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Case No. 4:05 CR 123 CEJ (TIA) Defendants Memorandum of Law in Support of His Motion to Dismiss the Indictment with Prejudice

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

UNITED STATES OF AMERICA, )

)

Plaintiff, )

)

vs. ) Case No. 4:05 CR 123 CEJ (TIA)

)

RAMON M., et al. )

)

Defendant. )

DEFENDANT’S MEMORANDUM OF LAW IN SUPPORT OF HIS MOITON

TO DISMISS THE INDICTMENT WITH PREJUDICE

PRELIMINARY STATEMENT

This Memorandum of Law is respectfully submitted on behalf of defendant Ramon M.

(Mr. M.), in support of his motion to dismiss the indictment with prejudice on the ground that he

has been denied his statutory right to a speedy trial.

QUESTIONS PRESENTED

1. Whether more than seventy unexcluded days have elapsed pursuant to 18 U.S.C. §§

3161 and 3162, also known as the Speedy Trial Act (the Act), requiring that the indictment be

dismissed.

2. Whether the indictment should be dismissed with prejudice.

STATEMENT OF FACTS

Introduction

As of the date of this filing, June 15, 2006, two hundred and seventeen unexcluded days

have run on the Speedy Trial Act clock in Mr. M.’s case.



Commencement of Time Period

Defendant was indicted on May 25, 2005 and initially appeared before this Court on May

31, 2005. Pursuant to 18 U.S.C. §3161 (c)(1), Mr. M. was entitled to trial within seventy

unexcluded days from May 31, 2005.

May 25, 2005-June 6, 2005

The government filed a Motion for Pretrial Detention and Hearing on May 25, 2005; said

motion was granted by this Court on June 6, 2005. Thus six excludable days ran from Mr. M.’s

initial appearance on May 31, 2005 to disposition of the government’s motion on June 6, 2005.

June 6, 2005-June 7, 2005

No excludable delays occurred during this period. Accordingly, two unexcluded days ran

during this period.

June 8, 2005-November 4, 2005

On June 8, 2005, Mr. M., through his counsel, filed nine motions. On June 10, 2005, the

government filed three motions. On June 22, 2005 defense counsel filed a Motion to Withdraw;

this motion was granted on July 13, 2005 and new counsel entered on behalf of Mr. M.. One

July 13, 2005, a Status Conference was held. On July 14, 2005 this Court ordered all pretrial

motions filed by August 12, 2005; responses by August 17, 2005 and an evidentiary hearing on

the motions was set for September 8 and 9, 2005. On July 26, 2005, Mr. M., through his counsel,

filed one motion. On August 18, 20005, the government filed for an extension of time to respond

to the defendant’s pretrial motions. On September 6, 2005, defense filed two motions to continue

the evidentiary hearing. These motions were granted on September 8, 2005 and the evidentiary

hearing was continued to October 6 and 7, 2005. On October 4, 2005, the government filed

responses in opposition to the nine motions filed by Mr. M. on June 8, 2005 and the motion filed



on July 26, 2005. On October 6, 2005, the evidentiary hearing was held. On November 4, 2005,

this Court issued its Order and Report and Recommendations as to the nine motions filed by Mr.

M. on June 8, 2005 and the one motion filed on July 26, 20005. Thus the time period between

June 8, 2005 and November 4, 2005 was properly excluded.

November 5, 2005-November 13, 2005

No excludable delays occurred during this period. Accordingly, nine unexcluded days ran

during this period.

November 14, 2005-December 6, 2005

On November 14, 2005, Mr. M., through his counsel, filed an Objection to the Report

and Recommendations. On December 6, 2005, On December 6, 2005, this Court ordered that the

Order and Report and Recommendation be sustained, adopted and incorporated herein. As this

objection and order was not a pretrial motion, it would not appear to fall within the excludable

delay under section 18 U.S.C. §3161(h)(1)(F) nor any other excludable delay under section

3161(h). Accordingly, twenty-three unexcluded days ran during this period.

December 7, 2005-March 8, 2006

No excludable delays occurred during this period. Accordingly, ninety-one unexcluded

days ran during this period.

March 8, 2006-March 15, 2006

On March 8, 2006 a Motion for Leave to Appear Pro Hac Vice was filed by Attorney

Joseph Hawkins Low IV. On March 13, 2006, the motion was ordered granted. On March 13.

2006 a Motion to Withdraw as Attorney was filed by Mr. M.’s attorney and was ordered granted

on March 15, 2006. Thus eight days were properly excluded during this time period.

March 15, 2006-June 15, 2006



As no action or filings have taken place on this case since March 15. 2006 no excludable

delays have occurred during this period. Accordingly, ninety-two unexcluded days ran during

this period.

A Total of two hundred and seventeen Days have Run

The total of the unexcluded periods described above: two, nine, twenty-three, ninety-one,

and ninety-two days is a total of two hundred and seventeen days

ARGUMENT

I. THE INDICTMENT MUST BE DISMISSED BECAUSE TWO HUNDRED AND

SEVENTEEN UNEXCLUDED DAYS HAVE RUN ON THE SPEEDY TRIAL ACT CLOCK.

A. THE SPEEDY TRIAL ACT.

Title 18 U.S.C. §3161 states:

(c)(1) 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. (Emphasis added.)

Certain periods of delay are excluded in section 1361 (h) (1) in computing the time in

which trial must commence pursuant to section 1361 (c)(1). Of the ten excludable delays

allowed in this section, only two apply to the case at bar: “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) and “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).



If more than seventy unexcluded days elapse, “the information or indictment shall be

dismissed on motion of the defendant.” 18 U.S.C. §3162(a)(2).

B. ALL DEFENSE PRETRIAL MOTIONS HAVE REACHED CONCLUSION.

Section 3161(h)(1)(F) automatically excludes the “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.” Accordingly, since all defense motions have reached conclusion,

the days excluded because of defense pretrial motions as calculated above represent a correct

computation pursuant to this section.

C. GOVERNMENT PRETRIAL MOTIONS NOT RULED UPON FALL WITHIN THE

AUTOMATIC EXCLUSION UNDER SECTION 3161(H)(1)(J).

The government submitted three motions, all filed on June 10, 2005, for which there were

no rulings from this Court. Neither party requested an evidentiary hearing on these motions.

Under Section 3161(h)(1)(J), there is an automatic exclusion of up to thirty days for “delay

reasonably attributable to any period . . .during which any proceeding concerning the defendant

is actually under advisement by the court.” 18 U.S.C. § 3161(h)(1)(J). For those motions that do

not require a hearing, “[t]he ‘point at which time will cease to be excluded’ is identified by

subsection (J), which permits an exclusion of 30 days from the time a motion is actually ‘under

advisement’ by the court.” Henderson v. United States, 476 U.S. 321, 329 (1986) (quoting S.

Rep. No. 96-212, at 34 (1979)). Thus the Supreme Court has made it clear that pretrial motions

not requiring a hearing should be decided within thirty days of a court having taken such motion

under advisement.

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. In that the government filed these

motions on June 10, 2005 without request for a hearing, and that an evidentiary hearing was held



on October 6, 2005 wherein only defense motions were heard, it would be unpersuasive and an

abuse of this statute for the government to now argue that the government contemplated a

hearing or oral arguments. Thus, the excludable period under subsection (J) commenced on June

10, 2005 and ran for thirty days. This period fell within the same time period excluded under

subsection (F).

D. EVEN IF THE PERIOD NOVEMBER 14, 2005-DECEMBER 6, 2005 WERE

EXCLUDABLE, THE SEVENTY DAY TIME LIMIT IS STILL BREACHED.

It is anticipated that the government will argue that the period from the November 14,

2005 filing of defense Objection to the Report and Recommendation and the final order on this

issue on December 6, 2005 is excludable time. As noted in Henderson, the language of

subsection (F) is not clear on this point. Henderson, 476 U.S. at 331. The Henderson court noted

that the “provisions of the Act are designed to exclude all time that is consumed in placing the

trial court in a position to dispose of a motion.” Id. The Court made particular note of

posthearing briefs and held that “subsection (F) excludes time after a hearing has been held

where a district court awaits additional filings from the parties that are needed for proper

disposition of the motion.” Id.

Defendant argues that an Objection to the Court Report and Recommendation does not

fall within the parameters of the post hearing briefs referred to by the Henderson court. The

argument, in any case, is of no consequence because exclusion of these twenty-three days will

have no effect on Mr. M.’s right to a speedy trial within seventy days.

E. THE INDICTMENT MUST BE DISMISED.

As outlined above, a total of two hundred and seventeen unexcluded days have elapsed as

of the date of this filing. The Court must therefore dismiss the indictment. 18 U.S.C. §3162



(a)(2). “When a violation of the time limits of the Act is shown to have occurred, dismissal is

mandatory on motion of the defendant." United States v. Koory, 20 F.3d 844, 846

II. THE COURT SHOULD DISMISS THE INDICTMENT WITH PREJUDICE.

Once a court dismisses an indictment pursuant to section 3161(c) (1), the court must then

decide whether to dismiss the indictment with or without prejudice. 18 U.S.C. §3162 (a)(1).

Determination of whether the dismissal should be with or without prejudice must be based on

“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), and the prejudice to the defendant. United States

v. Taylor, 487 U.S. 326, 334 (1988).

A. THE SERIOUSNESS OF THE OFFENSE.

Although the statute directs the Court to consider the “seriousness” of the offense, it

provides no guidance in applying this concept. Defendant does not argue that the offense for

which he is indicted is not serious. However, this is not the only factor which the Court must

consider and other factors in this case weigh in favor or a dismissal with prejudice.

The Court must consider the other factors mandated by the statute and these factors

weighed against the seriousness of the charge can still demand a dismissal with prejudice. Thus,

for example, in the United States v. Moss, 217 F. 3d 426 (6th

Cir. 2000) the defendant was

convicted by a jury for possession of cocaine with intent to distribute and sentenced to two

hundred and sixty-two months imprisonment, yet despite the seriousness of the conviction, upon

appeal the 6th

Circuit Court dismissed Moss’s indictment with prejudice (the appellate court

noting that the trial court failed to act on the defendant’s pretrial motion for almost a year).

Similarly, in United States v. Brown, 169 F. 3d 344 (6th

Cir. 1999), the district court dismissed



the indictment with prejudice, and the appellate court affirmed, a two-count indictment charging

the defendant with conspiracy and attempted possession with intent to distribute cocaine (upheld

on the grounds of excessive delay between accusation and trial, government responsibility for the

delay, defendant asserted his rights and was prejudiced where indictment against defendant was

unsealed but defendant was not located and arrested until over three years later and then

defendant remained incarcerated for one year without court activity for one year). See also,

United States v. Martinez, 75 F.Supp. 2d 360 (N.N.J. 1999) (330 kilogram conspiracy charge

dismissed with prejudice); United States v. Ramirez, 973 F.2d 36 (1st Cir. 1992) (serious

narcotics indictment dismissed with prejudice); United States v. Rodriquez, 617 F.Supp. 788,

791-92 (E.D.N.Y. 1985) (serious narcotics charge dismissed with prejudice).

B. THE FACTS AND CIRCUMSTANCES OF THE CASE.

With the exception of substitution of attorney on this case, no action has been taken by

this Court or the government since December 7, 2005. The defendant continues to languish in

prison without the benefit of trial or any movement toward that end. “[A] defendant has no duty

to bring himself to trial and has no duty to bring any delay to the court's attention.” Moss, 217 F.

3d at 431 (citing United States v. Kottmyer, 961 F.2d 569, 572 (6th Cir. 1992). See also U.S. v.

Rivas 782 F.Supp. 686, 687 (D.Me.,1992). However, "the prosecutor and the court have an

`affirmative constitutional obligation' to try the defendant in a timely manner", and thus, the

burden is on the prosecution to explain the cause of the pre-trial delay. Redd v. Sowders , 809

F.2d 1266, 1269 (6th Cir. 1987) (quoting Atkins v. Michigan , 644 F.2d 543, 547 (6th Cir.

1981)).

The defendant offers no “factually supported finding of bad faith” but does offer that

there is a “pattern of neglect by the local United States Attorney” which “support[s] a decision to



dismiss with prejudice.” United States v. Hernandez, 863 F. 2d 239, 244 (2d Cir. 1988). On June

8, 2005, the defendant filed nine pretrial motions. The government did not respond to these

motions until October 4, 2005, two days before the evidentiary hearings on these motions. For

the government’s part, only three routine motions were filed on June 10, 2005 and nothing more.

The Supreme Court noted that “[b]etween diligent prosecution and bad-faith delay, official

negligence in bringing an accused to trial occupies the middle ground.” Doggett v. United States,

505 U.S. 647, 657 (1992) “Although negligence is obviously to be weighed more lightly than a

deliberate intent to harm the accused's defense, it still falls on the wrong side of the divide

between acceptable and unacceptable reasons for delaying a criminal prosecution once it has

begun.” Id.

C. THE IMPACT OF A REPROSECUTION.

As the Rivas court observed, where the responsibility for the violation of the Speedy Trial

Act rests with the prosecution and the administrative arm of the court, “the allowance of

reprosecution of defendants for the charged offenses would completely negate the beneficent

purposes intended to be accomplished by the Act in insuring timely trial of defendants,

especially those incarcerated pending trial . . . .” Rivas, 782 F.Supp. at 687. In dismissing the

defendant’s indictments with prejudice, the Rivas court noted that the defendant had been

incarcerated in excess of seven months beyond the 70 day period proscribed by the Act, as has

the defendant in the present case, and if reprosecuted, the defendant would likely remain

incarcerated for an additional further period of time. The court declared that this is the

“paradigm case of what the Speedy Trial Act was enacted to eliminate” and reprosecution

“would send exactly the wrong signal to those responsible for complying with the Acts [sic]

requirements.” Id. at 688.



“The dual purpose of the Speedy Trial Act is to protect a defendant's constitutional right to a

speedy indictment and trial, and to serve the public interest in bringing prompt criminal

proceedings.” U.S. v. Saltzman, 984 F.2d 1087, 1090 (10th

Cir. 1993) citing United States v.

Noone, 913 F.2d 20, 28 (1st Cir.1990) Whenever the "government--for whatever reasons--falls

short of meeting the Act's requirements, the administration of justice is adversely affected."

United States v. Ramirez, 973 F.2d 36, 39 (1st Cir. 1992) (quoting United States v. Hastings,

847 F.2d 920, 926 (1st Cir. 1988) (finding that the legislative history of the Speedy Trial Act

demonstrates its importance in advancing both the public and private interests in fair and

expeditious trial of criminal cases))

Mr. M. has been incarcerated for over a year. Should this indictment be dismissed

without prejudice and reprosecuted, the statutory seventy-day clock will begin anew and Mr. M.

will be forced to wait in prison even longer. Furthermore, the government will receive an unfair

tactical advantage if the indictment is dismissed with prejudice because in effect, allowing

reindictment only “grant[s] the government a reprieve of the full statutory time limit . . . .”

Ramirez, 973 F.2d at 39. The failure of the United States to be prepared for trial which results in

further incarceration of Defendant makes the dismissal of this case even more necessary. The

government should be penalized for its negligence, not rewarded.

D. PREJUDICE TO THE DEFENDANT.

“The longer the delay, the greater the presumptive or actual prejudice to the defendant, in

terms of his ability to prepare for trial or the restrictions on his liberty.” Taylor, 487 U.S. at 340.

The United States Supreme Court has observed that unreasonable delay between formal

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accusation and trial threatens to undermine the interests which the Act is designed to preserve.

Barker v. Wingo, 407 U.S. 514 (1972). In particular the Barker court isolated as most serious,

“the possibility that the [accused’s] defense will be impaired” because memories fade and

exculpatory evidence is lost. Barker, 407 U.S., at 532. The court considered this issue most

serious “because the inability of a defendant adequately to prepare his case skews the fairness of

the entire system.” Id.

“Depending on the nature of the charges, the lower courts have generally found post-

accusation delay ‘presumptively prejudicial,’ at least as it approaches one year.” Doggett, 505

U.S. at 658, fn 1, citing 2 W. LaFave & J. Israel, Criminal Procedure 18.2, p. 405 (1984); Joseph,

Speedy Trial Rights in Application, 48 Ford. L.Rev. 611, 623, n. 71 (1980) (citing cases). The

post-accusation delay in the instant case is approaching the one-year mark. The Sixth Circuit

considered a tenth-month delay as approaching the point of being presumptively prejudicial.

Moss, 217 F. 3d at 431. “[E]xcessive delay can compromise a trial’s reliability in unidentifiable

ways” and a defendant’s failure to cite specific prejudice does not “doom his claim.” Doggett,

505 U.S. at 648.

III. CONCLUSION

All of the circumstances favoring a dismissal with prejudice are present in this case.

Accordingly and for the reasons set forth herein, justice requires that this Court grant this motion

to dismiss, with prejudice, the indictment against Mr. M.

Dated: _________________ Respectfully Submitted,

ATTORNEY

Attorney for Ramon M.

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Certificate of Service

The undersigned hereby certifies that a true and correct copy of the foregoing instrument

was sent via the electronic filing system of the United States District Court for the Eastern

District of Missouri to the following on this ____ day of ______, 2006.

Tiffany G. Becker

Assistant United States Attorney

United States Department of Justice

111 South 10th

Street, Room 20.333

St. Louis, Missouri 63102

____________________________

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