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United States v. Washnuk

United States District Court, Second Circuit

May 14, 2013

UNITED STATES OF AMERICA,
v.
TAMMI WASHNUK and TIONA BROOK DUGAS, Defendants.

Report & Recommendation

HUGH B. SCOTT, Magistrate Judge.

This matter has been referred to the undersigned pursuant to 28 U.S.C. ยง 636(b)(1)(C) (Docket No. 3). The instant matter before the Court is defendant Tiona Dugas' motion to dismiss the Indictment on speedy trial grounds (Docket No. 14[1]). She also seeks a Bill of Particulars and discovery. The Government in its response seeks reciprocal discovery from Dugas (Docket No. 19, Gov't Response at 30-31). For convenience, these latter requests (which could be considered in a separate Order) will be addressed in this Report & Recommendation.

BACKGROUND

Defendants are charged in a four-count Indictment, filed July 31, 2007, with importation of controlled substances (on or about October 9, 2004), sale and distribution of controlled substances (on that same date), conspiracy to distribute (on or about that date), and attempted conspiracy to import 500 grams or more of a mixture and substance containing methamphetamine and MDMA (Docket No. 1, Indict.).

Timeline of Prosecution

Given that Dugas objects to this Indictment on speedy trial and delay in prosecution grounds, a review of the procedural history is in order. Dugas was arrested at the Rainbow Bridge on October 9, 2004 (Docket No. 15, Def. Memo. at 2). A criminal Complaint was filed against defendants on October 12, 2004, United States v. Washnuk, Dugas, 04MJ2186, Docket No. 1. Dugas was released on bond on October 21, 2004 (Washnuk, 04MJ2186, Docket No. 9; Docket No. 15, Def. Memo. at 2). This Complaint was dismissed on June 29, 2006, Washnuk, 04MJ2186, Docket No. 22; according to Dugas, plea negotiations between the parties had halted and the Government agreed to dismiss the Complaint and would proceed to Indictment (Docket No. 15, Def. Memo. at 2; cf. Docket No. 19, Gov't Response at 5). Bail was returned on November 14, 2006 (Washnuk, 04MJ2186, Docket No. 24). On July 31, 2007, the Government filed a then-Sealed Indictment against these defendants (Docket No. 1), and an arrest warrant issued. This case was unsealed on October 29, 2012, and defendants were arraigned (Docket No. 2). The criminal Complaint was never merged with this Indictment and no due diligence reports were filed regarding efforts to locate and obtain Dugas.

The Government claims that Dugas was a fugitive from August 2, 2007 (Docket No. 19, Gov't Response at 5). On November 13, 2008 (fifteen months later), the Office of the United States Attorney for this District sought confirmation of Dugas' address to prepare for her extradition (id.). Immigration and Customs Enforcement ("ICE") in its Buffalo office sought assistance of the ICE Attache in Toronto to verify Dugas' address on November 19, 2008, and again on July 21, 2009 (id., Ex. D). ICE then confirmed Dugas' address in an apartment on Garth Street, Hamilton, on December 3, 2009 (id., Ex. E, id. at 5-6).

In July 2010, the United States Attorney's Office informed ICE that a draft extradition request was still with counsel for the Office of International Affairs (or "OIA") and that the United States Attorney was working on having it finalized (id. at 6, Ex. I, Ex. J). In February 8, 2011, ICE was informed that the extradition request was to be sent to the Office of International Affairs for final approval (id. at 6, Ex. K). On March 7, 2011, the Office of International Affairs requested from the United States Attorney's Office that the final version of the extradition package be reviewed and returned to OIA (id. at 6). After ICE answered the United States Attorney's question, on October 17, 2011, ICE inquired about the status of the extradition request and the United States Attorney reported that the request was still pending with Canada (id.). On November 14, 2011, the United States Attorney signed the extradition request (id. at 6-7).

Based upon this request, Dugas was arrested on March 27, 2012 (id. at 7; see generally Docket No. 21, Def. Reply at 3). After posting bond pending her extradition proceeding and an extradition hearing, Dugas waived extradition on October 17, 2012, and on October 29, 2012, she was transported into United States custody (Docket No. 15, Gov't Response at 7).

Dugas asserts that she resided in Hamilton, Ontario, since 1986, living at the Kennedy Avenue address where she was arrested on the extradition warrant (Docket No. 15, Def. Memo. at 1). She disputes being a fugitive during this time period (id. at 2).

DISCUSSION

I. Speedy Trial and Delay in Prosecution

A. Standard

The Sixth Amendment guarantees defendants the right "to a speedy... trial, " U.S. Const. amend VI. Both parties agree (Docket No. 15, Def. Memo. at 3; Docket No. 19, Gov't Response at 10) that, in determining whether that right has been violated, courts consider several factors, namely the length of the delay, the reason for the delay, whether defendant asserted her right to a speedy trial, and the prejudice to defendant from the delay, Barker v. Wingo , 407 U.S. 514, 530 (1972); Doggett v. United States , 505 U.S. 647, 654, 656-57 (1992). If a delay is not presumptively prejudicial, the remaining factors need not be considered, Barker, supra , 407 U.S. at 530; Doggett, supra , 505 U.S. at 656; see also id. (length of delay is "part of the mix of relevant facts, and its importance increases with the length of delay"). The Doggett Court stated that "such is the nature of the prejudice presumed that the weight we assign to official negligence compounds over time as the presumption of ...


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