United States v. Pilar Villapudua-Perada

Pilar Villapudua-Perada appeals his conviction for the unlawful sale of a narcotic drug. We have jurisdiction pursuant to 28 U.S.C. § 1291 . We affirm.

FACTS AND PROCEEDINGS BELOW

On December 9, 1970, the government indicted Pilar Villapudua-Perada in the district of Arizona in case number CR-70-657 for the unlawful sale of a narcotic drug. Villapudua-Perada was arrested on the charge approximately nine years later, but on the second day of his January 22, 1980 trial, he escaped custody. The trial continued in his absence, and the jury convicted Villapudua-Perada on January 25, 1980. Sentencing was postponed until Villapu-dua-Perada was again apprehended.

On February 7, 1980, after the escape, Villapudua-Perada was indicted in case number CR-80-018 for his failure to appear during the trial on the narcotics charge. The two cases, CR-70-657 and CR-80-018, were never consolidated, yet various motions and court orders were made during Villapudua-Perada’s absence which carried both case numbers even when they pertained to only one of the cases.

Four years later, on February 27, 1984, the government moved to dismiss without prejudice the indictment in CR-80-018, the…

specially concurring:

I concur in the court’s judgment, but write separately to express my view that the indictment here was never properly dismissed and, therefore, we need not decide whether to reinstate it.

The United States Attorney could not dismiss the indictment under Fed.R.Crim.P. 48(a) once a jury had convicted Villapudua-Perada of the drug charge against him. Rule 48(a) allows a United States Attorney to file a dismissal of an indictment with leave of court and, if during trial, with consent of the defendant. But Villapudua-Perada’s case had gone far beyond the indictment and trial stage when the United States Attorney moved for dismissal. In fact, a jury had already convicted Villapu-dua-Perada of selling narcotics when the United States Attorney filed the mistaken dismissal. A prosecution which has gone to conviction cannot be dismissed under Fed.R.Crim.P. 48(a). See Hirabayashi v. United States, 828 F.2d 591, 607 (9th Cir.1987) (“There is no precedent for applying Rule 48 to vacate a conviction after the trial and appellate proceedings have ended.”). Accordingly, I would find the United States Attorney’s filing of dismissal of the indictment to be a nullity and…

896 F.2d 1154 UNITED STATES of America, Plaintiff-Appellee, v. Pilar VILLAPUDUA-PERADA, Defendant-Appellant. No. 88-1242. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 9, 1989. Decided Feb. 9, 1990. Antonio R. Zuniga, Phoenix, Ariz., for defendant-appellant. W. Allen Stooks, Asst. U.S. Atty., Phoenix, Ariz., for plaintiff-appellee. Appeal from the United States District Court for the District of Arizona. Before TANG, CANBY, and O'SCANNLAIN, Circuit Judges. TANG, Circuit Judge: 1 Pilar Villapudua-Perada appeals his conviction for the unlawful sale of a narcotic drug. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291 . We affirm. FACTS AND PROCEEDINGS BELOW 2 On December 9, 1970, the government indicted Pilar Villapudua-Perada in the district of Arizona in case number CR-70-657 for the unlawful sale of a narcotic drug. Villapudua-Perada was arrested on the charge approximately nine years later, but on the second day of his January 22, 1980 trial, he escaped custody. The trial continued in his absence, and the jury convicted Villapudua-Perada on January 25, 1980. Sentencing was postponed until Villapudua-Perada was again apprehended. 3 On February 7,…