The opinion of the court was delivered by: John T. Elfvin S.U.S.D.J.
Defendants Juan Jimenez, Victor Quinones ("Quinones"), Richard Vega ("Vega")*fn2 and Osvaldo Jimenez a/k/a Jesus Quiernan ("Osvaldo Jimenez") are charged in a three-count indictment with conspiracy to possess with intent to distribute and to distribute 100 grams or more of a mixture and substance containing heroin in violation of 21 U.S.C. §846, possession with intent to distribute and distribution of a mixture and substance containing heroin in violation of 21 U.S.C. §841(a)(1) and 18 U.S.C. §2 and with possession with intent to distribute 100 grams or more of heroin in violation of 21 U.S.C. §§841(a)(1) and (b)(1)(B) and 18 U.S.C. §2.
On February 14, 2006 Juan Jimenez filed the instant motion to dismiss the indictment, in which Quinones joined on February 15, 2006, Vega joined on February 16, 2006 and Osvaldo Jimenez joined on February 17, 2006. Defendants argue that various delays in the administration of the case collectively result in violations of the Speedy Trial Act as well as of their Sixth Amendment right to a speedy trial.
The government submitted an affidavit in opposition to the motion on April 13, 2006 and defendant Quinones submitted a reply affidavit on April 14, 2006. The Court heard oral argument on the motion on April 21, 2006. For the following reasons, the Court concludes that defendants' motion to dismiss the indictment on speedy trial grounds will be granted and that such dismissal will be without prejudice.
Defendants were arrested on January 4, 2005 and charged in a criminal complaint on January 5, 2005 with the offenses described supra. They were subsequently indicted on January 12, 2005. Juan Jimenez, Quinones and Osvaldo Jimenez were arraigned on the indictment on January 18, 2005 and Vega was arraigned on the indictment on January 25, 2005. A status conference was held before the Magistrate Judge on February 22, 2005 at which time he set dates for the completion of discovery and for the filing of motions - if any - by defendants. On March 14, 2005 Vega filed a motion seeking, inter alia, to suppress evidence seized at the time of his arrest. On April 22, 2005 Quinones filed a motion for discovery and joined in Vega's suppression motion. On April 25, 2005 Quinones's motion was re-filed as one for a bill of particulars and to compel discovery. Also on April 25, 2005 Juan Jimenez filed a demand for discovery. On May 10, 2005 the Magistrate Judge held an omnibus hearing as to all defendants and, at that hearing, denied Quinones's motion for a bill of particulars and for discovery, and denied Juan Jimenez's motion for an extension of time to file motions. On May 24, 2005 the Magistrate Judge issued a Report and Recommendation concluding that defendants Quinones's and Vega's motion to suppress should be denied. On May 25, 2005 Quinones filed a notice of appeal from the Magistrate Judge's decision denying his motion for a bill of particulars. On June 1, 2005 Vega filed objections to the Magistrate Judge's Report and Recommendation.
The Court heard oral argument on Vega's objections to the Report and Recommendation on July 29, 2005 and on Quinones's appeal from the Magistrate Judge's decision on August 5, 2005. The Court dismissed Vega's objections and adopted the Report and Recommendation on August 12, 2005 and issued a Memorandum and Order denying Quinones's appeal on December 15, 2005. Thereafter, a conference to set a date for trial was scheduled for and held on January 27, 2006. Counsel requested additional time before setting the trial date and the matter was rescheduled for February 17, 2006. Thereafter, the instant motion was filed.
Section 3161(c)(1) of Title 18 of the United States Code provides in pertinent part that:
"In any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from 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). Various periods of delay are excluded from the calculation of the seventy-day period pursuant to §3161(h). Section 3162(a)(2) provides, as a sanction for a violation of §3161:
"If a defendant is not brought to trial within the time limit required by section 3161(c) as extended by section 3161(h), the information or indictment shall be dismissed on motion of the defendant %%%."
18 U.S.C. §3162(a)(2). Applicable here is the period of delay that may be excluded pursuant to §3161(h)(1)(J) - specifically, that relating to the time during which "any proceeding concerning the defendant is actually under advisement by the court." 18 U.S.C. §3161(h)(1)(J). Pursuant to that subsection, such a period of delay is limited to 30 days. Ibid.
On May 25, 2005 Quinones filed an appeal from the Magistrate Judge's May 10, 2005 oral ruling denying his motion for discovery. The appeal was deemed submitted after oral argument and was taken under advisement on August 5, 2005. Pursuant to §3161(h)(1)(J), the 30-day period following oral argument was properly excluded from the speedy-trial calculation. Because the appeal was not decided within 30 days, the speedy-trial clock resumed on September 5, 2005. From that date until the Court's Memorandum and Order determining Quinones's appeal was filed on December 15, 2005, approximately 101 non-excludable days elapsed. Accordingly, defendants have demonstrated a violation of §3161(c)(1), and the indictment must be dismissed.
The remaining issue is whether such dismissal should be with or without prejudice to the government's reprosecution of defendants. Section 3162(a)(2) of Title 18 of the United States Code instructs that:
"In determining whether to dismiss the case with or without prejudice, the court shall consider, among others, each of the following factors: the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of this chapter and on the administration of justice." 18 U.S.C. §3162(a)(2). The Court ...