Opinion
01-CR-302 (ILG)
June 5, 2001
Eric Komitee, Esq., United States Attorney's Office, Brooklyn, N.Y. 11201.
Michael Schneider, Esq., Federal Defender Division Legal Aid Society, Brooklyn, N.Y. 11241.
MEMORANDUM AND ORDER
SUMMARY
Defendant Ramon Radhames Torres moves to dismiss the indictment against him under Article III of the Interstate Agreement on Detainers ("IAD"), 18 U.S.C. App. 2 § 2, because of the Government's failure to grant him a speedy trial. In the alternative, Torres requests a hearing to determine the facts surrounding his request for a speedy trial. For the reasons set forth below, Torres's motion to dismiss the indictment is denied.
BACKGROUND
Finding probable cause that Torres had committed the crime of illegal re-entry into the United States in violation of 8 U.S.C. § 1326(b)(2), a Magistrate Judge of the Eastern District of New York issued an arrest warrant for Torres on February 4, 2000. At that time, Torres was incarcerated at the Ogdensburg Correctional Facility, a New York State prison, serving a sentence for violating his terms of parole. Torres alleges that "sometime during the Summer of 2000," he became aware that a detainer was filed against him requesting his appearance in this court. (Schneider Dec. ¶ 7) Soon thereafter, Torres, who has a limited understanding of English, completed what he believed to be a request to be brought before this court, i.d ¶ 8, and returned the form to the Ogdensberg Correctional Facility officials for mailing. (Id. ¶ 9) Torres first appeared in this court on February 16, 2001 for arraignment before a Magistrate Judge. This court has since entered two orders of excludable delay encompassing April 4 to May 11, 2001. (See Docket Sheet Entries 7, 9).
The Government indicates that the period of excludable delay began on April 2, 2001 instead of April 4, 2001.
Torres now moves to dismiss the indictment against him on the basis that more than 180 days have passed between when he mailed his request in the Summer of 2000 and when he first appeared in this court on February 16, 2001.
DISCUSSION
Article III (a) of the IAD provides that a person who has "entered upon a term of imprisonment in a penal or correctional institution of a party State," and against whom another party State has lodged a detainer based on untried charges, may request a speedy trial in the State with the outstanding detainer. 18 U.S.C. App. 2, § 2, Art. III(a). New York and the United States are "party States" to the IAD. 18 U.S.C. App. 2, § 2, Art. II. The IAD further provides that a prisoner "shall be brought to trial within one hundred and eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officers' jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint." 18 U.S.C. App. 2, § 2, Art. III (a). The IAD also states that the "written notice and request for final disposition . . . shall be given or sent by the prisoner to the . . . official having custody of him, who shall promptly forward it together with the certificate to the appropriate prosecuting official and court by registered or certified mail, return receipt requested." 18 U.S.C. App. 2, § 2, Art. III (b).
Torres proffers no proof of the delivery to this court and the United States Attorney's Office, but relies instead on the assertion that he first appeared in this court 180 days after he caused the New York State prison officials at his facility to mail his request in the Summer of 2000. Torres argues that the indictment must be dismissed unless the Government can show that it received his request 180 or less days before February 16, 2001, that is, on or before August 20, 2000. The court notes that although the IAD is silent on who bears the burden of proof in a motion to dismiss an indictment for a speedy trial violation, the federal Speedy Trial Act generally requires the defendant to bear the burden of proof. See 18 U.S.C. § 3162(a)(2).
The Government has produced a memorandum dated October 19, 2000 from Susan M. McLear, Inmate Records Coordinator for the Ogdensberg Correctional Facility, advising Special Agent Sandra Chase of the United States Immigration and Naturalization Service ("INS") that Torres was requesting a disposition in this case. (Komitee Letter, Ex. A) Annexed to McLear's memorandum were: (1) a New York State Department of Correctional Services form entitled "Inmate's Notice of Place of Imprisonment and Request for Disposition of Indictment, Informations or Complaints" which Torres signed in the portion of that form requesting court appointed counsel, but left blank the portion requesting a final disposition; and (2) a lone signature page apparently provided by the United States wherein Torres indicated his understanding that among other things he had the right to be brought to trial within 180 days after written notice of his request was delivered to the court and the United States Attorney. (Id.) Neither enclosure was dated. In opposition to Torres's motion, the Government argues that even assuming the INS notified the United States Attorney and the court on the day McLear sent her memorandum, the speedy trial clock was triggered at the earliest on October 19, 2000. By extension, only 167 days have lapsed between October 19, 2000 and April 4, 2001, and the Government still has 13 days left until the speedy trial clock expires. Thus, the question presented for the court is whether the 180 day period began on October 19, 2000 or on some earlier date.
The Court has stated that the IAD's procedural requirements are to be construed literally, and the "180-day time period in Article III (a) of the IAD does not commence until the prisoners request for final disposition of the charges against him has actually been delivered to the court and the prosecuting officer of the jurisdiction that lodged the detainer against him." Fex v. Michigan, 507 U.S. 43, 52 (1993) (emphasis added). The proper inquiry is when the request was in fact delivered, rather than when Torres caused the request to be delivered. Fex compels the conclusion that Torres's motion must be denied. Even if the United States Attorney and this court received Torres's request via the INS on October 19, 2000 as the Government charitably suggests, the 180 day period has not expired and there has been no speedy trial violation. There is no evidence to suggest otherwise.
CONCLUSION
For the foregoing reasons, Torres's motion to dismiss the indictment is denied.