United States v. Nguyen

          RECOMMENDED DECISION ON GOVERNMENT'S AND DEFENDANT'S MOTIONS TO DISMISS

          JOHN H. RICH III UNITED STATES MAGISTRATE JUDGE

         Before me are the parties' competing motions to dismiss. The government moves pursuant to Federal Rule of Criminal Procedure 48(a) to dismiss the complaint against defendant Cuong Nguyen without prejudice, while the defendant seeks the dismissal of the complaint with prejudice pursuant to the Interstate Agreement on Detainers (“IAD”) and the Speedy Trial Act (“STA”). See Government's Motion for Leave to Dismiss Complaint (“Government's Motion”) (ECF No. 15) at 1; Defendant's Motion to Dismiss (“Defendant's Motion”) (ECF No. 16) at 1. Because (i) the factors for dismissal laid out in the IAD weigh in favor of dismissal without prejudice, (ii) I find no violation of the STA, and, (iii) even had the STA been violated, dismissal without prejudice would be appropriate, I recommend that the court grant the Government's Motion and deny the Defendant's Motion.

         I. Background

         On June 26, 2019, the government filed a one-count complaint against the defendant for alleged distribution of fentanyl in violation of 21 U.S.C. § 841(a)(1). Government's Motion in Opposition to Defendant's Motion to Dismiss with Prejudice (“Opposition”) (ECF No. 20) at 2; Criminal Complaint (“Complaint”) (ECF No. 1) at 1. On the same day, I signed a warrant for the defendant's arrest. Opposition at 2; Arrest Warrant (ECF No. 4). At that time, the defendant was incarcerated at the Maine Correctional Center (“MCC”) for a state felony driving offense. Opposition at 2. The defendant had been scheduled to turn himself in to begin serving his nine-month sentence for that offense on January 1, 2019; however, he failed to do so. He began serving that sentence only after his arrest on May 16, 2019, on state drug charges. Id.

         In order to transfer the defendant to federal court for his initial appearance, the government filed a motion on July 9, 2019, for a writ of habeas corpus ad prosequendum (“Writ”). Id.; Application for Writ of Habeas Corpus (ECF No. 6). Later that day, the government also requested that the United States Marshals Service put a detainer in place for the defendant. Opposition at 2. The defendant signed the detainer on July 10, 2019, and I signed the Writ on the same day. Id. at 2-3. The government concedes that its request for the detainer was a “mistake” resulting from its “misguided belief [that the detainer] was a predicate necessary to ensure the defendant was in federal custody in order for the writ to take effect.” Id. at 3.

         The defendant was transferred from the MCC to this court on July 17, 2019, for his initial appearance. Id. He waived his right to a probable cause and detention hearing, and I placed a detainer on him to be returned to federal custody at the end of his state sentence. Id. After spending one night in federal custody at the Strafford County Jail in New Hampshire, the defendant was returned to state custody. Id. at 8; Supplemental Response to Opposition to Motion to Dismiss (“Supplemental Response”) (ECF No. 23) at 3.

         The government filed its motion to dismiss on August 12, 2019, citing its desire to “comply with the Interstate Agreement on Detainers and mitigate numerous transfers of the defendant from state to federal custody” and noting its intent to bring charges against the defendant once he completed his state sentence. Government's Motion at 1. As of that date, the government “was unaware of the mistake it made by requesting a detainer, ” but it now acknowledges that it “inadvertently violated the IAD.” Opposition at 3.

         The defendant filed his own motion to dismiss on August 19, 2019, arguing for dismissal of the charge against him with prejudice on the bases that the government had violated both the IAD and the STA. Defendant's Motion at 1, 7. I address each argument in turn.

         II. Discussion

         A. The Interstate Agreement on Detainers (“IAD”)

         The IAD - to which both Maine and the federal government are parties - was enacted to “encourage the expeditious and orderly disposition of . . . charges [outstanding against a prisoner] and determination of the proper status of any and all detainers based on untried indictments, informations, or complaints.” 18 U.S.C. App. 2 § 2, Art. I. Article IV of the IAD allows “[t]he appropriate officer of the jurisdiction in which an untried indictment, information, or complaint is pending” to “have a prisoner against whom he has lodged a detainer and who is serving a term of imprisonment in any party State made available . . . upon presentation of a written request for temporary custody or availability to the appropriate authorities of the State in which the prisoner is incarcerated.” Id. Art. IV(a).^[1] A writ of habeas corpus ad prosequendum constitutes a written request under the IAD. United States v. Mauro, 436 U.S. 340, 361-62 (1978).

         Article IV(e) of the IAD provides that:

If trial is not had on any indictment, information, or complaint contemplated hereby prior to the prisoner's being returned to the original place of imprisonment pursuant to article V(e) hereof, such indictment, information, or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.

18 U.S.C. App. 2 § 2, Art. IV(e) (emphasis added).

         The defendant initially argued that Article IV(e), both on its face and as construed by the United States Supreme Court in Alabama v. Bozeman, 533 U.S. 146 (2001), mandated the dismissal of the instant complaint with prejudice. See Defendant's Motion at 6. However, as the government notes in its Opposition, see Opposition at 4, and the defendant now concedes, see Response to Government's Opposition to Motion to Dismiss (“Response”) (ECF No. 21) at 2, the IAD carves out an exception in cases in which the United States requests temporary custody, see 18 U.S.C. app. 2 § 9(1) (“in a case in which the United States is a receiving State . . . any order of a court dismissing any indictment, information, or complaint may be with or without prejudice”).

         Section 9(1) further provides that, in making that determination, “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 the agreement on detainers and on the administration of justice[].” Id. The government argues that these factors weigh in favor of dismissal without prejudice, see Opposition at 6-8, while the defendant takes the opposite view, see Response at 2; Supplemental Response at 1-4. The government has the better argument.

         1. Seriousness of the Offense

         As the United States Court of Appeals for the Eighth Circuit has noted, the IAD “does not specify the criteria for analyzing the seriousness of the offense, but other courts have examined the nature of the conduct charged and the potential sentence.” United States v. McKinney, 395 F.3d 837, 841 (8th Cir. 2005); see also, e.g., United States ...