United States v. Graham
| Decision Date | 02 May 2022 |
| Docket Number | 1:21-CR-195 LJV (MJR) |
| Parties | UNITED STATES v. LAIRON GRAHAM, Defendant. |
| Court | U.S. District Court — Western District of New York |
REPORT AND RECOMMENDATION
This case was referred to this Court by the presiding District Judge, the Honorable Lawrence J. Vilardo, pursuant to 28 U.S.C. §636(b)(1), to handle all pre-trial matters and to make a recommendation as to all dispositive motions. (Dkt No. 11) Before the Court is defendant Lairon Graham's motion to dismiss Counts 2, 3 and 5 of the Indictment. (Dkt No. 19) For the following reasons, it is recommended that Count 3 and Count 5 of the Indictment be dismissed without prejudice, and that defendant's motion otherwise be denied.[1]
On August 25, 2021, a criminal complaint was filed against Lairon Graham (“defendant” or “Graham") charging (1) possession with intent to distribute cocaine base and fentanyl on August 25, 2021, in violation of Sections 841(a)(1) and 841(b)(1)(C) of Title 21 of the United States Code; and (2) being a felon in possession of ammunition on August 25, 2021, in violation of Sections 922(g)(1) and 924(a)(2) of Title 18 of the United States Code. (Dkt. No. 1) Graham made an initial appearance before this Court as to the complaint on August 26, 2021, at which time the Government moved for Graham's detention. (Dkt. No. 2) Following a detention hearing on September 7, 2021, the Court ordered that Graham be detained. (Dkt. Nos. 5, 6)
During the initial appearance on the criminal complaint, the Government sought to exclude time under the Speedy Trial Act, 18 U.S.C. § 3161, et seq. (the "STA”), from August 26, 2021, the date of Graham's initial appearance, through November 30, 2021. (Dkt. No. 2) The practical effect of the request was that the Government would not be required to comply with the STA's rule that an indictment must be filed within thirty days of the initial appearance, or the criminal complaint against Graham would be subject to dismissal. Counsel for the Government provided reasons on the record as to why it was requesting an exclusion of time under the STA which would effectively extend its time limitation for filing an indictment from thirty days to over three months. Specifically, the Government represented that it would use the excluded time “to gather discovery materials, provide voluntary discovery to defense counsel...allow adequate time for defense counsel to review the discovery with his client thereby providing effective assistance of counsel and continuity of counsel during this period.” (Dkt. No. 19, pg. 1) The Court noted that it assumed there would also be discussions of a potential pretrial resolution during the excluded period, prior to the filing of an indictment, which could also benefit defendant. The Government responded, “that is accurate." (Id.) Defense counsel stated that he had “no objection [to the exclusion of time] under those representations.” (Id.) The Court granted the request for the reasons stated by the Government and excluded STA time through November 30, 2021. The Court then scheduled a Rule 48(b) conference for November 30, 2021,[2]
On November 30,2021, immediately prior to the scheduled Rule 48(b) conference, the Government filed a five-count indictment against Graham. (Dkt. No. 9) The Indictment charged (1) conspiracy in violation of Section 846 of Title 21 of the United States Code, from on or about August 24, 2021 through on or about August 25, 2021, to possess with intent to distribute and to distribute 40 grams or more of fentanyl and cocaine base, in violation of Sections 841(a)(1), 841(b)(1)(B), and 841(b)(1)(C) of Title 21 of the United States Code, and to use and maintain a place for the purpose of manufacturing, distributing, and using fentanyl and cocaine, in violation of Section 856(a)(1) of Title 21 of the United States Code; (2) possession with intent to distribute 40 grams or more of a mixture and substance containing fentanyl on August 25, 2021, in violation of Sections 841(a)(1) and 841(b)(1)(B) of Title 21 of the United States Code; (3) possession with intent to distribute cocaine on or about August 25, 2021, in violation of Sections 841(a)(1) and 841(b)(1)(C) of Title 21 of the United States Code; (4) using and maintaining a drug-involved premises at 454 Davey Street, Lower Rear, Buffalo, New York, for purposes of manufacturing, distributing, and using fentanyl and cocaine, from on or about August 24, 2021 through on or about August 25, 2021, in violation of Section 856(a)(1) of Title 21 of the United States Code; and (5) being a felon in possession of ammunition on August 25, 2021, in violation of Sections 922(g)(1) and 924(a)(2) of Title 18 of the United States Code (the Indictment”).[3] (Id.)
When the parties appeared before this Court for the scheduled Rule 48(b) conference, the Government informed the Court that the Indictment was filed earlier that day, and asked to convert the proceeding to an arraignment. (Dkt. No. 12) Following Graham's arraignment and his entry of a not-guilty plea, defense counsel made an oral motion to dismiss the Indictment Defense counsel indicated that contrary to the representations made by the Government at the initial appearance on August 26, 2021, the Government had not provided defense counsel with any discovery over the previous ninety-seven days, nor had the Government initiated plea negotiations or offered a proposed plea agreement. Defense counsel argued that because the Government failed to meet its stated reasons for excluding STA time between August 26, 2021 and November 30, 2021, the ninety-seven days were not properly excluded and Counts 2, 3 and 5 of the Indictment must be dismissed.[4] Counsel for the Government admitted that he had not provided any discovery or engaged in any plea negotiations during the excluded period. The Court directed defense counsel to prepare a written motion to dismiss, which the Government was to respond to in writing. The Court cautioned the Government that considering its apparent inactivity over the previous three months, the Court would “take very seriously” the motion to dismiss.
On January 4, 2022, defendant filed the instant motion to dismiss Counts 2, 3 and 5 of the Indictment. The Government filed a response in opposition on January 18, 2022, and defendant filed a reply on January 26, 2022. (Dkt. Nos. 21,24) The Court heard oral argument as to the motion to dismiss on January 28, 2022. The parties filed further submissions on February 11, 2022. (Dkt. Nos. 36-39)
“The administration of justice depends heavily upon the prompt processing of criminal proceedings,” both to safeguard the rights of the accused and to promote public respect for and confidence in the law. United States v. HHIegas, 578 F.2d 453, 456 (2d Cir. 1978); accord United States v Gaskin, 364 F.3d 438 (2d Cir. 2004). To accomplish this goal, the STA provides for the dismissal of charges against a defendant who is not indicted, arraigned, or brought to trial within specific periods of time set forth in the statute. See 18 U.S.C. § 3161 etseq. Importantly, “[i]t is well-established that a criminal defendant has no obligation to take affirmative steps to insure that [he will] be tried in a timely manner,” United States v. Bert, 814 F.3d 70, 82 (2d Cir. 2016) (internal citations and quotations omitted). Instead, "[i]t is the court and the government that bear the affirmative obligation of insuring the speedy prosecution of criminal charges.” Id.
Considering the facts here and the arguments raised by Graham, the Court must first determine whether the STA's time limitation for filing an indictment was violated, thus triggering a dismissal of any counts of the Indictment also charged in the complaint. If the Court finds that dismissal for an STA violation is warranted, the Court must then determine whether the dismissal should be with or without prejudice and which counts of the Indictment must be dismissed. The Court now addresses each of these issues in turn.
Dismissal for an STA Violation is Warranted.
Section 3161(b) of the STA, invoked by Graham here, states that “any information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges.” 18 U.S.C. § 3161(b). The sanction for a violation of Section 3161 (b)'s time limitation is a dismissal of the untimely charges. Id. at § 3162(a)(1). However, Section 3161(h) of the STA specifies certain types of delays which are excludable from this thirty-day calculation, some of which are automatically excludable and others of which are dependent on the court making specific findings enumerated in the statute. See Bloate w United States, 559 U.S. 196, 203 (2010). To that end, the STA permits a court to exclude time from the STA clock if, after considering certain factors, the court makes on-the-record findings that “the ends of justice served by the granting [a] continuance outweigh the best interest of defendant and the public in a speedy trial.” See 18 U.S.C. § 3161(h)(7)(A) (the “interest of justice exclusion”).[5]
During Graham's August 26, 2021 initial appearance on the complaint, this Court excluded ninety-seven days of STA time at the request of the Government and pursuant to Section 3161(h)(7)(A). To that end, the Court made specific findings on the record that the interests of justice were best served in granting the exclusion based upon the Government's representations that it would utilize the three-month period to provide discovery to defense counsel, allow Graham time to review discovery with his counsel, and engage in plea negotiations. Defense counsel stated that...
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