U.S. v. Hernandez-Amparan

• Decision Date: 05 February 2009
• Docket Number: No. EP-08-CR-1931-KC.,EP-08-CR-1931-KC.
• Citation: 600 F.Supp.2d 839
• Parties: UNITED STATES of America, Plaintiff, v. Alfonso HERNANDEZ-AMPARAN, Defendant.
• Court: U.S. District Court — Western District of Texas

600 F.Supp.2d 839

UNITED STATES of America, Plaintiff, v. Alfonso HERNANDEZ-AMPARAN, Defendant.

No. EP-08-CR-1931-KC.

United States District Court, W.D. Texas, El Paso Division.

February 5, 2009.

Christopher Michael Blanton, United States Attorney's Office, El Paso, TX, for Plaintiff.

Santiago David Hernandez, Federal Public Defender, El Paso, TX, for Defendant.

ORDER

KATHLEEN CARDONE, District Judge.

On this date, the Court considered Defendant Alfonso Hernandez-Amparan's "Motion to Dismiss for Delay" ("Motion") (Doc. No. 29); "Government's Response to Motion to Dismiss for Delay in Evaluating Defendant's Competency" ("Response") (Doc. No. 33); and "Defendant's Reply to Government's Response to Defendant's Speedy Trial Motion to Dismiss" ("Reply") (Doc. No. 35). For the reasons set forth herein, Defendant's Motion is hereby GRANTED, and Defendant's Indictment (Doc. No. 8) is hereby DISMISSED WITH PREJUDICE.

I. BACKGROUND

On June 24, 2008, Defendant Alfonso Hernandez-Amparan ("Defendant") was arrested after being observed entering the United States from Mexico. Criminal Compl. (Doc. No. 1) at 1. On June 26, 2008, the Government filed a Criminal Complaint against Defendant, alleging that Defendant illegally reentered the United States in violation of 8 U.S.C. § 1326. Id. The Complaint stated that Defendant had previously been arrested five times between 1985 and 2001, and was convicted of two drug offenses, theft, criminal trespass, and "soliciting on the roadway." Id. at 2. On July 16, 2008, the Government filed an Indictment charging Defendant with one count of illegal reentry. Indictment (Doc. No. 8). The Government also filed a Notice of Enhanced Penalty (Doc. No. 9), notifying Defendant that it intends to seek an increased penalty pursuant to 8 U.S.C. § 1326(b)(2), which provides for a maximum penalty of twenty years imprisonment. On July 25, 2008, Defendant waived his personal appearance at the arraignment and tendered his plea of not guilty. See Waiver of Personal Appearance at Arraignment and Entry of Plea of Not Guilty ("Waiver of Appearance") (Doc. No. 13).

On August 1, 2008, Defendant's attorney filed a Motion for Mental Examination of Defendant ("Motion for Examination") (Doc. No. 14), stating that Defendant "may be so mentally incompetent as to be unable to understand the proceedings against him or to properly assist in his own defense." Mot. for Examination 1. On August 6, this Court granted that Motion. Order, Aug. 6, 2008 (Doc. No. 16).

On September 18, 2008, after holding a hearing to determine Defendant's mental competency, this Court found that Defendant "lacks sufficient ability to consult with his attorney and to assist in his own defense with a reasonable degree of rational understanding." Order of Commitment Pursuant to 18 U.S.C. § 4241(d) ("Order of Commitment") (Doc. No. 23) at 1. Accordingly, the Court ordered that Defendant be committed "to be hospitalized at MCFP [Medical Center for Federal Prisoners] Springfield in Missouri for [ ] a reasonable period of time, not to exceed four months," to determine if Defendant may attain the capacity necessary for his trial to proceed. Id.

On January 8, 2009, Defendant filed the instant Motion, alleging that more than three months after this Court's Order of Commitment, Defendant had not yet been transferred to a medical center. Mot. 1. Defendant also requests that this Court dismiss Defendant's Indictment pursuant to the Speedy Trial Act, 18 U.S.C. § 3161 et seq., and Federal Rule of Criminal Procedure 48(b). Id. Defendant further requests that the dismissal be with prejudice. Id. at 3-4. On January 21, 2009, the Government filed its Response, arguing that there has been no Speedy Trial Act violation due to exclusions provided in that Act, and that dismissal under Rule 48(b) is unwarranted. See Resp. 4-6. The Government also provided a Declaration by a United States Marshal, which explains the procedures followed with regard to Defendant's transfer and states that Defendant will be transported to MCFP Springfield on February 5, 2009. See Resp. Ex. A.

II. DISCUSSION

The Court must first determine whether the delay in Defendant's trial is outside the limit imposed by the Speedy Trial Act. "If a Defendant is not brought to trial within the time limit required by [the Speedy Trial Act], the information or indictment shall be dismissed on motion of the defendant." 18 U.S.C. § 3162(a)(2) (emphasis added). Because dismissal is mandatory, if the Court finds that Defendant has not been timely brought to trial, the Court will "determin[e] whether to dismiss the case without or without prejudice...." Id. Finally, the Court will consider the effect of Rule 48(b).

A. Speedy Trial Act

a. Required Time Limit

Because Defendant has moved for dismissal pursuant to the Speedy Trial Act, he has the "burden of proof [in] supporting such motion." 18 U.S.C § 3162(a)(2). However, the Government has "the burden of going forward with the evidence in connection with any exclusion of time...." Id.; see also United States v. May, 819 F.2d 531, 533 (5th Cir.1987) ("Because the Government alone usually knows the reason for the delay, it bears the initial burden of explaining why the violation occurred.") (footnote omitted).

Defendant clearly establishes that he has not been brought to trial within the time limit required by the Speedy Trail Act. Under that Act, "in any case in which a plea of not guilty is entered," a defendant's trial must commence within seventy days from his indictment or initial appearance, whichever is later. 18 U.S.C. § 3161(c)(1).¹ Defendant's Indictment was filed on July 16, 2008, and his Waiver of Appearance was filed on July 25, 2008. Accordingly, the Speedy Trial Act clock began to run on the latter date. See United States v. Lopez-Valenzuela, 511 F.3d 487, 491 (5th Cir.2007) ("If [defendant] had been indicted before his arrest, however, his "Waiver of Appearance and Entry of Not Guilty Plea" could be the "date the defendant has appeared[.]" ") (emphasis in original).² Defendant's trial has not yet been scheduled. However, assuming that Defendant's trial cannot possibly begin before February 5, 2009, the date of his scheduled transport to MCFP Springfield for medical treatment, Defendant's delay would total at least 195 days, far in excess of the seventy-day requirement.

Defendant concedes that several of the Speedy Trial Act's exclusions from time computation apply to the instant case. See Mot. 2-3. The Act excludes delay resulting "from any proceeding ... to determine the mental competency" of a defendant. 18 U.S.C. § 3161(h)(1)(A). The Act also excludes "delay resulting from any pretrial motion." 18 U.S.C. § 3161(h)(1)(D). Applying these exceptions, the days between Defendant's Motion for Examination and the Court's Order of Commitment—August 1, 2008, until September 18, 2008, totaling 48 days—are excluded.

Finally, Defendant concedes that the Act excludes from time computation "delay resulting from transportation of any defendant ... to and from places of examination or hospitalization ... except that any time consumed in excess of ten days from the date [of] an order directing such transportation ... shall be presumed to be unreasonable." 18 U.S.C. § 3161(h)(1)(F) (emphasis added). For purposes of Defendant's burden in establishing a Speedy Trial Act violation, the Court assumes that all time resulting from Defendant's transportation in excess of ten days is unreasonable. Accordingly, eleven days from the date of the Court's Order of Commitment, which directed that Defendant be transported, are also excluded (ten days under § 3161(h)(1)(F), and one extra day because that ten-day period ended on September 28, 2008, a Sunday).

The exclusions which Defendant concedes result in a total exclusion period of 59 days. Subtracting the excluded dates, Defendant's trial delay is at least 136 days, still far in excess of the seventy-day requirement. Thus, Defendant has established a violation of the Speedy Trial Act requiring dismissal.

In its Response, the Government states that "Defendant's remedy for a Speedy Trial [Act] violation is restricted because the Act also provides for numerous time period exclusions...." Resp. 4. Because Defendant agrees that the dates between his Motion for Examination and the Court's Order of Commitment are excludible, the parties' dispute centers on the period after the Order of Commitment. Defendant argues that the only exclusion applicable to this period is the exclusion for delays resulting from transportation in § 3161(h)(1)(F), and that only ten days are therefore excluded. See Reply 2-3.

The Government lists six exclusions which it argues are applicable to that time: Three of those exclusions were already conceded in Defendant's Motion, and one was repealed almost nine years ago.³ The remaining exclusions are also not applicable to Defendant's case. First, the Government argues that the period after the Order of Commitment is excludible because it "result[ed] from the fact that the defendant is mentally incompetent or physically unable to stand trial." 18 U.S.C § 3161(h)(4). In other words, the Government argues that the fact that Defendant has not been transported for psychiatric treatment is a result of the fact that Defendant required such treatment in the first place. Such a reading is incorrect. The exclusion in § 3161(h)(4) applies to the dates of a defendant's actual treatment rather than the lack of such treatment due to the failure to transport that defendant. See, e.g., United States v. Howard, 590 F.2d 564, 568 n. 3 (4th Cir.1979); White v. United States, 273 Fed.Appx. 559, 564 (7th Cir.2008) (unpublished opinion). The delay here is a result of the failure to transport Defendant for treatment, and this contingency is specifically provided for in § 3161(h)(1)(F). "The Speedy Trial Act amendments specifically indicate that anything over ten days in transport is presumptively...