Opinion
Case No: 1:05-CR-92-3.
February 6, 2009
MEMORANDUM
One of the most fundamental obligations of the Executive Branch of our government is the enforcement of the laws, especially the criminal laws. The enforcement of criminal laws is essential to a functioning ordered civil society. Effective administration and enforcement of the laws breeds respect for the law by the public and consequently compliance with the law.
Effective enforcement of the law involves charging those accused of violations of the law in a timely fashion and then bringing those accused of crimes to trial without undue delay. The importance of this principle is imbedded in our Constitution in the Sixth Amendment. When the Government is dilatory in bringing those accused of crimes to trial, it fails in one of its fundamental responsibilities.
In this case the Court is faced with a sad circumstance where the Executive Branch has failed in its responsibility to bring a citizen, Defendant John Ferreira, to trial without undue delay. This undue delay occurred in the face of Defendant repeatedly asking to be brought to trial. From the facts in this case, the failure is not simply attributable to the assigned Assistant United States Attorney, but rather is an institutional failure on the part of the entire office. With the lapse of time from the indictment until trial, internal safeguards and systems within the Justice Department should have detected and prevented the problem. Periodic file or case reviews on the part of supervisors should have alerted the Department that the defendant in this case was not being brought to trial in a timely fashion.
Because these institutional safeguards either were not in place or failed, the Court must dismiss this case. It does so without prejudice only because the Court is unable to identify actual prejudice to Defendant. However, simply because the Court does not dismiss the case with prejudice should not be taken as countenancing the Government's actions in this case.
Because of the delay Defendant has filed two motions to dismiss the indictment (Court File Nos. 331, 344). The government has filed a response to the motion (Court File No. 349), a supplemental response (Court File No. 354), and Defendant has filed a reply to the supplemental response (Court File No. 356). Defendant requests the Court dismiss the indictment against him based on speedy trial violations under the Sixth Amendment to the United States Constitution, the Speedy Trial Act, the Interstate Agreement on Detainers Act, and Fed.R.Crim.P. 48(b). For the following reasons, the Court will GRANT the motion and will DISMISS the indictment without prejudice.
I. RELEVANT FACTS
The facts in this case are undisputed. Defendant was indicted, along with 12 co-defendants, on September 13, 2005 (Court File No. 12) after a search of his residence revealed evidence of methamphetamine distribution. An arrest warrant was issued the same day. On October 5, 2005, the Government requested a writ of habeas corpus ad prosequendum be issued to the Sheriff of Bartow County, Georgia, to bring Defendant to this district for a hearing on October 19, 2005, which Magistrate Judge Lee granted on October 12, 2005 (Court File Nos. 41, 43). A second superseding indictment was filed under seal on October 12, 2005 (Court File No. 61). The Government again requested a writ of habeas corpus ad prosequendum be issued to the Sheriff of Bartow County, which Magistrate Judge Lee granted (Court File Nos. 75, 77). However, according to the Government's brief, Defendant was not in the Bartow County jail in October 2005, but had been transferred to Cobb County, Georgia, to answer a separate charge (Court File No. 349). On November 13, 2006, Defendant pleaded guilty to a charge of voluntary manslaughter and began serving a sentence of 20 years in Georgia (Court File No. 356, Exhibit 2). The United States Marshals Service in Chattanooga informed the government of the transfer to Cobb County prior to the request for the second writ and apparently also notified the Government of detainers placed with Georgia authorities (Court File No. 349).
According to Defendant's motion, he was advised of the detainer filed January 31, 2007, against him, which he acknowledged, requesting a speedy trial (Court File No. 345). He filed a pro se motion requesting appointment of counsel on September 6, 2007, which included the detainer requesting a speedy trial (Court File No. 320). However, the Government took no action until Defendant filed another pro se motion on July 8, 2008, to dismiss the indictment for speedy trial violations (Court File No. 331). Pursuant to a third issuance of a writ of habeas corpus ad prosequendum, this time to Macon State Prison, Georgia (Court File Nos. 334, 335), Defendant was brought to the district and made an initial appearance on August 25, 2008, where he was appointed counsel (Court File No. 337). Through his counsel, Defendant again filed a motion to dismiss for speedy trial violations (Court File No. 344).
The time lines that follow serve as a background for the assessment of the delays in Defendant's case. From the time Defendant was named in the indictment until he initially appeared in court, 2 years, 11 months, and 12 days (1077 days) passed. Eleven months and 19 days (354 days) passed between Defendant's pro se motion requesting appointment of counsel, which included his acknowledgment of the detainer against him that requested a speedy trial, and his initial appearance. Finally, one month and 17 days (48 days) passed between Defendant's pro se motion to dismiss and his initial appearance before the magistrate judge.
II. DISCUSSION
Defendant asserts four grounds for dismissal of the indictment: (1) the Sixth Amendment, (2) the Speedy Trial Act, (3) the Interstate Agreement on Detainers, and (4) Fed.R.Crim.P. 48(b). The Government's response initially focused only on the Sixth Amendment argument; however, in the supplement to the response, the Government addressed all four grounds for dismissal. The Government conceded a violation of the Interstate Agreement on Detainers, but argued for a dismissal without prejudice.
The Court will consider and address these arguments in term.
A. Sixth Amendment Right to a Speedy Trial
The Sixth Amendment to the United States Constitution provides: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." The remedy for a constitutional speedy trial violation is dismissal with prejudice. United States v. Jackson, 473 F.3d 660, 664 (6th Cir. 2007). In determining whether a defendant has been deprived of the right to a speedy trial, courts must consider four factors: "(1) whether the delay was uncommonly long; (2) the reason for the delay; (3) whether the defendant asserted his right to a speedy trial; and (4) whether prejudice resulted to the defendant." United States v. Gardner, 488 F.3d 700, 719 (6th Cir. 2007) (citing Barker v. Wingo, 407 U.S. 514, 523-30 (1972)). No factor alone is sufficient. Id. The Court must "conduct a balancing analysis that considers each of these factors along with such other circumstances that may be relevant." Id.
The first factor is a threshold inquiry to determine whether the delay was sufficiently presumptively prejudicial to defendant to necessitate analysis of the remaining factors. United States v. Gardner, 488 F.3d 700, 719 (6th Cir. 2007). The length of the delay is measured by the date of the indictment or the date of the arrest, whichever is earlier. Maples v. Stegall, 427 F.3d 1020, 1026 (6th Cir. 2005) (citing United States v. Marion, 404 U.S. 307, 320 (1971); Redd v. Sowders, 809 F.2d 1266, 1269 (6th Cir. 1987)). In this case, the initial indictment charging Defendant was filed September 13, 2005. Since Defendant's arrest warrant was not executed until August 25, 2008, the date of the indictment is clearly the relevant one for this analysis. A delay approaching one year is presumptively prejudicial. Doggett v. United States, 505 U.S. 647, 652 (1992). Since the delay in this case was nearly three years, the threshold requirement to trigger application of the remaining factors is obviously met.
The purpose of the inquiry into the reason for the delay is to determine "whether the Government or the criminal defendant is more to blame for [the] delay." Id. at 651. Delay motivated by bad faith or harassment weighs more heavily against the party than "more neutral" reasons such as "negligence or overcrowded dockets." Maples, 427 F.3d at 1026 (citing United States v. Schreane, 331 F.3d 548, 553-54 (6th Cir. 2003)). "Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay." Barker, 407 U.S. at 531. Here, Defendant bears no responsibility for the delay in obtaining a trial as he was not made aware of the charges against him until he received the notice of detainer and his pro se motions did not prolong or contribute to the delay. The Government proffers "at worst . . . negligence on the part of the government" as the sole reason for the delay (Court File No. 349). [While Defendant does not contest this claim, the inadequacy of the Government's performance in this case reflects poorly on an institution that represents the people of the United States.] Although negligence is more neutral than deliberate action, the Court notes the extreme length of delay and the multiple failures to secure Defendant's appearance weigh against the Government.
The third factor is Defendant's assertion of his speedy trial rights. A "defendant's assertion of his speedy trial right . . . is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right." Barker, 407 U.S. at 531-32. Upon receipt of the detainer, Defendant clearly marked his request for a speedy trial, which was apparently sent to the Government (Court File No. 320). In addition, Defendant filed a pro se motion with this Court requesting appointment of an attorney, to which he attached a copy of the detainer requesting a speedy trial (Court File No. 320). After almost a year with no action taken by the Government, Defendant filed a pro se motion to dismiss for speedy trial violations on July 8, 2008 (Court File No. 331). Finally, once Defendant had the assistance of counsel, he filed another motion to dismiss the charges against him for violating his right to a speedy trial (Court File No. 344). The Court finds Defendant vigorously and consistently demanded a speedy trial in his case. This factor weighs strongly in his favor.
The final factor is whether Defendant is prejudiced by the unreasonable delay. Prejudice can be shown either by excessive delay that gives rise to a presumption of prejudice or a showing of actual prejudice. Actual prejudice includes consideration of three defense interests: "(1) oppressive pretrial incarceration; (2) anxiety and concern of the accused; (3) the possibility that the defense will be impaired." Barker, 407 U.S. at 532. In extreme cases, presumptive prejudice is sufficient to establish a Sixth Amendment violation. Doggett, 505 U.S. at 658.
While affirmative proof of prejudice stemming from a delay is difficult to establish, it is not impossible. In Maples, the court found evidence of actual prejudice where the defendant, who suffered a delay of 25 months, presented proof the pretrial incarceration made him ineligible to receive a concurrent sentence for a parole violation, witnesses were unavailable to present exculpatory evidence, and the defendant's letters evidenced anxiety and concern. 427 F.3d at 1031-34. Defendant alleges it will be difficult to locate and interview his co-defendants and other witnesses and their memories could have faded due to the length of time that has passed between the offense conduct and the trial. He also asserts his own memory of the relevant events has diminished as a result of the delay, which will impair his ability to assist in his defense (Court File No. 331). However, these are general averments and speculation that does not rise to the level of affirmative proof. See Schreane, 331 F.3d at 559 (stating defendant's argument the delay dimmed his memory and "possibly resulted in the loss of unknown exculpatory evidence" was essentially an argument the delay should create a presumption of prejudice). The Government maintains the co-defendants will be easier to locate and interview because they are in jail and not on drugs (Court File No. 349). Since Defendant is unable to demonstrate actual prejudice resulting from the delay in his case, the Court turns to whether Defendant was presumptively prejudiced to an extent warranting dismissal.
Excessive delay "presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify." Doggett, 505 U.S. at 655 (1992). However, not every delay is presumptively prejudicial. United States v. Howard, 218 F.3d 556, 564 (6th Cir. 2000). Where, as here, the delay is due to negligence, "the weight we assign to official negligence compounds over time as the presumption of evidentiary prejudice grows." Doggett, 505 U.S. at 657. The Doggett court found presumptive prejudice where the delay is "six times as long as that generally sufficient to trigger judicial review." Id. at 658. While the United States Court of Appeals for the Sixth Circuit has held delays of five and a half to eight years are presumptively prejudicial, "no presumption has been found where the delay is considerably less . . . or where the government can persuasively rebut the presumption by showing that the delay did not impair the defendant's defense." Maples, 427 F.3d at 1031; see also Howard, 218 F.3d at 565 (6th Cir. 2000) (holding three and five month delays were insufficient to create a presumption of prejudice in the absence of any affirmative misconduct). In essence, the length of the delay eases the defendant's burden of proving prejudice. While affirmative misconduct is required for short delays, mere negligence is sufficient to create a presumption of prejudice for lengthy delays.
The Government's actions in this case go beyond simple negligence. The Government admits it had notice before requesting the second writ of habeas corpus ad prosequendum that Defendant was no longer at that prison. As noted above, Defendant persistently inquired into the status of his case and alerted the Government of his request for a speedy trial. The Government, however, failed to take any action until almost three years after the indictment. "Condoning prolonged and unjustifiable delays in prosecution would both penalize many defendants for the state's fault and simply encourage the government to gamble with the interests of criminal suspects assigned a low prosecutorial priority." Doggett, 505 U.S. at 657. Whether this was a perfect storm of isolated errors or a result of case mismanagement, the Court's "toleration of [official] negligence varies inversely with its protractedness." Id.
However, the delay in this case does not reach the level that compels the Court to presume prejudice in the absence of affirmative misconduct by the Government. See United States v. Smith, 94 F.3d 204, 212 (finding the presumptive prejudice arising out of a three-year appellate delay "negligible at best"). While almost three years of delay is substantial, it falls far short of the six year delay resulting from government negligence that courts have found to warrant a presumption of prejudice. See Doggett, 505 U.S. at 657; see also United States v. Brown, 169 F.3d 344, 351 (6th Cir. 1999) (presuming prejudice where delay attributable to government negligence was more than 60 months). Thus, in order to prove prejudice, Defendant must show particularized evidence of actual harm. Since Defendant has failed to do so, the final factor does not weigh in his favor.
The Court finds (1) the delay was unusually long, (2) the reason for the delay weighs slightly in favor of Defendant, (3) Defendant's repeated assertion of his right to a speedy trial weighs strongly in his favor, and (4) Defendant has not shown actual prejudice by the delay so there remains only a weak presumption of prejudice resulting solely from the length of time. Although the delay was lengthy in this case and Defendant made a timely demand for a speedy trial, the length of the delay combined with the reason for the delay, government negligence, was insufficient to compensate for the Defendant's failure to present proof of actual prejudice. Upon balancing the factors and considering the circumstances of the case, the Court finds the delay in bringing Defendant to trial, while inexcusable, did not violate his Sixth Amendment right to a speedy trial.
B. Speedy Trial Act
The Speedy Trial Act, 18 U.S.C. §§ 3161-74, creates a statutory right to a speedy trial independent of the defendant's constitutional rights. Two intervals are important for the Speedy Trial Act: the period from arrest to indictment and the period from indictment to the beginning of trial. Under the Speedy Trial Act, a maximum of 70 days may pass between indictment (or first appearance through counsel) and trial. 18 U.S.C. § 3161(c)(1). However, the statute lists multiple exclusions for delays that are not counted against the defendant's right to a speedy trial.
The Speedy Trial Act clock begins when the defendant is detained for the purpose of answering a federal charge. United States v. Shahryar, 719 F.2d 1522 (11th Cir. 1983). State arrests and detentions do not trigger the Speedy Trial Act. United States v. Woolfolk, 399 F.3d 590, 595 (4th Cir. 2005) (holding that a defendant must be under federal arrest or in federal custody for the Speedy Trial Act to apply). In this case, Defendant's clock did not commence under the statute until the federal arrest warrant was executed against him, August 25, 2008. Since he appeared before Magistrate Judge Lee the same day, the delays did not impact his rights under § 3161(b). The clock under § 3161(c) did not begin to run until Defendant made his initial appearance in the district, August 25, 2008, and, ironically, Defendant's motions stopped the clock with an excludable delay.
Pursuant to § 3161(j), where the attorney for the Government knows the defendant is incarcerated in a penal institution, "he shall promptly — (A) undertake to obtain the presence of the prisoner for trial; or (b) cause a detainer to be filed with the person having custody of the prisoner and request him to so advise the prisoner and to advise the prisoner of his right to demand trial." According to court documents, Defendant received the detainer that was filed January 31, 2007, and marked his request for a speedy trial (Court File No. 320). The Government acknowledges the U.S. Attorney was notified of the detainers and that Defendant requested a speedy trial on the January 31, 2007, detainer (Court File No. 349). Although the exact date the U.S. Attorney received notice of the trial demand is unknown, Defendant signed the detainer August 21, 2007, and filed it with his motion for appointment of an attorney September 6, 2007 (Court File No. 320). "Upon receipt of such notice [of the prisoner's demand for trial], the attorney for the Government shall promptly seek to obtain the presence of the prisoner for trial." 18 U.S.C. § 3161(j)(3). Although § 3161(j) was apparently violated in this case, dismissal of the indictment is not a remedy under the Speedy Trial Act for this infraction. See 18 U.S.C. § 3162(a) (providing for dismissal of charges for violations of § 3161(b) and (c)). This reading of the statute is unanimously supported by other courts addressing the issue. United States v. Dawn, 900 F.2d 1132 (7th Cir. 1990); United States v. Stoner, 799 F.2d 1253, 1257 (9th Cir. 1986); United States v. Anderton, 752 F.2d 1005, 1008 (5th Cir. 1985). Thus, whether the Government violated § 3161(j) is irrelevant to Defendant's motion to dismiss.
C. Interstate Agreement on Detainers Act
A prisoner's rights under the Interstate Agreement on Detainers Act ("IAD") are independent of other constitutional or statutory guarantees. The IAD co-exists with the Speedy Trial Act to encourage expeditious disposition of outstanding charges against prisoners. Stroble v. Anderson, 587 F.2d 830, 837 (6th Cir. 1978). Under the IAD, § 2, 18 U.S.C. App. 2, art. III:
(a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party State, and whenever during the continuance of the term of imprisonment there is pending in any other party State any untried indictment, information, or complaint on the basis of which a detainer has been lodged against the prisoner, he 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 officer's 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. . . .
. . . .
(d) Any request for final disposition made by a prisoner pursuant to paragraph (a) hereof shall operate as a request for final disposition of all untried indictments, informations, or complaints on the basis of which detainers have been lodged against the prisoner from the State to whose prosecuting official the request for final disposition is specifically made.
Article VI provides exceptions to the 180-day time period for periods where "the prisoner is unable to stand trial, as determined by the court having jurisdiction of the matter."
Application of the IAD is triggered when an effective detainer is filed against a prisoner. United States v. Mauro, 436 U.S. 340 (1978). Defendant placed a copy of a detainer filed January 31, 2006, in the record and the Government does not dispute the validity of the detainers it acknowledges were filed against Defendant. In addition, since a judgment against him was entered November 13, 2006, at the time the detainer was filed, Defendant was serving a term of imprisonment (Court File No. 356, Exhibit 2). Therefore, the objectives of the IAD are implicated.
The 180 day time frame does not commence until "the prisoner's request for final disposition of the charges against him has actually been delivered to the court and prosecuting officer of the jurisdiction that lodged the detainer against him." Fex v. Michigan, 507 U.S. 43, 52 (1993). There, the court denied the pre-trial motion where the prisoner was brought to trial 177 days after the request was received by the prosecutor. Id. Here, Defendant filed a copy of the detainer, which included notice of his request for final disposition and speedy trial, with the Court on September 6, 2007. Under the Court's electronic filing system, the document was entered on September 14, 2007, and the prosecutor would have notice of the request at that time. The Government admits "[t]he records indicate that the U.S. Attorney was notified of the detainers" (Court File No. 349). The Court finds Defendant complied with IAD article III in making his request for final disposition in asserting his right to a speedy trial under IAD and filing written notice with the court. Thus, Defendant was entitled to be brought to trial within 180 days of notifying the prosecutor of his request.
While other courts have held the tolling provisions of the Speedy Trial Act apply to the tolling of the speedy trial period of the Interstate Agreement on Detainers Act, finding that both statutes serve the same purpose ( see, e.g., United States v. Collins, 90 F.3d 1420 (9th Cir. 1996)), the Sixth Circuit has not addressed this issue. However, the Sixth Circuit found the purpose of the IAD was to "encourage the expeditious disposition of such charges and provide cooperative procedures among member States to facilitate such disposition." Stroble v. Anderson, 587 F.2d 830, 837 (6th Cir. 1978). The United States Court of Appeals for the Second Circuit held the "for good cause shown" standard of the IAD encompasses the same situations covered by the Speedy Trial Act excludable time periods. United States v. Cephas, 937 F.2d 816 (2d Cir. 1991). However, IAD Article III (a) requires excludable continuances be granted "for good cause shown in open court, the prisoner or his counsel being present," and since Defendant did not have counsel and did not appear in court until well after the 180-day period passed, the Court need not determine whether the tolling provisions of the Speedy Trial Act would apply to IAD violations.
Since the Court did not grant any continuances in this case and Defendant was not responsible for any delays, Defendant should have been brought to trial by March 12, 2008, in order to comply with the 180-day period. As Defendant was not brought before the Court until August 25, 2008, his rights under the IAD have clearly been violated.
The Government concedes the violation and the IAD requires dismissal (Court File No. 354).
The remedy for failure to hold a trial within 180 days of the request for final disposition is dismissal, which is mandatory where the IAD has been violated. 18 U.S.C. App. 2, art. V (c) ("[I]n the event that an action on the indictment, information, or complaint on the basis of which the detainer has been lodged is not brought to trial within the period provided in article III or article IV hereof, the appropriate court of the jurisdiction where the indictment, information, or complaint has been pending shall enter an order dismissing the same with prejudice, and any detainer based thereon shall cease to be of any force or effect."); Stroble, 587 F.2d at 839-840; United States v. Ford, 550 F.2d 732, 744 (2d Cir. 1977); Gibson v. Klevenhagen, 777 F.2d 1056, 1059 (5th Cir. 1985) (vacating the defendant's conviction and ordering the detainer be removed). However, where, as here, the United States is the receiving state, § 9 provides:
(1) any order of a court dismissing any indictment, information, or complaint may be with or without prejudice. In determining whether to dismiss the case with or without prejudice, 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 the agreement on detainers and on the administration of justice.
18 U.S.C. App. § 9(1). Although the dismissal is mandatory, the Court has discretion on whether to dismiss with or without prejudice under the IAD.
Regarding the first factor, the seriousness of the offense, the majority of federal felony offenses are considered serious. See United States v. McKinney, 395 F.3d 837, 841 (8th Cir. 2005); United States v. Martinez, 376 F. Supp. 2d 1168, 1175 (D.N.M. 2004); United States v. Tummolo, 822 F. Supp. 1561, 1565 (S.D. Fla. 1993); but see United States v. Zfaty, 44 F. Supp. 2d 588, 592 (S.D.N.Y. 1999) (finding illegal reentry serious, but not "among the most egregious crimes that come into federal courts"). Defendant is charged with conspiracy to distribute 500 grams or more of a substance containing methamphetamine. The statute mandates a minimum term of 10 years and up to life imprisonment if Defendant is convicted. 21 U.S.C. § 841(b)(1)(A). The Government asserts Defendant was involved with large amounts of methamphetamine and 900 grams of methamphetamine were seized from Defendant's residence (Court File No. 354). While the Court recognizes the difficulty in ascertaining the exact role Defendant played in the conspiracy without additional evidence, the amount of methamphetamine and the statutory penalties lead to the conclusion the charges against Defendant are serious.
The facts and circumstances that led to the dismissal are outlined above. The Government, through its negligence, repeatedly failed to act on detainers placed against Defendant. Although the Government did not intentionally delay bringing Defendant to trial, the length of the delay is almost twice that allowed by the IAD. In addition, unlike United States v. McKinney, here the Government did not immediately act to rectify an administrative oversight when the error was discovered. 395 F.3d at 841 (noting the AUSA "immediately filed a writ with the district court to bring McKinney before the court as soon as possible" upon finding the defendant's misfiled request for a speedy trial); see also United States v. Iwuamadi, 716 F. Supp. 420, 426 (D. Neb. 1989) (finding the Government acted "diligently" and "with proper motive" where federal authorities delayed taking custody of the defendant to accommodate local prosecutorial authorities). In this case, the Government failed to act despite numerous opportunities to bring Defendant before the court. While the reason for the delay, negligence, weighs toward dismissal without prejudice, the length of the delay and the vigilance of Defendant, who was acting without the benefit of an attorney, weigh toward dismissal with prejudice.
The final consideration under § 9(1) is the impact of reprosecution. In many cases where courts have dismissed the indictment without prejudice, the defendant has completed the state sentence, thus limiting the impact of reprosecution on the administration of the IAD. See United States v. Martinez, 376 F. Supp. 2d 1168 (D.N.M. 2004) (dismissing without prejudice where the offenses were serious, the Government acted in good faith, the defendant was arraigned thirteen days after the 180-day period, and the defendant had since completed his state prison sentence); United States v. Tummolo, 822 F. Supp. 1561 (S.D. Fla. 1993) (dismissing without prejudice after finding the offense serious, the violation due to unintentional negligence, and the administration of the IAD not impacted by reprosecution where the defendant had completed his state sentence and the trial date was only eight days beyond the 180-day period). The IAD was enacted to remedy the difficulties created by lodging detainers based on untried indictments, including the attendant uncertainty "which obstruct[s] programs of prisoner treatment and rehabilitation." 18 U.S.C. App. § 2 art. I. "[T]he IAD's purpose is not limited to facilitating inmates' participation in rehabilitative programs; rather, the statute is also designed to protect inmates against the uncertainties generated by interstate detainers." Pope, 183 F. Supp. 2d at 779 (citing Alabama v. Bozeman, 533 U.S. 146, 155-56 (2001)). However, in this case, Defendant has not shown any harm suffered by him as a result of the detainers placed against him, nor has he argued reprosecution will negatively impact the administration of the IAD.
In conclusion, the statutory factors weigh in favor of dismissal without prejudice in this case. Although the charges against Defendant are serious, the Government had ample opportunities to remedy the situation and bring Defendant before the court. However, the impact of reprosecution is minimal as Defendant is currently in the district and Defendant has not argued he will be prejudiced by a dismissal without prejudice.
D. Fed.R.Crim.P. 48(b) Dismissal for Failure to Prosecute
III. CONCLUSION
48Sixth GRANT DISMISS
An Order shall enter.