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UNITED STATES v. RAMOS

July 10, 1984

UNITED STATES OF AMERICA against IRIS RAMOS, Defendant.


The opinion of the court was delivered by: KRAM

MEMORANDUM OPINION AND ORDER

SHIRLEY WOHL KRAM, U.S.D.J.

 The above-captioned action is before this Court upon the motion of defendant, filed contemporaneously with her arraignment on and the assignment of the indictment herein, for dismissal of the indictment for violation of her right to a speedy trial. For the reasons stated below, the motion is denied.

 BACKGROUND

 This case followed a somewhat confused path before reaching the criminal docket of this Court. A brief description of that path is necessary for an understanding of the motion currently before the Court.

 On April 19, 1983, a complaint was filed charging the defendant and Sinecio Brown-Cabrera with conspiring to violate sections 1001 and 1546 of Title 18, United States Code, by filing false petitions with the Immigration and Naturalization Service ("INS"), in violation of section 371 of Title 18, United States Code. Warrants were issued for the arrest of the defendant and Brown-Cabrera on that day.

 Defendant was arrested pursuant to the warrant on April 25, 1983, and was arraigned, along with Brown-Cabrera, later that day before Magistrate Tyler. Defendant and Brown-Cabrera were released after posting bail on the same day.

 Following this presentment, information was exchanged between the Government and counsel for the respective defendants. A series of continuances was sought by the Government, and consented to by defendant and Brown-Cabrera, to facilitate plea discussions and to move toward the ultimate disposition of the case. The continuances excluded the period of time from May 25, 1983, through September 28, 1983, from any speedy trial calculations pursuant to 18 U.S.C. § 3161(h)(8)(A).

 On September 28, 1983, apparently pursuant to plea negotiations, defendant was named in a one-count information, 83 Cr. 605, charging her with the misdemeanor offense of conspiring to violate section 1325 of Title 8, United States Code, in order to cause the illegal entry of aliens into the country, in violation of section 371 of Title 18, United States Code. Brown-Cabrera, on the other hand, was indicted for the felony offense and his case was assigned to another district judge, 83 Cr. 461.

 On October 7, 1983, defendant waived her right to a trial before a district judge and attempted to enter a plea of guilty to the information before Magistrate Bernikow. Apparently defendant failed to allocute adequately to the crime charged, however, and her plea was not accepted.

 One week later, on October 14, 1983, defendant again attempted to plead guilty to the information. This time Magistrate Washington was unable to accept the plea.

 On October 21, 1983, defendant again waived her right to trial before a district judge, and, before Magistrate Buchwald, entered a plea of guilty to the information. Magistrate Buchwald then set a sentencing date of December 2, 1983.

 On December 2, 1983, Magistrate Buchwald approved a substitution of counsel for defendant and adjourned the sentencing on defendant's plea.

 On March 2, 1984, after two additional adjournments of the sentencing on defendant's plea, Ramos applied for permission to withdraw her plea. Defendant had been advised by counsel of the possibility that she would be prosecuted on felony charges, but she chose to withdraw her plea anyway. Magistrate Buchwald eschewed finding any substance to defendant's claim that she was coerced by her former attorney to enter the guilty plea, but granted her application to withdraw the plea as a matter of discretion. Magistrate Buchwald further found, just in case it was necessary,* that all the time between the filing of the information and the withdrawal of her guilty plea was excludable for speedy trial calculations, since the information was filed in contemplation of a plea. Defendant consented to that finding.

 On March 29, 1984, the Government wrote to Magistrate Gershon, to whom the information had been assigned following defendant's withdrawn plea. In that letter the Government noted its intention "to seek a superceding [sic] indictment of defendant Ramos charging her with the ...


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