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United States v. Fernandez

United States District Court, D. Maine

May 31, 2018

UNITED STATES OF AMERICA,
v.
GREGORY FERNANDEZ, Defendant.

          ORDER ON MOTION TO DISMISS INDICTMENT

          Nancy Torresen United States Chief District Judge.

The Speedy Trial Act requires that the government must issue an indictment within thirty days of a defendant's arrest. See 18 U.S.C. § 3161(b). If an indictment is not filed within that time, the complaint must be dismissed. See 18 U.S.C. § 3162(a)(1). The Defendant filed a motion to dismiss the Indictment with prejudice for violation of the Speedy Trial Act. (ECF No. 61). The government here concedes that there has been a violation of § 3161(b). The government further concedes that the proper remedy is dismissal. Section 3162(a)(1) leaves to the court's discretion whether the dismissal should be with or without prejudice, and sets forth factors for the court to use to guide that decision. Neither type of dismissal is the presumptive remedy for a violation. See United States v. Taylor, 487 U.S. 326, 334 (1988).

         In deciding whether the dismissal should be with or without prejudice, I consider the following statutory 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 the Speedy Trial Act and on the administration of justice. 18 U.S.C. § 3162(a)(1); Taylor, 487 U.S. at 333. In addition, although not a statutory factor, I will consider the presence or absence of prejudice to the Defendant. Barker v. Wingo, 407 U.S. 514, 532 (1972). The Supreme Court has observed that Congress left the decision to dismiss with or without prejudice “to the guided discretion of the district court.” Taylor, 487 U.S. at 335. And while the Speedy Trial Act requires the court to consider each of the statutory factors, it does not mandate any particular formula or order of decision-making.

         DISCUSSION

         I. Seriousness of the Offense

         The Defendant is charged in the Indictment with two counts of interstate stalking, in violation of 18 U.S.C. §§ 2261A(2)(B) and 2261(b)(5). The Defendant points out that this is a Class D crime and, as such, carries a maximum of five years imprisonment, which is on the lower end of federal felonies. The Complaint in this case, however, alleges the online harassment of two women. According to the affidavit in support of the Complaint, the Defendant and victim 1 were acquaintances who had a singular sexual encounter in 2014. Aff. of Special Agent Pamela A. Flick ¶ 3 (ECF No. 2). Although the Complaint charges conduct that occurred between January 2017 and May 2017, the affidavit in support of the Complaint alleges that the unwanted electronic contact began in August of 2014 and continued through May 2017. Flick Aff. ¶¶ 4-9.

         Special Agent Flick avers that the Defendant's intimidating conduct continued even after he received two visits from officers of the Brick Township New Jersey Police Department who advised him to stop contacting the victims and served him with two notices to discontinue the harassing conduct. Flick Aff. ¶ 7. The Defendant's harassing and threatening behavior has caused both victims substantial emotional distress. Flick Aff. ¶ 10. I consider the allegations of repeated attempts to contact victims 1 and 2 over the course of many years, despite numerous requests to stop, serious.

         II. Circumstances which Led to the Violation of the Act

         The parties agree that the government exceeded the 30-day speedy trial clock by 17 days. The Government contends that it exceeded the 30 day clock because of “an oversight by [Government] counsel” and not intentional misconduct. Obj. to Def.'s Mot. to Dismiss 9 (ECF No. 63).

         From the time of the Defendant's arrest on June 1, 2017 until December 21, 2017, the parties were involved in plea discussions and negotiations. During that time, the Court granted five joint requests for extensions of time to indict. The parties requested these extensions to attempt to resolve the case without the need for an indictment, to provide time for the Defendant to obtain medical treatment, and to allow defense counsel to obtain and review the Defendant's medical records.

         On December 21, 2017, after reviewing records in the case, the Government communicated to defense counsel that pretrial diversion was unlikely. Def's Ex. E (ECF No. 61-5). The parties again agreed to ask for additional time and the Court granted their joint request to extend the time to indict until January 26, 2018. Speedy Trial Order (ECF No. 41). In early January, the Government moved to revoke bail because of an alleged bail violation involving more emails to the victims. The Government ultimately withdrew the motion. While the Government investigated the alleged bail violation, the Defendant requested that the FBI and the United States Attorney's Office research two threatening emails he received in 2016 that he believed were from friends of the victims. Defense counsel also asked the Government to seek authorization for a favorable, binding plea agreement. The Government claims that the proposed plea agreement contemplated the Defendant's plea to an information, rather than an indictment. Pending approval of the proposed plea agreement, Government did not present the case for indictment during the February 8-9, 2018, grand jury session. The speedy trial clock expired on February 12, 2018.[1]

         On February 15, 2018, the Government contacted the Clerk's Office to verify the date of the expiration of the speedy trial clock and was informed that the clock had expired on February 12, 2018. Thereafter, the parties discussed the expiration of the speedy trial clock and were unable to come to an agreement. The Government presented the case to the next grand jury and the Defendant was indicted on March 2, 2018.

         I find that the Government's failure to move for another continuance under the Speedy Trial Act between January and mid-February, 2018 was inadvertent. Because the circumstances of this case present no showing of bad faith or a pattern of neglect by the United States Attorney's office, this factor weighs against dismissal with prejudice. See United States v. Barnes, 159 F.3d 4, 17 (1st Cir. 1998) (“Where, as here, the actual speedy trial violation resulted solely from neglect rather than intentional misconduct, that circumstance tips ever so slightly in favor of dismissal without prejudice.”); United States v. Hernandez, 863 F.2d 239, 244 (2d Cir. 1988) (“an ‘isolated unwitting violation' of the Speedy Trial Act cannot support a dismissal with prejudice” (quoting Taylor, 487 U.S. at 339)).

         III. Prejudice ...


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