Opinion
Criminal Action No. 07-CR-0272 (DMC).
October 6, 2008
ORDER
This matter comes before the Court upon cross-motions by Defendant Thomas Telfair and the United States of America for dismissal of the superseding indictment under the Speedy Trial Act, 18 U.S.C. §§ 3161-74; and after further reviewing all submissions; and for the reasons stated in its Opinion issued on this day;
IT IS on this 6th day of October, 2008;
ORDERED that the superseding indictment in the above-captioned matter is dismissed without prejudice.
OPINION
This matter comes before the Court upon cross-motions by Defendant Thomas Telfair ("Defendant") and the United States of America (the "Government") seeking dismissal of the superseding indictment under the Speedy Trial Act. After considering the submissions of the parties, and based upon the following, the Court finds that the superseding indictment is dismissed without prejudice.I. BACKGROUND
Defendant was arrested on January 23, 2007 as part of an ongoing criminal narcotics investigation. After a brief continuance, a one-count criminal indictment was filed on March 29, 2007 charging Defendant with conspiracy to distribute and to possess with the intent to distribute 100 grams or more of heroin in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(B)(i), and 846. A superseding indictment was filed on May 7, 2007 charging Defendant with conspiracy to distribute one kilogram or more of heroin in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(A)(i), and 846.The proceedings in this case has been delayed several times due to various continuances, motions, changes of counsel, and other procedural maneuvers. Both Parties now agree that dismissal is appropriate under the Speedy Trial Act. The two sides differ, however, as to whether dismissal should be with or without prejudice. For the reasons below, the Court will dismiss the superseding indictment without prejudice.
II. DISCUSSION
The Speedy Trial Act (the "Act," or "STA") requires that a defendant be brought to trial within 70 days following the date of indictment or initial appearance. See 18 U.S.C. § 3161(c). While various exceptions allow for a tolling of the 70-day limitation, failure to comply with the Act's requirements will result in dismissal of the action. See 18 U.S.C. § 3162; see also 18 § 3161(h) (listing exceptions to the tolling rule). The form of dismissal is not statutorily specified, however, and courts have broad discretion to determine whether dismissal should be with or without prejudice. See United States v. Taylor, 487 U.S. 326, 334-36 (1988). Courts exercising this discretion must consider: the seriousness of the offense; the facts and circumstances that led to the dismissal; and the impact of re-prosecution on the administration of the Act and the administration of justice. See 18 U.S.C. § 3162(a)(2). The presence or absence of prejudice to a defendant is also a relevant factor. Taylor, 487 U.S. at 334; United States v. Martinez, 75 F. Supp. 2d 360, 365 (D.N.J. 1999).
In this case, each of the specified factors weigh heavily in favor of granting dismissal of the superseding indictment without prejudice.
A. Seriousness of the Offense
The charges faced by Defendant fall within the "serious" crimes contemplated by the statute. Courts in this Circuit have held that a lengthy prison sentence and narcotics violations in general are indicators that a crime is "serious." See United States v. Carvajal-Garcia, 54 Fed. Appx. 732, 735 (3d Cir. 2002) (statutory maximum sentence of 20 years is "persuasive evidence" that Congress considers it a serious crime); Martinez, 75 F. Supp. 2d at 365 (finding that a violation of 21 U.S.C. § 846 is a "serious crime" while emphasizing that the offense was a drug charge carrying a prison sentence between ten years and life). Here, Defendant is charged with violating 21 U.S.C. §§ 841 and 846, narcotics violations carrying a sentence of between ten years and life in prison. Because Defendant faces the possibility of life in prison, and because the Defendant is charged with possessing and intending to distribute one or more kilograms of heroin, this factor favors a grant of dismissal without prejudice.
B. Facts and Circumstances Leading to Dismissal
The facts and circumstances leading to the STA violation in this case do not warrant dismissal with prejudice. Where the Government has acted in bad faith, with antipathy, or demonstrated a pattern of neglect, this irresponsibility will suggest dismissal with prejudice. Taylor, 487 U.S. at 341; United States v. Berberena, 2008 WL 4083198, at *3 (E.D. Pa. 2008). Conversely, where the error is nothing more than an "isolated unwitting violation," dismissal without prejudice may be appropriate. Taylor, 487 U.S. at 341; Berberena, 2008 WL 4083198, at *3.
In this case, the STA violation resulted in 28 days of added delay. Most of these days, however, came in short spurts both before and after the many continuances and motions filed in the case. At no point does it appear that the Government demonstrated bad faith, antipathy, or a pattern of neglect in prosecuting the Defendant. Rather, it appears that the lapsed days were the unavoidable consequence of the numerous continuances and motions filed in the case. In fact, much of the delay appears due to Defendant's own actions, including switching counsel multiple times and filing repetitive motions, each of which had the effect of tolling the STA clock. Accordingly, the Court finds that this factor favors dismissal without prejudice.
This figure does not include the 56 nunc pro tunc days. Inclusion of these days in the tally would not affect the Court's analysis, however, as the Court would still find that all factors favor dismissal without prejudice. See Berberena, 2008 WL at *4 (noting that "no length of time is considered determinative" while dismissing without prejudice despite six-month delay in prosecution).
C. Impact of Re-Prosecution
Finally, re-prosecution of this case will not adversely impact either the administration of the Act or the administration of justice. District courts are encouraged to "take seriously" their responsibility to "consider the impact of a reprosecution on the administration of justice and of the Act." Taylor, 487 U.S. at 342. As part of this, it is understood that dismissal with prejudice "always sends a stronger message," and is more likely to induce changes that reduce pretrial delay. Id. Nonetheless, the Supreme Court has stressed that dismissal without prejudice is "not a toothless sanction," noting that the Government must still obtain a new indictment and deal with statutes of limitations before it can re-prosecute the case. Id. Additionally, less extreme methods exist to punish culpable counsel, including use of fines, suspensions, and filing of disciplinary complaints. Id. at 342 n. 14.
In this case, allowing re-prosecution will not adversely affect the administration of the Act or the ends of justice. As stated earlier, most of the delays appear to have been short periods immediately preceding or following the many continuances and other events that tolled the STA clock. The Government does not appear to have acted with any culpability, negating the need for sending a "strong message." Furthermore, no obstacles appear to exist that would result in any undue delay should the Government attempt to re-prosecute the case.
It also appears that the Defendant will not be prejudiced by allowing re-prosecution. "In determining how best to administer justice, the Court must determine the extent to which [defendant] was prejudiced by the Government's failure to prosecute."Martinez, 75 F. Supp. 2d at 366. Whether a defendant has suffered prejudice is determined on a "case-by-case basis in light of the facts." See Taylor, 487 U.S. at 341 n. 13. Courts should consider whether the delay will have a prejudicial effect on the defendant's trial preparation, see United States v. Abdush-Shakur, 465 F.3d 458, 464 (6th Cir. 2006), and whether the delay resulted in any additional restrictions on the defendant's liberty. See Taylor, 487 U.S. at 341.
Here, no evidence has been presented showing that re-prosecution will adversely affect the Defendant's trial preparation, such as through lost evidence or impaired witnesses. Furthermore, while the Court recognizes that the 28 day delay may have resulted in additional restrictions on the Defendant's liberty, it finds that any prejudice is outweighed by other factors involved in this case, including the inherent complexity accompanying the significant number of motions and changes of counsel, and the Government's apparent lack of culpability in the case's delay.
In the end, the Court is persuaded that the balance of factors weigh heavily in favor of granting dismissal without prejudice.
III. CONCLUSION
For the reasons stated, it is the finding of this Court that the superseding indictment is dismissed without prejudice. An appropriate Order accompanies this Opinion.