UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 95-20281
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE VIRGILIO REYES, ALSO KNOWN AS JOSE RAFAEL GARCIA,
Defendant-Appellant.
______________________________________________
Appeal from the United States District Court for the
Southern District of Texas
______________________________________________
December 19, 1996
Before REAVLEY, GARWOOD, and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:
Defendant-Appellant, Jose Virgilio Reyes, principally appeals
his conviction of using or carrying a firearm during and in
relation to a drug-trafficking crime in violation of 18 U.S.C. §
924(c)(1). Reyes claims that reversal of his conviction is
mandated because the evidence at trial was insufficient to support
the jury’s verdict and because the district court’s instructions to
the jury constituted a constructive amendment of the indictment.
Reyes also contends that his prosecution was barred because the
government dismissed the original federal complaint against him
solely to avoid the requirements of the Speedy Trial Act of 1974,
as amended, 18 U.S.C. § 3161 et seq. We affirm.
I. Background
On September 24, 1992, Jose Virgilio Reyes was arrested and
charged with state firearm and drug offenses arising out of an
incident at a Greyhound Bus Terminal in Houston, Texas. On
September 25, 1992, Reyes was charged in a federal criminal
complaint with a variety of similar offenses arising out of the
same incident. Reyes was incarcerated by state authorities from
the time of his arrest until his state sentencing on January 5,
1993, when he was sentenced to an eight-year term of imprisonment
in the Texas Department of Criminal Justice. Reyes was released on
parole in September 1993.
On January 12, 1994, the government filed a motion to dismiss
the federal criminal complaint filed against Reyes without
prejudice under Federal Rule of Criminal Procedure 48(a). The
district court granted the government’s motion. On July 20, 1994,
Reyes was charged by federal indictment with the following
offenses: (1) conspiracy to possess with intent to distribute
marijuana in violation of 21 U.S.C. § 846; (2) knowing delivery of
a suitcase containing firearms to a common carrier without giving
written notice to the carrier that the firearms were being
transported or shipped in violation of 18 U.S.C. § 922(e); (3)
knowing possession of firearms that had been shipped in interstate
commerce from which the manufacturer’s serial number had been
obliterated in violation of 18 U.S.C. § 922(k); and (4) using and
2
carrying a firearm during and in relation to the drug-trafficking
crime of possession with intent to distribute marijuana in
violation of 18 U.S.C. § 924(c)(1).
At the close of all of the evidence at trial, Reyes moved for
a judgment of acquittal. In his motion, Reyes argued that the
evidence was insufficient to support the four counts alleged in the
indictment. Reyes also claimed that the prosecution violated the
prohibition against double jeopardy because he previously had been
convicted of the same offenses in state court. Finally, Reyes
protested that the government dismissed the original federal
complaint solely to avoid speedy trial concerns because an
indictment was not arrived at in a timely fashion. The district
court denied Reyes’s motion.
The jury found Reyes guilty on all counts. Reyes was
sentenced to a 21-month term of imprisonment as to counts one, two,
and three. Reyes also received a 60-month, consecutive term of
imprisonment as to count four. This appeal followed.
II. Sufficiency of the Evidence
Reyes argues that the evidence was insufficient to support his
conviction for “carrying” a firearm during and in relation to a
drug-trafficking crime in violation of 18 U.S.C. § 924(c)(1).1
1
Section 924(c)(1) requires the imposition of specified penalties
if the defendant, “during and in relation to any crime of violence
or drug trafficking crime ...[,] uses or carries a firearm.”
Although the indictment charged Reyes with using and carrying a
firearm, the district court properly instructed the jury that it
could convict the defendant of violating § 924(c)(1) if he used or
carried a firearm during and in relation to a drug-trafficking
crime. See United States v. Johnson, 87 F.3d 133, 136 n.2 (5th
Cir. 1996).
3
Because Reyes moved for a judgment of acquittal at the close of the
evidence, the standard for evaluating the sufficiency of the
evidence is whether, “viewing the evidence and the inferences that
may be drawn from it in the light most favorable to the verdict, a
rational jury could have found the essential elements of the
offenses beyond a reasonable doubt.” United States v. Pruneda-
Gonzalez, 953 F.2d 190, 193 (5th Cir.), cert. denied, 504 U.S. 978,
112 S. Ct. 2952, 119 L.Ed.2d 575 (1992). In a non-vehicular
context, a violation of the “carry” prong of § 924(c)(1) “requires
a showing that the gun was in reach during the commission of the
drug offense.” United States v. Pineda-Ortuno, 952 F.2d 98, 103
(5th Cir.), cert. denied, 504 U.S. 928, 112 S. Ct. 1990, 118
L.Ed.2d 587 (1992). See also United States v. Fike, 82 F.3d 1315,
1328 (5th Cir.), cert. denied, — U.S. —, 117 S. Ct. 241 (1996).
The evidence introduced at Reyes’s trial was sufficient to
support a conviction for carrying a firearm under § 924(c)(1).2 At
trial, R.B. Stewart, a Houston police officer, testified that on
September 24, 1992, he observed Reyes helping a taxicab driver
retrieve a suitcase out of a cab near the Greyhound bus station in
Houston. Officer Stewart’s suspicions were aroused when he noticed
that the suitcase had a large padlock on it and appeared large,
heavy, and newly purchased. Officer Stewart testified that he
2
While the evidence is plainly sufficient and Reyes’s argument
could be summarily rejected, we present a detailed account of the
facts here inasmuch as the evidence and the jury’s verdict on the
conspiracy count have a bearing on our treatment of the
constructive amendment issue, discussed in Part III of this
opinion.
4
observed Reyes enter the bus station and approach the ticket
counter carrying the suitcase. Officer Stewart observed Reyes
purchase a one-way ticket to New York with large bills. Reyes
filled out a name tag, writing the name “Jose Garcia” and the
destination “New York City” on the tag. The suitcase was then sent
downstairs to be loaded on a bus.
As Reyes exited the bus station, Officer Stewart approached
Reyes, identified himself as a police officer, and asked Reyes if
he could speak with him. Reyes responded, “I’ll be with you in a
second, officer. I need to pay this cab driver.” Reyes then went
to pay the cab driver. Officer Ralph Rodriguez approached Officer
Stewart at this time. Officer Stewart gave Officer Rodriguez a
signal to keep an eye on Reyes because Officer Stewart had an
instinct that Reyes was going to run. Officer Stewart testified
that as soon as Reyes paid the cab driver, Reyes looked at him and
ran.
As Reyes ran across the parking lot, he dropped a backpack
that he was carrying. Officer Rodriguez picked up the backpack and
pursued Reyes in his vehicle. Following a chase of several blocks,
Officer Rodriguez captured Reyes. After Reyes was placed in
custody, Officer Rodriguez checked Reyes’s backpack for weapons and
found a loaded .25 caliber automatic weapon. Officer Rodriguez
also found six hand-rolled marijuana cigarettes in the backpack.
Officer Stewart asked two officers at the bus station to have
a drug detection dog “run” the suitcase that Reyes had attempted to
transport on the Greyhound bus. Reyes denied that the padlocked
5
suitcase was his when he was questioned in the security room at the
bus station, despite the fact that the keys to the padlock were in
his pocket. Reyes gave Officer Stewart permission to open the
suitcase, stating that he had no knowledge of its contents and that
he was carrying the suitcase for someone else. Inside the
suitcase, officers found fifteen weapons, two plastic bags
containing marijuana, and a “drimmel tool” used for grinding metal.
The marijuana in the suitcase weighed a little over two pounds.
David Bock, an agent with the Bureau of Alcohol, Tobacco, and
Firearms, testified that Reyes told him that on September 21, 1992,
Reyes had flown to Houston from New York at the request of two
persons he met at a soccer game in Brooklyn. Reyes told Agent Bock
that the individuals sent him to Houston with $4000 to purchase ten
small handguns and three pounds of marijuana. In addition, Reyes
told Agent Bock that he was going to be paid for his participation
in this transaction.
We conclude that the foregoing evidence was sufficient for a
rational jury to conclude that Reyes had a firearm within his reach
when he delivered approximately two pounds of marijuana for
transport on a Greyhound bus. Therefore, we hold that the evidence
was sufficient to sustain Reyes’s conviction under § 924(c)(1) for
“carrying” a firearm during and in relation to a drug trafficking
crime.
III. Constructive Amendment
Count four of the indictment charged Reyes with knowingly
using or carrying a firearm “in relation to the drug trafficking
6
crime of intentionally and knowingly possessing with intent to
distribute approximately 929 grams of marijuana.” The district
court, however, instructed the jury that in order to convict, it
must find “that the defendant committed the crime alleged in Count
one ... and that the defendant knowingly used or carried a firearm
during and in relation to the defendant’s commission of the crime
alleged in Count one.” Count one of the indictment charged Reyes
with conspiracy to possess with the intent to distribute marijuana.
Reyes did not object to the district court’s jury instructions at
trial.
Reyes argues that reversal of his conviction under 18 U.S.C.
§ 924(c)(1) is warranted because the variance between the district
court’s jury instructions and the indictment amounted to a
constructive amendment of the indictment.3 See, e.g., Stirone v.
3
Alternatively, Reyes raises a claim under the Fifth and Sixth
Amendments contending that “[t]he Constitution gives a criminal
defendant the right to demand that a jury find him guilty of all
elements of the crime with which he is charged.” United States v.
Gaudin, — U.S. —, 115 S. Ct. 2310, 2314, 132 L.Ed.2d 444 (1995).
See also Sullivan v. Louisiana, 508 U.S. 275, 278-81, 113 S. Ct.
2078, 124 L.Ed.2d 182 (1993) (holding that a constitutionally
deficient reasonable doubt instruction mandated reversal and that
harmless error analysis was inapplicable in this situation). Reyes
argues that proof of guilt of the charged predicate offense is an
essential element of a conviction under 18 U.S.C. § 924(c)(1).
Although the jury in the instant case found Reyes guilty of a
conspiracy to possess with the intent to distribute marijuana, it
made no separate finding that Reyes was guilty of the substantive
offense of possession with the intent to distribute marijuana.
Because the jury made no finding on an essential element of the
crime with which he was charged, Reyes contends that his conviction
must be reversed.
The cases relied upon by Reyes in support of his fifth and
sixth amendment claim are distinguishable. Those cases involved a
situation in which the jury returned a verdict that was fatally
flawed because an essential element of the crime that the jury was
7
United States, 361 U.S. 212, 217-18, 80 S. Ct. 270, 4 L.Ed.2d 252
(1960). Because Reyes did not raise this alleged error before the
district court, we review the court’s instruction for plain error.
See, e.g., United States v. Restivo, 8 F.3d 274, 278-79 (5th Cir.
1993), cert. denied, — U.S. —, 115 S. Ct. 54, 130 L.Ed.2d 13
(1994). “Plain error is error so obvious and substantial that
failure to notice it would affect the fairness, integrity, or
public reputation of the judicial proceedings and would result in
manifest injustice.” Id. at 279. This appeal provides our first
occasion to apply plain error analysis to a constructively amended
indictment after the Supreme Court’s decision in United States v.
Olano, 507 U.S. 725, 113 S. Ct. 1770, 123 L.Ed.2d 508 (1993).
“The Fifth Amendment guarantees that a criminal defendant will
be tried only on charges alleged in a grand jury indictment.”
United States v. Arlen, 947 F.2d 139, 144 (5th Cir. 1991), cert.
denied, 503 U.S. 939, 112 S. Ct. 1480, 117 L.Ed.2d 623 (1992).
“The indictment cannot be ‘broadened or altered’ except by the
grand jury.” Id. (citations omitted). “A constructive amendment
occurs when the trial court ‘through its instructions and facts it
permits in evidence, allows proof of an essential element of a
instructed upon was withheld from it. In the instant case, the
jury found all of the elements of the crime that it was instructed
upon—Reyes carried or used a weapon while conspiring to possess
with the intent to distribute marijuana. Reyes’s true complaint is
that the jury found him guilty of a different crime than was
charged in the indictment. In other words, Reyes contends that
“the jury [was] permitted to convict [him] upon a factual basis
that effectively modifie[d] an essential element of the offense
charged.” See United States v. Leahy, 82 F.3d 624, 631 (5th Cir.
1996) (internal quotation omitted) (defining “constructive
amendment”).
8
crime on an alternative basis permitted by the statute but not
charged in the indictment.’” Id. (quoting United States v.
Slovacek, 867 F.2d 842, 847 (5th Cir.), cert. denied, 490 U.S.
1094, 109 S. Ct. 2441, 104 L.Ed.2d 997 (1989)). We have held that
“[c]onstructive amendments are reversible per se, as contrasted
with variances between the indictment and proof that are evaluated
under the harmless error doctrine.” United States v. Chandler, 858
F.2d 254, 257 (5th Cir. 1988).
We agree with Reyes that proof of the defendant’s guilt of a
predicate offense is an essential element of a conviction under §
924(c)(1). We also agree with Reyes that a conspiracy to possess
with the intent to distribute marijuana has different elements than
does the substantive offense of possession with the intent to
distribute.4 We therefore conclude that the district court
constructively amended the indictment by modifying an essential
element of the charged offense when it instructed the jury that it
could convict Reyes under § 924(c)(1) based upon proof that he was
guilty of a conspiracy rather than a substantive offense.
Nonetheless, the Supreme Court in Olano instructed that our
4
In order to establish a conspiracy to possess marijuana with the
intent to distribute, the government must prove that: (1) an
agreement existed among two or more persons to possess marijuana
with the intent to distribute the drug; (2) the defendant knew of
the conspiracy, and (3) the defendant voluntarily joined the
conspiracy. See, e.g., United States v. Casilla, 20 F.3d 600, 603
(5th Cir.), cert. denied, — U.S. —, 115 S. Ct. 240, 130 L.Ed.2d 163
(1994). To prove possession with the intent to distribute
marijuana, however, the government must prove that the defendant
knowingly possessed marijuana with the intent to distribute it.
See, e.g., United States v. Inocencio, 40 F.3d 716, 724 (5th Cir.
1994).
9
authority to correct a forfeited error is discretionary. The Court
stated that “[i]f the forfeited error is ‘plain’ and ‘affect[s]
substantial rights,’ the Court of Appeals has authority to order
correction, but is not required to do so.”5 Olano, 507 U.S. at
735. We choose to exercise the discretion afforded us under the
Supreme Court’s mandate and refuse to disturb the jury’s verdict in
this case.
Although the rights asserted by Reyes are undoubtedly
important, a combination of several factors leads us to conclude
that affirming his conviction would not result in manifest
injustice. First, the predicate offense of conspiracy that the
jury was instructed upon was a “drug trafficking crime” under §
924(c)(1) that could have been the charged predicate offense in the
indictment. Furthermore, Reyes was clearly prepared at the time of
trial to defend against this conspiracy charge and was, in fact,
separately convicted of conspiracy to possess with the intent to
distribute marijuana.
Second, Reyes’s strategy at trial centered on his ignorance of
the contents of his suitcase. The jury’s rejection of this
strategy is evidenced by its guilty verdict as to the three other
counts of the indictment, all of which required Reyes’s knowledge
of the contents of the suitcase. This rejection negates the
possibility that the jury could believe that Reyes did not
5
Even Justice Stevens, in dissent, acknowledged that “[a]
forfeited error, ... even if it is plain and affects substantial
rights, ‘may’ be corrected at the discretion of the reviewing court
under Rule 52(b).” Olano, 507 U.S. at 744 (Stevens, J.,
dissenting).
10
knowingly possess marijuana with the intent to distribute. The
jury, in effect, found that Reyes knew that the suitcase that he
was carrying contained over two pounds of marijuana; it could not
have concluded otherwise.
Finally, a contrary decision in this case would encourage the
kind of sandbagging that the plain error rule is, in part, designed
to prevent. On one hand, if Reyes had objected to the district
court’s instructions, the court would certainly have corrected its
error. The result in this situation would be that Reyes’s jury
would have been properly instructed and he would have faced the
identical odds of being convicted.
On the other hand, were we to reverse Reyes’s conviction
despite his failure to object, no rational defense attorney would
ever object under these circumstances. By failing to object, the
defendant loses the likely correction of the district court’s
error. What he or she gains, however, is worth substantially more.
Not only does the defendant still have the same hope (however
remote) of being acquitted by the jury, but the defendant also
knows that a conviction will result in a reversal by the court of
appeals. We refuse to reverse a conviction when doing so would
create such perverse incentives. Our decision not to disturb the
jury’s verdict in this case does not “seriously affect the
fairness, integrity or public reputation of judicial proceedings.”
Id. at 736 (quoting United States v. Atkinson, 297 U.S. 157, 160,
56 S. Ct. 391, 80 L.Ed. 555 (1936)).
We recognize that plain error is by definition “obvious”.
11
Therefore, it should always be corrected when brought to the
district court’s attention. Nonetheless, in most cases analyzed
under the plain error standard, the defendant would have gained
something by objecting. This case is unusual because, as a
practical matter, Reyes’s objection would have procured him no
discernable benefit.
We also recognize that it is not the role of appellate courts
to judge the guilt or innocence of criminal defendants. The
Constitution allocates that duty to a jury in no uncertain terms.
See U.S. CONST. amend. V. Our decision today is not meant to imply
that overwhelming evidence of guilt is sufficient, by itself, to
sustain a conviction under the plain error standard. Rather, we
merely conclude that under the unusual circumstances presented by
this case—including a jury instruction on a predicate offense
permitted by § 924(c)(1), a separate conviction by the jury on the
instructed predicate offense in circumstances in which the jury
clearly rejected Reyes’s contention that he did not knowingly
possess marijuana, overwhelming evidence of guilt of both the
charged offense and the instructed offense, and substantial
incentive for sandbagging by the appellant—reversal of Reyes’s
conviction is not warranted.
IV. Dismissal Without Prejudice
Reyes claims that the district court erred in dismissing his
original criminal complaint without prejudice pursuant to Rule
48(a) of the Federal Rules of Criminal Procedure. Reyes points out
that he did not have notice of the government’s filing of the
12
motion to dismiss6 and that the district court failed to set forth
on the record sufficient reasons for the dismissal. Reyes contends
that the sole purpose of the government’s motion to dismiss was to
avoid the sanctions of the Speedy Trial Act, which requires that a
defendant be indicted within thirty days of his arrest.7 See 18
U.S.C. § 3161(b). Reyes argues that the government’s failure to
afford him notice of the dismissal violated his rights under Rule
48(a).8
6
The government does not contend that Reyes was notified of its
motion to dismiss and the record does not reflect that the motion
contained a certificate of service. Therefore, for purposes of
this appeal, we will assume that Reyes did not have notice of the
dismissal of the original complaint.
7
Reyes also relies upon United States v. Taylor, 487 U.S. 326,
108 S. Ct. 2413, 101 L.Ed.2d 297 (1988), and argues that the
district court erred in dismissing his criminal complaint without
prejudice because the district court did not consider the relevant
factors articulated in the Speedy Trial Act. Reyes’s argument is
unavailing because the district court’s dismissal of Reyes’s
criminal complaint was not pursuant to the Speedy Trial Act. In
the instant case, Reyes never filed a motion to dismiss for a
violation of the Act. Rather, dismissal without prejudice was
ordered pursuant to the government’s motion under Rule 48(a).
8
In addition, Reyes relies upon United States v. Delgado-Miranda,
951 F.2d 1063, 1064 (9th Cir. 1991), and argues that the
government’s failure to provide him with notice and a hearing prior
to the dismissal of his complaint violated his right to due process
of law. In Delgado-Miranda, the Ninth Circuit recognized that a
criminal defendant “has a liberty interest in being free from
reprosecution in violation of the Double Jeopardy Clause, and that
a decision whether to dismiss without prejudice for a Speedy Trial
Act violation impacts this liberty interest.” Id. The court,
therefore, concluded that “before a district court can enter a
dismissal without prejudice, and thereby permit the defendant’s
reprosecution, it must hold a hearing” and provide the defendant
with notice of the hearing and an opportunity to be heard. Id.
Delgado-Miranda is not controlling precedent in this circuit
and is distinguishable from the instant case on the same grounds as
Taylor. See note 6, supra. This circuit has never decided whether
13
Federal Rule of Criminal Procedure 48(a) provides that a
government “attorney may by leave of court file a dismissal of an
indictment, information, or complaint and the prosecution shall
thereupon terminate.” FED. R. CRIM. P. 48(a). The “leave of court”
requirement of Rule 48(a) has been interpreted “to allow the courts
to exercise discretion over the propriety of a prosecutorial motion
to dismiss.” United States v. Welborn, 849 F.2d 980, 983 (5th Cir.
1988) (quoting United States v. Salinas, 693 F.2d 348, 351 (5th
Cir. 1982)). “The primary purpose of the requirement is to prevent
harassment of a defendant by charging, dismissing and re-charging
without placing a defendant in jeopardy.” Id. (internal quotation
omitted).
A request for a Rule 48(a) dismissal is improper if motivated
by bad faith. Id. Bad faith is evidenced when the government is
motivated “by considerations clearly contrary to the public
interest.” Id. (quotation omitted). A court considering a Rule
48(a) motion to dismiss must begin with the presumption that the
government acted in good faith. Id.
In United States v. Welborn, this court adopted two rules to
guide the application of Rule 48(a) in the district courts. Id. at
a defendant is entitled to procedural due process in the context of
a dismissal pursuant to the Speedy Trial Act or Rule 48(a). See
United States v. Comeaux, 954 F.2d 255, 261 (5th Cir. 1992) (noting
that a defendant’s purported right to a hearing under Rule 48(a) is
unclear). We need not decide this issue today. Reyes has raised
this issue for the first time on appeal and must therefore satisfy
the stringent plain error standard. See FED. R. CRIM. P. 52(b).
Under this standard, we “cannot correct an error ... unless the
error is clear under current law.” Olano, 507 U.S. at 734.
Because Reyes’s asserted right is not clear under current law, his
procedural due process claim must be rejected.
14
985. We stated:
First, if a defendant, without justification, does not
contest dismissal the presumption of good faith permits
the court to dismiss without prejudice and the defendant
waives his right to later object to the government’s
motives. Second, if a defendant contests dismissal and
the district court errs by not requiring the prosecution
to furnish more than a conclusory reason to support its
motion, the dismissal must be treated with prejudice only
where the prosecution fails to offer sufficient
justification for seeking dismissal when it reindicts or
the error prejudiced the defendant’s ability to attack
the prosecutor’s motives.
Id.
The rules adopted in Welborn make clear that in order to claim
the protections provided by Rule 48(a), a defendant must contest
the government’s motion to dismiss. Under ordinary circumstances,
the defendant is obligated to object to dismissal both at the time
the government files its motion to dismiss and at the time he or
she is reindicted.9 We conclude, however, that the government’s
failure to provide Reyes with notice of the filing of its motion to
dismiss excuses his failure to contest the motion at that time.
The government’s failure to provide notice of its motion,
however, does not excuse Reyes’s failure to object to the dismissal
without prejudice at the time that he was reindicted. Although
Reyes raised an objection at the close of the government’s case at
9
These objections are necessary in order to permit the government
to articulate a good faith reason for its dismissal. See Welborn,
849 F.2d at 983. Of course, the defendant’s objection upon
reindictment would be required only when the defendant has not
already received the relief sought. Normally, this relief will be
limited to the government’s articulation of a good faith reason for
its dismissal. If the government fails to satisfy this burden of
production, however, the defendant may be entitled to dismissal
with prejudice. See id. at 983-84.
15
trial that could generously be interpreted as contesting the
dismissal of the original complaint,10 by this time it was too late.
We hold that a Rule 48(a) objection must be raised prior to trial
in order for the motion to be considered contested.11 Because Reyes
did not properly contest the government’s motion to dismiss the
original complaint, we conclude that Reyes waived his right to
complain that the prosecution requested dismissal in bad faith.
AFFIRMED.
10
Reyes’s attorney moved for a judgment of acquittal at the close
of the government’s case. As a part of this motion, counsel told
the district court that “Mr. Reyes has also asked me as part of
this motion to incorporate his concerns that this is an illegal
prosecution based on his concerns of ... a violation of speedy
trial.” Counsel explained:
As to speedy trial, his concerns are that, initially,
this prosecution of these -- the federal prosecution of
these crimes was brought about, I believe, last year or
at the beginning of last year and they were dismissed due
to speedy trial concerns because, apparently, an
indictment was not arrived at in a timely fashion. So,
the government was forced to dismiss the charges against
Mr. Reyes at that time.
11
See FED. R. CRIM. P. 12(b), which provides, in part, that “[t]he
following must be raised prior to trial: (1) Defenses and
objections based on defects in the institution of the prosecution.”
Furthermore, to the extent that Reyes’s Rule 48(a) objection is
based on the government’s alleged violations of the Speedy Trial
Act, we think it significant that the Act explicitly requires the
defendant to move for a dismissal “prior to trial or entry of a
plea of guilty or nolo contendre ....” 18 U.S.C. § 3162(a)(2).
16