U.S. v. Oberoi

• Decision Date: 11 December 2003
• Docket Number: No. 99-CR-197A.,99-CR-197A.
• Citation: 295 F.Supp.2d 286
• Parties: UNITED STATES of America, v. Tejbir OBEROI, Defendant.
• Court: U.S. District Court — Western District of New York

295 F.Supp.2d 286

UNITED STATES of America, v. Tejbir OBEROI, Defendant.

No. 99-CR-197A.

United States District Court, W.D. New York.

December 11, 2003.

COPYRIGHT MATERIAL OMITTED

Tejbir S. Oberoi, Buffalo, NY, Pro se.

Jack E. Rogowski, U.S. Attorney's Office, Buffalo, NY, for Plaintiff.

John J. Molloy, West Seneca, NY, for Defendant.

DECISION AND ORDER

ARCARA, District Judge.

INTRODUCTION

On June 20, 2003, defendant Tejbir Oberoi moved pro se to dismiss the instant Indictment based on an alleged violation of the Speedy Trial Act, 18 U.S.C. § 3161 et seq. He filed supplemental material in support of his motion on June 24, 2003. The government filed a response opposing the motion on July 2, 2003. Defendant filed an affirmation and table in support of his motion on July 3, 2003. Defendant also filed supplemental reply memoranda on July 8, July 10, August 12, August 14, August 21, August 25, September 10, October 22 and October 24, 2003. In his October 22nd memorandum, defendant raised for the first time a claim that the indictment should also be dismissed under the Speedy Trial Act because of pre-indictment delay. The government filed a memorandum regarding the pre-indictment delay issue on November 4, 2003. Defendant filed reply memoranda thereto on November 5 and 13, 2003.¹ Oral argument on the motion to dismiss was held on November 12, 2003.

After reviewing the submissions of the parties and hearing oral argument, the Court denies defendant's motion to dismiss.

DISCUSSION

A. The Speedy Trial Act

The Speedy Trial Act is designed to protect a defendant's constitutional right to a speedy trial and to serve the public interest in ensuring a quick resolution of criminal proceedings. United States v. Breen, 243 F.3d 591, 594 (2d Cir.) (citation omitted), cert. denied, 534 U.S. 894, 122 S.Ct. 214, 151 L.Ed.2d 152 (2001). The Act commands the government to bring criminal defendants to trial within 70 days of their first appearance before a judicial officer of the court or the filing of an indictment, whichever is later. See 18 U.S.C. § 3161(c)(1)²; see also United States v. Anderson, 902 F.2d 1105, 1108 (2d Cir.), cert. denied, 498 U.S. 867, 111 S.Ct. 182, 112 L.Ed.2d 146 (1990). The 70-day deadline, however, is not absolute; 18 U.S.C. § 3161(h) excludes certain periods of delay from the 70-day calculation. The periods of delay defined in §§ 3161(h)(1)-(6), which include delays resulting from interlocutory appeals, pretrial motions and "other proceedings concerning the defendant," are automatically excluded from the Speedy Trial clock.³ See Henderson v. United States, 476 U.S. 321, 327, 106 S.Ct. 1871, 90 L.Ed.2d 299 (1986); Anderson, 902 F.2d at 1108; United States v. Tunnessen, 763 F.2d 74, 76 (2d Cir. 1985). Put differently, these sections of the Act are self-executing, i.e., no specific finding or order by the court is required for the exclusions to apply, and the exclusions are not limited to delays that are reasonably necessary. Henderson, 476 U.S. at 329-30, 106 S.Ct. 1871.

The Speedy Trial Act also excludes from the 70-day time limit any period of delay "resulting from a continuance granted by any judge on his own motion or at the request of the defendant or his counsel or at the request of the attorney for the Government, if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial." 18 U.S.C. § 3161(h)(8)(A). Unlike §§ 3161(h)(1)-(6), § 3161(h)(8)(A) is not self-executing. No period of delay based on the "ends of justice" may be excluded under § 3161(h)(8)(A), "unless the court sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice [would be] served" by granting the excludable delay. Subsection (h)(8)(B) contains a nonexclusive list of factors for the court to consider in deciding whether to grant a continuance under subsection (h)(8)(A). The court may not grant an ends-of-justice continuance under § 3161(h)(8)(A) nunc pro tunc. Tunnessen, 763 F.2d at 77. "[A]n ends-of-justice continuance [must] be prospective, not retroactive; an order granting a continuance on that ground must be made at the outset of the excludable period." Id. However, a court may enter its ends-of-justice finding after it grants the continuance if it is clear from the record that the court conducted the mandatory balancing contemporaneously with the granting of the continuance. Id. at 77-78.

If a criminal indictment is not brought to trial within the 70-day time limit imposed by § 3161(c)(1), as extended by operation of § 3161(h), the penalty provisions of the Speedy Trial Act mandate that "the information or indictment shall be dismissed on motion of the defendant." 18 U.S.C. § 3162(a)(2). The dismissal may be with or without prejudice. Id.; Tunnessen, 763 F.2d at 76.

B. The Speedy Trial Clock has not Expired

Defendant Oberoi contends that the 70-day Speedy Trial clock expired long ago in this case and that the Indictment must therefore be dismissed. The Court finds this contention without merit.

Preliminarily, the Court notes that although this case has been pending for nearly four years, an unusually long period of time, defendant does not dispute that the vast majority of the delay is properly excluded from the 70-day Speedy Trial clock.⁴ For example, the government has filed six motions in this case to modify or revoke defendant's bail. Each government motion resulted in a more restrictive modification of release. In two instances, defendant's bail was revoked.⁵ Hearings on the various bail revocation motions consumed several months. Defendant does not contest that all such periods between the filing of the bail revocation motions and the conclusion of the hearings and related submissions are excluded under 18 U.S.C. § 3161(h)(1)(F)⁶, from computation of the Speedy Trial Act time. There have also been myriad other delays, including delays relating to three different defense attorney changes⁷ and two separate interlocutory appeals to the Second Circuit Court of Appeals, to which defendant does not object.

Defendant's motion is limited to challenging a number of discrete time periods which he claims are not excluded or were not properly excluded under the Speedy Trial Act.⁸ He claims that when these non-excluded periods of delay are added together, they result in significantly more than 70 days having run on the Speedy Trial clock. Each of the challenged periods will be discussed chronologically, with a running tally as to the number of non-excluded speedy trial days at the end of each period.

1. Period of December 16, 1999 to December 22, 1999

On October 14, 1999, the government filed a criminal complaint (99-M-88) charging defendant with mail fraud, in violation of 18 U.S.C. § 1341; and health care fraud, in violation of 18 U.S.C. § 1347. Defendant was arrested on October 18, 1999 and made an initial appearance on the complaint before Magistrate Judge Carol E. Heckman that same day. Defendant was released on his own recognizance.

On December 16, 1999, a federal grand jury returned a 157-count Indictment (99-CR-197), which charged defendant with 34 counts of mail fraud, in violation of 18 U.S.C. § 1341; and 123 counts of making false statements in connection with health care benefits, in violation of 18 U.S.C. § 1035(a)(2). Defendant appeared for arraignment on the Indictment on December 22, 1999, before Magistrate Judge Heckman, at which time he entered a plea of not guilty. See Government Exhibit No. 1.

Defendant contends that the five days between the Indictment being returned on December 16th and the arraignment on December 22nd is not excluded time under the Speedy Trial Act. The government does not contest defendant's position. Thus, the five-day period between December 16th and December 22nd is not excluded from the Speedy Trial clock.

5 DAYS NON-EXCLUDED: 65 REMAIN

2. Period of January 12, 2000 to February 11, 2000

At the December 22, 1999 arraignment, the government moved for detention of defendant pending trial. Magistrate Judge Heckman scheduled a hearing on the government's motion.

Also at the December 22, 1999 arraignment, defendant, through his then-counsel, Mr. Greenman, requested that he be given time to obtain and review evidence provided by the government through voluntary discovery, as well as additional time to prepare and file pretrial motions. See Government Exhibit No. 1. The Magistrate Judge directed that all voluntary discovery be provided to the defendant by January 19, 2000, that defense motions be filed by February 23, 2000, that the government's response be filed by March 3, 2000, and that oral argument on the motions be held on March 8, 2000. Id. The Magistrate Judge then stated that the time up to the oral argument date would be excluded from the Speedy Trial clock. Id. at 9. Neither defendant nor his counsel objected.

The Magistrate Judge filed a written Scheduling Order on December 28, 1999. See Government Exhibit No. 2.⁹ In the December 28th Scheduling Order, the Magistrate Judge stated that the period of December 22, 1999 (the date of the arraignment) through March 10, 2000 (the date for oral argument on defendant's pretrial motions) is excluded from the computation of Speedy Trial Act time, pursuant to § 3161(h)(1)(F). See Government Exhibit No. 2. In support of the exclusion, the Magistrate Judge cited the following cases: United States v. Piontek, 861 F.2d 152, 154 (7th Cir.1988); United States v. Montoya, 827 F.2d 143, 153 (7th Cir.1987); United States v. Wilson, 835 F.2d 1440, 1444 (D.C.Cir.1987); United States v. Tibboel, 753 F.2d 608, 610 (7th Cir.1985), and United States v. Jodoin, 672 F.2d 232, 238 (1st Cir.1982). These cases all hold that the time period deemed necessary for the preparation of motions is properly excluded from the computation of Speedy Trial Ac...