Free Response - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona JOSEPH E. KOEHLER Assistant U.S. Attorney Arizona State Bar No. 13288 Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America No. CR02-80-PHX-SRB Plaintiff, v. Jose Ramon Gauna-Mendoza, Defendant. No. CV-04-2126-PHX-SRB (DKD) RESPONSE TO OBJECTION TO REPORT AND RECOMMENDATION

The United States of America, respectfully responds to the defendant's Objections to the

15 Magistrate Judge's Report and Recommendation issued October 11, 2005. 16 In his objections, the defendant points out that he raised his Sixth Amendment claim in his 17 objection to the presentence report (CR 108-1). The defendant is correct that he raised the claim 18 (Blakely v. Washington, 124 S. Ct. 2531 (2004), had not been decided, but the defendant did rely 19 on Apprendi v. New Jersey, 530 U.S. 466 (2000)) in his objections, but the defendant neglects 20 to note that the Court struck his objection to the presentence report for failure to comply with 21 then-Local Rule 1.9(f). (CR 109.) The defendant briefly mentioned his Sixth Amendment claim 22 in his Supplement to Defendant's Motion to Dismiss Re: Apprendi and Objection to Sentencing 23 Enhancement dated February 17, 2003. (CR 111.) However, the defendant did not raise the 24 issue in his brief on appeal, but merely filed a Rule 28(j) letter and a motion for supplemental 25 briefing on the issue after the case was fully briefed. The Ninth Circuit denied the defendant's 26 motion for supplemental briefing. The defendant's failure properly to preserve the argument in 27 the Court of Appeals remains a procedural default for which the defendant has not shown cause 28 or prejudice. Therefore, the defendant's objection is without merit. In addition, the defendant's

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1 objection fails to address adequately the remaining basis for denying his Sixth Amendment 2 claim, that Apprendi and its progeny do not require a jury finding with respect to proof of a prior 3 conviction, and that basis for denial remains valid. 4 The defendant further contends he properly raised the issue of the timeliness of his

5 superseding indictment. The defendant did not make this claim clear or support it with sufficient 6 authority, but he did mention it at his arraignment as noted in the defendant's objection. The 7 defendant fails to note, however, that the Magistrate Judge at his arraignment instructed the 8 defendant (who was appearing through counsel at the time) that if he desired to raise the speedy 9 indictment issue he would have to do so in a written motion. (RT 5/29/02 4.) The defendant did 10 not file such a motion in a timely manner, and did not raise the issue on appeal. Therefore, as 11 noted in the government's original response, the defendant has procedurally defaulted this issue. 12 Moreover, nothing in the law requires the return of a superseding indictment within 30 days

13 of a defendant's arrest. Title 18 U.S.C. § 3162 provides sanctions for failure to bring an 14 indictment within the time provided in the Speedy Trial Act. That section states: 15 16 17 18 19 If, 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. In 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.

20 18 U.S.C. § 3162(a)(1). Under 18 U.S.C. § 3161(b), the government must obtain an indictment 21 within 30 days of a defendant's arrest. Further, dismissal is required "only if the government 22 fails to indict the defendant on a charge within thirty days of bringing that charge." United States 23 v. Clay, 925 F.2d 299, 301-302 (9th Cir.1991) (citing United States v. Pollock, 726 F.2d 1456, 24 1462 (9th Cir.1984)). In Pollock, the court noted that "Congress implicitly rejected [a] broad 25 construction of the dismissal sanction" of 28 U.S.C. § 3162(a)(1). Pollock, 726 F.2d at 1462. 26 "A charge contained in a superseding indictment which was not included in the original 27 28
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1 complaint does not violate the Speedy Trial Act." United States v. Gastelum-Almeida, 298 F.3d 2 1167, 1173 (9th Cir.), cert. denied, 537 U.S. 986 (2002). 3 In this case, the government obtained an indictment charging the same offense as that set

4 forth in the complaint within 30 days of the defendant's arrest. (CR 1, 8.) This action satisfied 5 the Speedy Trial Act. See United States v. Orbino, 981 F.2d 1035, 1037 (9th Cir. 1992) ("A 6 superseding indictment issued before the original indictment is dismissed may issue more than 7 thirty days after the arrest.") (citing United States v. McCown, 711 F.2d 1441, 1447 (9th 8 Cir.1983)). The defendant's claim centers on the superseding indictment, but the defendant 9 provides absolutely no authority to support his claim that a superseding indictment must be 10 returned within 30 days of arrest. The charge in the superseding indictment differed from the 11 one in the complaint in that it charged a different date of deportation; therefore, it would not 12 have violated the Speedy Trial Act even if the original indictment were not returned within the 13 30-day limit. See Gastelum-Almeida, 298 F.3d at 1173. 14 Nothing in the Speedy Trial Act supports the defendant's claim, and the defendant's

15 argument in support of the claim ignores the purpose of a superseding indictment. The purpose 16 of a superseding indictment is to correct errors in a previous indictment or to add charges that 17 are supported by probable cause. Because an indictment must be returned within 30 days, 18 common sense compels the conclusion that a superseding indictment correcting potential errors 19 or adding new charges permissibly can occur outside the 30-day limit. See Gastelum-Almeida, 20 298 F.3d at 1173; Orbino, 981 F.2d at 1037; McCown, 711 F.2d at 1447.1 21 22 23 24 This conclusion becomes even more clear when considered in light of the fact that 25 under the Speedy Trial Act the trial clock's start time is unaffected by a superseding indictment charging the same offense. See United States v. Karsseboom, 881 F.2d 604, 606 (9th Cir.1989) 26 ("[T]he Speedy Trial Act . . . does not require that the 70 day speedy trial period be restarted upon the filing of a superseding indictment when the superseding indictment charges the same 27 offenses as the original indictment."). 28
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Based on the foregoing, the United States respectfully requests the Court overrule the

2 defendant's objections to the Magistrate Judge's Report and Recommendation. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Jose Ramon Gauna-Mendoza No. 32687-048 FCI 3600 Guard Road Lompoc, California 93436 Copy of the foregoing marked "Inmate's Legal Mail" mailed this date, to:

Respectfully submitted via CM/ECF this 2 day of November, 2005. PAUL K. CHARLTON United States Attorney District of Arizona s/ Joseph E. Koehler JOSEPH E. KOEHLER Assistant U.S. Attorney

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