FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50334
Plaintiff-Appellee,
v. D.C. No.
3:07-CR-01661-H-1
FRANCISCO ALVAREZ-PEREZ,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Argued and Submitted
August 4, 2010—Pasadena, California
Filed December 22, 2010
Before: Alex Kozinski, Chief Judge, Kim McLane Wardlaw,
Circuit Judge, and James K. Singleton,
Senior District Judge.*
Opinion by Judge Singleton
*The Honorable James K. Singleton, Senior District Judge for the Dis-
trict of Alaska, sitting by designation.
20571
UNITED STATES v. ALVAREZ-PEREZ 20575
COUNSEL
Bridget L. Kennedy (argued), Federal Defenders of San
Diego, Inc., San Diego, California, for the defendant-
appellant.
Karen P. Hewitt, United States Attorney, Bruce R. Castetter,
Assistant United States Attorney, Chief, Appellate Section,
Criminal Division, and Victor P. White (argued), Assistant
United States Attorney, San Diego, California, for the
plaintiff-appellee.
OPINION
SINGLETON, Senior District Judge:
Francisco Alvarez-Perez (“Alvarez”) appeals his conviction
of being a deported alien found in the United States in viola-
tion of 8 U.S.C. § 1326. Alvarez contends that his prosecution
violated the Speedy Trial Act (“STA”) because the permitted
70-day period was exceeded.
FACTS
The material facts are largely undisputed. Alvarez was
arrested on May 12, 2007. On May 15, 2007, he was charged
in a complaint with a violation of 8 U.S.C. § 1326. The parties
immediately began to discuss a disposition, apparently intend-
ing to proceed under the district’s fast-track procedure. Alva-
rez waived his right to indictment, the government filed an
information, and Alvarez entered a plea of not guilty. Alvarez
20576 UNITED STATES v. ALVAREZ-PEREZ
filed a written notification of his intent to plead guilty, and the
court scheduled a change of plea hearing. Sometime between
June 12 and June 27 Alvarez decided not to change his plea
to guilty. In response, on June 27, 2007, the government filed
an indictment obtained from the Grand Jury charging Alvarez
with violations of 8 U.S.C. § 1326, in a separate proceeding
with a separate case number. The change of plea hearing was
vacated on July 6, 2007, and the information in the previous
case remained pending. Alvarez was arraigned on the indict-
ment on July 18, 2007, and at that time, the information was
dismissed without prejudice at the government’s request.
On August 14, 2007, Alvarez gave a second notice of intent
to change his plea, and a hearing was scheduled for the fol-
lowing day, August 15, 2007. At the hearing Alvarez again
changed his mind and informed the court that he did not want
to plead guilty. A status conference was set for August 24,
2007, to determine whether Alvarez wished to file motions.
At that hearing the district court, relying on the July 18, 2007,
arraignment to trigger the STA clock, specified September 26,
2007, (70 days after July 18) as the last day for trial under the
STA. Alvarez did not object to this date. On September 10,
2007, Alvarez began to file his pretrial motions. The parties
agree that all time between September 10, 2007, and when
Alvarez was tried on January 20, 2009, was properly
excluded. 18 U.S.C. § 3161.
STANDARD OF REVIEW
We review the district court’s disposition of an STA issue
for clear error as to factual findings and de novo as to applica-
tion of legal standards. United States v. Henderson, 746 F.2d
619, 622 (9th Cir. 1984), aff’d, 476 U.S. 321 (1986).
DISCUSSION
The government argues that the STA clock began to run on
July 18, 2007, when Alvarez was arraigned on the indictment.
UNITED STATES v. ALVAREZ-PEREZ 20577
If so, 51 non-excludable days accrued on September 10, 2007,
and trial was timely. In contrast, Alvarez argues that the STA
clock began to run on June 27, 2007. By this calculation—
after automatically excluding the date of the indictment,
arraignment, and the two days devoted to Alvarez’s second
notice of his intent to plead guilty1—a period of 72 non-
excludable days accrued on September 10, 2007, and the STA
was violated.
[1] The Speedy Trial Act, 18 U.S.C. § 3161(c)(1), pro-
vides, in relevant part:
In any case in which a plea of not guilty is entered,
the trial of a defendant charged in an information or
indictment with the commission of an offense shall
commence within seventy days from the filing date
(and making public) of the information or indict-
ment, or from the date the defendant has appeared
before a judicial officer of the court in which such
charge is pending, whichever date last occurs.
[2] In this case, Alvarez made his first appearance on the
8 U.S.C. § 1326 complaint on May 15, 2007, and the informa-
tion was filed on June 12, 2007. Under the plain language of
the STA, June 12, 2007, is the trigger date. See Haiges, 688
F.2d at 1274. The government contends, however, that the
indictment, not the information, is the relevant charging docu-
ment. It further argues that the indictment did not become the
“pending” charge for STA purposes until July 18, when the
1
Although these automatically excludable days between June 27 and
September 10 were overlooked by the parties and do not affect the out-
come, we recognize them in our computation for completeness and accu-
racy. See, e.g., United States v. Wirsing, 867 F.2d 1227, 1230 (9th Cir.
1989) (date indictment returned automatically excluded); United States v.
Haiges, 688 F.2d 1273, 1275 (9th Cir. 1982) (date of arraignment auto-
matically excluded); see also United States v. Jenkins, 92 F.3d 430, 440
(6th Cir. 1996) (time devoted to change of plea notice automatically
excluded).
20578 UNITED STATES v. ALVAREZ-PEREZ
information, which had been the relevant charging document
up to that point, was dismissed. See 18 U.S.C. § 3161(c)(1).
[3] But here there is only one charge: Alvarez was charged
in a complaint with a violation of § 1326, he waived his right
to an indictment and pleaded not guilty to an information
charging the same violation of § 1326. When Alvarez
declined to change his plea to guilty, the government obtained
an indictment charging him with the same violation of § 1326.
The government does not contend that Alvarez made multiple
illegal entries into this country that were separately charged,
nor did it add new claims or join new defendants.
[4] Nor do we see any reason to assign any significance to
the fact that the earlier information and the subsequent indict-
ment were assigned different case numbers. To credit the gov-
ernment’s argument would be to elevate form over substance
and violate the clear intent of Congress. Were we to uphold
the government’s theory, the government in every case could
extend the STA’s time limits by indicting, dismissing, and re-
indicting under new case numbers. Thus, June 12, 2007, the
date the information was filed, is the trigger date for the STA.
[5] The formal dismissal of the information and subse-
quent filing of an indictment on the same charge do not sug-
gest otherwise. The STA treats informations and indictments
as equivalents. See, e.g., 18 U.S.C. § 3161(b) (“information or
indictment”); id. § 3161(c)(1) (same); id. § 3161(d)(1)
(“indictment or information”). Thus, the subsequent indict-
ment was akin to a superseding indictment or a re-indictment,
depending on whether the indictment was filed before or after
the information was dismissed. This distinction is meaning-
less here, however, because either a re-indictment or super-
seding indictment would inherit the previous STA clock. See
United States v. Duque, 62 F.3d 1146, 1150 (9th Cir. 1995)
(re-indictment after government dismisses initial indictment
does not restart STA clock); United States v. Karsseboom,
881 F.2d 604, 606 (9th Cir. 1989) (superseding indictment
UNITED STATES v. ALVAREZ-PEREZ 20579
charging same offenses does not restart STA clock). Accord-
ingly, the filing of the indictment on the same charge did not
start a new clock for the purposes of the STA.
[6] For practical purposes, however, we can consider June
27, 2007, to be the trigger date, as Alvarez concedes that any
time devoted to the fast-track proceedings before June 27 is
properly excluded. Although, in general, time devoted to plea
negotiations is not automatically excluded, see United States
v. Ramirez-Cortez, 213 F.3d 1149, 1155 (9th Cir. 2000); other
circuits have found the situation to be different where the
defendant notifies the court that negotiations have resulted in
an agreement and, as a result, the court sets a change of plea
hearing. See United States v. Rector, 598 F.3d 468, 472 (8th
Cir. 2010); see also United States v. Santiago-Becerril, 130
F.3d 11, 19-20 (1st Cir. 1997), abrogated on other grounds
by United States v. Barnes, 251 F.3d 251 (1st Cir. 2001); Jen-
kins, 92 F.3d at 440. In that situation, the time until the hear-
ing is held to be excluded either under § 3161(h)(1)(G)
because it is “delay resulting from consideration by the court
of a proposed plea agreement” or under 18 U.S.C.
§ 3161(h)(1)(D) as a “pretrial motion.” We therefore treat
June 27 as the effective start date. See United States v.
Medina, 524 F.3d 974, 978-79 (9th Cir. 2008) (discussing
exclusion of time where a pretrial motion requires a hearing).
[7] The government reasons, in the alternative, that even if
June 27 triggered the STA clock, all of the time devoted to the
information before its dismissal on July 18 constituted “other
proceedings concerning the defendant” and was properly
excluded for purposes of the STA. See 18 U.S.C. 3161(h)(1).
The government relies on United States v. Arellano-Rivera,
244 F.3d 1119 (9th Cir. 2001), and United States v. Lopez-
Osuna, 242 F.3d 1191 (9th Cir. 2001), arguing that these
cases are factually indistinguishable from the instant case. In
both cases, the defendant initially was charged in a complaint
with a violation of 8 U.S.C. § 1326. Within the 30 days
allowed for the filing of an indictment, each of the defendants
20580 UNITED STATES v. ALVAREZ-PEREZ
waived indictment and agreed to proceed by information, and,
in exchange, prosecutors agreed to pursue less serious charges
under 8 U.S.C. § 1325. The defendants indicated they would
plead not guilty while the parties completed plea negotiations
under a fast-track procedure. Each defendant subsequently
changed his mind and declined to plead guilty. In each case,
the government then substituted an indictment charging the
defendants with violations of 8 U.S.C. § 1326. However, in
each case the government did not obtain the § 1326 indict-
ment within the 30-day time period allotted by the STA. 18
U.S.C. § 3161(b). Nevertheless, we determined that a signifi-
cant portion of the intervening time was excludable as delay
resulting from “other proceedings” concerning the defendant
under 18 U.S.C. § 3161(h)(1). See Arellano-Rivera, 244 F.3d
at 1124; Lopez-Osuna, 242 F.3d at 1198. In light of the differ-
ent sets of charges under different sections, all time was
excludable after the defendants waived indictment so long as
the information was pending. The government urges us to
adopt this same reasoning in the present case.
We decline to do so. In Arellano-Rivera and Lopez-Osuna,
the defendants were initially charged by information with a
violation of 8 U.S.C. § 1325, a different charge than 8 U.S.C.
§ 1326, although the two sections are related. In each case,
once the defendant informed the court he did not want to
plead guilty to the information, the government abandoned
the 8 U.S.C. § 1325 charge alleged in the information
(although the government did not dismiss the information)
and obtained an indictment, alleging a violation of 8 U.S.C.
§ 1326. That the original information and subsequent indict-
ment charged the defendants with violations of different sec-
tions became the basis for treating them as different
proceedings under 18 U.S.C. § 3161(h)(1). See Arellano-
Rivera, 244 F.3d at 1124 (“As explained above, the prosecu-
tor’s filing of a criminal information on wholly separate
charges, together with the defendant’s willingness to proceed
with the case initiated by the information, trigger the ‘other
proceedings’ exception of the STA.” (emphasis added));
UNITED STATES v. ALVAREZ-PEREZ 20581
Lopez-Osuna, 242 F.3d at 1198 (“Though similar, sections
1325 and 1326 are separate offenses, with some separate ele-
ments.”).
Similarly, the government contends that this case is analo-
gous to United States v. Solorzano-Rivera, 368 F.3d 1073 (9th
Cir. 2004). In Solorzano-Rivera the defendant was arrested
and charged with illegal entry under 8 U.S.C. § 1326. Appar-
ently in contemplation of a plea agreement, the government
filed an information charging him with illegal reentry. Solor-
zano waived indictment and pleaded guilty that same day.
Two months later, Solorzano moved to withdraw his guilty
plea. The court granted the motion, and shortly thereafter the
government sought and obtained an indictment alleging a vio-
lation of 8 U.S.C. § 1326. Solorzano moved to dismiss the
indictment, claiming that it was untimely because it had not
been filed within the time required by 18 U.S.C. § 3161(b).
We held that the period of time from Solorzano’s entry of his
guilty plea until the district court accepted his withdrawal of
that plea was properly excluded from the statutory period to
indict under 18 U.S.C. § 3161(h)(1)(I) as a “delay resulting
from consideration by the court of a proposed plea agree-
ment.” See Solorzano-Rivera, 368 F.3d at 1077.2 In this case,
the government argues that we should similarly exclude the
time devoted to the information.
Solorzano-Rivera is also distinguishable from this case. In
Solorzano-Rivera the defendant pleaded guilty to the informa-
tion and subsequently withdrew his plea once the 30-day time
period for the government to indict him had passed. The
Solorzano-Rivera court was concerned that the STA would
not be served by allowing a defendant to waive his right to
indictment, plead guilty to an information, and then withdraw
his plea and complain that the government failed to obtain an
indictment within the appropriate time frame. Id. at 1078.
This concern is not implicated in this case because, although
2
This subsection currently appears at 18 U.S.C. § 3161(h)(1)(G).
20582 UNITED STATES v. ALVAREZ-PEREZ
Alvarez led the government and the court to believe that he
would plead guilty to the information, he never actually
entered a guilty plea. Additionally, Alvarez does not claim the
government failed to timely indict him, rather that the infor-
mation and the indictment both count toward the STA’s 70-
day time limit.
[8] As noted, the parties dispute only the period from June
27, 2007, until July 18, 2007. We have determined that 20
days during this period must be counted as non-excludable
time, and when they are, the STA clock ran for 72 days before
Alvarez’s trial on January 20, 2009. Therefore, the indictment
must be dismissed.
WAIVER
The government next argues that Alvarez waived his right
to raise an STA violation because his motion was oral and
untimely. Defense counsel made the oral motion at a hearing
on motions in limine the day before trial began, and the dis-
trict court refused to entertain it as untimely.
[9] Under the STA, “[f]ailure of the defendant to move for
dismissal prior to trial or entry of a plea of guilty or nolo con-
tendere shall constitute a waiver of the right to dismissal
under this section.” 18 U.S.C. § 3162(a)(2). Although the
STA does not define what “prior to trial” means, the parties
agree that the motion was made prior to trial in this case, as
it was brought even before jury selection took place. Thus, the
government concedes that the motion was not untimely under
this provision, but asks us to read into the STA an implicit
additional untimeliness exception to the mandatory dismissal
rule where the defendant fails to raise his STA claim until the
eve of trial.
[10] To support its position, the government points to
United States v. Shetty, 130 F.3d 1324 (9th Cir. 1997), in
which we noted that “we will not sanction the use of the
UNITED STATES v. ALVAREZ-PEREZ 20583
Speedy Trial Act as a ‘sandbag,’ held for 540 days and then
thrown at the district court ten days before trial.” Id. at 1331.
In that case, however, we ultimately rejected the STA claim
because the district court’s findings of excludable time were
not clearly erroneous. Indeed, although we expressed our dis-
satisfaction with defense counsel’s tactics, we observed that
“Shetty’s motion technically came prior to trial and preserved
his right to raise this issue.” Id. Shetty thus recognizes the
clear statutory deadline for motions to dismiss under the STA,
and we are unwilling to find a motion untimely when it is
made “prior to trial.”
Our interpretation is bolstered by the mandatory nature of
the STA. Under the STA, “[i]f a defendant is not brought to
trial within the time limit required . . . , the information or
indictment shall be dismissed on motion of the defendant.” 18
U.S.C. § 3162(a)(2) (emphasis added); see also United States
v. Tertrou, 742 F.2d 538, 540 (9th Cir. 1984) (“Congress has
mandated strict time requirements in the Speedy Trial Act. In
the event they are not met, the courts have no discretion but
to dismiss.”). Accordingly, we’ve previously held that “a
defendant cannot ‘waive’ time under the Speedy Trial Act.”
Ramirez-Cortez, 213 F.3d at 1156; see also Zedner v. United
States, 547 U.S. 489, 500-01 (2006). Permitting a defendant
to waive his right to dismissal by not filing the motion in a
timely manner, even when made before trial, would seriously
undermine our rule that the defendant cannot prospectively
consent to an STA violation. Thus, so long as a defendant
brings his motion to dismiss under the STA prior to trial, it
is timely under the STA, and the district court must dismiss
if a violation is found. Contra United States v. Spagnuolo,
469 F.3d 39, 45 (1st Cir. 2006).
[11] The district court also refused to consider Alvarez’s
motion because it was made orally. Although the STA
requires the indictment to be dismissed for an STA violation
only “on motion of the defendant,” the statute does not spec-
ify whether this motion must be in writing. 18 U.S.C.
20584 UNITED STATES v. ALVAREZ-PEREZ
§ 3162(a)(2). Our circuit has not yet considered the issue. The
Tenth Circuit, however, has found that a defendant’s informal
“statements to the district court prior to trial, in which he
claimed a violation of the STA, satisfy the motion require-
ments of 18 U.S.C. § 3162(a)(2),” even though the defendant
did not present his claim “in the form of a formal, written
motion.” United States v. Arnold, 113 F.3d 1146, 1149 (10th
Cir. 1997). But see Spagnuolo, 469 F.3d at 45 (“[The defen-
dant’s] oral request to tack on an additional speedy indictment
claim was not a motion within . . . the meaning of the statute
. . . .”).
We agree that a court should entertain a motion to dismiss
under the STA so long as the defendant “br[ings] to the trial
court’s attention his belief that the STA ha[s] been violated.”
Arnold, 113 F.3d at 1149. This rule is consistent with our cir-
cuit’s permissive construction of other statutes that require the
defendant to “file a motion.” See, e.g., United States v. Irvin,
450 F.2d 968, 970 (9th Cir. 1971) (interpreting 18 U.S.C.
§ 4244). And requiring the district court to consider such
motions, even when made informally and at the eleventh
hour, accords with Congress’s clear intent to place a fair share
of responsibility for ensuring that cases are tried in a timely
fashion on the district court and government counsel. See
Medina, 524 F.3d at 982. Moreover, this interpretation of the
STA is reasonable given that counsel’s failure to make a meri-
torious STA motion may constitute ineffective assistance, in
which case any resulting conviction would eventually be
vacated anyway—after the parties and the court have wasted
considerable resources at trial. See United States v. Palomba,
31 F.3d 1456, 1466 (9th Cir. 1994) (vacating convictions for
ineffective assistance of counsel for failure to make an STA
motion). We therefore conclude that the district court should
consider such motions when they are not frivolous, defense
counsel is proceeding in good faith, and the facts supporting
the motions are set forth. In this case, there is no evidence,
other than the timing of the motion itself, that defense counsel
acted in bad faith. And although Alvarez did not provide the
UNITED STATES v. ALVAREZ-PEREZ 20585
reasons in support of his motion, he was not given the oppor-
tunity to do so by the district court. Accordingly, we find that
the district court should have entertained Alvarez’s oral
motion to dismiss under the STA.
[12] Nevertheless, we believe that defense counsel should
ordinarily make such motions in writing and should avoid
waiting until the eve of trial when possible. We recognize that
by failing to abide by the trial court’s orders, defense counsel
can circumvent scheduling deadlines and frustrate the judge’s
ability to manage the case in an orderly manner. In this case,
for example, the district court set and continued several dead-
lines for the parties to present and oppose motions. Alvarez’s
motion to dismiss for a violation of the STA became ripe on
September 9, 2007, and he had ample time to prepare and
present a written motion to dismiss on STA grounds within
the briefing schedule set out by the district court. We in no
way mean to undermine the broad discretion of the trial court
to set procedures and deadlines for pretrial motions. See
Christian v. Mattel, Inc., 286 F.3d 1118, 1129 (9th Cir. 2002)
(“The district court has considerable latitude in managing the
parties’ motion practice and enforcing local rules that place
parameters on briefing.”); United States v. Doe, 627 F.2d 181,
183-84 (9th Cir. 1980) (“The trial court’s power to administer
the court calendar and to control the time and conduct of the
trial is broad.”); see also Fed. R. Crim. P. 47 (district court
has discretion over form and timing of motions). We merely
recognize that the STA is a strict and unforgiving statute that
creates only one possible waiver situation: where the defen-
dant raises the STA issue for the first time after trial begins.
See, e.g., United States v. Berberian, 851 F.2d 236, 239 (9th
Cir. 1988). Of course, in any case where an attorney acts in
bad faith or fails to substantially comply with the court’s
scheduling orders and briefing deadlines, the district court is
free to impose sanctions after notice and a hearing, whether
the motion is ultimately granted or denied. See Fed. R. Crim.
P. 57.
20586 UNITED STATES v. ALVAREZ-PEREZ
INVITED ERROR
[13] The government next contends that we should not
review Alvarez’s STA claim because Alvarez “invited” the
STA violation by contributing to the delay when (1) he more
than once changed his mind about pleading guilty; (2) he
requested and received new counsel, who indicated that she
would need some time to prepare; (3) his counsel did not
object to the erroneous maximum trial date when announced
by the court; and (4) he waited until the eve of trial to assert
a speedy trial violation. This is not invited error. After United
States v. Perez, 116 F.3d 840 (9th Cir. 1997) (en banc), we
must “limit[ ] our application of the invited error doctrine to
those rights deemed waived.” Id. at 842. But the Supreme
Court has held that a defendant cannot waive an STA viola-
tion, so invited error is not possible in this context. Zedner,
547 U.S. at 500-01. Although the government argues we
should not “reward” the defendant with dismissal of charges,
it cannot show that Alvarez invited the error.
[14] To the extent we could construe the government’s
invited error argument as an estoppel argument, we would
also reject it. Judicial estoppel “prevents a party from prevail-
ing in one phase of a case on an argument and then relying
on a contradictory argument to prevail in another phase.” Id.
at 504. But Alvarez never represented that the period from
June 27 to July 18 was excludable, nor did he argue to the
court that July 18 was the proper start date, so he is not now
judicially estopped from taking a contrary position. See id. at
505 (holding that “petitioner’s (mistaken) agreement” with
the trial court’s erroneous STA determination did not “pro-
vide a ground for estoppel”).
DISMISSAL WITH OR WITHOUT PREJUDICE
[15] When an STA violation occurs and the defendant is
not brought to trial within the applicable 70-day time limit,
the indictment must be dismissed. 18 U.S.C. § 3162(a)(2).
UNITED STATES v. ALVAREZ-PEREZ 20587
Congress directs the court to consider the following in deter-
mining whether the dismissal should be with or without preju-
dice: “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. In addition, the court
should consider prejudice to the defendant from the delay.
United States v. Taylor, 487 U.S. 326, 333-34 (1988).
[16] Normally, when an STA violation is found on appeal,
the matter is remanded to the trial judge to hold a hearing and
consider the issues identified by Congress. See Taylor, 487
U.S. at 335 (“[T]he decision to dismiss with or without preju-
dice [is] left to the guided discretion of the district court, and
. . . neither remedy [is] given priority.”). In rare situations,
when the facts are clear, the appellate court may make the
decision itself. See, e.g., United States v. Clymer, 25 F.3d
824, 831 (9th Cir. 1994). This is such a case.
[17] The first factor Congress has instructed us to consider
is the seriousness of Alvarez’s offense. In determining the
seriousness of reentry after deportation cases, Congress looks
to whether the defendant had prior felonies before he was
originally deported. Under the sentencing scheme, the most
serious sentences are reserved for those who had prior aggra-
vated felonies before they were deported. Alvarez falls in the
most serious class. Alvarez had two prior aggravated felonies
(assault with intent to commit rape and possession of cocaine
with intent to distribute), and the court had the discretion to
sentence Alvarez to up to 20 years. See United States v. Pena-
Carrillo, 46 F.3d 879, 882 (9th Cir. 1995) (affirming dis-
missal without prejudice because illegal reentry after prior
aggravated felony is “moderately serious”); see also United
States v. Lewis, 611 F.3d 1172, 1180 (9th Cir. 2010) (affirm-
ing dismissal without prejudice because offenses carrying a
maximum sentence of five years are “ ‘serious’ within the
context of the Speedy Trial Act”). We conclude that Alvarez’s
offense was serious.
20588 UNITED STATES v. ALVAREZ-PEREZ
[18] With respect to the second factor, we begin by exam-
ining “the sheer length of the period involved.” Clymer, 25
F.3d at 831-32 (quoting United States v. Stayton, 791 F.2d 17,
21 (2d Cir. 1986)). In this case, Alvarez was brought to trial
only 2 days after the 70 days mandated by the STA. The other
“facts and circumstances” similarly do not suggest dismissal
with prejudice is warranted. While Alvarez was continuously
in custody from the time of his arrest and had served 675 days
by the time he was sentenced, the bulk of the 675 days was
served after the STA clock ran, and most of the continuances
were granted at Alvarez’s request or to his benefit. The 2-day
delay is therefore properly characterized as “technical, rather
than substantive.” Medina, 524 F.3d at 987.
[19] The third factor also suggests dismissal without preju-
dice. In this case, we are not concerned about “the impact of
a reprosecution on the administration of [the STA] and on the
administration of justice.” 18 U.S.C. § 3162(a)(2). Unlike in
Clymer, where the STA violation resulted from a “basic mis-
understanding of the appropriate use of the ‘ends of justice’
exclusion,”3 here, the misunderstanding arose from mere com-
putational error. Had the district court and the government
been alerted to the STA problem, the court easily could have
excluded time in the interest of justice to avoid violating the
Act. See 18 U.S.C. § 3161(h)(7)(A)-(B). Further, there is no
evidence, and Alvarez does not contend, that the government
intentionally delayed his trial in order to harass him or other-
wise acted in bad faith. See Medina, 524 F.3d at 987 (finding
third factor counseled against dismissal with prejudice where
“there was no evidence of bad faith on the part of the govern-
ment”).
[20] Finally, the defendant has not shown the delay would
prejudice him if he is retried. Cf., e.g., Clymer, 25 F.3d at 832
(finding prejudice where defense witness disappeared during
the delay). In short, there is no reason to dismiss the indict-
3
Clymer, 25 F.3d at 832.
UNITED STATES v. ALVAREZ-PEREZ 20589
ment with prejudice. Because we dismiss the indictment, we
need not address Alvarez’s other claims.
The judgment of the district court is VACATED and this
case is REMANDED to the district court to dismiss the
indictment without prejudice.