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October 21, 1998

UNITED STATES OF AMERICA, against DAVID RIVERA, a/k/a "Daul," Defendant.

The opinion of the court was delivered by: SCHWARTZ



 In a one count indictment, the Government charges defendant David Rivera with conspiracy to distribute and possess with intent to distribute a controlled substance in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(A). Defendant has moved to dismiss the indictment with prejudice on the grounds that the Government has failed to comply with the speedy trial provisions of the Sixth Amendment and 18 U.S.C. §§ 3161(b) and 3162(a)(1). For the reasons set forth below, defendant's motion is granted.


 The facts material to defendant's motion appear, for the most part, to be undisputed.

 In December 1996, New York Drug Enforcement Task Force agents arrested numerous members of the "Watson Avenue Family," a group of individuals who sold heroin in the vicinity of Watson and Elder Avenues in the Bronx. One of those arrested was defendant's brother, Israel Rivera, who, according to the Complaint, was known as "Daul." (Sealed Compl. in United States v. Castellano ("Castellano Compl."), 96 Mag. 2321.) Subsequent to the arrest, the agents learned that "Daul" was, in fact, a name used by defendant David Rivera (Hearing Tr. at 149); accordingly, Israel Rivera was released from custody.

 In addition, in December 1996, a defendant in Castellano informed the agents that "Daul" was serving in the United States Army Reserves. (Sealed Compl. in the instant action ("Compl.") P 8.) By a date no later than March 1997, the Government was aware that defendant David Rivera had been activated to full duty in the Army, and was serving in Hungary as part of the Bosnia campaign. (Id. at PP 10, 11; Hearing Tr. at 149-52 (test. of AUSA Hillebrecht).) Mr. Rivera was not arrested until October 23, 1997, *fn1" (Docket Sheet at 2), when he arrived at Atlanta Airport after finishing his tour of duty in Europe, (Affirmation of Elizabeth M. Fink ("Fink Aff.") P 2).

 On November 4, 1997, Mr. Rivera was brought to Westchester County Jail ("Valhalla"). (Id. at P 4.) On November 7, 1997, he was arraigned before a magistrate judge. (Id. at P 5.) On that date, an attorney, Elizabeth Fink, Esq., was assigned Mr. Rivera's case pursuant to the Criminal Justice Act. (Id. at P 6.) In early December 1997, John Hillebrecht, the Assistant United States Attorney assigned to the case, spoke by telephone with Ms. Fink, who agreed to a one month continuance, from December 8, 1997 to January 7, 1998, in order to consider the Government's request that Mr. Rivera cooperate in a separate RICO investigation. (Id. at P 11.) Magistrate Judge Ronald L. Ellis entered an Order of Continuance on December 8, 1997.

 On January 7, 1998, the AUSA on "calendar duty" advised Magistrate Judge Sharon E. Grubin that plea discussions were ongoing and that the defendant consented to an additional 30-day adjournment. Based upon the AUSA's representations, Magistrate Judge Grubin continued the case until February 6, 1998. The same scenario was repeated before Magistrate Judge Andrew J. Peck on February 6th, Magistrate Judge Michael H. Dolinger on March 9th, and Magistrate Judge Douglas F. Eaton on April 8th. On May 8, 1998, based upon the AUSA's representation that she had defendant's consent and that "serious plea discussions are continuing," Magistrate Judge Theodore H. Katz granted an additional 30-day continuance, but stated that no further adjournments would be granted without a detailed affidavit. On June 8, 1998, the AUSA informed Magistrate Judge Grubin that he had defendant's consent to a further 30-day continuance and that "a plea agreement has been negotiated; the parties are working to finalize that agreement." Magistrate Judge Grubin dismissed the complaint for failure to comply with Magistrate Judge Katz's order. *fn2"

 In point of fact, however, defense counsel had consented only to the original adjournment until January 7, 1998. AUSA Hillebrecht did not, thereafter, obtain explicit consent from Ms. Fink to any further continuance. (Affirmation of John M. Hillebrecht ("Hillebrecht Aff.") P 9.) Subsequent to the initial continuance, Ms. Fink never, orally or in writing, consented to a further adjournment. She was never informed of, nor was she present on, any of the dates on which the case appeared on the calendar in Magistrate's Court. Nor did Ms. Fink receive notice of the continuances that were granted, despite notations on the docket sheet indicating that copies were mailed. (Letter from AUSA Maria P. Horn dated Oct. 1, 1998.) As is discussed infra, there is also considerable question as to the accuracy of the statements made by the Government to the magistrate judges on the May and June calendar days regarding the status of plea negotiations.

 Mr. Rivera filed the instant motion on August 17, 1998. The Court, on September 25, 1998, set this motion down for a hearing. On October 6th and 7th, the Court heard testimony from Ms. Fink, AUSAs John Hillebrecht, Jamie Kogan and Paul Radvany; Mr. Rivera and his mother, Carmen Garcia de Palar; and Betty Villano, Supervisory Paralegal Specialist in the U.S. Attorney's Office. The Court also heard oral argument on the motion on October 14, 1998.


 The Speedy Trial Act ("the Act") requires that "any information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which the individual was arrested or served with a summons in connection with such charges." 18 U.S.C. § 3161(b). The Act provides that this time may be extended "if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial." 18 U.S.C. § 3161(h)(8)(A). In granting an extension under § 3161(h)(8)(A), the court must state its reasons, either orally or in writing, for finding that the continuance is warranted. Id. If an indictment is not filed within the time limit required by § 3161, the charges against that individual "shall be dismissed or otherwise dropped." 18 U.S.C. § 3162(a)(1).

 In the instant matter, the magistrate judges who granted the continuances were told that defendant had consented to the request, when in fact he had not. AUSA Hillebrecht admits that he had not obtained Ms. Fink's explicit consent, but rather had made certain assumptions:

Based on the conversation with Ms. Fink [during which Ms. Fink agreed to the original adjournment], as well as subsequent conversations that I or AUSA Jamie Kogan had with Ms. Fink, I believed in each instance that I accurately and truthfully represented to the Court that the defendant desired the Government to defer indictment until he decided how he wished to proceed and that he consented to each adjournment with a view towards reaching that goal.

 (Hillebrecht Aff. P 5.)

I believed that the defendant had consented to a continuance pending a decision as to whether or not to cooperate or enter a plea pursuant to the terms of the global plea. Based on that belief, I failed to ask expressly whether the defendant consented to each and every ...

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