Opinion
13-6041M
03-11-2013
United States of America, Plaintiff, v. Ruben Morales-Reyes, Defendant.
ORDER
This Court has considered the parties' Joint Motion to Extend Time for Indictment. (Doc. 6)
Defendant has been charged by complaint with Illegal Entry, in violation of 8 U.S.C. § 1325(a)(2) which carries a maximum prison sentence upon conviction of six months. Illegal Entry is a petty offense and a Class B misdemeanor. 18 U.S.C. §§ 3559(a)(7), 19; United States v. Garcia-Martinez, 2009 WL 4438623, at *3 (D. Ariz. Nov. 30, 2009).
The indictment clause of the Fifth Amendment provides that "[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . . ." Generally, however, a defendant charged with a petty offense has no constitutional right to proceed by indictment. United States v. Ramirez, 556 F.2d 909, 911 (9th Cir. 1976) (citing Duke v. United States, 301 U.S. 492 (1937)); see also Federal Criminal Rules 7(a)(1)(B) ("An offense (other than criminal contempt) must be prosecuted by an indictment if it is punishable . . . by imprisonment for more than one year."), and Rule 58(b)(1) ("The trial of a misdemeanor may proceed on an indictment, information, or complaint. The trial of a petty offense may also proceed on a citation or violation notice.").
The Speedy Trial Act, 18 U.S.C. §§ 3161-3172, does not apply to petty offenses. See 18 U.S.C. § 3172(a) (defining "offense" to be "any Federal criminal offense which is established by Act of Congress (other than a Class B or C misdemeanor or an infraction . . . .")). "Petty offenses are exempted from both the requirement of a jury trial and the Speedy Trial Act." United States v. Richmond, 312 Fed. Appx. 56, at *1 (9th Cir. 2009) (citing United States v. Baker, 641 F.2d 1311, 1319 (9th Cir. 1981)) (holding Speedy Trial Act does not apply to petty offenses); United States v. Carpenter, 91 F.3d 1282 (9th Cir. 1996) (collecting cases explaining that criminal contempt cannot be classified as either a felony or misdemeanor for all purposes, but instead should be classified based on the sentencing range imposed).
Based on the foregoing,
IT IS ORDERED that the parties' Joint Motion to Extend Time for Indictment, doc. 6, is DENIED as moot.
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Lawrence O. Anderson
United States Magistrate Judge