United States District Court, D. Maine
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 ...