FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50280
Plaintiff-Appellee,
v. D.C. No.
3:04-cr-01962-L-1
JUAN PEDRO BARRAZA-LOPEZ,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
M. James Lorenz, District Judge, Presiding
Argued and Submitted
May 3, 2011—Pasadena, California
Filed September 28, 2011
Before: Harry Pregerson, Raymond C. Fisher and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Fisher
18543
UNITED STATES v. BARRAZA-LOPEZ 18545
COUNSEL
Kristi A. Hughes, Federal Defenders of San Diego, Inc., San
Diego, California, for the defendant-appellant.
Laura E. Duffy, United States Attorney, Bruce R. Castetter,
Assistant U.S. Attorney and Aaron B. Clark (argued), Assis-
tant U.S. Attorney, San Diego, California, for the plaintiff-
appellee.
OPINION
FISHER, Circuit Judge:
We hold that the Speedy Trial Act’s 30-day preindictment
time limit, which ordinarily runs from the date of the defen-
dant’s initial arrest, restarts when the underlying complaint is
dismissed without prejudice and the charges are later refiled.
18546 UNITED STATES v. BARRAZA-LOPEZ
BACKGROUND
On July 2, 2004, local police arrested Juan Pedro Barraza-
Lopez for public drunkenness and discovered he was “in this
country illegally.” Barraza-Lopez was then transferred to the
custody of the Department of Homeland Security (DHS) to
await prosecution for illegal reentry under 8 U.S.C. § 1326.
On July 4, however, Barraza-Lopez escaped from DHS cus-
tody through a hole in a barracks yard fence and returned to
Mexico. A few weeks later, the government obtained an
indictment charging Barraza-Lopez with (1) being an illegal
alien previously removed from the United States who was
found in the United States on July 3, 2004 (the “found-in
date” for this § 1326 offense); and (2) escape from federal
custody, in violation of 18 U.S.C. § 751(a).
In June 2007, Barraza-Lopez again reentered the United
States. He was arrested and taken into state custody shortly
after his reentry. On June 7, 2007, while Barraza-Lopez was
in state custody, immigration officials lodged a detainer
against him, requesting notification prior to his release.
Barraza-Lopez was then convicted on state charges and con-
fined in state prison. Upon his release on November 12, 2008,
DHS took Barraza-Lopez into federal custody. Barraza-Lopez
admitted at that time that he had previously escaped from fed-
eral custody and had returned to Mexico between his escape
and his latest reentry, thus alerting the government that he had
committed a second illegal reentry separate from the reentry
for which he was detained in 2004.1
The next day, the government filed a complaint again
charging Barraza-Lopez with illegal reentry, this time with a
1
Under United States v. Meza-Villarello, 602 F.2d 209, 211 (9th Cir.
1979) (per curiam), “the government [is] required to prove that the defen-
dant ha[s] been outside the United States after each conviction before
again prosecuting him for being ‘found’ within the United States in viola-
tion of 8 U.S.C. § 1326.”
UNITED STATES v. BARRAZA-LOPEZ 18547
found-in date of November 12, 2008. The parties agree that
Barraza-Lopez’s second illegal reentry, which the government
had just learned of, was the basis for this charge. Later the
same day, however, Barraza-Lopez was arraigned not on the
complaint but rather on the original 2004 indictment, which
charged him with (1) his 2004 illegal reentry, but not his sec-
ond, post-escape reentry; and (2) escape. The complaint con-
taining the second illegal reentry charge was dismissed
without prejudice on the government’s motion.
In September 2009, after the case was set for trial, the gov-
ernment obtained a second superseding indictment charging
Barraza-Lopez with (1) the 2004 illegal reentry; (2) escape;
and (3) a second count of illegal reentry with a found-in date
of June 7, 2007, the day federal authorities had lodged a
detainer on Barraza-Lopez while he was in state custody.2 The
parties agree that count three of the second superseding
indictment reinstated the illegal reentry charge that was dis-
missed in November 2008, although the government altered
the found-in date for this charge. The government explains —
and Barraza-Lopez does not dispute — that it reinstated the
second illegal reentry charge only after “obtain[ing] indepen-
dent evidence that Barraza had left the United States”
between his escape and his later reentry, to corroborate
Barraza-Lopez’s admission.
Barraza-Lopez moved to dismiss count three, the second
illegal reentry charge, as violating the 30-day preindictment
time limit imposed by the Speedy Trial Act, 18 U.S.C.
§ 3161(b). He argued that the 10-month delay between his
November 2008 arrest on this charge and the September 2009
second superseding indictment violated the 30-day deadline,
even though the charge was dismissed and refiled in the
interim. After the district court denied his motion, Barraza-
2
The government had already once superseded the 2004 indictment in
the interim to reflect intervening changes in law, without adding or remov-
ing any charges.
18548 UNITED STATES v. BARRAZA-LOPEZ
Lopez pled guilty to all three counts in the second superseding
indictment, but preserved his right to appeal the denial of his
§ 3161(b) motion. He now appeals his conviction on the sec-
ond illegal reentry offense, challenging the denial of that
motion.3 Reviewing the district court’s factual findings for
clear error and its legal conclusions de novo, see United
States v. Duque, 62 F.3d 1146, 1149 (9th Cir. 1995), we
affirm.
DISCUSSION
I.
[1] Under the Speedy Trial Act, “[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). If no
information or indictment is filed within the requisite 30 days,
the charges contained in the underlying complaint must be
dismissed, although, in accordance with statutory standards,
the dismissal may be without prejudice to refiling the charge.
See id. § 3162(a)(1) (“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) . . . , such charge against
that individual contained in such complaint shall be dismissed
or otherwise dropped.”).
[2] Section 3161(d)(1) applies, however, when charges are
dismissed and refiled. It provides:
If any indictment or information is dismissed upon
motion of the defendant, or any charge contained in
a complaint filed against an individual is dismissed
3
We address the other issues Barraza-Lopez raises on appeal in a mem-
orandum disposition filed concurrently with this opinion.
UNITED STATES v. BARRAZA-LOPEZ 18549
or otherwise dropped, and thereafter a complaint is
filed against such defendant or individual charging
him with the same offense or an offense based on the
same conduct or arising from the same criminal epi-
sode, or an information or indictment is filed charg-
ing such defendant with the same offense or an
offense based on the same conduct or arising from
the same criminal episode, the provisions of subsec-
tions (b) and (c) of this section shall be applicable
with respect to such subsequent complaint, indict-
ment, or information, as the case may be.
Id. § 3161(d)(1).
The text of § 3161(d)(1) can reasonably be interpreted in
two ways. It can “be read to provide that, when a defendant
is arrested, and subsequently indicted, ‘the provisions of
(§ 3161(b)) . . . shall (apply to) such subsequent . . . indict-
ment,’ id. § 3161(d)(1), thus rendering the indictment
untimely unless filed within thirty days of the original arrest.”
United States v. Krynicki, 689 F.2d 289, 293 (1st Cir. 1982);
see also United States v. Bittle, 699 F.2d 1201, 1205 (D.C.
Cir. 1983) (observing that the provision “can be read to
require that indictments filed after the dismissal of initial
charges must be returned within thirty days of the original
arrest”). If this interpretation of § 3161(d)(1) is correct, then
in this case the 30-day clock on the second illegal reentry
charge began running in November 2008, when Barraza-
Lopez was taken into custody on that charge, and the Septem-
ber 2009 second superseding indictment missed the statutory
deadline by many months.
[3] Alternatively, § 3161(d)(1) can be read to restart the
30-day clock when charges contained in a complaint are dis-
missed and refiled. Under this interpretation of the statute,
when “any charge contained in a complaint filed against an
individual is dismissed or otherwise dropped, and thereafter
. . . an information or indictment is filed charging such defen-
18550 UNITED STATES v. BARRAZA-LOPEZ
dant with the same offense,” 18 U.S.C. § 3161(d)(1), the 30-
day clock that ordinarily runs “from the date on which such
individual was arrested or served with a summons,” id.
§ 3161(b), instead runs “with respect to [the] subsequent com-
plaint, indictment, or information,” id. § 3161(d)(1). In other
words, when a charge is dismissed and proceedings are
reopened by the charge’s refiling, the subsequent complaint,
indictment or information substitutes for the arrest or service
of summons that ordinarily starts the 30-day clock, and the
30-day period runs from the date on which the subsequent
complaint, indictment or information is filed.4 If this interpre-
tation of the statute is correct, then in this case the 30-day
clock ran from the date the second illegal reentry charge was
reinstated in the second superseding indictment, not from the
November 2008 arrest. Because the second superseding
indictment was filed on the same day the clock began to run,
the 30-day time limit was satisfied.
[4] We agree with the government, and with the numerous
other circuits that have addressed the issue, that the latter
reading of the statute is correct. See United States v. Williams,
408 F.3d 1073, 1076 (8th Cir. 2005) (“The well-settled rule
in this and other circuits . . . [is] that when the government
drops a complaint but then later brings a new complaint or
indictment on the same charge, the 30-day period runs from
the second complaint or indictment.” (alteration in original)
4
In this case, the government reinstated prosecution on the second ille-
gal reentry charge by adding that charge in the second superseding indict-
ment; there was no need to rearrest Barraza-Lopez, who was already being
held on two other charges. We therefore have no occasion to decide how
the 30-day time limit would operate in a case involving rearrest after dis-
missal of charges. Presumably, however, the time limit would run from the
date of the second arrest in such a case. See United States v. Rabb, 680
F.2d 294, 297 (3d Cir. 1982) (holding, in a case involving dismissal of an
indictment rather than a complaint, that “Congress intended that the time
limits of subsection (b) . . . run anew from the date of the defendant’s sec-
ond arrest or charge, if any, and not from the date of the first arrest or
charge” (emphasis added)).
UNITED STATES v. BARRAZA-LOPEZ 18551
(quoting United States v. Long, 900 F.2d 1270, 1273 (8th Cir.
1990)) (internal quotation marks and emphasis omitted));
United States v. Gaskin, 364 F.3d 438, 451 (2d Cir. 2004)
(stating that § 3161(d)(1) “reset[s the] speedy trial clock if,
after a complaint charge is dismissed against a defendant, the
defendant is recharged with the same offense in a new com-
plaint or indictment”); United States v. May, 771 F.2d 980,
982 (6th Cir. 1985) (per curiam) (“[T]he clear purport of
[§ 3161(d)(1)] is to make the time period[ ] in [§ 3161(b)] run
anew upon the issuance of a subsequent indictment; the prior
filing of a complaint and arrest pursuant thereto is simply
irrelevant for Speedy Trial Act purposes if the complaint is
dismissed without prejudice.” (footnote omitted)); United
States v. Quinteros, 769 F.2d 968, 973 (4th Cir. 1985) (“[W]e
interpret section 3161(d)(1) to allow a fresh thirty-day period
between the second complaint and subsequent indictment.
. . .”); United States v. Puett, 735 F.2d 1331, 1333-34 (11th
Cir. 1984) (“The better construction of section 3161(d)(1) is
that after the dismissal of the complaint, the Act’s time limits
run anew from the date of filing of the subsequent complaint
or indictment.”); Bittle, 699 F.2d at 1205 (“[T]he correct
interpretation of section 3161(d)(1) is that after the dismissal
of a complaint, the Act’s time limits run anew from the date
of the filing of the subsequent complaint or indictment.”);
Krynicki, 689 F.2d at 294 (“[T]his Court interpret[s]
§§ 3161(b) and (d)(1) to allow the government to prosecute a
defendant on an indictment returned more than thirty days
after an arrest where the underlying charge in a complaint has
been dismissed.”). There are four persuasive reasons for
adopting this interpretation of § 3161(d)(1).
First, a contrary interpretation would render § 3161(d)(1)
superfluous. Section 3161(b) already establishes the general
principle that an indictment must be returned within 30 days
of the arrest. If § 3161(d)(1) merely confirmed that an indict-
ment filed after dismissal of charges previously alleged in a
complaint must be filed within 30 days of the initial arrest, it
would do no more than restate the general rule of § 3161(b).
18552 UNITED STATES v. BARRAZA-LOPEZ
Accord May, 771 F.2d at 982; Puett, 735 F.2d at 1334; Bittle,
699 F.2d at 1205; Krynicki, 689 F.2d at 293. “It is a well-
established principle of statutory construction that ‘legislative
enactments should not be construed to render their provisions
mere surplusage.’ ” Am. Vantage Cos. v. Table Mountain
Rancheria, 292 F.3d 1091, 1098 (9th Cir. 2002) (quoting
Dunn v. Commodity Futures Trading Comm’n, 519 U.S. 465,
472 (1997)).
Second, our reading of § 3161(d)(1) conforms the 30-day
preindictment clock to the “closely analogous” 70-day
indictment-to-trial clock. United States v. Magana-Olvera,
917 F.2d 401, 405 (9th Cir. 1990). We have long made clear
that, under § 3161(d)(1), when an indictment is dismissed on
the defendant’s motion, the 70-day time limit runs from the
date of the new indictment reinstating prosecution, rather than
from the initial indictment. See United States v. Feldman, 788
F.2d 544, 548 (9th Cir. 1986) (stating that under these circum-
stances the 70-day clock “begins anew,” starting from the date
of the later indictment).5 The 30-day time limit should like-
wise be calculated based on the recommencement of prosecu-
tion, not the initial arrest. See United States v. Perez, 845 F.2d
100, 102 n.3 (5th Cir. 1988) (approving the district court’s
conclusion that the 70-day and 30-day clocks are analogous
in operation).
Third, our interpretation of the statute harmonizes the
Speedy Trial Act with the Sixth Amendment’s speedy trial
provision, which protects only those who face pending
charges. See United States v. Loud Hawk, 474 U.S. 302, 304
(1986) (“We conclude that the time that no indictment was
5
Section 3161(d) applies to any dismissal of a complaint, but only to a
dismissal of an “indictment or information . . . upon motion of the defen-
dant.” 18 U.S.C. § 3161(d). When an indictment is dismissed on the gov-
ernment’s motion, not the defendant’s, and the defendant is later
recharged, the Speedy Trial Act’s time limits are tolled for the period
between dismissal and refiling, rather than being reset. See id.
§ 3161(h)(5).
UNITED STATES v. BARRAZA-LOPEZ 18553
outstanding against respondents should not weigh towards
respondents’ speedy trial claims.”); United States v. MacDon-
ald, 456 U.S. 1, 7 (1982) (noting that “[i]n addition to the
period after indictment, the period between arrest and indict-
ment must be considered in evaluating a Speedy Trial Clause
claim,” but that “no Sixth Amendment right to a speedy trial
arises until charges are pending,” and that “the Speedy Trial
Clause has no application after the Government, acting in
good faith, formally drops charges”). “Once charges are dis-
missed . . . the formerly accused is, at most, in the same posi-
tion as any other subject of a criminal investigation.”
MacDonald, 456 U.S. at 8-9. “Certainly the knowledge of an
ongoing criminal investigation will cause stress” to the
uncharged wrongdoer, id. at 9, but this sort of anxiety is
addressed by statutes of limitation. Cf. United States v. Mar-
ion, 404 U.S. 307, 323 (1971) (“[T]he applicable statute of
limitations . . . is . . . the primary guarantee against bringing
overly stale criminal charges.” (alterations in original) (quot-
ing United States v. Ewell, 386 U.S. 116, 122 (1966)) (inter-
nal quotation marks omitted)).
Fourth, our interpretation of § 3161(d)(1) is supported by
the legislative history. The Senate Judiciary Committee’s
section-by-section analysis of the Speedy Trial Act explains:
[Subsection 3161(d)] allows latitude to the prosecu-
tor to re-institute prosecution of a criminal defendant
whose case has previously been dismissed on non-
speedy trial grounds without having to comply with
the time limits imposed by the filing of the earlier
complaint. To require a prosecutor to conform to
indictment and trial time limits which were set by
the filing of the original complaint in order to reopen
a case on the basis of new evidence would be an
insurmountable burden. Thus, when subsequent
complaints are brought, the time limits will begin to
run from the date of the filing of the subsequent
complaint.
18554 UNITED STATES v. BARRAZA-LOPEZ
S. Rep. No. 93-1021 (1974), reprinted in Anthony Partridge,
Legislative History of Title I of the Speedy Trial Act of 1974
78-79 (1980). This passage states broadly that Congress
meant to allow the government “latitude . . . to re-institute
prosecution . . . without having to comply with the time limits
imposed by the filing of the earlier complaint,” to avoid plac-
ing “an insurmountable burden” on prosecutors seeking to
reopen a case. Our conclusion that the Act permits the gov-
ernment to reinstitute prosecution of Barraza-Lopez on the
second illegal reentry charge is consistent with this congres-
sional objective.6 Accord May, 771 F.2d at 982-83; Quinteros,
769 F.2d at 971-72; Puett, 735 F.2d at 1334; Bittle, 699 F.2d
at 1205; Krynicki, 689 F.2d at 293-94.
[5] We therefore hold that when a charge alleged in a com-
plaint is dismissed without prejudice and is then reinstated in
a later complaint, indictment or information, the 30-day clock
runs anew from the date the charge is refiled.7
II.
United States v. Palomba, 31 F.3d 1456 (9th Cir. 1994), is
not to the contrary. In Palomba, “a complaint was filed . . .
charging [defendant] Palomba with making false statements
to a federal agency, mail fraud and conspiracy.” Id. at 1459.
Palomba was arrested based on the complaint and was then
indicted, but the indictment omitted the mail fraud charge. See
id. Three months later, however, the government obtained a
superseding indictment that added two counts of mail fraud.
Id. at 1460. We held that “the superseding indictment charged
6
Although not necessary to our conclusion, it is significant that the gov-
ernment reinstated the second illegal reentry charge “on the basis of new
evidence,” a situation explicitly contemplated by the legislative history.
The government refiled this charge only after it uncovered independent
evidence corroborating Barraza-Lopez’s admission that he left the United
States after his escape. Allowing the government to refile the charge under
these circumstances clearly accords with congressional intent.
7
There is a good faith qualifier, as discussed in Part III.
UNITED STATES v. BARRAZA-LOPEZ 18555
Palomba in an untimely manner with an offense which was
contained in the complaint but which was not preserved
against Section 3162(a)(1) dismissal . . . by inclusion in the
timely original indictment.” Id. at 1464.
In Palomba, we simply recognized the general rule, under
§§ 3161(b) and 3162(a), that if the government does not fol-
low up on pending charges by obtaining an indictment within
30 days of the arrest, the charges must be dismissed. We did
not consider the circumstance specifically addressed in
§ 3161(d)(1), the provision that controls when a complaint is
filed and is then “dismissed or otherwise dropped” and the
same charges are later refiled, with no charges pending in the
interim.
Barraza-Lopez nonetheless argues that in Palomba the
charges in the complaint were “dismissed or otherwise
dropped” within the meaning of § 3161(d)(1), and thus that
Palomba controls even though it did not address § 3161(d)(1)
explicitly. But this argument assumes that § 3161(d)(1)
merely reiterates the rules of §§ 3161(b) and 3162(a), and
thus that Palomba — which addressed only the latter provi-
sions — applies equally when a complaint is formally dis-
missed, a circumstance controlled by § 3161(d)(1). As
discussed above, if § 3161(d)(1) is to have any independent
meaning, the Act must distinguish between charges “dropped”
in the sense that they are not pursued, due to the government’s
failure to indict on a pending complaint (a circumstance
addressed in §§ 3161(b) and § 3162(a)), and charges affirma-
tively and explicitly dropped, as when a complaint is dis-
missed (addressed in § 3161(d)(1)). Palomba, which
addressed only the former situation, is inapplicable here.
III.
We are mindful of the possibility that the government may
abuse its latitude to reinstitute prosecution “by dismissing
charges when time limits start to run, and then re-filing them
18556 UNITED STATES v. BARRAZA-LOPEZ
later to start a new clock.” It is true that § 3161(d)(1) allows
the government to control the clock’s restarting under some
circumstances. But the need to guard against prosecutorial
abuse must be balanced against “the interest in allowing the
Government to proceed cautiously and deliberately before
making a final decision to prosecute.” MacDonald, 456 U.S.
at 11 (Stevens, J., concurring). Imposing an absolute 30-day
arrest-to-indictment time limit might encourage the govern-
ment to press forward on pending charges when it would pre-
fer to dismiss the complaint to conduct further investigation.
Moreover, our interpretation of § 3161(d)(1) does not give
the government unbounded power to restart the 30-day clock.
The potential for abuse “by a prosecutor continually dismiss-
ing prior complaints . . . can be remedied by the district
court’s dismissing of the [initial] complaint with prejudice.”
May, 771 F.2d at 983 n.3. Dismissal with prejudice may also
be appropriate when the dismissal results from the govern-
ment’s carelessness. Cf. S. Rep. No. 93-1021 (noting that dis-
missal with prejudice allows a district court to prevent
reindictment “after a carelessly drawn indictment has been
dismissed”).
Our holding thus allows district courts to curb abusive
behavior or sanction prosecutorial carelessness, while giving
the government appropriate latitude to manage its charging
decisions. This is the balance Congress envisioned. Cf. 18
U.S.C. § 3162(a)(1) (listing factors the district court must
consider “[i]n determining whether to dismiss the case with or
without prejudice” when a complaint is dismissed after the
30-day time limit expires).
CONCLUSION
[6] When charges in a complaint are dismissed without
prejudice and are later refiled, § 3161(b)’s 30-day clock runs
anew from the filing of the “subsequent complaint, indict-
ment, or information.” Id. § 3161(d)(1). In this case, the 30-
UNITED STATES v. BARRAZA-LOPEZ 18557
day clock both started and stopped upon the filing of the sec-
ond superseding indictment, which reinstated the dismissed
illegal reentry charge. There was no violation of § 3161(b),
and the district court properly denied Barraza-Lopez’s motion
to dismiss count three of the second superseding indictment.
AFFIRMED.