Opinion
No. 03-40072-01-JAR
January 23, 2004
MEMORANDUM ORDER AND OPINION DISMISSING INDICTMENT WITHOUT PREJUDICE
This matter is before the Court on the motion of defendant Julio Dominguez to dismiss the indictment for violation of the Speedy Trial Act (Doc. 7). For the reasons set forth in detail below, the Court grants defendant's motion to dismiss, and determines that said dismissal is without prejudice.
Facts
On July 17, 2003, a four-count indictment was filed, alleging the defendant committed four drug-related offenses. The charges in the indictment were based on a vehicle stop near Emporia, Kansas, where police discovered 2.2 kilograms of cocaine and 893 grams of methamphetamine in the rental car driven by defendant. Defendant was arrested on October 17, 2003, in Arizona. He appeared and was arraigned in Arizona at a Rule 5 hearing, and was ordered detained at a subsequent detention hearing.
Defendant was transferred to the District of Kansas. He appeared before Magistrate Judge Sebelius on November 6, 2003. Judge Sebelius conducted a Rule 5 hearing and reviewed the charges against defendant, noting that he had already been arraigned. Defendant entered a plea of not guilty, and counsel was appointed. Judge Sebelius further advised the parties that this Court would be entering a general discovery order in the future. No discovery order has been filed; in fact, nothing has been filed in this case subsequent to the Rule 5 hearing, other than the order appointing counsel. Defendant moves to dismiss the indictment, alleging that he has not been brought to trial within 70 days of his appearance before Judge Sebelius.
Discussion
"The Speedy Trial Act . . . requires that a criminal defendant's trial commence within 70 days after his indictment or initial appearance, whichever is later." However, "certain periods of delay are excluded [under the Act] and do not count toward the 70-day limit." In particular, any period of delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on such motion is excluded, as is any delay not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement by the court.
United States v. Hill, 197 F.3d 436, 440 (10th Cir. 1999) (citing 18 U.S.C. § 3161(c)(1)).
Id.
18 U.S.C. § 3161(h)(1)(F) and (J).
In this case, the Speedy Trial Act (STA) clock began to run on November 6, 2003, the date of defendant's arraignment in this district. The government contends that defendant requested orally and in writing that counsel be appointed on November 6, 2003, and the date that the order appointing counsel was entered, November 12, 2003, is excludable time. The government further contends that the Court had thirty days to enter a general discovery order, which also constitutes excludable time. The Court disagrees. The minute sheet reflects that defense counsel was present at the November 6, 2003, hearing and was appointed at that time. The minute sheet further reflects that this Court would issue the general discovery and scheduling order. No motion or proceeding was pending that would trigger excludable time. As of January 20, 2004, the date defendant moved to dismiss the indictment, 75 days have elapsed since his appearance before Judge Sebelius. There have been no continuances or pretrial motions in the case. In fact, nothing has occurred in this case since defendant was arraigned. Accordingly, the Court finds that the Speedy Trial Act has been violated, mandating dismissal of the indictment.
Thus, the issue before the Court is whether to dismiss this case with or without prejudice. To make this determination, the court must consider among other factors: 1) the seriousness of the offense; 2) the facts and circumstances of the case which led to the dismissal; 3) the impact of a reprosecution on the administration of justice; and 4) prejudice to the defendant. There is no presumption in favor of either sanction. 1. Seriousness of the Offense
United States v. Taylor, 487 U.S. 326, 333-334 (1988); United States v. Jones, 213 F.3d 1253, 1256-57 (10th Cir. 2000) (quoting § 3162(a)(2)).
Id. at 335.
There is little question that the charges in this case are serious. Felony drug offenses are uniformly regarded as serious. Defendant concedes that the charges in the indictment are serious, arguing that the seriousness of the offenses must be weighed against the severity of the delay. 2. Circumstances Leading to Dismissal
United States v. Pasquale, 25 F.3d 948, 953 (10th Cir. 1994); United States v. Saltzman, 984 F.2d 1087, 1093 n. 8 (10th Cir. 1993).
In evaluating the circumstances precipitating the dismissal, the court is to focus "on the culpability of the delay-producing conduct." In making this determination, the court "should specifically describe the Government's conduct and find that conduct to be more than `an isolated unwitting violation.'" "Where the delay is the result of intentional dilatory conduct, or a pattern of neglect on the part of the Government, dismissal with prejudice is the appropriate remedy." "When a STA violation is caused by the court . . ., it weighs in favor of granting a dismissal with prejudice. An administrative oversight is no excuse for a STA violation."
United States v. Jones, 213 F.3d at 1257 (citing United States v. Saltzman, 984 F.2d at 1093 (quotation omitted)).
Taylor, 487 U.S. at 326.
Id.
United States v. Ramirez, 973 F.2d 36, 39 (1st Cir. 1992).
Here, defendant alleges that both the prosecution and the court neglected the timely administration of the case-the government by forgetting about defendant, and the court by losing track of the case. The Court's review of the circumstances leads it to conclude that the delay was an isolated, unwitting violation caused in large part by an administrative error on the Court's part by failing to enter the general discovery and scheduling order. The delay was not intentional and was an accidental mistake apparently caused by a clerical error. The Court is troubled by the failure of the government to bring this matter to the attention of the Court or to articulate an excuse for its failure to track the trial date. Although neither the government nor the defense bears the burden of monitoring the Court's compliance with the Speedy Trial Act, the Court does look to the prosecutor for assistance as an officer of the court. The Court recognizes that this particular factor weighs in favor of dismissal with prejudice since the Court was at fault for the delay. Nevertheless, the Court is not persuaded that significant weight must be given to this factor in light of the totality of the circumstances.
See Saltzman, 984 F.2d at 1094; Ramirez, 973 F.2d at 39.
3. Impact of Reprosecution on the Speedy Trial Act and the Ends of Justice
Defendant contends that allowing reprosecution in this case is not warranted because no excusable or exceptional circumstances exist in this case. Citing cases outside the Tenth Circuit, defendant argues that where administrative neglect by the prosecution or the court causes a violation of the Act, a "strong sanction" is necessary, and that reprosecution would "send exactly the wrong signal to those responsible for complying with the Act's requirements." The Tenth Circuit has stated, however, that
While district courts obviously do not want to give the impression that the Speedy Trial Act is a mere formality that can be violated with impunity, dismissal with prejudice is not the only method for a court to show that violations must be taken seriously. A dismissal without prejudice requires the government to re-indict, may work to the disadvantage of the government on limitations grounds, and may make reprosecution less likely.
United States v. Jones, 213 F.3d at 1257 (citing Taylor, 487 U.S. at 342).
As the Supreme Court observed, "if the greater deterrent effect of barring reprosecution could alone support a decision to dismiss with prejudice, the consideration of the other factors identified in § 3162(a)(2) would be superfluous, and all violations would warrant barring reprosecution." 4. Prejudice to the Defendant
Taylor, 487 U.S. at 342.
Although not a statutory factor to consider, prejudice to the defendant may be a significant factor in determining whether to dismiss with prejudice. Defendant does not assert that he has suffered material prejudice in this case, other than in the form of being detained beyond the 70-day period.
Jones, 213 F.3d at 1258 (citing Taylor, 487 U.S. at 340).
5. Conclusion
While the delay in this case, 75 non-excludable days, is relatively minimal, the reason for the delay, neglect by both the court and the government, is very serious and suggests a need for case management and oversight better attuned to the Speedy Trial Act. The Court has addressed the clerical mistake that appears to have occurred and has taken steps to ensure that such problems do not occur in the future. If such problems occur again, the Court will look favorably upon dismissal with prejudice. However, given the seriousness of the crimes with which defendant was charged, the government's relative lack of culpability for the delay, and defendant's failure to demonstrate prejudice, the Court concludes that the administration of justice in this instance is best served by dismissal without prejudice and allowing reprosecution.
IT IS THEREFORE ORDERED BY THE COURT that defendant's motion to dismiss the indictment (Doc. 7) is GRANTED; the charges against defendant in this case are dismissed WITHOUT PREJUDICE.
IT IS SO ORDERED.