Opinion
4:01CR3034
August 2, 2002
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO DISMISS
Before me is Defendant Salvador Ortega's motion to dismiss "the above captioned matter with prejudice under the Speedy Trial Act, 18 [U.S.C.] §3162 et seq. . . . and the [Sixth] Amendment," filing 163. The defendant's motion will be granted.
I. BACKGROUND
On March 21, 2001, Salvador Ortega (hereinafter "the defendant") and four co-defendants were charged in the District of Nebraska with "willfully, knowingly, and unlawfully combin[ing], conspir[ing], confederat[ing] and agree[ing] together and with persons known and unknown to the Grand Jury, to distribute and possess with intent to distribute more than 500 grams of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, and salts of its isomers, a Schedule II controlled substance, in violation of Title 21, United States Code, Section 841(a)(1) and Section 841(b)(1)[,] [i]n violation of Title 21, United States Code, Section 846." (See Indictment, filing 1.) On April 5, 2001, the defendant appeared before United States Magistrate Judge Celeste F. Bremer in the Southern District of Iowa (see Minutes of Hearing of April 5, 2001, filing 9) and waived his right to a hearing under Federal Rule of Criminal Procedure 40 (see Waiver of Rule 40 Hearings, filing 11). He was then transported to the District of Nebraska for a detention hearing. (See filings 9, 11, 12.)
The defendant appeared initially in the District of Nebraska on April 12, 2001, before United States Magistrate Judge David L. Piester, who ordered that a detention hearing and arraignment be scheduled for April 13, 2001. (See Minutes of Hearing of April 12, 2001, filing 14; Order of Temporary Detention Pending Hearing Pursuant to Bail Reform Act, filing 15.) On April 13, 2001, the scheduled arraignment took place, and the defendant entered a plea of not guilty. (See Minutes of Hearing of April 13, 2001, filing 16.) The defendant's detention hearing was rescheduled for April 16, 2001, (see Minutes of Hearing of April 13, 2001, filing 16), and at the conclusion of that hearing the defendant was conditionally released. (See Minutes of Hearing of April 16, 2001, filing 18; Order Setting Condition of Release, filing 19.) A jury trial was scheduled for May 21, 2001. (See Order for the Progression of a Criminal Case, filing 17.)
On April 25, 2001, the defendant filed a motion to suppress evidence. (See Mot. to Suppress Evidence and Statements and Request for Evidentiary Hr'g, filing 20.) I have summarized the sequence of events that preceded the final resolution of this motion once before. (See Mem. and Order on Objections to Magistrate Judge's Recommendation, filing 109.) To refresh, an evidentiary hearing on the defendant's motion was held on May 7, 2001. During this hearing, the defendant indicated that he needed additional time to gather information on one of the issues raised in his motion. The magistrate judge scheduled a second hearing to accommodate the defendant's request, and then proceeded to hear testimony from witnesses Daniel Martinez and Officer Waymire. The defendant then sought to elicit testimony from an expert witness, James F. Kelly III, regarding certain tests he performed on the windows of the defendant's pickup and whether a reasonably prudent trooper would have stopped the defendant under similar circumstances. The government objected to this proposed testimony, noting that (1) the defendant had not produced a report outlining Kelly's expert testimony regarding the tests he performed on the defendant's window, and (2) Kelly's testimony as to whether a reasonable trooper would have stopped the defendant's vehicle was irrelevant. The magistrate judge directed the defendant to provide the government with an expert report that complied with the requirements of Federal Rule of Civil Procedure 26, and the suppression hearing was continued until August 6, 2001.
The hearing was first set for June 7 and then continued, on the government's motion, until June 27. (See filings 66, 67.) Neither the defendant nor his attorney appeared on June 27 at the appointed time. (See filing 72-74.) The hearing was then rescheduled for August 6. (See filing 75.)
On July 19, 2001, the defendant moved for the issuance of a subpoena duces tecum. (See Mot. for Issuance Subpoena Duces Tecum for Documents to be Provided Prior to Hr'g of August 6, 2001, filing 78.) Specifically, the defendant sought an order compelling the government to produce Officer Waymire and any "necessary custodian of documents" at the August 6 hearing, along with various documents associated with stops made by Officer Waymire from January 1, 2001, to May 1, 2001. (Id.) The magistrate judge granted the defendant's motion. (See Order, filing 79.) However, neither Officer Waymire nor a records custodian appeared at the August 6 hearing, and none of the information requested by the defendant was produced. The defendant orally moved to dismiss the case based on the government's failure to produce the requested parties and documents. The magistrate judge, however, determined that dismissal was not an appropriate remedy and invited the defendant to file a motion to compel or a motion for citation for contempt. The magistrate judge also concluded that the defendant's motion to suppress would be held in abeyance until the subpoena issue was resolved.
On August 13, Officer Waymire and Gary Nieuwsma, a lieutenant with the Iowa State Patrol, filed a motion to quash the subpoenas obtained by the defendant (see Patrick Waymire and Gary Nieuwsma's Mot. to Quash and Application for Telephonic Hr'g, filing 86), and the defendant filed a motion for contempt (see Mot. for Contempt, filing 84). Three days later, the defendant filed a motion to strike the motion to quash. (See Mot. to Strike Mot. to Quash, filing 89.) The magistrate judge addressed these motions in an order filed on August 30. (See Mem. and Order, filing 91.) Ultimately, the magistrate judge determined that the issue of racial profiling raised in the defendant's motion to suppress was irrelevant, granted the motion to quash filed by the witnesses, and denied the defendant's motion for contempt and motion to strike the motion to quash.
On September 14, the hearing on the defendant's motion to suppress was concluded, and the motion was submitted to the magistrate judge. In an order filed on September 28, 2001, the magistrate judge recommended that I deny the defendant's motion to suppress in all respects. (See Report and Recommendation, filing 100.) The defendant objected to this recommendation, (see Def.'s Statement of Objection to Magistrate Judge's Recommendation, filing 104), but I overruled nearly all of his objections and denied his motion to suppress evidence on October 30, 2001. (See Mem. and Order on Objections to Magistrate Judge's Recommendation, filing 109.) Trial was scheduled for November 13, 2001. (See Order, filing 101.)
The defendant then moved to continue the November 13, 2001, trial date. (See Mot. to Continue Trial Date, filing 112.) In that motion, the defendant stated:
More importantly, only ten days have been used with respect to defendant's speedy trial rights and a continuance of this matter until December will not prejudice Defendant's right to speedy trial.
(Id., ¶ 9.) The defendant's request for a continuance centered around his motion for a bill of particulars. (See Mot. to Continue Trial Date, filing 112.) On June 25, 2001, the defendant filed a motion for permission to file certain pretrial motions, including a motion for a bill of particulars, out of time. (See Mot. to File Bill of Particulars and Other Pre-trial Mots. Out of Time, filing 70.) This motion was granted by the magistrate judge, who allowed the defendant to file pretrial motions on or before July 16, 2001. (See Order, filing 77.) However, the defendant never filed his pretrial motions, although apparently he believed he had done so on June 22, 2001. (See Mot. for order on Mot. for Bill of Particulars and Mot. for Order on Mot. to Sever Parties, filing 106; Mot. for Rehearing; or in Lieu Thereof Reconsideration with Respect to Def.'s Mot. for Bill of Particulars, filing 111; Motion to Continue Trial Date, filing 112.) At any rate, the magistrate judge considered the defendant's motion for a bill of particulars as if it had been timely filed, and denied it on October 30, 2001. (See Mem. and Order, filing 108.) The defendant filed a motion for reconsideration of the order denying his motion for a bill of particulars on November 6, 2001, (see Mot. for Rehearing; or in Lieu Thereof Reconsideration with Respect to Def.'s Mot. for Bill of Particulars, filing 111), which was accompanied by the aforementioned motion to continue the November 13, 2001, trial date (see Mot. to Continue Trial Date, filing 112) and a document entitled "Waiver of Speedy Trial," which was filed on November 9, 2001 (filing 121). After the defendant filed his motion to continue the trial date, but before the defendant filed his "Waiver of Speedy Trial," the magistrate judge granted the defendant's motion to continue the trial. (See Order, filing 113.) The trial was rescheduled for December 10, 2001. (See id.) Meanwhile, on November 21, 2001, the magistrate judge entered an order indicating that, upon reconsideration, the defendant's motion for a bill of particulars should be granted in part. (See Order, filing 124.)
Given the fact that the defendant filed his motion for permission to file a motion for a bill of particulars out of time on June 25, 2001, it seems unlikely to me that the defendant could have reasonably believed that he filed his motion for a bill of particulars on June 22, 2001. (See filing 70.)
On November 16, 2001, Noe Munoz Jr., one of the co-defendants, filed a motion to continue the December 10 trial date. (See Mot. to Continue Trial, filing 123.) This motion was granted, and the trial was rescheduled for January 28, 2002. (See Order on Mot. to Continue Trial, filing 128.) Munoz then moved to continue the trial date from January 28, 2002, to a later date. (See Mot. to Continue Trial, filing 135.) A hearing on this motion was held on January 23, 2002, and at this hearing Munoz moved to withdraw his motion to continue the trial. (See filing 141.) However, the government then moved to continue the trial, and this motion was granted. (See id.) The trial was ordered to be continued indefinitely. (See id.) Then on January 24, 2002, I entered an order as to the defendant, Salvador Ortega, continuing the trial indefinitely. (See Order Continuing Trial, filing 144.)
On January 25, 2002, Fred A. Samway, Pretrial Services Officer, filed a report indicating that the defendant failed to check in pursuant to his release conditions. (See Petition for Action on Conditions of Pretrial Release, filing 145.) A warrant was issued for the defendant's arrest on January 28, 2002. (See id.)
On February 12, 2002, Munoz filed a motion to dismiss the indictment due to "an unnecessary delay in bringing defendant to trial." (Mot. to Dismiss Indictment with Prejudice, filing 148.) I granted this motion on February 28, 2002. (See Mem. and Order on Mot. to Dismiss Indictment with Prejudice, filing 153.) On June 7, 2002, the defendant filed his own motion to dismiss the indictment pursuant to the Speedy Trial Act of 1974, 18 U.S.C.A. § 3161 et seq. (West 2000 Supp. 2002) and the Sixth Amendment. (See filing 163 (untitled).) My analysis of this motion follows.
II. STANDARD OF REVIEW
Under the Speedy Trial Act, a federal criminal defendant must be brought to trial within seventy days from the filing of the indictment or from the date the defendant appears before a judicial officer of the court in which the charge is pending, whichever is later. See 18 U.S.C. § 3161(c)(1); United States v. Cordova, 157 F.3d 587, 598-99 (8th Cir. 1998). However, the seventy-day time period does not begin to run until the last co-defendant makes his initial appearance, so long as the delay is reasonable and no motion for severance has been granted. See 18 U.S.C. § 3161(h)(7); Cordova, 157 F.3d at 599.
Even after the statutory "clock" begins to run, certain delays are excluded from the computation of time within which the defendant must be brought to trial. See 18 U.S.C. § 3161(h). Among the delays that are excluded by the Speedy Trial Act are delays resulting from continuances granted by a judge, see 18 U.S.C. § 3161(h)(8), delays resulting from the absence or unavailability of the defendant, see id. § 3161(h)(3), and delays resulting from pretrial motions, see id. at 3161(h)(1)(F), (J). If a period of delay results from a continuance granted by a judge, the judge must set forth in the record its reasons for finding that "the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial." 18 U.S.C. § 3161(h)(8)(A). If such reasons do not appear in the record, the period of delay resulting from the continuance is not excludable. See id. If a period of delay results from a pretrial motion, the time between the date of the filing of the motion and the "conclusion of the hearing on, or other prompt disposition of, such motion" is excluded from the speedy trial time calculation. 18 U.S.C. § 3161(h)(1)(F). In addition, the "delay reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement by the court" is excluded. 18 U.S.C. § 3161(h)(1)(J).
If a defendant is not brought to trial within the time limit required by section 3161(c) as extended by section 3161(h), the information or indictment shall be dismissed on motion of the defendant. The defendant shall have the burden of proof of supporting such motion but the Government shall have the burden of going forward with the evidence in connection with any exclusion of time under subparagraph 3161(h)(3).18 U.S.C. § 3162(a)(2). Although dismissal is mandatory when a violation of the time limits of the Speedy Trial Act is demonstrated, "the district court has discretion to dismiss the indictment either with or without prejudice, and the Act does not indicate a preference between the two." United States v. Koory, 20 F.3d 844, 846 (8th Cir. 1994) (citing United States v. Hamell, 3 F.3d 1187, 1189 (8th Cir. 1993);United States v. Wiley, 997 F.2d 378, 385 (8th Cir. 1993); United States v. Kramer, 827 F.2d 1174, 1176 (8th Cir. 1987)). "In determining whether or not to bar reprosecution, the Act mandates the district court to consider three factors: `(1) the seriousness of the offense; (2) the facts and circumstances which led to the dismissal, and (3) the impact of reprosecution on administration of the Act and justice in general.' Id. (citing Kramer, 827 F.2d at 1176. See also 18 U.S.C. § 3162(a)(2).
The sixth amendment also guarantees a speedy trial. The Supreme Court has stated that the main factors to be considered in an evaluation of whether the constitutional right to a speedy trial has been violated are the length of the delay, the reason for the delay, whether the defendant asserted his speedy trial right, and prejudice to the defendant.United States v. Jones, 23 F.3d 1307, 1311 (8th Cir. 1994).
III. ANALYSIS
The defendant suggests that he was arraigned on April 5, 2002, and that the time allotted under the Speedy Trial Act began to run on that date. It is true that the defendant appeared before Magistrate Judge Bremer in the Southern District of Iowa on April 5, 2001. However, the Speedy Trial Act provides that the seventy-day limitations period begins to run from the date the defendant appears before a judicial officer of the court in which the charge is pending. See 18 U.S.C. § 3161(c)(1). In this case, the charge against the defendant was pending in the District of Nebraska, and the defendant's initial appearance in this court occurred on April 12, 2001. The time between the defendant's appearance in the Southern District of Iowa and his initial appearance in the District of Nebraska is excludable from the time within which the defendant must be brought to trial under the Speedy Trial Act. See 18 U.S.C. § 3161(h)(1)(G), (H).
Moreover, the defendant was indicted along with a number of co-defendants, the last of whom seems to have appeared initially in this court on May 21, 2001. (See Minutes, filing 57.) It is well-established that, if no motion for severance has been granted, "the speedy trial clock does not begin to run until the date the last codefendant makes an initial appearance, provided that this period of delay is `reasonable.'"United States v. Winfrey, 900 F.2d 1225, 1227 (8th Cir. 1990). See also United States v. Cordova, 157 F.3d 587, 598-99 (8th Cir. 1998); 18 U.S.C. § 3161(h)(7). In this case, the defendant's motion to sever was denied (see Mem. and Order, filing 108), and the defendant has not argued that the 39-day delay between the defendant's initial appearance and the initial appearance of his co-defendant was unreasonable. Since it is the defendant's burden to show the unreasonableness of this delay if he wishes to claim that the intervening time should not be excluded from his speedy trial time calculation, see 18 U.S.C. § 3162(a)(2); United States v. Cordova, 157 F.3d 587, 598-99 (8th Cir. 1998), and since the defendant has not raised this issue, I conclude that the defendant's "speedy trial time" began to run on May 21, 2001.
On April 25, 2001, the defendant filed his motion to suppress evidence. As a result of the events described in Part I above, this motion was not submitted to the magistrate judge until September 14, 2001. The days from April 25, 2001, to September 14, 2001, are properly excluded from the defendant's speedy trial time calculation pursuant to 18 U.S.C. § 3161(h)(1)(F). See United States v. Blankenship, 67 F.3d 673, 676-77 (8th Cir. 1995) (describing an extended exclusion of time under section 3161(h)(1)(F)). Under 18 U.S.C. § 3161(h)(1)(J), the days from the submission of the motion to the magistrate judge on September 14 to the filing of the magistrate judge's report and recommendation on September 28, 2001, (see filing 100), are also excluded from the speedy trial calculation. See Blankenship, 67 F.3d at 676 (noting that the 30-day period of allowable delay attributable to motions under advisement applies to magistrate judges and district judges). Due to the fact that the defendant's speedy trial time did not begin to run until May 21, 2001, it appears that as of September 28, 2001, none of the seventy days allotted by the Speedy Trial Act had lapsed.
Of course, since I have found that the defendant's speedy trial time did not actually begin to run until May 21, 2001, it is technically unnecessary to exclude the days from the filing of the motion to suppress on April 25, 2001, through May 21, 2001, pursuant to section 3161(h)(1)(F).
On September 28, 2001, I took the defendant's motion to suppress under advisement. This marked the beginning of a new period, not to exceed thirty days, for me to consider whether to adopt the magistrate judge's recommendation. See 18 U.S.C. § 3161(h)(1)(J); United States v. Blankenship, 67 F.3d 673, 677 (8th Cir. 1995); United States v. Long, 900 F.2d 1270, 1275 (8th Cir. 1990); United States v. Jones, 23 F.3d 1307, 1311 (8th Cir. 1994). However, the defendant filed an objection to the magistrate judge's recommendation on October 11, 2001. (See Def.'s Statement of Objection to Magistrate Judge's Recommendation, filing 104.) The objection triggered a new thirty-day period of excludable time to permit me to consider the merits of the defendant's objection — a period that began to run once I received all of the parties' submissions associated with the defendant's objection. See United States v. Long, 900 F.2d 1270, 1275 (8th Cir. 1990). On October 30, 2001, I overruled virtually all of the defendant's objections to the magistrate judge's report and recommendation, and I denied the motion to suppress. (See Mem. and Order on Objections to Magistrate Judge's Recommendation, filing 109.) The days from September 28 through October 30, 2001, are not included in the speedy trial calculation. On October 31, for the first time, the defendant's speedy trial time began to run. At this point, the trial was scheduled for November 13, 2001.
On November 6, 2001, the defendant filed a motion for reconsideration of the order denying his motion for a bill of particulars and a motion to continue the November 13, 2001, trial date. The defendant also filed a document entitled "Waiver of Speedy Trial" on November 9, 2001. On November 7, 2001, the magistrate judge granted the defendant's motion to continue the trial, and the trial was rescheduled for December 10, 2001. On November 21, 2001, the magistrate judge entered an order indicating that, upon reconsideration, the defendant's motion for a bill of particulars should be granted in part.
The six days between October 30, 2001 and the filing of the plaintiff's motions on November 6, 2001, are to be included in the defendant's speedy trial time calculation. I find that pursuant to 18 U.S.C. § 3161(h)(1)(F) and (J), the days from November 6 through November 21 are not to be included in the calculation due to the filing of the defendant's motion for reconsideration. However, the magistrate judge's order granting the defendant's motion to continue the trial until December 10, 2001, fails to set forth the "reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial" as required by 18 U.S.C. § 3161(h)(8)(A). (See Order, filing 113.) Therefore, the days from November 22 (the day after the plaintiff's motion for a bill of particulars was resolved) through December 10, 2001, cannot be excluded from the plaintiff's speedy trial calculation.See 18 U.S.C. § 3161(h)(8)(A). These nineteen days, when added to the six days between October 30, 2001, and November 6, 2001, bring the total number of lapsed "speedy trial days" to twenty-five.
The defendant's "Waiver of Speedy Trial" is inadequate to satisfy the requirements of 18 U.S.C. § 3161(h)(8). See United States v. Ray, 768 F.2d 991, 998 n. 11 (8th Cir. 1985) (citing United States v. Carrasquillo, 667 F.2d 382, 389-90 (3rd Cir. 1981)), overruled on other grounds by Henderson v. United States, 476 U.S. 321, 330 (1986).
On November 16, 2001, co-defendant Munoz filed a motion to continue the December 10 trial date. This motion was granted, and the trial was rescheduled for January 28, 2002. However, my order granting this continuance failed to comply with the requirements of 18 U.S.C. § 3161(h)(8)(A). (See Order on Mot. to Continue Trial, filing 128.) Therefore the days from December 10, 2001, through January 28, 2002, cannot be excluded from the speedy trial calculation. These additional forty-nine days bring the total number of lapsed "speedy trial days" to seventy-four.
Additional continuances were granted, and there is evidence that the defendant may have been unavailable for trial as of approximately January 25, 2002. (See supra Part I.) It seems to me, however, that these events are irrelevant, because even if the defendant appeared for trial as scheduled on January 28, 2002, he would not have been brought to trial within the time allotted by the Speedy Trial Act. Indeed, were he brought to trial today, his trial would be untimely under the Act even if his period of unavailability from January 28, 2002, through today were excluded from the calculation pursuant to 18 U.S.C. § 3161(h)(3). Although the defendant did not file his motion to dismiss the indictment pursuant to the Speedy Trial Act until well after January 28, 2002, the fact remains that the defendant has not yet been brought to trial, and therefore he has not waived his right to bring such a motion. See 18 U.S.C. § 3162(a)(2).
A violation of the time limits of the Speedy Trial Act has occurred, and therefore the defendant's motion to dismiss the indictment must be granted. See 18 U.S.C. § 3162(a)(2). I must now determine whether the dismissal should be made with or without prejudice. See id. I have considered the facts and circumstances that led to the dismissal, and I note that a large portion of the delay in bringing the defendant to trial can be attributed to the defendant's pretrial motions and to the defendant's absence as of January 28, 2002. However, the record includes no findings that the delays caused by the series of continuances served the ends of justice. See 18 U.S.C. § 3161(h)(8)(A). I have also considered the impact of a reprosecution on the administration of Chapter 208 of the Speedy Trial Act and on the administration of justice in general, and I find that allowing a reprosecution in this case would eviscerate the specific requirements of 18 U.S.C. § 3161(h)(8). This paragraph states quite clearly that "[n]o such period of delay resulting from a continuance granted by the court in accordance with this paragraph shall be excludable under this subsection unless the court sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial." 18 U.S.C. § 3161(h)(8)(A). To permit a reprosecution of the defendant under these circumstances would offend both the broad purpose and the specific provisions of the Speedy Trial Act, and would not promote the administration of justice. Finally, while the charges against the defendant are serious, I conclude that this factor does not tip the balance in favor of a dismissal without prejudice.
Since I have concluded that the indictment will be dismissed with prejudice in accordance with the Speedy Trial Act, I find that it is unnecessary for me to analyze the defendant's argument that the Sixth Amendment requires the dismissal of the indictment.
IT IS ORDERED that the defendant's motion to dismiss the indictment, filing 163, is granted, and the indictment is dismissed with prejudice.