Unpublished Disposition, 917 F.2d 566 (9th Cir. 1989)

MEMORANDUM^** 

Jose Delgado-Miranda appeals from a judgment of conviction for illegally reentering the United States after being deported, thereby violating 8 U.S.C. § 1326 (1988). We conclude that the Speedy Trial Act was violated because more than 30 days elapsed between Delgado's arrest and indictment. Accordingly, we reverse the conviction and remand to allow the district court to determine whether to dismiss the charge in the complaint with or without prejudice.

DISCUSSION

Delgado was arrested by Tacoma police officers on December 22, 1988. He was indicted on January 25, 1989, some 34 days later. The Speedy Trial Act commands 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...." 18 U.S.C. § 3161(b) (1988). If the 30-day time limitation is not met, the charges against the defendant must be dismissed under 18 U.S.C. § 3162(a) (1). United States v. Pollock, 726 F.2d 1456, 1462 (9th Cir. 1984).

The district court found that Delgado was not arrested for a criminal violation but rather for the administrative charge of being an illegal alien. Delgado disputes that finding because the only evidence before the court at the time of the court's decision was defendant's counsel's affidavit which proffered evidence that defendant was arrested on a criminal charge. The government counters that the trial court's factual determination was eventually supported by testimony from immigration agents that defendant was detained for "administrative purposes." That testimony, however, came after the court had made its factual determination and had denied the motion to dismiss. In addition, we note that the trial court refused to allow the defendant's attorney to cross-examine the agents on that issue.

When a district court considers only affidavits in support of a pretrial motion and determines that an evidentiary hearing is not required, we "must assume that the factual allegations in appellant's affidavits are true." United States v. Irwin, 612 F.2d 1182, 1187 (9th Cir. 1980). We must therefore assume that Delgado was arrested and held on the criminal charge of violating 8 U.S.C. § 1326.

The government nevertheless argues that the Speedy Trial Act was not violated because the 30-day period should not begin to run until a formal complaint is filed. We disagree. Congress intended for the 30-day provision of the Speedy Trial Act to apply to individuals either formally charged in a complaint or subject to some continuing restraint pursuant to arrest on a criminal charge. See United States v. Gonzalez-Sandoval, 894 F.2d 1043, 1050 (9th Cir. 1990) (stating that Congress intended the Speedy Trial Act to apply to "individuals formally charged or subject to some continuing restraint"); United States v. Stead, 745 F.2d 1170, 1172 (8th Cir. 1984) (right to a speedy trial is triggered by arrest "where it is the beginning of continuing restraints on defendant's liberty imposed in connection with the formal charge on which defendant is eventually tried"). Here, the only evidence before the district court when the court ruled on the motion to dismiss was that Delgado was arrested, charged and indicted for a criminal violation. More than 30 days elapsed between arrest and indictment. Therefore, the Speedy Trial Act was violated.

The appropriate remedy for the violation in this case is to reverse the judgment of conviction and remand to allow the district court to determine if the dismissal of the complaint should be with or without prejudice. See United States v. Antonio, 705 F.2d 1483, 1486-87 (9th Cir. 1983) (violation of Act by five days). If, after weighing the factors listed in 18 U.S.C. § 3162(a) (1), the trial court concludes that the violation "require [s] dismissal with prejudice, the judgment and sentence shall be set aside; if dismissal without prejudice [is] the proper remedy, the court shall reinstate the judgment and sentence." Id. at 1487.

Because the trial court here may reinstate the judgment and sentence, we also address Delgado's contention that the court erred by admitting into evidence Delgado's custodial statement that he was a citizen of Mexico. The government concedes the error, see United States v. Connell, 869 F.2d 1349, 1352-53 (9th Cir. 1989) (combination of two sets of Miranda warnings creates confusion and renders the warnings ineffective), but nevertheless contends the error was harmless.

When a district court erroneously admits evidence obtained in violation of Miranda, the reviewing court "must consider whether the error was harmless beyond a reasonable doubt." United States v. Noti, 731 F.2d 610, 615 (9th Cir. 1984) (citing Chapman v. California, 386 U.S. 18, 24 (1967)). "Admission of the post-arrest statements will be considered harmless only if substantial, independent, and credible evidence of [defendant's] guilt was presented at trial." Id. at 615-16. The government presented such evidence. When the jury retired, it had substantial evidence of Delgado's alienage in addition to the improperly admitted statement. The government had introduced three warrants of deportation, a fingerprint card indicating Delgado's birthplace as Mexico, and an INS document also stating Delgado's birthplace and immigration status. This evidence was unrebutted, and thus provided the proper foundation for the jury's verdict. The error was harmless.

REVERSED and REMANDED for further proceedings.