United States v. Hugo Ortiz , 687 F.3d 660 ( 2012 )


Menu:
  •      Case: 11-20220   Document: 00511922555    Page: 1   Date Filed: 07/16/2012
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    July 16, 2012
    No. 11-20220
    Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee
    v.
    HUGO ORTIZ,
    Defendant - Appellant
    Appeal from the United States District Court
    for the Southern District of Texas
    Before DAVIS, SMITH, and DENNIS, Circuit Judges.
    DENNIS, Circuit Judge:
    The Speedy Trial Act requires that “[a]ny information 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.” 
    18 U.S.C. § 3161
    (b). The Act
    further provides that “[i]f, in the case of any individual against whom a
    complaint is filed charging such individual with an offense, no indictment or
    information is filed within the time limit required by section 3161(b) as extended
    by section 3161(h) of this chapter, such charge against that individual contained
    in such complaint shall be dismissed or otherwise dropped.” 
    Id.
     § 3162(a)(1).
    The government concedes that it filed the indictment against the defendant in
    this case, Hugo Ortiz, beyond this 30-day deadline. However, it contends that
    Case: 11-20220       Document: 00511922555         Page: 2     Date Filed: 07/16/2012
    No. 11-20220
    this period of delay resulted from the absence of “an essential witness,”
    Santos Diaz-Soto, one of Ortiz’s co-conspirators, and therefore, is excluded from
    the 30-day limit.      See id. § 3161(h)(3)(A).         We agree with Ortiz that the
    government has failed to show that Diaz-Soto was an “essential witness” for the
    purposes of obtaining a grand jury indictment against Ortiz, and therefore, that
    the indictment was filed beyond the time allowed by the Speedy Trial Act.
    Accordingly, the charges against Ortiz must be dismissed. See id. § 3162(a)(1).
    Therefore, we REVERSE Ortiz’s conviction, VACATE his sentence, and
    REMAND the case so that the district court can determine whether to dismiss
    the case with or without prejudice.1
    I.
    On September 11, 2009, an off-duty Texas Alcoholic Beverage Commission
    officer was working as a body guard for a traveling jewelry salesman in the
    Galleria Area of Houston when he was robbed at gunpoint by two men. The
    officer shot both men, who managed to escape. One of the suspects, Santos
    Diaz-Soto, was brought to an area hospital, and was later arrested.                        He
    confessed to a conspiracy with Ortiz and others to commit the robbery. Houston
    Police Department officers arrested Ortiz a few days later. On December 9,
    Ortiz was transferred to federal custody, and he made his initial appearance
    before a federal magistrate judge that same day; two days later, the magistrate
    denied Ortiz bond. On January 13, 2010, the government filed a two-count
    indictment charging Ortiz, Diaz-Soto, and two other co-defendants with
    interference with commerce by robbery in violation of 
    18 U.S.C. § 1951
    (a), and
    conspiracy to commit the same offense.
    1
    Ortiz also raises several challenges to his sentence, however, we need not reach those
    issues because we vacate Ortiz’s sentence as a consequence of the government’s failure to file
    the indictment within the time prescribed by the Speedy Trial Act.
    2
    Case: 11-20220        Document: 00511922555          Page: 3     Date Filed: 07/16/2012
    No. 11-20220
    Ortiz moved to dismiss the charges under the Speedy Trial Act, 
    18 U.S.C. § 3161
     et seq., because it was filed more than thirty days after he was
    transferred to federal custody. The government conceded that the indictment
    was filed past the 30-day deadline set by the Act, see 
    18 U.S.C. § 3161
    (b), but
    argued that the charges should not be dismissed. Specifically, the government
    contended that Diaz-Soto was “an essential witness” under 
    18 U.S.C. § 3161
    (h)(3)(A), and because he had posted bond and fled before Ortiz was
    indicted, his absence tolled the 30-day period. The district court found that the
    government had been diligent in attempting to locate Diaz-Soto, and that he was
    “absent” within the meaning of the Speedy Trial Act. United States v. Ortiz, No.
    H-10-12-1, 
    2010 WL 2557679
    , at *2 (S.D. Tex. June 22, 2010) (unpublished). The
    court also determined that Diaz-Soto was an essential witness, regardless of the
    fact that the government had been able to obtain an indictment without him. 
    Id. at *3
    . The court explained: “Diaz-Soto, of course, would have been very unlikely
    to testify before the grand jury without a promise of immunity from the
    Government. Nonetheless, the fact that Diaz-Soto was a fugitive and might not
    be available to testify at trial greatly limited the Government’s ability to present
    the case to a grand jury.” 
    Id.
     Accordingly, the court denied Ortiz’s motion to
    dismiss the charges. 
    Id.
     Ortiz entered a conditional guilty plea to both counts
    of the indictment, reserving the right to appeal the court’s Speedy Trial Act
    decision.2
    2
    After the district court denied his motion to dismiss under the Speedy Trial Act, Ortiz
    filed a motion to “notif[y] the Court and the Government that he wishes to plead guilty to the
    present offense pursuant to [Federal Rule of Criminal Procedure] 11(a)(2),” which permits a
    defendant to enter “a conditional plea” that reserves “the right to have an appellate court
    review an adverse determination of a specified pretrial motion,” Fed. R. Crim P. 11(a)(2).
    Ortiz’s motion stated that he “wishes to preserve his appellate rights to enable an appellate
    court to review the Court’s adverse determination of Mr. Ortiz’ speedy trial motion.” The
    government did not oppose the motion and the district court granted it. At the rearraignment,
    before Ortiz entered his plea, Ortiz’s attorney stated, “I already filed my previous Rule 11(a)(2)
    [motion], which I think the Court granted”; and the government did not object. The
    3
    Case: 11-20220       Document: 00511922555            Page: 4   Date Filed: 07/16/2012
    No. 11-20220
    II.
    “‘We review the district court’s factual findings supporting its Speedy Trial
    Act ruling for clear error and its legal conclusions de novo.’” United States v.
    Burrell, 
    634 F.3d 284
    , 290 (5th Cir. 2011) (quoting United States v. Green, 
    508 F.3d 195
    , 199 (5th Cir. 2007)).
    The Speedy Trial Act requires that “[a]ny information 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.” 
    18 U.S.C. § 3161
    (b). “The Act
    contains two main time limits: the limit in § 3161(b) running from arrest or
    summons to indictment, and the seventy-day limit in § 3161(c) running from
    indictment to trial.” United States v. DeJohn, 
    368 F.3d 533
    , 538 (6th Cir. 2004).
    “The purpose of the former, the thirty-day limit at issue in this case, is to insure
    that individuals will not languish in jail or on bond without being formally
    indicted on particular charges.”           
    Id.
           The Act further provides that “[t]he
    following periods of delay shall be excluded in computing the time within which
    an information or an indictment must be filed[:] . . . Any period of delay resulting
    from the absence [of] . . . an essential witness.” 
    18 U.S.C. § 3161
    (h)(3)(A).
    The government concedes that the indictment was filed beyond the 30-day
    deadline prescribed by the Speedy Trial Act, but contends that Diaz-Soto was an
    essential witness and that his absence, as a fugitive, tolled the 30-day time limit
    for filing Ortiz’s indictment. Ortiz submits four arguments in response: (1) that
    the essential witness exclusion only applies to the trial timeline, and not to the
    indictment timeline; (2) that Diaz-Soto could not qualify as an essential witness
    government concedes that Ortiz preserved the Speedy Trial Act issue for appeal. We agree,
    however, with the government that Ortiz did not reserve the right to appeal the district court’s
    pretrial determination that there was probable cause for his arrest. See United States v.
    Sanchez Guerrero, 
    546 F.3d 328
    , 331 (5th Cir. 2008).
    4
    Case: 11-20220    Document: 00511922555      Page: 5   Date Filed: 07/16/2012
    No. 11-20220
    because he was a co-defendant; (3) that Diaz-Soto was not an essential witness
    because his testimony was not needed to obtain an indictment from the grand
    jury; and (4) that Diaz-Soto was not “absent” within the meaning of the Speedy
    Trial Act. We agree with Ortiz on the third point, that Diaz-Soto was not “an
    essential witness” because his testimony was not necessary to obtain a grand
    jury indictment, and thus, do not need to reach his other arguments.
    The Speedy Trial Act does not define “essential witness,” and although this
    court has not had occasion to expound this term, several of our sister circuits
    have. See United States v. Miles, 
    290 F.3d 1341
     (11th Cir. 2002); United States
    v. Hamilton, 
    46 F.3d 271
     (3d Cir. 1995); United States v. McNeil, 
    911 F.2d 768
    (D.C. Cir. 1990); United States v. Eagle Hawk, 
    815 F.2d 1213
     (8th Cir. 1987);
    United States v. Marrero, 
    705 F.2d 652
     (2d Cir. 1983). All of those courts began
    by noting that the Senate Judiciary Committee report accompanying the Speedy
    Trial Act provides the following explanation: “By an ‘essential witness’ the
    Committee means a witness so essential to the proceeding that continuation
    without the witness would either be impossible or would likely result in a
    miscarriage of justice.” S. Rep. No. 93-1021, at 37 (1984), reprinted in 1984
    U.S.C.C.A.N. 7401; see Miles, 
    290 F.3d at 1350
    ; Hamilton, 
    46 F.3d at 277
    ;
    McNeil, 
    911 F.2d at 773
    ; Eagle Hawk, 
    815 F.2d at 1218
    ; Marrero, 
    705 F.2d at 656
    . “If, however, the witness’s anticipated testimony will be merely cumulative,
    or substantially irrelevant, that witness should be deemed non-essential.” Eagle
    Hawk, 
    815 F.2d at 1218
    ; Miles, 
    290 F.3d at 1350
     (quoting the same statement
    from Eagle Hawk, 
    815 F.2d at 1218
    ); Hamilton, 
    46 F.3d at 277
     (“[I]f the witness’s
    testimony will be merely cumulative or substantially irrelevant, the witness
    should not be deemed essential.” (citing Eagle Hawk, 
    815 F.2d at 1218
    )); McNeil,
    
    911 F.2d at 774
     (“While Simms’s testimony may have added something to the
    Government’s case in this regard, it clearly was cumulative, not essential.”); see
    also Marrero, 
    705 F.2d at 656
     (“The legislative history reveals that by [‘essential
    5
    Case: 11-20220     Document: 00511922555       Page: 6    Date Filed: 07/16/2012
    No. 11-20220
    witness’] Congress meant to refer to witnesses whose testimony would be
    extremely important to the proceeding, perhaps providing proof that was not
    otherwise attainable.”).
    Diaz-Soto’s statement to the police implicating Ortiz would have been
    admissible in the grand jury without his testimony, see Fed. R. Evid. 1101(d)(2)
    (the rule against hearsay does not apply in grand-jury proceedings), and
    therefore, because his testimony would have been merely cumulative for the
    purpose of obtaining a grand jury indictment, we have no trouble concluding that
    Diaz-Soto was not an essential witness to that proceeding. The government and
    the district court erroneously conflate the question of whether a witness is
    essential for the purposes of obtaining a conviction at trial, with the distinct
    question of whether a witness is essential for the purpose of obtaining a grand
    jury indictment. See Ortiz, 
    2010 WL 2557679
    , at *3 (“[T]he fact that Diaz-Soto
    was a fugitive and might not be available to testify at trial greatly limited the
    Government’s ability to present the case to a grand jury.” (emphases added)).
    “[A]n ‘essential witness’ . . . means a witness so essential to the proceeding . . . .”
    S. Rep. No. 93-1021, at 37 (emphasis added). The distinction between a grand
    jury proceeding and trial matters because an essential witness for one is not
    necessarily an essential witness for the other. The indictment timeline and the
    trial timeline serve different purposes. See DeJohn, 
    368 F.3d at 538
     (“The
    purpose of the [indictment timeline] . . . is to insure that individuals will not
    languish in jail or on bond without being formally indicted on particular
    charges.”). Moreover, the evidentiary rules that apply in each proceeding are
    distinct, and, in turn, affect whether a witness is essential to the particular
    proceeding. Here, Diaz-Soto’s testimony implicating Ortiz may have been
    essential to the Government’s case against Ortiz at trial, where Diaz-Soto’s out-
    of-court confession would have likely been excluded as hearsay, see Fed. R.
    Evid. 802, and barred by the Confrontation Clause, see Crawford v. Washington,
    6
    Case: 11-20220    Document: 00511922555      Page: 7   Date Filed: 07/16/2012
    No. 11-20220
    
    541 U.S. 36
     (2004). But the issue here is whether Diaz-Soto was an essential
    witness to obtain an indictment from the grand jury. As the government
    concedes, Diaz-Soto’s hearsay confession could readily have been conveyed to the
    grand jury without his testimony because in grand jury proceedings—where
    there is no confrontation right—hearsay evidence is admissible, see Fed. R.
    Evid. 1101(d)(2), and may alone support an indictment, see Costello v. United
    States, 
    350 U.S. 359
     (1956). Thus, Diaz-Soto’s testimony would have been
    merely cumulative in the grand jury, and therefore, he was not an essential
    witness to that proceeding. See, e.g., McNeil, 
    911 F.2d at 774
     (“While Simms’s
    testimony may have added something to the Government’s case in this regard,
    it clearly was cumulative, not essential.”).
    The essential witness exclusion is the only reason cited by the government
    for excusing its failure to file the indictment against Ortiz within the 30-day
    period as required by the Speedy Trial Act. Since that exclusion does not apply
    here, the government failed to comply with the statutory deadline for filing the
    indictment.   The Speedy Trial Act provides that “[i]f, in the case of any
    individual against whom a complaint is filed charging such individual with an
    offense, no indictment or information is filed within the time limit required by
    section 3161(b) as extended by section 3161(h) of this chapter, such charge
    against that individual contained in such complaint shall be dismissed or
    otherwise dropped.” 
    18 U.S.C. § 3162
    (a)(1). The Act further provides that “[i]n
    determining whether to dismiss the case with or without prejudice, the court
    shall consider, among others, each of the following factors: the seriousness of the
    offense; the facts and circumstances of the case which led to the dismissal; and
    the impact of a reprosecution on the administration of this chapter and on the
    administration of justice.” 
    Id.
     “‘[T]he statute leaves to the court’s discretion,’”
    based on consideration of these factors, “‘whether to dismiss the [case] with or
    without prejudice,’” and “‘[o]ur usual practice is to remand for the district court
    7
    Case: 11-20220   Document: 00511922555     Page: 8   Date Filed: 07/16/2012
    No. 11-20220
    to consider the factors.’” Burrell, 
    634 F.3d at 293
     (quoting United States v.
    Stephens, 
    489 F.3d 647
    , 657-58 (5th Cir. 2007)).
    Accordingly, we REVERSE Ortiz’s conviction, VACATE his sentence, and
    REMAND the case for the district court to determine whether to dismiss the
    case with or without prejudice, giving proper consideration to the factors set
    forth in 
    18 U.S.C. § 3162
    (a)(1).
    8