U.S. v. Martinez

• Decision Date: 12 November 1999
• Docket Number: No. CR.92-172-02 (WGB).,CR.92-172-02 (WGB).
• Parties: UNITED STATES of America, Plaintiff, v. Edgar MARTINEZ, Defendant.
• Court: U.S. District Court — District of New Jersey

75 F.Supp.2d 360

UNITED STATES of America, Plaintiff, v. Edgar MARTINEZ, Defendant.

No. CR.92-172-02 (WGB).

United States District Court, D. New Jersey.

November 12, 1999.

COPYRIGHT MATERIAL OMITTED

Faith Hochberg, United States Attorney, District of New Jersey, Newark, NJ, by Jane Myers, Assistant United States Attorney, for plaintiff.

Michael N. Pedicini, Michael N. Pedicini, Morristown, NJ, for defendant.

OPINION

BASSLER, District Judge.

This opinion addresses Petitioner Edgar Martinez's motion to dismiss the indictment for the Government's violation of Section 3161 of the Speedy Trial Act, 18 U.S.C. Sections 3161 to 3174. Respondent (the Government) concedes that the Speedy Trial Act has been violated; the real issue here is whether Martinez's indictment should be dismissed with or without prejudice. The Court grants Martinez's motion to dismiss the indictment with prejudice.

I. BACKGROUND

In March 1992, a bench warrant was issued for the arrest of Martinez and his co-defendant, Fabio Paz, after a federal grand jury sitting in Newark, New Jersey charged Martinez and Paz with conspiracy to distribute approximately 330 kilograms of cocaine. In October 1993, Paz was convicted and was eventually sentenced to 419-months imprisonment.

After Martinez was arrested in Florida in September 1997, Martinez appeared in the Southern District of Florida for Rule 40 proceedings, and was ordered removed to the District of New Jersey on October 6, 1997. On February 2, 1998, Martinez was arraigned before this Court. Martinez entered a plea of not guilty, and a trial date was scheduled for April 14, 1998. The Docket Sheet indicates that no activity occurred until August 24, 1999, when Martinez filed a pro se motion to dismiss the indictment for violations of the Speedy Trial Act, 18 U.S.C. Sections 3161 to 3174.

In the interim, however, Martinez filed a pro se petition for writ of habeas corpus on December 28, 1998, which was inexplicably assigned to the Honorable Dickinson R. Debevoise. Civ. No. 98-5825. Judge Debevoise ordered the Government to answer on or before January 28, 1999. On February 5, 1999, Martinez sought an order from the Court to compel the Government to respond. On March 26, 1999, Judge Debevoise ordered the Government to respond to the habeas petition. On May 11, 1999, the Government requested an extension of time to answer because of plea negotiations that occurred "as recently as on or about April 25, 1999." On May 12, 1999, Judge Debevoise granted the Government's request and extended the time to answer to June 14, 1999. On July 8, 1999, Martinez again filed a pro se petition for writ of habeas corpus, alleging that the delay in bringing the indictment to trial was unconstitutional. On July 21, 1999, the Government submitted a plea government to Martinez's first C.J.A. appointed attorney. The Government finally answered Martinez's habeas petition on August 5, 1999. Judge Debevoise dismissed Martinez's petition for habeas relief on August 23, 1999. On September 7, 1999, Martinez filed a notice of appeal to the Third Circuit, which is currently pending.

On August 24, 1999, Martinez filed a pro se Speedy Trial motion before this Court. Also on August 24, 1999, the Court held a conference to discuss the status of plea negotiations and Martinez's allegations of unsatisfactory representation by counsel. At that conference, the Court appointed Michael Pedicini, Esq., as new counsel for Martinez.

On October 1, 1999, Martinez's counsel filed a motion to dismiss the indictment, returnable on October 25, 1999. The Government failed to respond until October 25, 1999. On November 9, 1999, the Court heard oral arguments.

II. DISCUSSION

A. Speedy Trial Act Violation

In United States v. Rivera Construction Co., 863 F.2d 293, 295-96 (3d Cir.1988), the Third Circuit set forth the rationale behind the Speedy Trial Act. The Sixth Amendment of the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial...." U.S. Const. amend. VI. Congress enacted the Speedy Trial Act to "give effect to the Sixth Amendment right to a speedy trial" by setting specified time limits after arraignment or indictment within which criminal trials must be commenced. H.R.Rep. No. 1508, 93rd Cong., 2d Sess. (1974), reprinted in 1974 U.S.Code Cong. & Admin.News 7401, 7402. A defendant must be brought to trial within 70 days following his indictment or first appearance before the court, whichever occurs later. 18 U.S.C. § 3161(c). If the trial does not commence within the 70-day period, and no time exclusions as allowed by Section 3161(h) apply, the Act requires that the indictment be dismissed. 18 U.S.C. § 3162(a)(2). Although the defendant generally bears the burden of proof in support of such a motion, the government bears the burden of going forward with evidence to demonstrate that a specific period of time should be excluded from the calculations under the Speedy Trial Act. 18 U.S.C. § 3162(a)(2); see also United States v. Hamilton, 46 F.3d 271, 275 (3d Cir.1995) (explaining burdens).

In this case, Martinez was indicted by the grand jury in 1992, and appeared before the Court for arraignment on February 2, 1998.¹ (Docket Sheet at 4, entry 88). Both parties assert that the date of the arraignment is the day that the 70-day clock begins to run. The Government also contends, however, that Section 3161(h)(1)(F) "halt[ed] the Speedy Trial clock until the disposition of the [the December 28] motion."² That provision states in part that "any delay resulting from any pretrial motion" will be excluded from calculations for Speedy Trial clock violations. 18 U.S.C. § 3161(h)(1)(F).

Although the Court agrees that the December 28, 1998 petition for habeas corpus stops the clock, it applies a different provision of the Speedy Trial Act. The Court rejects the Government's Section 3161(h)(1)(F) argument, primarily because Martinez's December 28, 1998 petition for writ of habeas corpus, which is docketed as Civil No. 98-5825(DRD), does not constitute a pre-trial motion for this case, which is docketed as Criminal No. 92-172-02(WGB). The plain language of Section 3161(h)(1)(F) refers to "motions," not petitions for writs.

The time during which the petition is pending should instead be excluded pursuant to Section 3161(h)(1). That provision states that periods of delay shall be excluded if that period of delay resulted from "other proceedings concerning defendant, including but not limited to...." The applicability of Section 3161(h)(1) instead of Section 3161(h)(1)(F) is correct in light of the Speedy Trial Act Guidelines, which are cited in United States v. Tyler and state that "[a]lthough an application for an extraordinary writ is not, strictly speaking, an `interlocutory appeal,' it is an analogous `other proceeding' excludable under paragraph (h)(1)." 878 F.2d 753, 758 (3d Cir.) (citing guidelines in context of writ of mandamus on appeal, which the Third Circuit treated as an interlocutory appeal), cert. denied, 493 U.S. 899, 110 S.Ct. 254, 107 L.Ed.2d 203 (1989). Thus, the clock stopped running on December 28, 1998.

Although not briefed by the parties, several additional exclusions apply. First, "day one" of the clock begins the day after the trigger event. United States v. Kraselnick, 702 F.Supp. 489, 491 (D.N.J. 1988). The date of the arraignment, which is the trigger event, is excluded as "other proceedings concerning the defendant" pursuant to 18 U.S.C. Section 3161(h)(1). United States v. Maloy, 835 F.Supp. 1373, 1376 (M.D.Fla.1993). Thus, February 3, 1998, the day after the arraignment, begins the first day of the 70-day period, and the final day is April 14, 1998. Second, the day of the status conference, August 24, 1999, is excluded as an "other proceeding[] concerning the defendant" pursuant to Section 3161(h). See, e.g., Maloy, 835 F.Supp. at 1376. Third, the day that Martinez filed the motion to dismiss the indictment results in an excludable time period pursuant to Section 3161(h)(1)(F). "A motion to dismiss — regardless of the grounds upon which it is based — is a motion like any other motion, and thus falls within the express exclusion of [Section 3161(h)(1) ](F)." United States v. Stafford, 697 F.2d 1368, 1372 (11th Cir.1983). Fourth, Martinez's appeal of the habeas petition to the Third Circuit results in time being excluded under Section 3161(h)(1)(E), which excludes time periods for "delay resulting from any interlocutory appeal." See also Tyler, 878 F.2d at 757; United States v. Davenport, 935 F.2d 1223, 1234 (11th Cir.1991). Consequently, an excludable time period begins September 7, 1999, when Martinez filed an appeal before the Third Circuit.

Despite the exclusions, the Government's violation o the Speedy Trial Act remains substantial. Applying the relevant exclusions, the following reflects the extent of the Government's delay under the Speedy Trial Act. As noted, the 70-day period ended April 14, 1998, and the violation period began on April 15, 1998. The clock stopped on December 28, 1998, when Martinez filed the petition for writ of habeas corpus until August 23, 1999, when Judge Debevoise dismissed the petition. When the habeas petition was filed, 257 days (more than eight months) had lapsed since the day the 70-day period ended, including excludable days. The clock remained stopped on August 24, 1999, when the pretrial conference was held. The clock began running from August 25, 1999 until September 7, 1999, a total of 13 days, when Martinez filed a notice of appeal for the habeas petition. Adding those 13 days to the 257 days, the Speedy Trial Act violation totaled 270 days. In the meantime, the appeal of the habeas petition results in excludable time.

B. Whether to Dismiss the Indictment With or Without Prejudice

Regardless of the precise calculation, the Government concedes that it "cannot and does not contest that there...