Opinion
Case No. 99-CR-169 B.
January 31, 2000
REPORT AND RECOMMENDATION
The defendant, Santiago Aguirre, was indicted by the grand jury on April 14, 1999 and charged in one count with possession of methamphetamine with intent to distribute (500 grams or more) (File Entry #16). Defendant had been previously charged by complaint. He was arraigned on April 21, 1999 and entered a plea of not guilty. A pretrial conference was held on May 12, 1999 and trial set for June 10, 1999.
On June 4, 1999 Aguirre made a motion to continue the trial (File Entry #25). On June 9, 1999 Judge Benson signed an order continuing the trial without date. The order did not exclude Speedy Trial Act time. On June 28, 1999 counsel for Aguirre moved to withdraw. On July 28, 1999 the motion for withdrawal of new counsel and for continuance was granted and time ordered excluded. An order was entered on July 28, 1999 by Magistrate Judge Alba excluding the time from June 9, 1999 to the date on which a new trial was set.
A second pretrial was held and a new jury trial set for October 18. 1999 (File Entry #37). On October 8, 1999 counsel for Aguirre moved for a continuance (File Entry #38). Another attorney appeared for defendant on November 22, 1999 authorized as of December 8, 1999 (File Entry #40).
On December 27, 1999 the defendant made a motion to dismiss for violation of the Speedy Trial Act, 18 U.S.C. § 3161 et seq. (File Entry #46). Based on these facts, the defendant Santiago Aguirre contends his rights under the Speed Trial Act ( 18 U.S.C. § 3161 et seq.) have been violated and the case should be dismissed with prejudice.
The motion has been referred to the magistrate judge under 28 U.S.C. § 636 (B)(1)(B). This report and recommendation is submitted on the motion of Santiago Aguirre's to dismiss for violation of the Speedy Trial Act.
DISCUSSION
The defendant Aguirre was initially charged by complaint and then indicted. The Speedy Trial Act ( 18 U.S.C. § 3161 (c)(1)) required the defendant be brought to trial within seventy days from the date the defendant appeared before a judicial officer or from the date of the indictment or when made public whichever was later. The date for the start of the Speedy Trial Act time, in this case, is the date of the indictment and the seventy days began to run on April 15, 1999 as the day of the indictment is not included in the seventy day period. United States v. Antoine, 906 F.2d 1379 (9th Cir. 1990); United States v. Anderson, 902 F.2d 1105 (2nd Cir. 1990); United States v. Jurn, 766 F.2d 465 (11th Cir. 1995). See also United States v. Mora, 135 F.3d 1351,1335 (10th Cir. 1998).
On June 9, 1999 the district judge signed an order continuing the trial which had been set for June 10, 1999. This was based on a motion by Aguirre's counsel on June 4. Five days are excluded by this motion under 18 U.S.C. § 3161(h)(1)(F) (File Entries #25,26). As to the continuance, the order did not contain findings as required by 18 U.S.C. § 3161(h)(8)(A). The motion itself did not expressly waive Speedy Trial Act time.
On June 28, 1999 Aguirre's counsel moved to withdraw. That motion stopped the running of the Speedy Trial Act time under 18 U.S.C. § 3161(h)(1)(F). That section excludes "delay resulting from any pretrial motion from the filing of the motion through the conclusion of the hearing on or other prompt disposition of such motion." Henderson v. United States, 476 U.S. 321, 326-27(1986) ("The plain terms of a statute apply to the motion whether the hearing is prompt or not. Moreover, subsection (7) does not require the time to be `reasonable' to be excluded . . .);" United States v. Willie, 941 F.2d 1384 (10th Cir. 1991); United States v. Olivo, 69 F.3d 1057 (10th Cir. 1995); United States v. Gutierrez, 48 F.3d 1134 (10th Cir. 1995). At that time 836 Speedy Trial Act days had expired unless the time under the Speedy Trial Act was excluded by the court's order of June 9, 1999. If the time from June 9 is excluded, only 55 days would have expired as the court's order continued the trial until a new trial date was set.
This excludes the five days for the continuance motion from June 4 to June 9, 1999.
On July 19, 1999 new trial counsel was to be appointed and a confirmation order was signed on July 28, 1999 (File Entry #34). The order excluded the time from June 9, 1999 under 18 U.S.C. § 3161 (h)(8)(A) because of the need for continuity of counsel and completion of discovery review and for counsel to prepare (Id.). Therefore, the exclusion was nunc pro tunc for the period from June 9 to July 19, 1999. However, the time from June 28 to July 28, 1999 was excluded under motion time under the motion to withdraw. Also, the oral order of Judge Alba from June 19, 1999 with contemporaneous findings of exclusion, excludes time from that date.
The magistrate judge directed the United States Attorney to prepare an order and exclude Speedy Trial Act time, but the specific time exclusion was not identified in the minute entry (File Entry # 32).
The time from July 28, 1999 to trial was excluded by the continuance of July 28, 1999 and time expressly excluded under 18 U.S.C. § 3161(h)(8)(A). A pretrial order was entered August 18, 1999 setting the trial for October 18, 1999 (File Entry #37). On October 8, 1999, Aguirre again made a motion for a continuance (File Entry #38). In the motion, counsel for defendant Aguirre expressly indicated the time should be excluded from the Speedy Trial Act. That motion was not ruled on but remains outstanding and new counsel made a motion to appear on November 30, 1999. The order on that motion was entered December 8, 1999.
On December 27, 1999, the defendant's third new counsel made a motion to dismiss based on a violation of the Speedy Trial Act. That motion further tolled the Speedy Trial Act time. United States v. Rogers, 921 F.2d 975, 983 (10th Cir. 1990) (delay attributable to a motion to dismiss under the Speedy Trial Act is excludable time [cases cited]). The defendant contends that if the Speedy Trial Act 70 day time has run, the case should be dismissed with prejudice. 18 U.S.C. § 3162 (a) (2).
The United States has filed a response. First the government contends the Speedy Trial Act time began to run at the time of arraignment. However, that argument is in error. Since the defendant had been charged by complaint and made an initial appearance before a magistrate judge, the Speedy Trial time began the day after the time the indictment was returned and made public. United States v. Carrasquillo, 667 F.2d 382 (3d Cir. 1981); United States v. Cova, 580 F. Supp. 588 (D.Ind. 1984).
The record does not show the indictment was sealed or not made public when returned.
The government's second position is that Judge Alba's order of July 28, 1999 purported to exclude the time from June 9, 1999 when Judge Benson's continuance order was entered. However, that order was nunc pro tunc. The order of Judge Benson on June 9, 1999 was not accompanied by proper findings under 18 U.S.C. § 3161 (h). Judge Alba's findings were adequate for his future order of continuance, but could not operate back to June 9, 1999 only from June 19, 1999. United States v. Johnson, 120 F.3d 1107, 1111 (10th Cir. 1997); United States v. Spring, 80 F.3d 1450,1456-57 (10th Cir. 1996) (nunc pro tunc order proper when contemporaneous findings actually made); United States v. Pasquale, 25 F.3d 948, 951-52 (10th Cir. 1994); United States v. Doran, 882 F.2d 1511,1516 (10th Cir. 1989). Consequently, the government cannot rely on June 9, 1999 as a date from which Speedy Trial Act time could be excluded. However, it can rely on a date of July 19, 1999 when Judge Alba made his own findings on the July 19, 1999 ruling.
The defendant also challenges the open ended continuance of July 28, 1999. However, open ended continuances are not prohibited in the Tenth Circuit, United States v. Hill, 197 F.3d 436, 443 (10th Cir. 1999) ("Although a few Circuits have suggested an ends of justice continuance must be specifically limited in time, we have held that while it is preferable to set a specific date for continuance, there will be rare cases where that is not possible, and an open time continuance for a reasonable time period is permissible."); Spring, supra at p. 1458. In this case the open ended period was short and only until a new trial date could be set after the reasonable efforts at a negotiated plea had been made, and as it turned out new counsel appeared. It was defendant's counsel who sought the open ended continuance. Also, a motion for new counsel was made and had to be resolved. Magistrate Judge Alba entered a specific trial date in his order of August 18, 1999. Therefore, the short open ended continuance has had no effect on the issue at all since the time from June 19, 1999 to the trial date was a period reasonably necessary to set a schedule with new counsel having appeared.
Therefore, the total nonexcludable time is 83 days. This requires that defendant's motion to dismiss should be granted. United States v. Taylor, 487 U.S. 326 (1988); United States v. Gomez, 67 F.3d 1515 (10th Cir. 1995).
The calculation of time is as follows:
1. April 15 to June 4, 1999 (date of defendant's motion for continuance — 48 days.
2. June 9, 1999 (date of Judge Benson's order on continuance to July 19, 1999 hearing on defendant's motion to withdraw and for a continuance (File Entry # 32).
39 days less 4 days motion pending from July 25, 1999:
48 days + 35 days Total: 83 days
3. All other time is excluded.
Prejudice or Non-Prejudice
Having determined that the Speedy Trial Act has been violated, the must determine the appropriate remedy.
Under Taylor, supra, three factors are to be evaluated on whether to dismiss the case with prejudice for violation of the Speedy Trial Act. The first is the seriousness of the offense. The charge in this case is the possession of methamphetamine with intent to distribute, 133 grams of methamphetamine was found in a search. The drugs had been transported from California with the intent to distribute. The original amount transported was 4.5 ounces of which some had been sold. Defendant had arranged to have pound quantities of methamphetamine transported from California to Utah (see defendant's admissions referred to in the complaint, File Entry #1). This was not a case were defendant's plan was for a single isolated event. The defense carries a mandatory ten year minimum up to life imprisonment if defendant is convicted. Therefore, the offense and episode is very serious.
The second element is the circumstances leading to dismissal. The delay in terms of nonexcludable Speedy Trial Act time is modest, only thirteen days. The factor that produced the unjustified and nonexcludable delay was the failure to make exclusion findings for the order continuing the trial granted on motion and request of defendant's counsel. This was hardly a direct fault of the prosecution. In addition, the delay in this case appears to have been caused by defendant's change of counsel, twice. Three attorneys have been involved in the representation of the defendant and delay has been in part related to motions for continuance to accommodate counsel. A defense motion for a continuance is still pending. Defendant has never made a motion for a speedy trial. There is little fault of the prosecution or the court.
The third element of Taylor is the effect of the reprosecution on the administration of justice. The defendant Aguirre has been detained pending prosecution. See United States v. Theron, 782 F.2d 1510 (10th Cir. 1986), but has not shown specific trial prejudice. Defendant, on reindictment, could be brought to trial within a little over 30 days. Dismissal would allow a serious offense with a mandatory minimum sentence to go unresolved on the merits, United States v. Wright, 6 F.3d 811, 813-16 (D.C. Cir. 1993); United States v. Saltzman, 984 F.2d 1087, 1092-95 (10th Cir. 1993) (dismissed without prejudice proper); United States v. Arango, 879 F.2d 1501 (7th Cir. 1989) (dismissal without prejudice in a narcotics prosecution was proper). The defendant has been afforded additional time for preparation and to that extent benefitted to a degree from the delay.
These factors support dismissal without prejudice. United States v. Koory, 20 F.3d 844 (8th Cir. 1994); United States v. Wiley, 997 F.2d 378 (8th Cir. 1993); United States v. Wilson, 11 F.3d 346 (2nd Cir. 1993). Therefore, giving due consideration to the totality of the circumstances and the three factors in United States v. Taylor, it is concluded the dismissal should be without prejudice.
CONCLUSION
The indictment against Santiago Aguirre should be dismissed without prejudice.
Copies of the foregoing Report and Recommendation are being mailed to the parties who are hereby notified of their right to object to the same. The parties are further notified that they must file any objections to the Report and Recommendation, with the clerk of the court, pursuant to 28 U.S.C. § 636(b), within ten (10) days after receiving it. Failure to file objections may constitute a waiver of those objections on subsequent appellate review.