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UNITED STATES v. LAINEZ-LEIVA

March 13, 1997

UNITED STATES OF AMERICA
v.
FRANCISCO LAINEZ-LEIVA, Defendant.



The opinion of the court was delivered by: SCULLIN

 Introduction

 This is a criminal action in which the Defendant is charged with illegal reentry of a deported alien, in violation of 8 U.S.C. § 1326. Presently before the Court is the Defendant's motion to dismiss the indictment with prejudice pursuant to the Speedy Trial Act, 18 U.S.C. §§ 3161(j) & 3162(b), Fed. R. Crim. P. 48(b), the Speedy Trial Clause of the Sixth Amendment to the United States Constitution, and the Interstate Agreement on Detainers (IAD) (Appendix 2 to Title 18 of the United States Code). *fn1"

 Background

 On July 22, 1994, the Defendant, Francisco Lainez-Leiva, was convicted in New York State on a charge of illegal possession of a weapon. He was sentenced to 3-1/2 to 7 years of incarceration. On April 17, 1996, while the Defendant was serving his state sentence, Indictment No. 96-CR-120 (FJS) was filed with this Court, charging the Defendant with illegal reentry of a deported alien. Despite the Government's admitted knowledge of his incarceration, the Defendant received no notice of the indictment at that time.

 On January 8, 1997, the State of New York, Division of Parole, granted the Defendant "Conditional Parole for Deportation Only" making the Defendant eligible for release to the Immigration and Naturalization Service. On January 14, 1997, the Government sought a writ to obtain custody of the Defendant in order to arraign him on the instant federal charge. Pursuant to that application, a writ was issued and the Defendant was brought before Magistrate Judge Ralph W. Smith on January 17, 1997. *fn2" This motion for dismissal was made at that time and was referred to the undersigned Judge by Judge Smith.

 Discussion

 As stated, the Defendant asks this Court to dismiss the instant indictment on the grounds that the Government has allegedly violated the Speedy Trial Act, 18 U.S.C. §§ 3161(j) & 3162(b), Fed. R. Crim. P. 48(b), the Speedy Trial Clause of the Sixth Amendment, and the Interstate Agreement on Detainers. The Court will evaluate these claims seriatim.

 I. Speedy Trial Act

 Defendant first argues that the instant indictment should be dismissed as a remedy for the Government's violation of 18 U.S.C. §§ 3161(j). Section 3161(j) provides:

 
"if the attorney for the Government knows that a person charged with an offense is serving a term of imprisonment in any 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."

 In this case, the Government does not dispute that it made no effort to obtain the presence of the Defendant for trial. The Government also admits that although unintentional, no detainer was filed with the state prison officials detaining the Defendant. Therefore, based upon the undisputed facts of this case, the Court finds that the Government has indeed violated the express terms of 18 U.S.C. §§ 3161(j).

 However, while the sanctions provision of the Speedy Trial Act, 18 U.S.C. § 3162, specifically provides for dismissal of the indictment in the event that the Government violates §§ 3161(b) or 3161(c) (which contain time limits for filing informations or indictments following an individual's arrest, and a time limit for bringing a defendant to trial, respectively), § 3162 provides no such sanction for a violation of § 3161(j). *fn3" Moreover, the prevailing policy established by other circuits is not to dismiss an indictment for a violation of § 3161(j). See, United States v. Valentine, 783 F.2d 1413, 1415-6 (9th Cir. 1986); United States v. Dawn, 900 F.2d 1132, 1134-5 (7th Cir.), cert. denied, 498 U.S. 949, 112 L. Ed. 2d 330, 111 S. Ct. 368 (1990); see also United States v. Guzman, 85 F.3d 823, 828 n. 4 (1st Cir.), cert. denied, 136 L. Ed. 2d 422, 117 S. Ct. 537 (1996).

 Therefore, based upon the explicit language of 18 U.S.C. § 3162 and the precedent outside of this circuit, this Court finds that dismissal of the indictment in this case is not an appropriate remedy for the Government's ...


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