Case o' The Week: Auld Lang Syne -- Times Gone By, Speedy Trial Time and Alvarez-Perez

Auld Lang Syne - Times Gone By, and insufficient Speedy Trial Act exclusions. A great start to a New Year for Mr. Alvarez-Perez -- that is, until the Ninth decides to meddle with the prejudice inquiry before the case even made it back to the district court. United States v. Alvarez-Perez, 2010 WL 5175011 (9th Cir. Dec. 22, 20101), decision available here.

Players: Hard-fought case by AFD Bridget L. Kennedy of Federal Defenders of San Diego. Decision by Alaska D.J. Singleton.

Facts: Charged with illegal reentry, Alvarez-Perez agreed to proceed by Information and pursue a fast-track deal – and then he changed his mind. Id. at *1. He was indicted. Id. He noticed his intent to plead guilty – and then he changed his mind. Id. He again said he wanted to plead guilty – and then changed his mind. Id. Without defense objection, the district court set a trial date within the Speedy Trial Act (“STA”) period, if the clock started ticking on the date he was arraigned on the Indictment. Id. at *2.

Issue(s): “Francisco Alvarez-Perez (“Alvarez”) appeals his conviction of being a deported alien found in the United States in violation of 8 U.S.C. § 1326. Alvarez contends that his prosecution violated the Speedy Trial Act (“STA”) because the permitted 70-day period was exceeded.” Id. at *1.

Held: “In this case, Alvarez made his first appearance on the 8 U.S.C. § 1326 complaint on May 15, 2007, and the information was filed on June 12, 2007. Under the plain language of the STA, June 12, 2007, is the trigger date.” Id. at *2. “Nor do we see any reason to assign any significance to the fact that the earlier information and the subsequent indictment were assigned different case numbers. To credit the government's argument would be to elevate form over substance and violate the clear intent of Congress. Were we to uphold the government's theory, the government in every case could extend the STA's time limits by indicting, dismissing, and reindicting under new case numbers. Thus, June 12, 2007, the date the information was filed, is the trigger date for the STA.” Id (emphasis added). “Accordingly, the filing of the indictment on the same charge did not start a new clock for the purposes of the STA.” Id.

Of Note: The good news is that Judge Singleton brushes back the government’s attacks on this Speedy Trial error. First, Alvarez-Perez did not waive his challenge, even though he brought it at the eleventh hour, just before trial, in an oral motion. Id. at *5. Moreover, this wasn’t “invited error” – even though it was the defendant’s own tortuous path to trial that created the confusion about the dates. Id. at *6-*7.

The bad news? The Court sees this as one of those rare cases where prejudice can be determined on appeal, and finds that there was no prejudice here. Id. at *7. So while Alvarez-Perez won the battle, he lost the war: the case is remanded with instructions to dismiss the indictment without prejudice (in other words, another trial likely awaits). Id. at *7-*8.

How to Use: Judge Singleton seems to create a new rule for the Circuit: while exclusion for plea negotiations is not appropriate, a district court can exclude time “where the defendant notifies the court that negotiations have resulted in an agreement and, as a result, the court sets a change of plea hearing.” Id. at *3. In what is frankly a bit of legal fiction, the exclusion in this situation is “held to be excluded either under § 3161(h)(1)(G) because it is ‘delay resulting from consideration by the court of a proposed plea agreement’ or under 18 U.S.C. § 3161(h)(1)(D) as a ‘pretrial motion.’” Id. at *3.

Legal fiction or no, this is a handy new rule for defense counsel representing an “indecisive” client before a Speedy-Trial crazed district judge keen on setting a trial date. If the defense informs the court of a change of plea and sets a date for the plea, that time can be excluded – even absent an actual agreement.

For Further Reading: On the same day Alvarez-Perez was decided, the Senate confirmed a new Chair of the United States Sentencing Commission. On December 22, federal District Judge Patti Saris of Massachusetts was confirmed as the new Chair of the Commission. See article here. A Harvard Law grad, Judge Saris has a background in civil rights and was first appointed to the bench by President Clinton. Id. Here’s hoping that six years after Booker, Chair Saris gets real reform underway at the home of the “advisory” guidelines.



Image of animated clock from http://www.photoshopcamp.com/Make-a-Animated-Clock--Photoshop-animation-effect-tutorial--82.html

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org




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