United States v. Merli Martinez-Avila ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 10 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50236
Plaintiff-Appellee, D.C. No.
3:19-cr-01045-CAB-1
v.
MERLI YONATAN MARTINEZ-AVILA, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Cathy Ann Bencivengo, District Judge, Presiding
Submitted December 8, 2020**
Pasadena, California
Before: KELLY,*** GOULD, and R. NELSON, Circuit Judges.
Merli Martinez-Avila appeals his jury conviction for attempting to enter the
United States after previously being removed, in violation of 8 U.S.C. § 1326. He
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Paul J. Kelly, Jr., United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
contends the district court failed to dismiss the charges against him despite the
government filing untimely indictments under the Speedy Trial Act (“STA”),
which prevents some indictments from being filed more than thirty days after
arrest. 18 U.S.C. § 3161(b). However, the thirty-day limitation is no help to
Martinez-Avila, and we affirm.
We have jurisdiction to review a district court’s order for final judgment
under 28 U.S.C. § 1291. “We review [a] district court’s disposition of an STA
issue for clear error as to factual findings and de novo as to application of legal
standards.” United States v. Alvarez-Perez, 629 F.3d 1053, 1056–57 (9th Cir.
2010) (citation omitted).
The STA “gave effect to a Federal defendant’s right to a speedy trial under
the Sixth Amendment” by “provid[ing] strict time limits for each stage of the
criminal trial process.” United States v. Rojas-Contreras, 474 U.S. 231, 238
(1985) (Blackmun, J., concurring) (internal quotation marks and citation omitted).
To that end, 18 U.S.C. § 3161(b) requires that an “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.” Otherwise, “the charge must be dismissed.”
United States v. Solorzano-Rivera, 368 F.3d 1073, 1076 (9th Cir. 2004); see also
18 U.S.C. § 3162(a)(1). Courts have interpreted the “in connection with such
2
charges” language to include charges that are “apparent on the face of the
complaint.” United States v. Pollock, 726 F.2d 1456, 1463 (9th Cir. 1984). But
even after thirty days, “the government may indict on new charges” that were not
apparent on the face of the complaint without violating the STA. United States v.
Lopez-Osuna, 242 F.3d 1191, 1197 (9th Cir. 2000); see also United States v.
Gonzalez-Sandoval, 894 F.2d 1043, 1049 (9th Cir. 1990) (noting that dismissal is
not required for offenses with which defendant was “not formally charged when
arrested”). Because the STA’s requirements were not violated here, dismissal is
not required.
Martinez-Avila contends that the STA’s thirty-day clock started running
when he was arrested and charged with violating 8 U.S.C. § 1325(a)(2) on January
1, 2019. However, his arrest did not start a thirty-day clock for the § 1325
misdemeanor charges or the § 1326 felony charge brought in the indictment and
superseding indictment.
Martinez-Avila was arrested for an illegal entry charge under § 1325(a),
which is a Class B misdemeanor offense. See 18 U.S.C. §§ 19, 3559(a)(7). But
the STA “does not apply to Class B misdemeanors.” United States v. Nickerson,
731 F.3d 1009, 1014 (9th Cir. 2013) (citations omitted). Thus, the STA did not
require the government to file an indictment or information charging § 1325(a)
within thirty days to avoid dismissal.
3
Nor did Martinez-Avila’s misdemeanor arrest for violation of § 1325(a)
require the government to indict him within thirty days for any § 1326(a) offense.
“[Sections] 1325 and 1326 are separate offenses with some different elements.”
United States v. Arellano-Rivera, 244 F.3d 1119, 1123 (9th Cir. 2001) (citation
omitted). Even though the misdemeanor and felony offenses “arose from the same
criminal” episode, the felony indictment did not need to come within thirty days of
the misdemeanor arrest because “the respective offenses are punishable under
different statutes.” United States v. Palomba, 31 F.3d 1456, 1464 (9th Cir. 1994).
In addition, it was not “apparent on the face of the [§ 1325]” charge for illegal
entry that there was a possible § 1326 illegal reentry charge. Pollock, 726 F.2d at
1463. Thus, the government did not violate the STA by indicting Martinez-Avila
for the § 1326(a) violation more than thirty days after his arrest for violating
§ 1325(a).
Finally, the government did not violate the STA by filing the superseding
indictment. Martinez-Avila cites to 18 U.S.C. § 3161(d)(1) to argue that the STA
precluded the government from filing the subsequent superseding indictment for a
violation of 8 U.S.C. § 1326.1 But, as relevant here, § 3161(d)(1) merely stands for
1
The subsequent indictment included the same 8 U.S.C. § 1326 felony
charge as the prior indictment, albeit under a “found in” the United States theory
instead of an “attempt[ing] to enter the United States” theory. 8 U.S.C. § 1326; see
Palomba, 31 F.3d at 1464 (noting that the STA typically treats charges as the same
4
the proposition that when a charge has been dropped or dismissed, and the same
charge is subsequently raised in a new complaint or indictment, the thirty-day
clock restarts with the new complaint or indictment. United States v. Barraza-
Lopez, 659 F.3d 1216, 1218–19 (9th Cir. 2011). Therefore, even though the
superseding indictment was filed more than thirty days after the prior indictment, a
fresh clock cures any potential STA violation regarding the superseding
indictment.2
AFFIRMED.
when they are brought under the same statute). The subsequent indictment also
included a different 8 U.S.C. § 1325 misdemeanor offense. However, as
discussed, the STA does not apply to § 1325. Nickerson, 731 F.3d at 1014
(citations omitted). And, in any event, the new misdemeanor charge against him
was ultimately dropped.
2
Though the STA contains other requirements, Martinez-Avila waived
any other arguments by failing to raise them in his briefs. See United States v.
Perez-Silvan, 861 F.3d 935, 938 (9th Cir. 2017).
5