United States District Court, S.D. New York
June 7, 2005.
UNITED STATES OF AMERICA
ENRIQUE CARLOS MORA, a/k/a "Carlos Jordan," a/k/a "Carlos Lasalle," Defendant.
The opinion of the court was delivered by: LORETTA PRESKA, District Judge
OPINION AND ORDER
Defendant Enrique Carlos Mora moves pursuant to the Speedy
Trial Act, 18 U.S.C. §§ 3161 and 3162, for an order dismissing
the indictment against him with prejudice. The instant dispute
arises from the application of two provisions of § 3161(h) (1)
that relate to the time that may be excluded following submission
of a pretrial motion. Defendant argues that the Speedy Trial Act
was violated because only 30 days were excludable pursuant to §
3161(h) (1) (J) following full briefing of his pretrial motion.
The Government contends that the entire period following the
filing of the motion is excludable pursuant to § 3161(h) (1) (F).
For the reasons set forth below, Defendant's motion is granted in
part and denied in part. BACKGROUND
On May 19, 2004, Enrique Carlos Mora ("Mora" or "Defendant")
appeared before Magistrate Judge James C. Francis following his
arrest. On June 3, 2004, a grand jury returned an indictment
charging Mora with one count of receiving and distributing child
pornography in violation of 18 U.S.C. § 2252A(a) (2) (B) and one
count of possessing child pornography in violation of
18 U.S.C. § 2252A(a) (5) (B). Mora was arraigned on the indictment on June
16, 2004. At the arraignment, time was excluded from calculation
under the Speedy Trial Act until June 28, the date set for the
first pretrial conference. Thus, 13 days passed on the Speedy
Trial Act clock between the issuance of the indictment and
arraignment. At the June 28 conference, time was excluded until
August 9, the date for the next status conference. On August 9, a
status conference was held at which time was excluded until
September 22, the date set for the next pretrial conference. The
September 22 conference never occurred. On October 6, the
conference previously scheduled for September 22 was rescheduled
for November 4, and time between October 6 and November 4 was
excluded from calculation under the Speedy Trial Act.
Consequently, an additional 14 non-excludable days elapsed
between September 22 and October 6.
During the November 4 conference, counsel for Defendant
indicated to the Court his intention to file "either one or two" motions. Govt. Opp. Memo., Ex. A.*fn1 The parties agreed to the following
briefing schedule: Defendant would file his motion(s) on or before December
10; the Government would submit its opposition brief on or before December
27; Defendant would submit his reply, if any, by January 3, 2005. Govt. Opp.
Memo., Ex. A. Counsel for Defendant indicated to the Court that one of his
potential motions may require a hearing; the other would not. Govt. Opp.
Memo., Ex. A. Both counsel agreed to contact the Court for a hearing or oral
argument. At the conclusion of the conference, time was excluded from
November 4 through December 10 in the interest of justice to allow defense
counsel to prepare his pretrial motion(s).
On December 9, counsel for Defendant submitted a letter requesting that
the deadline for filing motions be extended to December 17 and that the
Government be given until January 3 to respond.*fn2 The request was granted
and time was excluded until December 17.*fn3 Defendant moved to suppress physical evidence on December 17.
The Government submitted its brief in opposition to Defendant's
motion on January 3, 2005. Defendant did not file a reply brief.
Neither party requested a hearing in their briefs, nor did either
party contact chambers with such a request.
On April 18, 2005, Defendant moved to dismiss the indictment, alleging
that 108 non-excludable days had elapsed since the issuance of the
indictment. The Government submitted its opposition on April 29, contending
that only 27 non-excludable days had elapsed and, therefore, that the
indictment should not be dismissed.
I. The Speedy Trial Act
The Speedy Trial Act requires that a defendant be tried within
70 days of "the filing date (and making public) of the
information or indictment, or from the date the defendant has
appeared before a judicial officer of the court in which such
charge is pending, whichever date last occurs."
18 U.S.C. § 3161(c) (1). Certain periods of delay are excludable from this
calculation under § 3161(h). Relevant to the instant motion are §
3161(h) (1) (F) ("Subsection (F)") and § 3161(h)(1)(J) ("Subsection
Subsection (F) excludes "delay resulting from any pretrial motion, from the filing of the motion through the
conclusion of the hearing on, or other prompt disposition of,
such motion." 18 U.S.C. § 3161(h)(1)(F). Subsection (J) excludes
"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."
18 U.S.C. § 3161(h)(1)(J). The question raised by this case is the extent to
which Subsection (J) limits the time that should be excluded from
calculation under the Speedy Trial Act following the filing of a
pretrial motion for which a hearing is never held.
The Court of Appeals addressed this question in United States
v. Bufalino, 683 F.2d 639 (2d Cir. 1982).*fn4 There, the
Court considered facts similar to those of the instant case.*fn5 The
Government argued to the Court that Subsections (F) and (J) should not be read together because Subsection (J), which imposes
the 30-day limit on proceedings under advisement by the court,
refers to proceedings other than those related to pretrial motion
practice. Id. at 642. In response, the Court observed that
while "a cursory reading of the two subsections lends some
support to the government's position, a careful look at the
legislative history of the Speedy Trial Act and its 1979
amendments makes that theory untenable." Id. After extensively
citing the relevant House and Senate reports, the Court of
Appeals concluded that the legislative history "make[s] it clear
to us that the term `proceeding' in subsection (J) was very much
intended to encompass pretrial motions." Id. at 643.*fn6
In so holding, the Court found that should "the 30-day limit place an unduly harsh burden on a trial judge, it is always open to
him to find that the interest of justice is best served by granting a
continuance under § 3161 (h)(8) for the excess period." Id.
Four years later, the Supreme Court observed that "Subsection
(F) excludes time in two situations. The first arises when a
pretrial motion requires a hearing . . . [t]he second situation
concerns motions that require no hearing and that result in
`prompt disposition.'" Henderson, 476 U.S. at 329. For those
motions requiring a hearing, subsection (F) excludes the entire
period between the filing of the motion and the conclusion of the
hearing.*fn7 Id. The Court held that for motions that do
not require a hearing, "the `point at which time will cease to be
excluded, is identified by [S]ubsection (J), which permits an
exclusion of 30 days from the time a motion is actually `under
advisement' by the court." Id. (quoting S. Rep. No. 96-212, at
34 (1979)). This rule captures the express intent of the Senate
Committee on the Judiciary, which stated:
`In using the words `prompt disposition', the
committee intends to make it clear that, in excluding
time between the filing and disposition on the
papers, the Committee does not intend to permit
circumvention of the 30-days, `under advisement'
provision contained in Subsection (h)(1)(J). Id. The Supreme Court and the Court of Appeals have thus made
clear that pretrial motions not requiring a hearing should be
decided within 30 days of a court having taken such motion under
advisement.*fn8 Two questions naturally follow: (1) when
does a motion require a hearing; and (2) when is a motion deemed
to be taken under advisement?
Nothing in the Speedy Trial Act or federal precedent requires a
trial court to make an on-the-record determination that a motion
does or does not require a hearing. See United States v.
Maxwell, 351 F.3d 35, 39 (1st Cir. 2003). Instead, "the crucial
question concerning the exclusions provided by Subsection (F) and
Subsection (J) "is whether the court actually holds a hearing on
a motion." United States v. Grosz, 76 F.3d 1318, 1325 (5th Cir.
1996). In this context, a hearing consists of "any on-the-record
colloquy in which the district court hears the arguments of
counsel and considers those arguments prior to deciding a pending
motion." United States v. Staula, 80 F.3d 596, 602 (1st Cir.
1996). This definition of "hearing" is consistent with Congress'
intent that Subsection (F) encompass all pretrial motions and
exclude the time consumed in placing a court in a position to decide such motions. See Grosz,
76 F.3d at 1324-25 (citing Henderson, 476 U.S. at 331).
Turning to the second issue that must be addressed to
effectively calculate time under Subsection (J), a motion is
deemed to have been taken under advisement when "the court
receives all the papers it reasonably expects." Henderson,
476 U.S. at 329; see also United States v. Pagan, 714 F.2d 225,
226-27 (2d Cir. 1983) (although trial judge was not compelled to
find that motion was taken under advisement as of the date the
Government's response was due, judge did not commit error in so
finding); United States v. Oberoi, 295 F. Supp. 2d 286, 300
(W.D.N.Y. 2003) (finding motion to have been taken under
advisement as of the date of the hearing thereon); United States
v. Cruz, 907 F. Supp. 87, 90 (S.D.N.Y. 1995) (motion for a
hearing under advisement once answered by the government). As
discussed in note 6, supra, performing the calculation in this
manner is consistent with the guidelines prepared by the Judicial
Council Speedy Trial Act Coordinating Committee. Judicial Council
Speedy Trial Act Coordinating Committee, Guidelines Under the
Speedy Trial Act (1979), reprinted in The Speedy Trial Act
Amendments of 1979: Hearings on S. 961 and S. 1028 Before the
Senate Comm. on the Judiciary, 96th Cong., 1st Sess. 386, 398-99
(stating that the time excluded when a motion is pending for
which there is no oral argument ends on "the due date of the reply papers."). Although these guidelines "do not have the force
of law, they are entitled to appropriate respect." United States
v. Todisco, 667 F.2d 255, 260 (2d Cir. 1981).
Applying the holdings of Henderson and Bufalino to the
instant facts leads to the conclusion that the above-referenced
indictment must be dismissed. The entire period between the
filing of Mora's suppression motion and the filing of the instant
motion is not excludable under Subsection (F) because a hearing
was never held on the motion.
The Government's argument that the parties and the Court
contemplated a hearing or oral argument is unpersuasive in view
of the facts. Looking back at defense counsel's statement at the
November 4 conference, it is clear that the suppression motion is
the motion he anticipated "would probably not require an
evidentiary hearing." Govt. Opp., Ex. A. Neither party requested
such a hearing and, having reviewed the suppression motion, there
is no independent basis for such a hearing. I decline, and the
Government should decline, to hold a hearing simply to avoid
dismissal of an indictment for violation of the Speedy Trial Act.
See Grosz, 76 F.3d at 1325 n. 7 ("[W]e will not permit either
the district court or the prosecution to jerry-build a `hearing'
in order to thwart the concinnous operation of the Speedy Trial Act."); Staula, 80 F.3d at 602 n.
3 ("We acknowledge that we would not recognize the exchange as a
`hearing' if the record demonstrated an attempt on the part of
the district court or the government to manufacture a `hearing'
to avoid the operation of the Speedy Trial Act.").
For calculation purposes, the suppression motion should be
deemed to have been "under advisement" as of January 11, the date
following the deadline for Defendant's reply brief. Although
Defendant never submitted a reply brief, he had until January 10
to do so. When January 10 passed without the filing of a brief in
reply to the Government's opposition, neither the Court nor the
Government could "reasonably expect" to receive additional
submissions on the motion.*fn9 Henderson, 476 U.S. at 329.
Accordingly, the motion must be deemed to have been "under advisement" as of January 11. Because the motion was not
decided within 30 days and no other exclusions were made pursuant
to § 3161(h), the Speedy Trial Act clock restarted on February
11. Between February 11 and April 18, 65 non-excludable days
elapsed. Thus, a total of 92 non-excludable days passed after the
filing and making public of the indictment, thereby violating §
3161(c) of the Speedy Trial Act. The indictment against Defendant
must, therefore, be dismissed pursuant to § 3162(a)(2).
II. Dismissal of the Indictment
A. The Standard
Having found that the indictment against Mora must be dismissed
for violation of the Speedy Trial Act, I must decide whether to
dismiss it with or without prejudice. There is no presumption of
dismissal with prejudice in this Circuit. See United States v.
Caparella, 716 F.2d 976, 980 (2d Cir. 1983). Instead, the
determination of whether the dismissal should be with or without
prejudice to reprosecution must be based on: "(1) the seriousness
of the offense; (2) the facts and circumstances of the case which
led to the dismissal; ? (3) the impact of a reprosecution on the
administration of this chapter and on the administration of
justice," 18 U.S.C. § 3161(a) (2), and (4) the prejudice to
Defendant. See United States v. Taylor, 487 U.S. 326, 334
(1988) ("[T]here is little doubt that Congress intended this factor to be relevant for a district court's
With respect to the seriousness of the offense charged, I
decline to hold that distributing, receiving, and possessing
child pornography are not serious crimes. Defense counsel argues
that in relation to the gravity of other offenses involving the
sexual exploitation of children, Defendant's conduct is
relatively benign. To support this position, counsel points out
that there is no evidence showing that Defendant paid for the
images he allegedly possessed or that he directly encouraged
anyone to produce such materials.
However, child pornography web sites that allow viewers to
download images at no charge make money from advertisements in
addition to subscriptions. See 61 Am. Jur. Proof of Facts 3d
51. Such advertising revenue surely depends, in part, on the
traffic a given website receives. It is possible that defense
counsel's argument would have more persuasive weight had
Defendant been in possession of a book or magazine published in
the distant past. Instead, Defendant is accused of engaging in
conduct that actively fuels the growth of an already flourishing
internet child pornography trade. See United States v.
Holston, 343 F.3d 83, 85 (2d Cir. 2003) ("Congress also found
that `because of the vast potential profits in child pornography' . . . the [child
pornography] industry was `growing at a very rapid rate.'")
(quoting S. Rep. 95-438, at 5 (1977), reprinted in 1978
U.S.C.C.A.N. 40, 42-43). "The distribution network for child
pornography must be closed if the production of material which
requires the sexual exploitation of children is to be effectively
controlled." New York v. Ferber, 458 U.S. 747, 759 (1982).
Moreover, the effect of the child pornography trade on its
victims cannot be minimized; the continued existence of the
materials "causes the child victims continuing harm by haunting
the children in years to come." Osborne v. Ohio, 495 U.S. 103,
111 (citing Ferber, 458 U.S. at 759). For these reasons, the
offense charged is sufficiently serious to support dismissal
The second factor, a consideration of the facts and
circumstances that led to dismissal of the indictment, does not
favor dismissal with prejudice. "[I]n the absence of a factually
supported finding of bad faith or a pattern of neglect by the
local United States Attorney," an isolated inadvertent violation
of the Speedy Trial Act "cannot support a decision to dismiss
with prejudice." United States v. Hernandez, 863 F.2d 239, 244
(2d Cir. 1988). Considering that the Government's inaction was
based on the incorrect belief that the pendency of any pretrial
motion stopped the running of the Speedy Trial Act clock, I do not find that the delay was the result of bad faith on the part
of the Assistant U.S. Attorney or a pattern of neglect in the
U.S. Attorney's Office in this District. To the contrary, the
dearth of similar Speedy Trial Act cases in this District
supports the opposite conclusion.
Turning to the effect of a dismissal with or without prejudice
on the administration of justice, I note that this factor is
closely aligned with the facts that led to dismissal; the more
egregious the Government's role in the violation and the more
severe the delay, the more dismissal with prejudice is warranted.
See Taylor, 487 U.S. at 342; United States v. Wilson,
11 F.3d 346, 352 (2d Cir. 1993) (holding that a court may properly
consider the length and cause of delay in determining whether
dismissal with prejudice will best serve the administration of
justice). Defendant argues that dismissal without prejudice would
reward the Government for its neglect by restarting the Speedy
Trial Act clock. However, "[d]ismissal without prejudice is not a
toothless sanction: it forces the Government to obtain a new
indictment if it decides to reprosecute, and it exposes the
prosecution to dismissal on statute of limitations grounds."
Taylor, 487 U.S. at 342. Although "[f]orcing the government to
reindict a defendant after a Speedy Trial Act violation may seem
a `purposeless formalism,' . . . it is the sanction Congress saw
fit to impose." Gambino, 59 F.3d at 363 (internal citation omitted). Considering that the
Government did not act with bad faith or engage in a pattern of
disregard for the limitations of the Speedy Trial Act, I do not
find that dismissal with prejudice would further the
administration of justice.
The final factor to be considered is the prejudice to
Defendant. See Taylor, 487 U.S. at 334. The delay in this
case has visited no appreciable prejudice on Mora's defense. The
evidence is largely physical, and Defendant has not identified
defense witnesses whose testimony may have been prejudiced by the
delay. For this factor to weigh in favor of dismissal with
prejudice, Defendant would have to make a showing of prejudice
beyond the ongoing uncertainty inherent in facing pending
criminal charges. Accordingly, the prejudice that has befallen
Defendant as a result of the violation of the Speedy Trial Act is
minimal and does not warrant dismissal with prejudice.
Having considered the factors set forth in § 3161(a)(2) and
United States v. Taylor, the indictment against Defendant is
dismissed without prejudice to reprosecution. CONCLUSION
For the foregoing reasons, it is hereby ORDERED that the
indictment against Defendant, 04 Cr. 00530, is dismissed without