Opinion
Case No. 98 CR 582
October 2, 2003
ORDER
Defendant Lewis Joseph moves to dismiss all charges against him because of alleged violations of the Speedy Trial Act ("Act"), 18 U.S.C. § 3161, et seq., Federal Rule of Criminal Procedure 48(b), and the Sixth Amendment to the United States Constitution. Joseph was arrested on August 25, 1998 and charged with bank fraud. After being released on bond, Joseph was indicted on October 22, 1998. The case was originally set for trial in April 1999 but that date was cancelled once the parties began plea negotiations. The present motion centers on a period of 754 days (from May 27, 1999 through June 20, 2001) that Joseph claims is not excludable for purposes of his right to a speedy trial. For the reasons explained below, defendant's motion is granted.
Because the court grants Joseph's motion based on a violation of the Speedy Trial Act, the court need not address Joseph's other arguments.
The Speedy Trial Act requires that a defendant's trial begin within 70 days of the date he was indicted or his first appearance before a judicial officer, whichever date last occurs. 18 U.S.C. § 3161(c)(1). Under § 3161, certain periods of time maybe excluded from the calculation of this period. See e.g., 18 U.S.C. § 3161(h)(1)(A)-(J). The defendant assumes that the period between May 27, 1999 and June 20, 2001 cannot be excluded under any subsection of § 3161 because the court's May 27, 1999 minute order — the final order prior to the relevant period — does not include language excluding the period that followed. However, this omission is not dispositive. Time may be excluded, if appropriate under § 3161, even though the minute order is silent on the excludability of the period. United States v. Cheek, 3 F.3d 1057, 1066 (7th Cir. 1993) (analyzing whether delay was excludable even though no order was entered excluding time); United States v. Bailey, 957 F.2d 439, 443 (7th Cir. 1992) (same).
The government argues that the entire twenty-five month period is excludable because the parties were involved in plea negotiations. While the court agrees that time spent negotiating a plea is excludable, the government has failed to provide the court with sufficient evidence concerning what happened during the period from May 27, 1999 through June 20, 2001. The proffered affidavits from former Assistant United States Attorney Lori Lightfoot and defendant's former attorney Mark Kusatzky are vague in their description of the chronology of events during the relevant period. While Ms. Lightfoot's affidavit provides a list of actions she took with respect to negotiating a plea, she does not provide dates for any of these actions and it is impossible for the court to know if those events took place over the course of a few months or over the entire two year period. The events described in Ms. Lightfoot's affidavit, while clearly demonstrating relatively complex negotiations which presumably took some time, appear to this court to be events which in the normal course of an unhurried case might take 60 days. Were this a three or four month delay, the court would be satisfied with the materials which have been presented. But with nothing indicating when the various described events took place, the court cannot find any basis for concluding that they were ongoing for 25 months. A few discussions about pretrial diversion with various parties and a few telephone calls to the insurance commission can hardly be assumed to take over two years. There is obviously justification for some excludable time for plea negotiations in this case, but nothing has been provided to the court which justifies the extraordinarily long delay which took place here. The government bears the burden of coming forward with evidence to show that one of the exclusions under the Speedy Trial Act is met. 18 U.S.C. § 3162(a)(2). Presumably the government was unable to gather any more information regarding plea negotiations during the relevant period. Without this evidence, the court cannot conclude that plea negotiations were actually taking place during the entire twenty five month period. Having determined that the 754 day period is not excludable, the court must dismiss the case against Joseph. 18 U.S.C. § 3162(a)(2) (if defendant not brought to trial within seventy days, court "shall" dismiss indictment). It is within the court's discretion, however, to dismiss with or without prejudice. Id. In order to make this determination, the court must consider 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." Id. Joseph was arrested for bank fraud. In the panoply of possible criminal activities this type of crime is not one of the most "serious" as it does not involve violence or physical injury to others. See e.g., United States v. Caparella, 716 F.2d 976, 980 (2d Cir. 1983) (finding mail theft not "serious" absent exacerbating circumstances such as violence). Had the government viewed this case as "serious," it presumably would not have let it lay dormant for over two years. In addition, the crime charged must be weighed against the seriousness of the delay. United States v. Russo, 741 F.2d 1264, 1267 (11th Cir. 1984). In weighing the seriousness of the crime against the seriousness of a two-year delay, the court finds that the substantial delay in this case outweighs the gravity of the offense. This factor weighs in favor of a dismissal with prejudice.
While plea negotiations between parties are not expressly cited as excludable under § 3161(h)(1), § 3161(h)(1) provides generally for the exclusion of a "period of delay resulting from other proceedings concerning the defendant." That section supplies a nonexhaustive list of proceedings in which a period of delay "shall be excluded" in computing the time within which trial must commence. United States v. Salerno, 108 F.3d 730, 735 (7th Cir. 1997); United States v. Garrett, 720 F.2d 705, 709 (D.C. Cir. 1983) (noting that the listed proceedings in § 3161(h)(1)(A)-(J) are "merely illustrative and not intended to be exhaustive"). Courts have discretion to determine "the nature of those proceedings which fall within the `other proceedings' language." Salerno, 108 F.3d at 736 (citing United States v. Lopez-Espindola, 632 F.2d 107, 110 (9th Cir. 1980)). The court concludes that any time spent in negotiating a plea for the defendant should be excludable under § 3161(h)(1). See United States v. Montoya, 827 F.2d 143, 150 (7th Cir. 1987) ("The plea bargaining process also can qualify as one of many "other proceedings" under the generic exclusion of section 3161(h)(1).").
The court, on July 28, 2003, ordered the government to provide affidavits with a more detailed chronology describing what actions were taken with regard to plea negotiations and the specific dates of those actions. After receiving an extension of time in which to provide that information, the government has not come forward with any additional information.
The court shoulders some of the blame for the delay by not calling the case in for status until June 20, 2001 (which the court did sua sponte and not at the request of the parties). However, during the relevant period, the court replaced and trained a courtroom deputy who was new to the position. In the end, it is the government, and not the court, who bears the ultimate responsibility to ensure that a defendant is brought to trial within seventy days.
With respect to the second factor — the facts and circumstances leading to dismissal — the government's only explanation for the lack of prosecution in this case was that it was involved in plea negotiations for twenty five months. As described above, the government has not sustained its burden to come forward with proof that plea negotiations were ongoing during that entire period. With respect to which party was responsible for the delay, the court recognizes that Joseph failed to come forward during the two-year period or shortly thereafter to complain about the delay, and this fact slightly favors a dismissal without prejudice. However, Joseph, as well as the pretrial services officers involved in this case, were under the impression that the case was to proceed as a deferred prosecution or pre-trial diversion case. The court finds Joseph's failure to come forward understandable in light of the fact that he believed that he would not ultimately go to trial. For the government's part, even assuming plea negotiations were happening for some portion of the relevant period, the court can only conclude that the government's failure to pursue this case was the result of neglect.
Turning to the third factor — the effect of dismissal on the administration of the Act and the administration of justice — the court concludes that this factor supports a dismissal with prejudice. A defendant has a right to be tried within 70 days of indictment. Here, the government indicted Joseph five years ago, and he has yet to go to trial. To allow the government to fail to prosecute a case for twenty five months without penalty would seriously weaken the protections of the Act and make the right to a speedy trial largely meaningless. In addition, reprosecution in this case would not further the administration of justice. Both an individual defendant and the public at large have an interest in prompt criminal trials. Caparella, 716 F.2d at 981 ("It must be remembered that a speedy trial is not only viewed as necessary to preserve the rights of defendants. Just as significant is the protection it accords to society's interest in bringing criminals to justice promptly."). Neither of these interests were met in this case where twenty five months went by unaccounted for.
In determining whether a dismissal with prejudice would further the administration of justice, the court must also determine the extent to which Joseph was prejudiced by the government's failure to prosecute, even though it is not specifically required to by 18 U.S.C. § 3162 . Taylor, 487 U.S. at 334. The government argues that Joseph could not be prejudiced because the possible sentence for his charge has been reduced since he was originally indicted. While that may be true, the court finds that Joseph has been prejudiced in other ways. "The longer the delay, the greater the presumptive or actual prejudice to defendant, in terms of his ability to prepare for trial or the restrictions on his liberty." Id. at 340. As expressed by the Supreme Court,
[i]nordinate delay between public charge and trial. . . . wholly aside from possible prejudice to a defense on the merits, may seriously interfere with the defendant's liberty, whether he is free on bail or not, and . . . may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and friends.Id. at 340-41 (quoting Barker v. Wingo, 407 U.S. 514, 537 (1972) (internal citations omitted)). Here, Joseph argues that he has suffered from great anxiety because a felony conviction would cause problems with his immigration status as well as his insurance broker's license. Joseph also maintains that the government led him to believe that his case would be categorized as a deferred prosecution, and he continued to report to a pretrial services officer during the entire relevant time period with that understanding. According to Joseph, it was only after the parties came back into court after twenty-five months passed that Joseph learned that the government was not offering him deferred prosecution. During this period, Joseph was under court supervision with all the restrictions on his liberty and privacy that entails.
Two entries in the pretrial services officer's log support Joseph's argument that, at the very least, the parties were moving toward deferred prosecution or pre-trial diversion. The pretrial services officer's log contains a February 27, 2001 entry that AUSA Lightfoot told the pretrial services officer that the case "will probably be converted to a PTD" and that the required paperwork would possibly be processed in April. In addition, in a May 22, 2001 entry, the pretrial services officer notes that the AUSA informed him that the case may become a "diversion case."
Having reviewed all the above factors, the court dismisses Joseph's case with prejudice. In this context, dismissal without prejudice would be an inadequate remedy for the government's failure to comply with the time limits imposed by the Act. See United States v. Jervey, 630 F. Supp. 695, 698 (S.D.N.Y. 1986) ("When, as often occurs, trial courts simply dismiss counts without prejudice for violation of the Speedy Trial Act, so as to permit the Government to reprosecute the claim simply by obtaining a new indictment, we participate in a charade."). The government's violation of the Act in this case is egregious enough to justify dismissal with prejudice. See United States v. Clymer, 25 F.3d 824, 832 (9th Cir. 1994) (more than fifteen-month delay warrants dismissal with prejudice); United States v. Stayton, 791 F.2d 17, 21 (2d Cir. 1986) (twenty-three month delay mandates dismissal with prejudice).