MEMORANDUM AND ORDER ANN DONNELLY, District Judge.
On March 7, 2016, the Honorable John Gleeson ordered the government to show cause why the defendant's indictment should not be dismissed "on due process grounds in light of the delay in the imposition of sentence." Before me are the parties' submissions on that question. For the reasons that follow, I find that the government has demonstrated that the indictment should not be dismissed, and that this case should proceed to sentencing.
Judge Gleeson retired from the bench on March 9, 2016.
The defendant was charged with various counts of conspiracy and fraud arising out of his participation in a series of staged automobile accidents and fraudulent insurance claims. The defendant went to trial, but after jury selection, on August 12, 2003, he pleaded guilty before the Honorable David Trager to conspiracy to commit mail fraud and to defraud health care benefit providers. Sentencing was set for January 5, 2004. Shortly after his guilty plea, the defendant began cooperating in investigations conducted by the Federal Bureau of Investigation and the United States Postal Inspection Service. As a consequence, sentencing did not take place as scheduled. According to the government, the Assistant United States Attorney assigned to the case left the office in April of 2006, and the FBI's records show that the defendant's last day of "active cooperation" was in July of 2007. For some reason, personnel at the United States Attorneys' office did not become aware that the defendant was no longer cooperating until late 2012 or early 2013.
Judge Trager died in January of 2011.
By that point, the case had been reassigned to the Honorable Sandra Townes, who ordered an expedited presentence report and set the sentencing date for September 20, 2013. About a week before he was to be sentenced, the defendant moved either to dismiss the charges against him or permanently defer sentencing, arguing that the ten year delay between his plea and the proposed sentencing violated his right to due process. In support of his application, the defendant submitted an affidavit detailing the steps he had taken to rehabilitate himself; in the years since his guilty plea, he had been continuously employed, was studying for an occupational science degree, served in the military, and had established a family life with his fiancée and their young children. Citing United States v. Ray, 578 F.3d 184 (2d Cir. 2009), the defendant argued that the imposition of a sentence at this stage would disrupt his life, and could subject him to mandatory deportation to Jamaica.
The government responded that the defendant had not met the standard enunciated in United States v. Ray, supra. The government made four arguments: that the delay was inadvertent, and thus did not weigh as heavily against the government as it would have had the delay been intentional; that the defendant had acquiesced in the delay by continuing his cooperation; that the effect of the delay on the defendant was common to many cooperators; and, finally, that granting the defendant a dismissal would allow him to escape the consequences of his crimes.
On March 18, 2014, Judge Townes denied the defendant's motion and put her reasons on the record. Citing United States v. Ray, Judge Townes explained that the defendant had to show both that the delay in sentencing was not justifiable, and that he was prejudiced by it. Applying this test, she found that the defendant had not presented enough evidence of prejudice. Further, she found that under Ray, his remedy would not have been dismissal of the indictment. She scheduled a sentencing hearing for May 9, 2014.
Due to requests by defense counsel, the sentencing was adjourned several times. The defendant then moved to withdraw his guilty plea on July 20, 2015, alleging ineffective assistance of counsel. On November 17, 2015, the case was re-assigned from Judge Townes to Judge Gleeson. After an evidentiary hearing on February 25, 2016, Judge Gleeson denied the defendant's motion to withdraw his guilty plea and set a sentencing date of March 8, 2016. On March 7, 2016, Judge Gleeson ordered the government to show cause why "the indictment should not be dismissed on due process grounds in light of the delay in the imposition of sentence." As he was retiring from the bench that week, Judge Gleeson also adjourned the sentencing, so that the judge to whom the case was reassigned could set a new date.
One of the adjournments that counsel requested was necessitated by the defendant's re-arrest and pending charges in state court. (See ECF Nos. 81, 82; October 28, 2014 Order.)
The case was reassigned to me on March 15, 2016. The government filed its letter in response to Judge Gleeson's order to show cause on April 4, 2016, and the defendant responded the next day.
I have considered the submissions by the government and the defendant in response to Judge Gleeson's order to show cause, along with the parties' briefing on the defendant's 2013 motion to dismiss the indictment and Judge Townes' March 18, 2014 ruling on the motion. I find that the government has demonstrated that the indictment should not be dismissed due to the delay in sentencing.
Judge Townes already considered and rejected the defendant's motion to dismiss the indictment on these grounds. "[W]hen a court has ruled on an issue, that decision should generally be adhered to by that court in subsequent stages in the same case, unless cogent and compelling reasons militate otherwise." United States v. Quintieri, 306 F.3d 1217, 1225 (2d Cir. 2002) (internal citations and quotes omitted). Reasons justifying the reconsideration of a prior decision include an intervening change of controlling law, new evidence, or the need to correct a clear error or prevent manifest injustice. See United States v. Tenzer, 213 F.3d 34, 39 (2d Cir. 2000) (internal citations and quotes omitted). None of those compelling reasons are present in this case.
The defendant moved to dismiss the indictment on this same ground in September 2013; the motion was briefed and included affidavits. The government opposed the motion. After considering both sides' submissions, Judge Townes denied the defendant's motion, and set forth the reasons for her ruling on the record. Those reasons were supported by the law and the evidence. Indeed, this case is distinguishable from United States v. Ray, upon which the defendant relies. Ray was not cooperating with the government, and the delay attributable to government inadvertence was far longer than that which occurred here. The Second Circuit emphasized the narrowness of its holding in Ray, stating that "[e]ven substantial delays in sentencing do not in all circumstances amount to a due process violation, especially when a defendant has not timely requested timely sentencing and is unable to establish prejudice of the sort implicated here." 578 F.3d at 202.
Not only was Judge Townes's decision supported by precedent, but there has been no change in the applicable law, no newly discovered evidence, and no manifest injustice. Judge Townes's decision is the law of the case, and the defendant has presented no "cogent and compelling reason" that would justify a departure from the prior decision of this Court. See Quintero, 306 F.3d at 1225.
In a May 19, 2016 decision, the Supreme Court found that the Sixth Amendment right to a speedy trial does not apply to the sentencing phase of a criminal prosecution because, at that point, the defendant is no longer entitled to a presumption of innocence. Betterman v. Montana, 578 U.S. ___, at 1 (2016). In reaching its decision, the Court did observe that a defendant facing sentencing "retains an interest in a sentencing proceeding that is fundamentally fair," but reaffirmed the principle that "it would be an unjustified windfall, in most cases, to remedy sentencing delay by vacating validly obtained convictions. Id. at 7, 11; see also Bozza v. United States, 330 U.S. 160, 166 (1940). The Court acknowledged that a defendant may have recourse for a sentencing delay under the due process clauses of the Fifth and Fourteenth Amendments, but as the issue had not been preserved on appeal, the Court did not reach it. Of course, Betterman is not a change to the established law of this Circuit; the Second Circuit decided Ray in 2009, holding that the constitutional right to a speedy trial does not apply to sentencing proceedings, but that a remedy for a sentencing delay may be had, in certain narrow circumstances, under the due process clause of the Fifth Amendment. Ray, 578 F.3d at 198-199, 202.
Moreover, any delay in sentencing after Judge Townes's decision is primarily due to the defendant's motions, including his motion to withdraw his guilty plea, and other requests for adjournments of the sentencing date. (See ECF Nos. 72, 74, 79, 82, 90, 92, 94.) As these delays were largely attributable to the defendant, they do not constitute an unjustifiable reason for delay. See United States v. Paul, 634 F.3d 668, 675 (2d Cir. 2011) (explaining that "[t]he fourth and final year of the delay" was "attributable solely to [the defendant's] requests for adjournments," and therefore did not weigh in favor of a finding of unjustified delay).
Although the government also requested extensions during this time period, the defendant does not appear to have opposed these requests. Indeed, the government's motions requesting these extensions generally indicate that the defendant consented to them. (See ECF 69, 91, 97.) --------
I therefore find that the government has shown cause why the indictment should not be dismissed due to sentencing delays. This case is set for sentencing on June 10, 2016 at 2:30 p.m.
s/Ann M. Donnelly
Ann M. Donnelly
United States District Judge Dated: Brooklyn, New York
May 23, 2016