Opinion
CRIMINAL NO. L-00-937
July 24, 2003
MEMORANDUM AND ORDER
Pending before the Court is Defendant's Motion to Dismiss the Indictment. For the reasons that follow, Defendant's Motion to Dismiss the Indictment is GRANTED. The indictment, as to Defendant, is DISMISSED WITH PREJUDICE.
I. Background
In his Motion to Dismiss the Indictment, filed with the Court on March 6, 2003, Defendant averred that the time limit for retrial under the Speedy Trial Act has been exceeded, and that, as a result of the delay, the indictment in this case must be dismissed. The government did not respond prior to the June 4, 2003, hearing on the motion. At the hearing, the government conceded that the Speedy Trial Act was violated in this case and that dismissal of the indictment is required. At that time, both parties agreed that the sole question remaining before the Court was whether the dismissal would be granted with prejudice or without prejudice, per 18 U.S.C. § 3162(a)(1). The issue was considered submitted. Shortly thereafter, the Court requested that the parties provide memoranda of law on the issue of statute of limitations.
On June 25, 2003, the government submitted Government's Response to Defendant's Motion to Dismiss the Indictment. In this document, filed three months after Defendant filed his motion and three weeks after the matter was submitted to the Court, the government "now asks the Court to reconsider the Defendant's motion to dismiss on the grounds stated [therein] and deny the motion." Government's Response to Defendant's Motion to Dismiss the Indictment at 3.
II. Extension of the time period for retrial is not warranted
The government requests that the Court deny Defendant's previously uncontested motion to dismiss because, under certain circumstances, the trial court may extend the 70-day limit for retrial. Government's Response to Defendant's Motion to Dismiss the Indictment at 3; See 18 U.S.C. § 3161(e) (2003). Assuming this section applies in this case, the government's reliance is, nonetheless, unavailing.
The government has not, yet, claimed that there were sufficient excludable days to render Defendant's motion premature. The government has in no way disputed that more than 70 non-excludable days elapsed between the receipt of the mandate from the Fifth Circuit and the filing of Defendant's motion.
Section 3161(e) states in relevant part:
If the defendant is to be tried again following a declaration by the trial judge of a mistrial or following an order of such judge for a new trial, the trial shall commence within seventy days from the date the action occasioning the retrial becomes final. If the defendant is to be tried again following an appeal or a collateral attack, the trial shall commence within seventy days from the date the action occasioning the retrial becomes final, except that the court retrying the case may extend the period for retrial not to exceed one hundred and eighty days from the date the action occasioning the retrial becomes final if unavailability of witnesses or other factors resulting from passage of time shall make trial within seventy days impractical.
It is not clear that Section 3161 language permitting the trial court to extend the period for retrial after an appeal or collateral attack is applicable here. The government withdrew its appeal of this Court's order granting Defendant's motion for a new trial thereby making the order final. There is no language that allows for a district court to extend the 70-day period within which retrial must commence "following a declaration by the trial judge of a mistrial or following an order of such judge for a new trial" after the order becomes final unless such retrial follows an appeal. Id. The Court's order of a new trial was never heard on appeal because the government withdrew the notice of appeal. It is not clear whether the retrial in this case would then actually "follow an appeal." The government assumes, without discussion, that this section does apply. Defendant has not had an opportunity to respond to this contention, due to the untimeliness of the request and the lack of formal motion with respect to the request. We need not address the issue further because, assuming the retrial would have "followed an appeal," the government's request would still be denied.
The government claims that commencing trial would have been impractical within 70 days of the receipt of the mandate from the Fifth Circuit, but offers no affidavits or other evidence and has not requested an evidentiary hearing in support of its contention. The government goes on to argue that this Court may extend the period for retrial up to an additional 180 days. On the very same page of the government's response, however, the government submits that "oral discussions were had between the Government and the clerk of the Court requesting a minimum of 30 days to prepare for the retrial . . ." Government's Response to Defendant's Motion to Dismiss the Indictment at 3. Assuming this assertion true, by requesting only 30 days to prepare for retrial, the government undercuts its current assertion that retrial in 70 days was impractical.
We note that such evidence, if any exists, could have been offered at the June 4, 2003, hearing.
The government, moreover, made no mention of its desire for the Court to exercise discretion to extend the retrial period until more than six months after the Firth Circuit issued its mandate and three months after Defendant filed the pending motion. Even; at the June 4, 2003, hearing, the government did not request that the Court extend the retrial period or in any other way indicate that it would have taken longer than 70 days for the government to prepare for trial.
Based upon the record, and lack of any support for the government's position, the Court finds that retrial within 70 days of the receipt of the Fifth Circuit's mandate was not impractical. Accordingly, the 70-day period for retrial applies without exception. The government's request for an enlargement of the retrial period must be denied. Even assuming, counterfactually, that the government could make a showing that commencing retrial within the 70-day retrial period was impractical, the failure to make the argument until this late date, among other government failures, would cause the Court to deny the government's request for an enlargement of the time period for retrial, nonetheless.
The language of Section 3161(e) is permissive, not mandatory.
The government also requests that the Court grant a continuance under Section 3161(h)(8). This request, is likewise denied. This case has not been retried because the government did nothing to advance the case after the government withdrew its appeal. It was not the complexity of the case, as required for a Section 3161(h)(8) enlargement, but rather the government's inaction, that has resulted in the present delay.
"No continuance under subparagraph (A) of this paragraph shall be granted because of general congestion of the court's calendar, or lack of diligent preparation or failure to obtain available witnesses on the part of the attorney for the Government." 18 U.S.C. § 3162(h)(8)(C) (2003).
III. The indictment should be dismissed with prejudice
Having held, over the government's late objection, that a violation of the Speedy Trial Act has occurred, we now turn to whether the required dismissal will be with or without prejudice. "The decision whether to dismiss a complaint under the Speedy Trial Act with 01 without prejudice is entrusted to the sound discretion of the district judge and . . . no preference-is accorded to either kind of dismissal." United States v. Blevins, 142 F.3d 223, 225 (5th Cir. 1998) ( quoting United States v. Melguizo, 824 F.2d 370, 371 (5th Cir. 1987)). In making this determination, "the court shall consider, among others, each of the following factors: the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of this chapter and on the administration of justice." 18 U.S.C. § 3162(a)(1) (2003). "The defendant has the burden of proving that dismissal of his case pursuant to these factors is appropriate." Blevins, 142 F.3d at 225.A. Seriousness of the offense
The government argues that the "seriousness of the offense" factor favors dismissal without prejudice. Defendant concedes this point. Based upon the possible maximum period of incarceration for the charged offense, we would tend to agree, In partial attenuation of the crime's seriousness, however, it should be noted that — even if the facts are as the government alleges them to be — Defendant's role was minimal. In a state prosecution, Defendant, ostensibly in order to put the matter behind him, accepted a plea bargain. Defendant, after completing a program of "impact incarceration," or boot camp, was released on parole less than five months after he was sentenced. See Presentence Investigation Report at 14. This suggests that the State of Illinois did not view Defendant's conduct as terribly serious.
B. Facts and circumstances leading to the dismissal
The "facts and circumstances" factor weighs in favor of dismissing the indictment with prejudice. The government claims that its inaction leading to the instant Speedy Trial Act violation were "at best inadvertent and at worst negligent." Government's Response to Defendant's Motion to Dismiss the Indictment at 5. "When the delay is attributable to an administrative error, the government argues, harsh application of the Act has no prophylactic effect. Although the District of Columbia Circuit has credited this argument, [the Fifth Circuit] do[es] not agree that oversight can always excuse a failure to meet the Act's; deadline." United States v. Salgado-Hernandez, 790 F.2d 1265, 1268 (5th Cir. 1986) (footnote omitted).
Though it may have been oversight, rather than intentional delay, that caused the government not to request a new trial date, there would be a prophylactic effect in this case by discouraging the attitude that led to, and continued after, this violation. Indeed, if this case is not appropriate for dismissal with prejudice, it would seem no amount of negligence or inattention would render dismissal with prejudice appropriate. Dismissal with prejudice than would be reserved solely for cases where the government has acted unethically. Such a result would be inconsistent with the Supreme Court's pronouncement that Congress did not intend for either type of dismissal to serve as the presumptive choice. United States v. Taylor, 487 U.S. 326, 334 (1988)
At the June 4, 2003, hearing, the government attempted to shift the blame to thin Court's staff for the violation that occurred in this case. "[T]he government has sought to have the district court [. . .] serve as guardian angel to prevent the government from committing error prejudicial to itself. For the government to avoid its own responsibilities by dwelling on the alleged wrongdoing of the district court is so dissembling that it approaches sheer hypocrisy." United States v. Kramer, 827 F.2d 1174, 1181 (8th Cir. 1987) (Lay, C.J., dissenting). Although the quoted language is unnecessarily strong in the context of this case, the basic point is well taken: the government should not seek to avoid responsibility.
It was the government that filed notice of appeal, then withdrew the appeal. This is significant because, unlike another recent violation of the Speedy Trial Act in this Court, the violation was not caused by the government's failure to realize that a scheduled trial date would precipitate a violation. See, e.g., United States v. Sanchez-Munoz, Criminal No. L-02-360 (S.D. Tex. 2003). In this case, the government never requested a new trial even though it was the government that withdrew the appeal. It was not at all clear to this Court or to defense counsel that the government would endeavor to retry this case. Until the June 4, 2003, hearing, when the government indicated that it would attempt to reprosecute Defendant after the pending dismissal, the government kept secret its desire to retry Defendant. Had Defendant not filed his motion to dismiss, the government likely would still not have asked for a retrial.
Additionally, at the June 4, 2003, hearing, the government indicated that it was not concerned with setting a retrial date, at least in part, because the government attorney responsible for the case was not aware Defendant was released on bond. We cannot fathom how this serves to excuse the government's neglect If anything, lack of diligence in a case where the government believes the presumptively innocent Defendant remains in custody is less excusable than in a case where the defendant is not incarcerated prior to trial.
We note that the government was noticed that Defendant was released on bond, and that government counsel admitted it was administrative error in his office, not on the part of the Court or defense counsel, that caused this fact to escape his notice.
Finally, though not causing a distinct Speedy Trial Act violation, because the Act had already been violated, we note that the government's failure to respond to Defendant's motion to dismiss the indictment until well after the hearing held on the matter has caused additional delay in the disposition of Defendant's Motion to Dismiss the Indictment. The government should have raised the request for an enlargement of the time period for retrial, if ever, prior to the expiration of the 70-day period for retrial. The government could have made such a request in a timely response to Defendant's motion to dismiss. The government also could have seen fit to mention such a request at the June 4, 2003, hearing, rather than concede that a violation of the Speedy Trial Act had occurred. There seems to be no reason that this request was not made until after the June 4, 2003, hearing other than that the government failed to duly prepare for the; hearing.
Nothing in this Court's Order of June 5, 2003, ordering the parties to brief the issue of any applicable statute of limitations, could be construed as leave for the government to file an untimely response to Defendant's motion to dismiss.
The government's withdrawal of its prior concession that a violation of the Speedy Trial Act occurred has deprived Defendant of an opportunity to address the reply at the hearing held for the purpose of arguing Defendant's Motion to Dismiss the Indictment. Because the government's contention that the Speedy Trial Act was violated is easily resolved in Defendant's favor, we see no reason to require Defendant to submit briefing or attend a hearing addressing the government's position and "requests" for continuance and enlargement of time. If the issue was not so easily resolved, however, and the Court was inclined to allow the untimely request for continuance or enlargement of time, an additional hearing would be necessary to allow Defendant a full opportunity to be heard on the issue. Thus, only because the government's claim that the Speedy Trial Act was not violated is meritless has additional delay been avoided.
The government also failed to fully brief the issue upon which this Court ordered briefing in its Order of June 5, 2003. Though the government did cursorily address the statute of limitations question per this Court's order, the government failed entirely to raise the extensions provided for in 18 U.S.C. § 3283 and 3289. It was defense counsel, discharging their duty of candor and to disclose adverse authority to the tribunal, that acknowledged that the government would seem to have six months from dismissal to reindict Defendant, regardless of the running of the limitations period. Though not a cause of the Speedy Trial Act violation, or any real harm to Defendant, this failure further serves to illustrate the lack of diligence with which the government has advanced this case since the Court's order of a new trial.
The "facts and circumstances" causing the Speedy Trial Act violation in this case indicate that the case should be dismissed with prejudice. The government did not just drop the ball once in this case. It did so repeatedly.
C. Impact of a reprosecution on the administration of the Speedy Trial Act and on the administration of justice .
The final factor explicitly articulated in 18 U.S.C. § 3162(a)(1), the impact of reprosecution on the administration of the Speedy Trial Act and on the administration of justice, also weighs in favor of dismissal with prejudice, if only slightly. Within this factor "we consider the defendant's right to a timely trial; the deterrent effect of a prejudicial dismissal on the Government's repeated violations of speedy trial requirements; and the public's interest in bringing [Defendant] to trial." Blevins, 142 F.3d at 226.
The public certainly has an interest in bringing an accused Defendant to trial. This sub-factor is closely related to the seriousness of the offense. In this case, however, despite the seriousness of the offense, the public's interest in retrying Defendant is significantly lower than it would be otherwise because Defendant has already been prosecuted in Illinois. Defendant already pleaded guilty to a charge in Illinois state court, was sentenced, and punished for the same incident that the government alleges is the basis for his guilt in this case. Additionally weakening the impetus for reprosecution, we note that, after his initial conviction of the federal charges, Defendant spent 18 months in jail before this Court released him on bond.
In a recent Supreme Court decision addressing the forcible medication of a prisoner incompetent to stand trial without medication, the majority noted that the government's interest in prosecuting a defendant (presumably coextensive with the public's interest) is diminished when "the defendant has already been confined for a significant amount of time (for which he would receive credit toward any sentence ultimately imposed, see 18 U.S.C.
§ 3585(b))." Sell v. United States, 123 S.Ct. 2174, 2184 (2003).
In considering the Defendant's right to a timely trial, we again reiterate that the fault for all delay from July 24, 2002, when this Court granted Defendant's motion for a new trial, until after the June 4, 2003, hearing fails squarely on the government's shoulders. We also note; that Defendant is in no way culpable for the defectiveness of the first trial. Defendant consistently urged the objections that ultimately lead this Court to grant his motion for a new trial.
The Fifth Circuit has also made it clear that the Speedy Trial Act is intended to protect the societal interest in speedy trials and that violations of the Speedy Trial Act generally are to be avoided even if they help a Defendant.
The Act is intended both to protect the defendant from undue delay in his trial and to benefit the public by ensuring that criminal trials are quickly resolved. Allowing the defendant to waive the Act's provisions would compromise the public interest in speedy justice. In the vast majority of cases, the defendant wilt be quite happy to delay the final determination of his guilt or innocence. The Act's central intent to protect society's interests requires that a defendant's purported waiver of his rights under the Act be ineffective to stop the speedy trial clock from running.United States v. Willis, 958 F.2d 60, 63 (5th Cir. 1992).
In considering "the deterrent effect of a prejudicial dismissal on the Government's repeated violations of speedy trial requirements" we note that, while the Speedy Trial Act was violated only once, the government caused the delay leading up to the violation and also caused delay after the fact, thereby compounding the harm caused by the violation.
Accordingly, the "the impact of reprosecution" factor slightly favors dismissal with prejudice. To the extent that post-Speedy Trial Act violation delays are not appropriately contemplated as part of the "the impact of reprosecution" factor, we consider it a relevant additional factor in this case.
D. Balancing of the factors
"Congress did not intend any particular type of dismissal to serve as the presumptive remedy for a Speedy Trial Act violation." Taylor, 487 U.S. at 334. "[N]either remedy was given priority," Id. at 335. In light of the lack of a presumptive remedy, the instant indictment must be dismissed with prejudice because the three factors, on balance, weigh in favor of dismissal with prejudice.
In a division in which approximately 2,000 felony prosecutions are brought each year, this Court has previously had to dismiss other cases for violations of speedy trial requirements. Never before in this Court's four years of experience has it dismissed a case? with prejudice. This case, however, is sufficiently different from all others that have come before this Court that a different outcome is required.
IV. Conclusion
The Speedy Trial Act was violated in this case. The indictment, therefore, must be dismissed. Defendant has carried his burden of showing that the factors explicitly enumerated in the Speedy Trial Act, among others, weigh in favor of dismissing the indictment with prejudice. Accordingly, Defendant's Motion to Dismiss the Indictment is GRANTED. The indictment, as to Defendant, is DISMISSED WITH PREJUDICE. IT IS SO ORDERED.