United States District Court, S.D. New York
August 1, 2005.
UNITED STATES OF AMERICA,
ANTONIO OLMEDA, Defendant.
The opinion of the court was delivered by: LAWRENCE McKENNA, District Judge
MEMORANDUM AND ORDER
Both the government and defendant move for reconsideration of
the Court's Memorandum and Order of May 24, 2005, familiarity
with which is assumed. Reconsideration is granted to both the
government and defendant, and, as to each, on reconsideration,
the Court adheres to its original determination.
While it is no doubt true (and is not at all surprising) that
the usual prejudice underlying a claim of the violation of the
due process right to a speedy trial is in "the loss of
documentary evidence or the unavailability of a key witness,"
United States v. Cornielle, 171 F.3d 748, 752 (2d Cir. 1999)
(citations omitted) category, none of the cases cited by the
parties say that that is the only sort of prejudice to be
considered. In Cornielle, the Court of Appeals thought it to
the point to discuss the prejudice there claimed "the situation
where a defendant insists he has rehabilitated himself after
release from prison on state charges, and that he justifiably
relied on no further charges being brought because of the passage of time" (id.) even though, after
careful discussion, it rejected it.
On the present record, there appears no reason for the delay in
indicting defendant until over two years after the evidence was
in hand*fn1 and defendant had served his Eastern District of
North Carolina sentence other than to subject him to greater
punishment than the maximum guideline sentence that could have
been imposed in that district even had the New York City
ammunition been proved, and which sentence was, in fact, imposed.
The Court is not persuaded that that cannot as a matter of law be
a due process violation.
All of the parties' other arguments have been adequately
addressed in the May 24, 2005 Memorandum and Order.*fn2