). The

district court granted the government’s motion. On July 20, 1994,

Reyes was cha rged by federal indictment with the following

offenses: (1) conspiracy to possess with intent to distribute

marijuana in violation of 21 U.S.C. § 846; (2) knowing delivery of

a suitcase containing firearms to a common carrier without giving

written notice to the carrier that the firearms were being

transported or shipped in violation of 18 U.S.C. § 922(e); (3)

knowing possession of firearms that had been shipped in interstate

commerce from which the manufacturer’s serial number had been

obliterated in violation of 18 U.S.C. § 922(k); and (4) using and1 Section 924(c)(1) requires the imposition of specified penalties

if the defendant, “during and in relation to any crime of violence

or drug trafficking crime ...[,] uses or carries a firearm.”

Although the indictment charged Rey es with using a nd carrying a

firearm, the district court properly in structed the jury that it

could convict the defendant of violating § 924(c)(1) if he used or

carried a firearm during and in relation to a drug-trafficking

crime. S ee United States v. Johnson

, 87 F.3d 133, 136 n.2 (5th

Cir. 1996).

3 carrying a firearm during and in relation to the drug-trafficking

crime of possession with intent to di stribute marijuana in

violation of 18 U.S.C. § 924(c)(1).

At the close of all of the evidence at trial, Reyes moved for

a judgment of acquittal. In his motion, Reyes argued that the

evidence was insufficient to support the four counts alleged in the

indictment. Reyes also claimed that the prosecution violated the

prohibition against double jeopardy because he previously had been

convicted of the same offenses in state court. Finally, Reyes

protested that the government dis missed the original federal

complaint solely to avoid speedy trial concerns because an

indic tment was not arrived at in a timely fashion. The district

court denied Reyes’s motion.

The jury found Reyes guilty on all counts. Reyes was

sentenced to a 21-month term of imprisonment as to counts one, two,

and three. Reyes also received a 60-month, consecutive term of

imprisonment as to count four. This appeal followed.

II. Sufficiency of the Evidence

Reyes argues that the evidence was insufficient to support his

conviction for “carrying” a firearm during and in relation to a

drug-trafficking crime in vio lation of 18 U.S.C. § 924(c)(1). 12 While the evidence is plainly sufficient and Reyes’s argument

could be summarily rejected, we present a detailed account of the

facts here inasmuch as the evidence and the jury’s verdict on the

con spiracy count have a bearing on our treatment of the

constr uctive amendment issue, discussed in Part III of this

opinion.

4 Because Reyes moved for a judgment of acquittal at the close of the

evidence, the standard for evaluating the sufficiency of the

evidence is whether, “viewing the evidence and the inferences that

may be drawn from it in the light most favorable to the verdict, a

rational jury could have found the essential elements of the

offenses beyond a reasonable doubt.” U nited States v. Pruneda

Gonzalez

, 953 F.2d 190, 193 (5th Cir.), cert. denied

, 504 U.S. 978,

112 S. Ct. 29 52, 119 L.Ed.2d 575 (1992). In a non-vehicular

context, a violation of the “carry” prong of § 924(c)(1) “requires

a showing that the gun was in reach during the commission of the

drug offense.” U nited States v. Pineda-Ortuno

, 952 F.2d 98, 103

( 5th Cir.), cert. denied

, 504 U.S. 928, 112 S. Ct. 19 90, 118

L.Ed.2d 587 (1992). S ee also United States v. Fike

, 82 F.3d 1315,

1328 (5th Cir.), cert. denied , — U.S. —, 117 S. Ct. 241 (1996).

The evidence introduced at Reyes’s trial was sufficient to

support a conviction for carrying a firearm under § 924(c)(1). 2 At

trial, R.B. Stewart, a Houston police officer, testified that on

September 24, 1992, he observed Reyes helping a taxicab driver

retrieve a suitcase out of a cab near the Greyhound bus station in

Houston. Officer Stewart’s suspicions were aroused when he noticed

that the suitcase had a large padlock on it and ap peared large,

heavy, and newly purchased. Officer Stewart testified that he5

observed Reyes enter the bus stat ion and approach the ticket

counter carrying the suitcase. Officer Stewart observed Reyes

purchase a one-way ticket t o New York with large bills. Reyes

filled out a name tag, writing the name “Jose Garcia” and the

destination “New York City” on the tag. The suitcase was then sent

downstairs to be loaded on a bus.

A s Reyes exited the bus station, Officer Stewart appr oached

Reyes, identified himself as a police officer, and asked Reyes if

he could speak with him. Reyes responded, “I’ll be with you in a

second, officer. I need to pay this cab driver.” Reyes then went

to pay the cab driver. Officer Ralph Rodriguez approached Officer

Stewart at this time. Officer Stewart gave Officer Rodriguez a

sig nal to keep an eye on Reyes because Officer Stewart had an

instinct that Reyes was going to run. Officer Stewart testified

that as soon as Reyes paid the cab driver, Reyes looked at him and

ran.

As Reyes ran across the parking lot, he dropped a backpack

that he was carrying. Officer Rodriguez picked up the backpack and

pursued Reyes in his vehicle. Following a chase of several blocks,

Officer Rodri guez captured Reyes. After Reyes was placed in

custody, Officer Rodriguez checked Reyes’s backpack for weapons and

found a loaded .25 calib er automatic weapon. Officer Rodriguez

also found six hand-rolled marijuana cigarettes in the backpack.

Officer Stewart asked two officers at the bus station to have

a drug detection dog “run” the suitcase that Reyes had attempted to

transport on the Greyhound bus. Reyes denied that the padlocked6

suitcase was his when he was questioned in the security room at the

bus station, despite the fact that the keys to the padlock were in

his pocket. Reyes gave Officer Stewart permission to open the

suitcase, stating that he had no knowledge of its contents and that

he was carrying the suitcase for someone else. Inside the

suitcase, officers found fifteen weapons, two plastic bags

containing marijuana, and a “drimmel tool” used for grinding metal.

The marijuana in the suitcase weighed a little over two pounds.

David Bock, an agent with the Bureau of Alcohol, Tobacco, and

Firearms, testified that Reyes told him that on September 21, 1992,

Reyes had flown to Ho uston from New York at the request of two

persons he met at a soccer game in Brooklyn. Reyes told Agent Bock

that the individuals sent him to Houston with $4000 to purchase ten

small handguns and three pounds of marijuana. In addition, Reyes

told Agent Bock that he was going to be paid for his participation

in this transaction.

We conclude that the foregoing evidence was sufficient for a

rational jury to conclude that Reyes had a firearm within his reach

when he delive red approximately two pounds of marijuana for

transport on a Greyhound bus. Therefore, we hold that the evidence

was sufficient to sustain Reyes’s conviction under § 924(c)(1) for

“carrying” a firearm during and in relation to a drug trafficking

crime.

III. Constructive Amendment

Count four o f the indictment charged Reyes with knowingly

using or carrying a firearm “in relation to the drug trafficking3 A lternatively, Rey es raises a claim under the Fifth and Sixth

Amendments contending that “[t]he Constit ution gives a criminal

defendant the right to demand that a jury find him guilty of all

elements of the crime with which he is charged.” U nited States v.

Gaudin

, — U.S. —, 115 S. Ct. 2310, 2314, 132 L.Ed.2d 444 (1995).

See also Sulliv an v. Louisiana , 508 U.S. 275, 278-81, 113 S. Ct.

2078, 124 L.Ed.2d 182 (1993) (holding that a constitutionally

deficient reasonable doubt instruction mandated reversal and that

harmless error analysis was inapplicable in this situation). Reyes

argues that proof of guilt of the charged predicate offense is an

essential element of a conviction under 18 U.S.C. § 924(c)(1).

Although the jury in the instant case found Reyes guilty of a

conspiracy to possess with the intent to distribute marijuana, it

made no separate finding that Reyes was guilty of the substantive

offense of possession with the intent to di stribute marijuana.

Because the jury made no finding on an essential element of the

crime with which he was charged, Reyes contends that his conviction

must be reversed.

The cases relied upon by Reyes in support of his fifth and

sixth amendment claim are distinguishable. Those cases involved a

situation in which the jury returned a verdict that was fatally

flawed because an essential element of the crime that the jury was

7 crime of inte ntionally and knowingly p ossessing with intent to

distribute approximately 929 grams of ma rijuana.” The district

court, however, instructed the jury that in order to convict, it

must find “that the defendant committed the crime alleged in Count

one

... and that the defendant knowingly used or carried a firearm

during and in relation to the defendant’s commission of the crime

alleged in Count one.” Count one of the indictment charged Reyes

with conspiracy to possess with the intent to distribute marijuana.

Reyes did not object to the district court’s jury instructions at

trial.

Reyes argues that reversal of his conviction under 18 U.S.C.

§ 924(c)(1) is warranted because the variance between the district

court’s jury instructions and the i ndictment amounted to a

constructive amendment of the indictment. 3 S ee, e.g.

, S tirone v.instructed upon was withheld from it. In the instant case, the

jury found all of the elements of the crime that it was instructed

upon—Reyes carried or used a weapon while conspiring to possess

with the intent to distribute marijuana. Reyes’s true complaint is

tha t the jury found him guilty of a different crime than was

charged in the indictment. In other words, Reyes contends that

“the jury [was] permitted to convict [him] upon a factual basis

that effe ctively modifie[d] an essential element of the offense

charged.” See United States v. Leahy , 82 F.3d 624, 631 (5th Cir.

1996) (internal quotation omitted) (defining “constructive

amendment”).

8 United States , 361 U.S. 212, 217-18, 80 S. Ct. 270, 4 L.Ed.2d 252

(1960). Because Reyes did not raise this alleged error before the

district court, we review the court’s instruction for plain error.

See, e.g., United States v. Restivo , 8 F.3d 274, 278-79 (5th Cir.

1993), cert. denied , — U.S. —, 115 S. Ct. 54, 130 L.Ed.2d 13

(1994). “Plain error is error so obvious and substantial that

failure to no tice it would affect the fairness, integrity, or

public reputation of the judicial proceedings and would result in

manifest injustice.” Id. at 279. This appeal provides our first

occasion to apply plain error analysis to a constructively amended

indictment after the Supreme Court’s decision in United States v.

Olano , 507 U.S. 725, 113 S. Ct. 1770, 123 L.Ed.2d 508 (1993).

“The Fifth Amendment guarantees that a criminal defendant will

be tried only on charges alleged in a grand jury indictment.”

United States v. Arlen

, 947 F.2d 139, 144 (5th Ci r. 1991), c ert.

denied

, 503 U.S. 939, 112 S. Ct. 1480, 117 L.Ed.2d 623 (1992).

“The indictment cannot be ‘broadened or altered’ except by the

grand jury.” Id. (citations omitted). “A constructive amendment

occurs when the trial court ‘through its instructions and facts it

permits in evidence, allows proof of an essential element of a4 In order to establish a conspiracy to possess marijuana with the

intent to distribute, the government must p rove that: (1) an

agreement existed among two or more persons t o possess marijuana

with the intent to distribute the drug; (2) the defendant knew of

the conspirac y, and (3) the defendant voluntarily joined the

conspiracy. S ee, e.g., United States v. Casilla

, 20 F.3d 600, 603

(5th Cir.), cert. denied

, — U.S. —, 115 S. Ct. 240, 130 L.Ed.2d 163

(1994). To prove possession with the intent to distribute

marijuana, however, the g overnment must prove that the defendant

k nowingly possessed marijuana with the intent to distribute it.

See, e.g., United States v. Inocencio , 40 F.3d 716, 724 (5th Cir.

1994).

9 crime on an alternative basis permitted by the statute but not

charged in the indictment.’” Id. (quo ting U nited States v.

Slovacek

, 867 F.2d 842, 847 (5th Cir.), cert. denied

, 490 U.S.

1094, 109 S. Ct. 2441, 104 L.Ed.2d 997 (1989)). We have held that

“[c]onstructive amendment s are reversible per se, as contrasted

with variances between the indictment and proof that are evaluated

under the harmless error doctrine.” U nited States v. Chandler

, 858

F.2d 254, 257 (5th Cir. 1988).

We agree with Reyes that proof of the defendant’s guilt of a

predicate offense is an essential element of a conviction under §

924(c)(1). We also agree with Reyes that a conspiracy to possess

with the intent to distribute marijuana has different elements than

doe s the substantive offense of possession with the intent to

distribute. 4 We therefore conclude that the district court

constructively am ended the indictment by modifying an essential

element of the charged offense when it instructed the jury that it

could convict Reyes under § 924(c)(1) based upon proof that he was

guilty of a conspiracy rather than a substantive offense.

Nonetheless, t he Supreme Court in O lano instructed that our5 Even Justice Stevens, in dissent, acknowledged that “[a]

forfeited error,

... even if it is plain and affects substantial

rights, ‘may’ be corrected at the discretion of the reviewing court

under Rule 52(b).” O lano

, 507 U.S. at 744 (Stevens, J.,

dissenting).

10 authority to correct a forfeited error is discretionary. The Court

stated that “[i]f the forfeited error is ‘plain’ and ‘affect[s]

s ubstantial rights,’ the Court of Appeals has authority to order

correction, but is not required to do so.” 5 O lano

, 507 U.S. at

735. We choose to exercise the discretion afforded us under the

Supreme Court’s mandate and refuse to disturb the jury’s verdict in

this case.

Although the rights asserted by Reyes are undoubtedly

important, a combination of several factors leads us to conclude

that affirming his convic tion would not result in manifest

injustice. First, the predicate offense of conspiracy that the

jury was instructed upon was a “drug trafficking crime” under §

924(c)(1) that could have been the charged predicate offense in the

indictment. Furthermore, Reyes was clearly prepared at the time of

trial to defend against this conspiracy charge and was, in fact,

separately convicted of conspiracy to possess with the intent to

distribute marijuana.

Second, Reyes’s strategy at trial centered on his ignorance of

the contents of his suitcase. The jury’s rejection of this

strategy is evidenced by its guilty verdict as to the three other

counts of the indictment, all of which required Reyes’s knowledge

of the contents of the suitcase. This rejection negates the

possibility that the jury could believe that Reye s did not11

kno wingly possess marijuana with the intent to distribute. The

jury, in effect, found that R eyes knew that the suitcase that he

was carrying contained over two pounds of marijuana; it could not

have concluded otherwise.

Finally, a contrary decision in this case would encourage the

kind of sandbagging that the plain error rule is, in part, designed

to prevent. On one hand, if Reyes had objected to the district

court’s instructions, the court would certainly have corrected its

error. The result in this situation would be that Reyes’s jury

would have been properly instructed and he would have faced the

identical odds of being convicted.

O n the other hand, were we to reverse Reyes’s convict ion

despite his failure to object, no rational defense attorney would

ever object under these circumstances. By failing to object, the

defendant loses the likely correction of the district court’s

error. What he or she gains, however, is worth substantially more.

Not only does the defendant still have the same hope (however

remote) of being acquitted by the jury, but the defendant also

knows that a conviction will result in a reversal by the court of

appeals. We refuse to reverse a conviction when doing so would

create such perverse incentives. Our decision not to disturb the

jury’s verdict in this case does not “seriously affect the

fairness, integrity or public reputation of judicial proceedings.”

Id. at 736 (quoting United States v. Atkinson , 297 U.S. 157, 160,

56 S. Ct. 391, 80 L.Ed. 555 (1936)).

W e recognize that plain error is by definition “obvious ”

.12

Therefore, it should always be co rrected when brought to the

district court’s attention. Nonetheless, in most cases analyzed

under the plai n error standard, the defendant would have gained

something by objecting. This case is unusual because, as a

practical matter, Reyes’s objection would have procured him no

discernable benefit.

We also recognize that it is not the role of appellate courts

to judge the guilt or innocence of criminal defendants. The

Constitution allocates that duty to a jury in no uncertain terms.

See U.S. C ONST

. amend. V. Our decision today is not meant to imply

that overwhelming evidence of gui lt is sufficient, by itself, to

sustain a conviction under the plain error standard. Rather, we

merely conclude that under the unusual circumstances presented by

this case—including a jury instruction on a predicate offense

permitted by § 924(c)(1), a separate conviction by the jury on the

instructed predicate offense in circumstances in which the jury

clearly rejected Reyes’s contention that he did not knowingly

possess marijuana, overwhelming evidence of guilt of both the

charged offens e and the instructed offense, and substantial

incentive for sandbagging by the appellant—reversal o f Reyes’s

conviction is not warranted.

IV. Dismissal Without Prejudice

Reyes claims that the district court erred in dismissing his

original criminal c omplaint without prejudice pursuant to Rule

48(a) of the Federal Rules of Criminal Procedure. Reyes points out

that he did not have n otice of the government’s filing of the6 T he government does not contend tha t Reyes was notified of its

motion to dismiss and the record does not reflect that the motion

contained a certificate of service. Therefore, for purposes of

this appeal, we will assume that Reyes did not have notice of the

dismissal of the original complaint.

7 Reyes also relies upon U nited States v . Taylor , 487 U.S. 326,

108 S. Ct. 2413, 101 L. Ed.2d 297 (1988), and argues that the

district court erred in dismissing his criminal complaint without

prejudice because the district court did not consider the relevant

factors articulated in the Speedy Trial Act. Reyes’s argument is

unavailing because the district court’s dis missal of Reyes’s

criminal complaint wa s not pursuant to the Speedy Trial Act. In

the instant case, Reyes never filed a motion to dismiss for a

violation of the Act. Rather, dismissal without prejudice was

ordered pursuant to the government’s motion under Rule 48(a).

8 In addition, Reyes relies upon U nited States v. Delgado-Miranda

, 951 F.2d 1063, 1064 (9th Cir. 1991), and argues that the

government’s failure to provide him with notice and a hearing prior

to the dismissal of his complaint violated his right to due process

of law. In D elgado-Miranda

, the Ninth Circuit recognized that a criminal defendant “has a liberty interest in being free from

reprosecution in violation of the Double Jeopardy Clause, and that

a decision whether to dismiss without prejudice for a Speedy Trial

Act violation impacts this liberty interest.” I d. The court,

therefore, concluded that “before a district court can enter a

dismissal without prejudice, and th ereby permit the defendant’s

reprosecution, it must hold a hearing” and provide the defendant

with notice of the hearing and an opportunity to be heard. Id.

Delgado-Miranda is not controlling precedent in this circuit

and is distinguishable from the instant case on the same grounds as

Taylor

. S ee note 6, supra

. This circuit has never decided whether

13 motion to dismiss 6 and that the district court failed to set forth

on the record sufficient reasons for the dismissal. Reyes contends

that the sole purpose of the government’s motion to dismiss was to

avoid the sanctions of the Speedy Trial Act, which requires that a

defendant be indicted within thirty days of his arrest. 7 S ee 18

U.S.C. § 3161(b). Reyes argues that the government’s failure to

afford him notice of the dismissal violated his rights under Rule

48(a). 8a defendant is entitled to procedural due process in the context of

a dismissal pursuant to the Speedy Trial Act or Rule 48(a). S ee

United States v. Comeaux

, 954 F.2d 255, 261 (5th Cir. 1992) (noting

that a defendant’s purported right to a hearing under Rule 48(a) is

unclear). We need not decide this issue today. Reyes has raised

this issue for the first time on appeal and must therefore satisfy

the stringent plain error standard. S e e F ED . R. C R IM

. P. 52(b).

Under this standard, we “cannot correct an error

... unless the

error is clear under current law.” O lano

, 507 U.S. at 734.

Because Reyes’s asserted right is not clear under current law, his

procedural due process claim must be rejected.

14 Federal Rule of Criminal Procedure 48(a) provides that a

government “attorney may by leave of court file a dismissal of an

indictment, in formation, or complaint and the prosecution shall

thereupon terminate.” F E D

. R. C RIM

. P. 48(a). The “leave of court”

requirement of Rule 48(a) has been interpreted “to allow the courts

to exercise discretion over the propriety of a prosecutorial motion

to dismiss.” U

nited States v. Welborn

, 849 F.2d 980, 983 (5th Cir.

1988) (quoting United States v. Salinas

, 693 F.2d 348, 351 (5th

Cir. 1982)). “The primary purpose of the requirement is to prevent

harassment of a defendant by charging, dismissing and re-charging

without placing a defendant in jeopardy.” I d. (internal quotation

omitted).

A request for a Rule 48(a) dismissal is improper if motivated

by bad faith. Id. Bad faith is evidenced when the government is

motivated “by consideration s clearly contrary to the public

interest.” I d. (quotation omitted). A court considering a Rule

48(a) motion to dismiss must begin with the presumption that the

government acted in good faith. Id.

In United States v. Welborn , this court adopted two rules to

guide the application of Rule 48(a) in the district courts. I d. at9 These objections are necessary in order to permit the government

to articulate a good faith reason for its dismissal. S ee Welborn

, 849 F.2d at 983. Of course, the defendant’s objection upon

reindictment would be required only when the defendant has not

already received the relief sought. Normally, this relief will be

limited to the government’s articulation of a good faith reason for

its dismissal. If the government fails to satisfy this burden of

production, however, the defendant may be enti tled to dismissal

with prejudice. See id. at 983-84.

15 985. We stated:

First, if a defendant, without justification, does not

contest dismissal the presumption of good faith permits

the court to dismiss without prejudice and the defendant

waives his right to later object to the gover nment’s

motives. Second, if a defendant contests dismissal and

the district court errs by not requiring the prosecution

to furnish more than a conclusory reason to support its

motion, the dismissal must be treated with prejudice only

where the prosecution fails to offer sufficient

justification for seeking dismissal when it reindicts or

the error prejudiced the defendan t’s ability to attack

the prosecutor’s motives.

Id.

The rules adopted in Welborn make clear that in order to claim

the protections provided by Rule 48(a), a defen dant must contest

the government’s motion to dismiss. Under ordinary circumstances,

the defendant is obligated to object to dismissal both at the time

the government files its mo tion to dismiss and at the time he or

she is reindicted. 9 We conclude, however, that the government’s

failure to provide Reyes with notice of the filing of its motion to

dismiss excuses his failure to contest the motion at that time.

The government’s failure to provide notice of its motion,

however, does not excuse Reyes’s failure to object to the dismissal

without prejudice at the time that he was reindicted. Although

Reyes raised an objection at the close of the government’s case at10 Reyes’s attorney moved for a judgment of acquittal at the close

of the government’s case. As a part of this motion, counsel told

the district court that “Mr. Reyes has also asked me as part of

this motion to incorporate his concerns that this is an illegal

prosecution based on his concerns of

... a violation of speedy

trial.” Counsel explained:

As to speedy trial, his concerns are that, initially,

this prosecution of these -- the federal prosecution of

these crimes was brought about, I believe, last year or

at the beginning of last year and they were dismissed due

to speedy trial concerns because, apparently, an indictment was not arrived at in a timely fashion. So,

the government was forced to dismiss the charges against

Mr. Reyes at that time.

11 S ee F ED

. R. C RIM

. P. 12(b), which provides, in part, that “[t]he

following must be raised prior to trial: (1) Defenses and

objections based on defects in the institution of the prosecution.”

Furthermore, to the ex tent that Reyes’s Rule 48(a) objection is

based on the government’s alleged violations of the Speedy Trial

Act, we think it significant that the Act explicitly requires the

defendant to move for a dismissal “prior to trial or entry of a plea of guilty or nolo contendre ....” 18 U.S.C. § 3162(a)(2).

16 trial that could generously be in terpreted as contesting the

dismissal of the original complaint, 10 by this time it was too late.

We hold that a Rule 48(a) objection must be raised prior to trial

in order for the motion to be considered contested. 11 Because Reyes

did not properly contest the government’s motion to dismiss the

original complaint, we conclude that Reyes waived his right to

complain that the prosecution requested dismissal in bad faith.

AFFIRMED.