If Defendant Appears Before Being Indicted, then Indictment Starts Speedy Trial Clock Running

United States v. Lopez-Valenzuela, No. 05-61130 (5th Cir. Dec. 19, 2007) (Jolly, Clement, Owen)

This is a Speedy Trial Act case, so let's start with the timeline:

• Lopez is arrested for illegal reentry and appears before a magistrate judge
• Lopez is indicted for illegal reentry
• Lopez signs a "Waiver of Appearance and Entry of Not Guilty Plea" form
• more than three months later, the waiver form is filed
• the next day, Lopez files a motion to dismiss the indictment because he wasn't brought to trial within 70 days of his indictment, as required by the STA

The district court denied Lopez's motion, so he entered a conditional guilty plea reserving the right to appeal that ruling.

The issue is when the STA clock began to run. The STA provides that "[i]n any case in which a plea of not guilty is entered," a trial must commence within 70 days from the filing of the indictment, or the date the defendant appears in the court in which the charge is pending, "whichever date last occurs." 18 U.S.C. § 3161(c)(1).

The Government argued that the clock didn't begin to run until Lopez filed his waiver of arraignment "because it was only then that the case became one 'in which a plea of not guilty is entered.'" The court disagreed:

Like many other circuits, this court has “construe[d] ‘appearance before a judicial officer’ to mean a defendant’s initial appearance before a judicial officer.” Thus, in cases in which the defendant appears before being indicted, the indictment is the start date. To hold otherwise would render the choice of dates specified in § 3161(c)(1) superfluous; “[i]f a pre[-]indictment initial appearance were not considered to be an ‘appearance before a judicial officer of the court in which such charge is pending,’” the date of the indictment could never be the date that “last occurs.

It further explained that the phrase "'in which a plea of not guilty is entered'" determines only whether the time restrictions apply. It does not determine when the clock starts."

So in this case, that meant Lopez's STA clock began running when he was indicted. Since he wasn't brought to trial within 70 days of that date, the court remands with instructions to dismiss the indictment.

Perhaps to assauge prosecutors' fears about the effect of this holding, the court adds this caveat:

This does not mean that a defendant can withdraw a guilty plea and thereby take advantage of § 3161(c)(1) by pleading not guilty after seventy days have elapsed from the triggering event. As § 3161(i) makes clear, in situations in which a defendant pleads guilty or nolo contendere and later withdraws that plea, the defendant shall be deemed indicted on the day the order permitting withdrawal of the plea becomes final.

There's also some interesting dicta concerning the situation in which a defendant is not arrested until after the indictment:

Here, Valenzuela first appeared pre-indictment, and the speedy-trial clock began to run on the date of his indictment regardless of the date he ultimately pleaded not guilty. If Valenzuela had been indicted before his arrest, however, his “Waiver of Appearance and Entry of Not Guilty Plea” could be the “date the defendant has appeared,” but not necessarily so. Consistent with our precedent, a post-indictment arraignment would trigger the speedy-trial clock only if it is the initial post-indictment “appear[ance] before a judicial officer.” Although other courts have held differently, a post-indictment appearance need not be an arraignment in order to act as the start date because the text of § 3161(c)(1) does not require that the appearance be an arraignment. Section 3161(c)(1) merely requires an “appearance before a judicial officer.” To hold otherwise would require us to ascribe different meanings to the same words depending on whether a defendant first appeared pre- or post-indictment. Such a result is not only inconsistent with customary standards of statutory interpretation, but it would also invite unnecessary delay in holding an arraignment.

So how 'bout that? We're on the good side of a circuit split.