Opinion
CR 07-0147-TUC-RCC (HCE).
January 24, 2008
REPORT AND RECOMMENDATION
Defendant Miguel Napoleon Morales filed a Motion to Dismiss (Doc. No. 32) for a violation of the Speedy Trial Act 18 U.S.C. § 3161(c)(1). This matter came on for hearing on January 2, 2008.
For the reasons stated herein, the Magistrate Judge recommends that the District Court deny Defendant's Motion to Dismiss.
I PROCEDURAL AND FACTUAL HISTORY
A. Charge
The Defendant was charged by way of indictment with Illegal Re-entry After Deportation in that on or about December 28, 2006 at or near Douglas, in the District of Arizona the Defendant, an alien, entered and was found after having previously been denied admission, excluded, deported and removed from the United States of America at or near Miami, Florida on October 27, 2004 and did not obtain the express consent of the Attorney General or the Secretary of the Department of Homeland Security to reapply for admission thereto, in violation of 8 U.S.C. § 1326(a)(b)(1). (Doc. No. 5).
B. Procedural Background
The Defendant was arrested on December 28, 2006 and indicted on January 24, 2007. He was arraigned on February 1, 2007 and a trial date of March 27, 2007 at 9:30 a.m. was set.
A Notice of Change of Plea Hearing was filed on February 16, 2007 setting a change of plea hearing for March 16, 2007. On March 16, 2007 the change of plea hearing was vacated by Defendant's counsel.
On March 19, 2007 Defendant filed a motion to continue the trial date of March 27, 2007. An order was signed by the District Court on March 21, 2007 setting Defendant's trial for May 1, 2007.
Defendant's matter came on for status hearing on April 4, 2007 at which time the Court ordered that the Defendant be examined pursuant to 18 U.S.C. § 4241(a) to determine whether he was competent. Defendant's counsel followed up with a formal motion on April 6, 2007. On April 10, 2007 the Court ordered that a status hearing be held on April 11, 2007. On April 11, 2007 counsel for the Defendant and the Government stipulated that the Court will review submitted reports and enter the appropriate order pursuant to 18 U.S.C. 4241(d).
On April 16, 2007 the Defendant filed the second motion to continue the trial date of May 1, 2007. On April 18, 2007 the District Court entered an order continuing Defendant's trial to July 3, 2007.
On April 19, 2007 the Court entered an Order of Commitment ordering that the Defendant be taken to a suitable facility to be restored to competency for a period not to exceed 120 days. Furthermore, excludable delay under 18 U.S.C. § 3161(h)(4) began on April 17, 2007 and would end upon the Court's determination of competency. (Doc. No. 20).
Status hearings were set for August 21, 2007; September 5, 2007; September 28, 2007; and November 7, 2007. A status hearing was held on November 7, 2007 and upon defense counsel's motion the status hearing was continued so that the Defendant could be brought to court. On October 12, 2007, Warden A.F. Beeler from the Federal Medical Facility at Butner, North Carolina issued a Certificate of Restoration of Competency To Stand Trial. The U.S. Marshals were sent notice to transport the Defendant back to the District of Arizona. The Court received the evaluation report and the aforementioned Certificate on October 26, 2007.
A status hearing was held on December 10, 2007. The Defendant was not brought to court. A status hearing was set for January 7, 2007 and the U.S. Marshals were ordered to transport the Defendant back to the District of Arizona to attend the status hearing.
II LAW AND DISCUSSION
Defendant argues that as of October 12, 2007 when Warden A.F. Beeler issued a Certificate of Restoration of Competency To Stand Trial and the U.S. Marshals were notified to transport the Defendant to court, the Defendant was ready for transport and 10 days later the ten day plus presumption of unreasonableness under the Speedy Trial Act (hereinafter "STA") 18 U.S.C. § 3161(h)(1)(H) applied.
Under the STA, a Defendant must be brought to trial within seventy days from the filing date of the information or from the date the defendant has appeared before a judicial officer of the Court in which such charge is pending, whichever date last occurs. 18 U.S.C. § 3161(c)(1).
On February 16, 2007 the Defendant filed a notice of change of plea (Doc. No. 7) the STA clock was tolled on that date. 18 U.S.C. § 3161(h)(1)(F). Twenty-three days (January 24, 2007 arraignment to February 16, 2007 filing of notice) under the STA had run. On March 16, 2007 the scheduled and intended change of plea hearing was vacated. On March 19, 2007 the Defendant filed a motion to continue the March 27, 2007 trial. Two additional days under the STA had run, for a total thus far of twenty-five days.
The District Court in its March 21, 2007 order granting Defendant's motion to continue his March 27, 2007 trial stated that "[e]xcludable delay under 18 U.S.C. § 3161(h)(8) is found to begin on March 28, 2007 and end on May 1, 2007. Such time shall be in addition to other excludable time under the Speedy Trial Act and shall commence as of the day following the day that would otherwise be the last day for commencement of trial." (Doc. No. 11). The Defendant was ordered committed on April 19, 2007 with excludable delay pursuant to 18 U.S.C. § 3161(h)(4) to begin on April 17, 2007 and end upon the Court's determination of competency. (Doc. No. 20).
As a result of the Court's preponderant finding of incompetency, an Order of Commitment to a suitable facility to restore Defendant's competency was entered on April 19, 2007. Consequently, 18 U.S.C. § 3161(h)(4) applies and its clear language states that the speedy trial calculation does not include:
[a]ny period of delay resulting from the fact that the defendant is mentally incompetent . . . to stand trial.18 U.S. C. § 3161(h)(4) (emphasis added) Unlike 18 U.S. C. § 3161(h)(1)(H) which allows a reasonable delay up to ten days to transport a defendant, 18 U.S. C. § 3161(h)(4) imposes no limitation on the amount of time excludable while the defendant is mentally incompetent.
As such, when a defendant has been declared mentally incompetent, § 3161(h)(4) trumps other sections of the [Speedy Trial] Act, including § 3161(h)(1)(H), the provisions of which do not require a finding of mental competency. . . . Congress did not intend to impose such a restriction. To graft such a restriction on the clear language of § 3161(h)(4) would do damage to the intent of Congress.United States v. Degideo, 2004 WL 1240669 (E.D. Pa. May 18, 2004); see also United States v. Bell, 2007 WL 1087355 (N.D. Ga. Apr. 5, 2007). Where the STA makes a specific statutory exemption, that exclusion applies automatically without regard to the reasonableness of any delay incurred. Henderson v. United States, 476 U.S. 321, 330 (1986); United States v. Vasquez, 918 F.2d 329, 333 (2nd Cir. 1990); United States v. Triumph, 2004 WL 1920352 (D. Conn. Aug. 24, 2004).
Further, a careful reading of cases cited demonstrates that the unequivocal language of 18 U.S.C. § 3161(h)(4) excludes the period of time a defendant is deemed to be incompetent to stand trial, whatever the reason for delay may be. Bell, 2007 WL 1087355 (Order that defendant receive treatment to be restored results in excluding delay due to failure to execute the court's order from speedy trial computation pursuant to 18 U.S.C. § 3161(h)(4)), citing Degideo, 2004 WL 1240669 at 5 ("By drafting § 3161(h)(4) in the disjunctive, and equating mental competency with physical inability to stand trial, Congress clearly found that when a defendant's mental state prevents the defendant from meaningfully participating in her trial, the STA does not impact on a court's ability to delay the proceedings indefinitely until the defendant recovers, regardless of any other reason for delay."); Triumph, 2004 WL 1920352 at 3 ("where there is a specific statutory exemption from the STA, [such as 18 U.S.C. § 3161(h)(4)], the exclusion applies automatically, whether or not the delay was reasonable.") citing Vasquez, 918 F.2d at 333.
Having determined that Defendant is incompetent to stand trial, this Court entered an order of commitment pursuant to 18 U.S.C. § 4241(d). Hence, "[a]ny period of delay resulting from the fact that the defendant is mentally incompetent . . . to stand trial" is excluded. 18 U.S.C. § 3161(h)(4). The Certificate of Restoration of Competency To Stand Trial is at this point only a medical opinion tendered by Warden A.F. Beeler of F.M.C.-Butner, North Carolina. It is not a finding by the Court that the Defendant has now been restored to mental competency in order to stand trial.
III. CONCLUSION
To date twenty-five days under the STA have run. For the above stated reasons any delay in returning the Defendant to the District of Arizona to determine his competency, though unfortunate, does not enter into the speedy trial calculus. At the January 22, 2007 status hearing, where it is anticipated the Defendant will be present, counsel for the Defendant and the Government may 1) stipulate to the findings in the evaluation report; 2) submit the report for the Court's review and finding; or 3) contest the issue of whether the Defendant is or is not competent in spite of the opinions expressed in the evaluation report. Whichever of the three aforementioned scenarios takes place, the Court will make a finding accordingly pursuant to 18 U.S.C. § 3161(h)(4) and 18 U.S.C. § 4241(d).
IV RECOMMENDATION
For the foregoing reasons, the Magistrate Judge recommends that the District Court deny Defendant's Motion to Dismiss (Doc. No. 32) for STA violations.
Pursuant to 28 U.S.C. § 636(B) any party may serve and file written objections within ten days after being served with a copy of this Report and Recommendation. If objections are filed, the parties should use the following case number: CR 07-0147-TUC-RCC.
If objections are not timely filed, then the parties' right to de novo review by the District Court may be waived. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.) ( enbanc), cert denied 540 U.S. 900 (2003).
The Clerk is directed to send a copy of this Report and Recommendation to counsel.