U.S. v. Coleman, 00-M-232 (DRH).
| Decision Date | 02 November 2001 |
| Docket Number | No. 00-M-232 (DRH).,00-M-232 (DRH). |
| Parties | UNITED STATES of America v. Isa COLEMAN, aka "C," Defendant. |
| Court | U.S. District Court — Northern District of New York |
Joseph A. Pavone, United States Attorney for the Northern District of New York, Albany, NY, Carlos A. Moreno, Esq., Assistant United States Attorney.
Alex Bunin, Federal Defender for the Northern District of New York, Attorney for Defendant, Albany, NY, Gene V. Primomo, Esq., Assistant Federal Defender, of Counsel.
Presently pending is the motion of defendant Isa Coleman ("Coleman") to dismiss the complaint herein with prejudice on the ground that the United States failed to file an indictment within thirty days of his arrest as required by 18 U.S.C. §§ 3161(b) and 3162(a)(1). Docket No. 24. The United States agrees that the complaint should be dismissed but contends that the dismissal should be without prejudice. Docket No. 25. For the reasons which follow, Coleman's motion to dismiss the complaint with prejudice is granted.
On June 16, 2000, a warrant was issued for the arrest of Coleman upon a complaint alleging that Coleman possessed crack cocaine with the intent to distribute in violation of 21 U.S.C. § 841(a)(1). Docket No. 1; Def. Mem. of Law (Docket No. 24) at Ex. A. Coleman was arrested on July 14, 2000 and the United States moved for his detention pending trial on the same date at Coleman's initial appearance. Docket Entries dated 7/14/00. Following a hearing on July 19, 2000, the motion of the United States for Coleman's detention was granted. Docket Entry dated 7/19/00. Coleman was admitted to a drug treatment program while detained. Docket No. 6. On September 28, 2000, upon completion of the program, Coleman was released from custody on certain conditions. Docket No. 10. Coleman thus remained in custody for a period of seventy-five days during this period.
For the next year, Coleman remained free under certain conditions and the complaint remained pending. During that period, the United States and Coleman intermittently discussed the possibility of Coleman pleading guilty and cooperating with the United States. For example, Coleman was scheduled to be interviewed by law enforcement agents on September 28, 2000, but for reasons not set forth in the record, that interview did not take place. U.S. Mem. of Law (Docket No. 25) at 3. The United States also sent Coleman a proposed plea agreement. Id. at Ex. 1. Coleman and the United States never reached agreement on a disposition of the charge in the complaint, but the parties did enter into three stipulations excluding time from the thirty day period within which an indictment was required to be filed. Docket Nos. 5, 14, 15.
On August 20, 2001, a warrant was issued for Coleman's arrest alleging that he had violated various conditions of his release. Docket No. 17. Coleman was arrested on that warrant on September 4, 2001 in the Eastern District of New York. Docket Nos. 17, 18. He was removed to this district and appeared in court on September 20, 2001. Docket No. 19 & Docket Entries dated 9/20/01. Coleman was released on the conditions previously established. Id. This motion followed.
Section 3161(b) provides that "[a]ny information or indictment ... shall be filed within thirty days from the date on which such individual was arrested ... in connection with such charges...." Section 3161(h) excludes certain periods from the calculation of this thirty day period. Here, Coleman was arrested on July 14, 2000, which commenced the thirty day period under section 3161(b). However, the United States moved for his detention on the same date and that motion was not decided until July 19.2000. This period is excluded under section 3161(h)(1)(F). The parties stipulated to exclude the period from July 20 through August 19, 2000 pursuant to section 3161(h)(8). Docket No. 5. Thus, the thirty day period commenced running on August 20, 2000 and continued running without interruption until January 16, 2001, a period of 148 days. The parties further stipulated to exclude the period from January 17 through March 18, 2001 pursuant to section 3161(h)(8). Docket Nos. 14, 15. The time recommenced to run on March 19, 2001 and continued through August 19, 2001, an additional period of 153 days. On August 20, 2001, the United States moved to revoke Coleman's conditions of release, thereby tolling all time pursuant to section 3161(h)(1)(F) until that motion was withdrawn on October 4, 2001.. Docket No. 22. An additional six days elapsed between October 5 and October 11, 2001 when Coleman filed the instant motion and again tolled the time under section 3161(h)(1)(F). Docket No. 24.
Thus, a total of 307 days have elapsed under section 3161(b) since Coleman was arrested without the filing of an indictment.1 Coleman moves to dismiss the complaint because an indictment was not filed within thirty days of his arrest. The United States does not oppose this part of Coleman's motion and the record demonstrates that no indictment was filed as required by section 3161(b). See United States v. Oliver, 238 F.3d 471, 472 (3d Cir.2001). Accordingly, Coleman's motion to dismiss the complaint is granted.
Coleman contends that the dismissal of the complaint should be with prejudice. The United States argues that it should be without prejudice. The determination of this issue is governed by 18 U.S.C. § 3162(a)(1), which states in pertinent part:
In determining whether to dismiss the case with or without prejudice, the court should 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 this chapter and on the administration of justice.
See also United States v. Hernandez, 863 F.2d 239, 243 (2d Cir.1988). The statute establishes no preference between a dismissal with prejudice and a dismissal without prejudice. See United States v. Taylor, 487 U.S. 326, 334, 108 S.Ct. 2413, 101 L.Ed.2d 297 (1988); United States v. Giambrone, 920 F.2d 176, 180 (2d Cir.1990).
The complaint charges Coleman with the possession of an unspecified quantity of crack cocaine with intent to distribute. The offense alleged here, therefore, is serious. See, e.g., United States v. Kottmyer, 961 F.2d 569, 571 (6th Cir.1992) (); United States v. Ramirez, 973 F.2d 36, 38-39 (1st Cir.1992) (). However, its seriousness is limited by the fact that the complaint alleges a single possession of what appears to be a personal use quantity of crack cocaine with intent to distribute. See United States v. Angelini, 553 F.Supp. 367, 370 (D.Mass.1982) (). Nevertheless, the seriousness of the offense here weighs in favor of dismissal without prejudice.
The relevant circumstances which a court should consider include whether the failure of the United States was inadvertent or intentional, see United States v. Ramirez, 973 F.2d at 38-39 (); United States v. Simmons, 786 F.2d 479, 485 (2d Cir.1986) (); the extent to which the defendant was responsible for any delay, see United States v. Miranda, 835 F.2d 830, 832-33 (11th Cir.1988) (); and whether the defendant acted promptly to enforce his or her rights. See United States v. Barnes, 159 F.3d 4, 16-17 (1st Cir.1998).
Coleman agrees that the United States has not acted in bad faith here. Def, Mem. of Law at 5 (). However, viewing the record in the light most favorable to the United States, the failure of the United States to file an indictment for the fourteen month period prior to September 20, 2001 was more than merely negligent. Moreover, as of September 20, 2001, the United States was expressly on notice that the charge against Coleman was subject to dismissal in the absence of an indictment and proceedings were delayed for two weeks to permit the parties to take further actions. The United States still failed to file an indictment.2 After September 20, 2001, then, the failure of the United States to comply with section 3161(b) was intentional.
As to Coleman's conduct, the delay through March 18, 2001 appears to have occurred without objection by Coleman. While 148 days had elapsed as of January 17, 2001 and the complaint was thus subject to dismissal at that point under section 3161(b), Coleman entered into two further stipulations excluding an additional sixty days under section 3161(h)(8). Since those stipulated exclusions ended on March 18, 2001, however, Coleman has not sought or stipulated to any further exclusions and the resulting additional 159 nonexcludable days of delay are attributable solely to the United States.
The United States contends that it was actively engaged in plea negotiations with Coleman throughout the pendency of the complaint. U.S. Mem. of Law at 3-6. However, the United States stated at the hearing on September 20, 2001 that it had delayed dealing with the charge against Coleman for "pragmatic" reasons, not because of active plea negotiations.3 Moreover, unilateral efforts by the United States to negotiate a plea bargain cannot explain a delay of this duration. It appears here that the...
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...government requests dismissal without prejudice. The statute does not establish a preference between the two. United States v. Coleman, 170 F.Supp.2d 321, 324 (N.D.N.Y.2001) (citing United States v. Taylor, 487 U.S. 326, 334, 108 S.Ct. 2413, 101 L.Ed.2d 297 The determination is made through......