United States v. Diaz
| Docket Number | 19-CR-3336 MV |
| Decision Date | 21 December 2023 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. FRANCISCO DIAZ, Defendant. |
| Court | U.S. District Court — District of New Mexico |
THIS MATTER is before the Court on Mr. Diaz's Motion to Dismiss Based on a Violation of His Constitutional Right to a Speedy Trial or in the Alternative for Violation of the Speedy Trial Act. Doc. 143. The government filed a Response on October 20, 2023 [Doc. 157] and Mr. Diaz filed a Reply on November 12, 2023 [Doc. 161]. The Court, having considered the briefs and relevant law, and being otherwise fully informed, finds that the motion is well taken and will be GRANTED as follows: the indictment will be dismissed without prejudice.
Mr Diaz was initially arrested on the instant charges on September 3, 2019. Doc. 1. On September 24, 2019, Mr. Diaz was charged by indictment with Possession with Intent to Distribute 500 Grams and More of Cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) and Possessing a Firearm in Furtherance of a Drug Trafficking Crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i). Doc. 12. Judge B. Paul Briones granted Mr. Diaz pretrial release on September 9, 2019. Doc. 10. On October 23, 2019, Mr Diaz's original attorney, Michael Davis, filed the first unopposed motion to continue. Doc. 18. This motion was granted on October 30, 2019. Doc. 19. On November 15, 2019 Mr. Diaz retained a new attorney, Billy R. Blackburn. Docs 20, 21. On January 7, 2020, Mr. Blackburn filed a second unopposed motion to continue. Doc. 24. This motion was granted on January 8, 2020, and the trial was reset for April 27, 2020. Doc. 25.
In response to the coronavirus pandemic, on March 13, 2020, the District Court issued Administrative Order 20-MC-0004-9, which ordered that effective March 16, 2020, all jury trials scheduled before April 10, 2020 be continued pending further order of the Court. Administrative Order 20-MC-0004-9, at 1, ¶ 1. As part of the Administrative Order, the Court ordered that continuances thereunder would be excluded under the Speedy Trial Act. Id. The Court extended its original stay of proceedings six more times on March 31, 2020 (Administrative Order, No. 20-MC-00004-15), April 27, 2020 (Administrative Order No. 20-MC-00004-17), May 19, 2020 (Administrative Order No. 20-MC-00004-19), July 6, 2020 (Supplemental Administrative Order No. 20-MC-00004-27), November 18, 2020 (Supplemental Administrative Order No. 20-MC-00004-39), December 21, 2020 (Supplemental Administrative Order No. 20-MC-00004-49), and January 31, 2021 (Supplemental Administrative Order No. 21-MC-00004-4). The Court reinstated the stay in response to the Omicron variant on January 14, 2022. Administrative Order 22-MC-00004-10.
On April 6, 2020, Mr. Blackburn filed Mr. Diaz's third unopposed motion to continue. Doc. 28. In support of this motion, Mr. Blackburn stated that he needed time to review additional discovery, which was “voluminous in size and detail.” Id. at 2. The motion further stated that in light of the COVID-19 pandemic, during February and March of 2020, “counsel was consumed with making emergency arrangements for his youngest daughter to return from a six-month teaching experience in Bangkok, Thailand.” Id. The motion also generally noted the difficulties of working from home during the pandemic and stated that “we are currently not living under normal circumstances and a continuance is necessary to safely and adequately address the defendant's constitutional and statutory rights during this pandemic emergency.” Id. at 3.
In each of the successive motions to continue, Mr. Blackburn stated that due to the volume of discovery and the difficulties presented by the COVID-19 pandemic, a continuance would be necessary for the defense to file pretrial motions, negotiate a plea deal, and otherwise investigate the case. See Doc. 33, 35, 38, 41, 45, 48. In addition to these general concerns, Mr. Blackburn notified the Court of several family emergencies relating to the health of family members and his own health. On June 29, 2020, in a fourth unopposed motion to continue Mr. Blackburn stated that he was in Oklahoma City addressing a family emergency. Doc. 33 at 4. On October 5, 2020, Mr. Blackburn stated in a fifth unopposed motion to continue that his uncle had passed away and that “the emotional toll that this matter has taken on counsel's 90-year-old mother and the remainder of the family has been overwhelming.” Doc. 35 at 4. He further stated that “counsel also had oral dental surgery and is still recovering.” Id. On December 14, 2020, Mr. Blackburn filed Mr. Diaz's sixth unopposed motion to continue, stating that a continuance was necessary because Doc. 38 at 4. On April 23, 2021, Mr. Blackburn filed a seventh motion to continue, stating that he had been “consumed since late February 2021, with a private matter concerning counsel's mother.” Doc. 41 at 4. Along with family illness, Mr. Blackburn informed the Court that his assistant had recently resigned and that “counsel has literally been doing everything possible to keep his office running while trying to hire a new employee who has some legal experience and training.” Id. On August 9, 2021, Mr. Blackburn filed an eighth unopposed motion to continue, citing continuing problems stemming from his assistant's resignation. Doc. 45 at 4.
On September 13, 2021, Mr. Blackburn filed Mr. Diaz's ninth unopposed motion to continue and notified the court that “Counsel for Defendant Diaz has been consumed since early August 2021 through today's date with a family emergency concerning his 91-year-old mother.” Doc. 47 at 2. He further stated that “Counsel has been overwhelmed by this matter and respectfully requests time to fully attend to this family matter.” Id. at 3. On December 27, 2021, Mr. Blackburn filed a tenth unopposed motion to continue, citing the need to address another case that had a firm trial date. Doc. 53. In five of the motions, counsel represented that “Defendant Diaz agrees with this continuance and will not be prejudiced by this continuance.” See Docs. 28, 38, 41, 45, 47, 53.
On August 15, 2022, the United States and Mr. Blackburn filed a joint motion to continue. Doc. 94. The motion stated that the United States had recently received information from the Santa Fe County Sherriff's Office regarding Mr. Diaz, including a report and video recordings. Id. at 2. The United States agreed that counsel and Mr. Diaz should be afforded an opportunity to review the recordings. Id. Separately, Mr. Blackburn represented in the joint motion that Mr. Diaz had close family members who had recently tested positive for COVID-19 and that Mr. Diaz was not vaccinated and had been in close contact with those family members. Id. at 1. Mr. Blackburn further stated that he himself was exhibiting symptoms of COVID-19 and was taking an at-home test. Id. He added that he had had two family emergencies in the last two weeks, one of which had required him to travel out of state, and that his elderly mother had recently been moved to Mr. Blackburn's home and required constant care. Id. The motion stated that “it is unclear whether her condition will stabilize in the near future.” Id.
On November 30, 2022, the Court held a pretrial conference for the trial, which was scheduled to begin on December 5, 2022. Doc. 104. Mr. Diaz appeared via Zoom and Mr. Blackburn requested a continuance because Mr. Diaz had been to urgent care and tested positive for Influenza A. Doc. 153 at 8:16-21; Doc. 161 - Exhibit A. Mr. Blackburn added that Influenza A could last “anywhere from four to seven days, and it takes up to two weeks to recover.” Id. at 8:22-24. The trial was continued until April 11, 2023.[1] The Court held another pretrial conference on March 23, 2023, during which Mr. Blackburn alerted the Court to a potential scheduling problem, citing his elderly mother's health situation. Mr. Blackburn ensured the Court that he had a backup plan so that he would be able to attend the trial. Doc. 122 at 1. The Court asked Mr. Blackburn if Mr. Diaz had any concerns about proceeding to trial with Mr. Blackburn as his attorney and he responded that he did not. Doc. 157 at 17.
On April 4, 2023, one week before the trial was scheduled to begin, Mr. Blackburn filed an opposed motion to withdraw from the case. Doc. 118. In the motion, Mr. Blackburn referred to his family problems and stated that Doc. 118 at 2. After a contested hearing, the Court granted Mr. Blackburn's motion to withdraw on April 5, 2023. Doc. 150. On April 6, 2023, the Court entered a text-only order vacating the existing trial date. Doc. 121. Mr. Blackburn did not file a motion to continue in conjunction with his motion to withdraw and the Court never put on the record its reason for continuing the trial on April 6, 2023. Id. Current counsel for Mr. Diaz entered her appearance on May 15, 2023. On August 11, 2023, the Court filed a trial notice and set a new trial date for January 22, 2024. Doc. 136.
The defense argues that Mr. Diaz's Sixth Amendment right to a speedy trial has been violated and asks the Court to dismiss the indictment with prejudice....
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