United States v. Hajavi
| Decision Date | 27 January 2021 |
| Docket Number | CRIMINAL ACTION FILE NO. 1:19-cr-0443-TWT-AJB-01 |
| Parties | UNITED STATES OF AMERICA v. JALAL HAJAVI, Defendant. |
| Court | U.S. District Court — Northern District of Georgia |
Before the Court is Defendant Jalal Hajavi's motion to dismiss the indictment for violation of the Speedy Trial Act. [Doc. 35]. The government responded, [Doc. 50], and Hajavi replied, [Doc. 67]. For the following reasons, the undersigned RECOMMENDS that the motion be DENIED.
On July 24, 2017, Hajavi was named in a single-count criminal complaint alleging that he violated 18 U.S.C. § 554, specifically that "on June 22, 2017, [he] knowingly export[ed] or sen[t], or attempt[ed] to export or send, merchandise, articles or objects contrary to any law or regulation of the United States, or facilitate the transportation, concealment or sale of such merchandise, article or object prior to exportation, knowing the same to be intended for exportation contrary to any law or regulation of the United States, to wit, 13 U.S.C. § 3051 and regulations promulgated thereunder." United States v. Hajavi, No. 1:17-MJ-608-CMS (N.D. Ga. filed July 24, 2017), at Doc. 1.
On February 20, 2019, the government moved to dismiss that complaint without prejudice, noting that Hajavi agreed to self-surrender on February 28, 2019 and that the government was presenting a new complaint adding additional paragraphs and evidence and a different charge, that is, a violation of 18 U.S.C. § 371. Id., Doc. 6 at 1. The complaint was dismissed without prejudice that same day. Id., Doc. 6 at 2.
On February 20, 2019, a different criminal complaint (No. 1:19-MJ-0129-CMS) was issued against Hajavi, charging him, in violation of 18 U.S.C. § 371, with conspiracy to buy and facilitate the transportation and sale of an Ingersoll Rand Crawler Mounted Rotary Blasthole drill, model DM45E, knowing the same to be intended for exportation contrary to any law and regulation of the United States, that is 50 U.S.C. § 1705(a) and 18 U.S.C. § 554. [Doc. 1]. Hajavi appearedin this District to respond to the complaint on February 28, 2019. He waived a preliminary hearing and thereafter was released on bond. [Docs. 4, 5, 8, 9].
Also on February 28, 2019, an unopposed motion of the government was granted, extending the time to indict Hajavi until April 30, 2019. [Docs. 6, 7]. Following another unopposed motion, [Doc. 13], the time to indict subsequently was extended until July 3, 2019. [Doc. 14].
A November 6, 2019 indictment charged Hajavi in Count One with conspiracy to violate the International Emergency Economic Powers Act, in violation of 50 U.S.C. 17052; in Count Two with smuggling goods from the United States, in violation of 18 U.S.C. § 5543; and in Counts Three and Four withsubstantive violations of § 1705.4 [Doc. 15].
Hajavi alleges that under the Speedy Trial Act, 18 U.S.C. § 3161 et seq., because the pending indictment was returned more than 30 non-excludable days following his appearance on the complaint, the indictment should be dismissed and the dismissal should be with prejudice. [Doc. 35 at 2-4]. He submitted that because the government bears the burden of demonstrating that dismissal without prejudice is warranted, he would discuss why the case should be dismissed with prejudice in his reply brief. [Id. at 4].
In response, the government argues, first, that to the extent Hajavi seeks dismissal under the Speedy Trial Act due to any delay in indicting him following the issuance of the first complaint (No. 1:17-MJ-608), the contention should be rejected because there is no Speedy Trial Act violation for charges dismissed without prejudice prior to a defendant's arrest. [Doc. 50 at 4 nn.2 & 3]. Second, the government argues that, at best, a violation of the 30-days-to-indict proscription under the Speedy Trial Act warrants dismissal only of the charges that were set forth in the criminal complaint, which in this case would be a conspiracy chargeunder § 371. [Id. at 6-7]. It argues, however, that the indictment does not charge Hajavi with violating the general conspiracy statute (§ 371), but rather a conspiracy under a different statute (§ 1705). [Doc. 50 at 8]. Although acknowledging the absence of any caselaw concerning the Speedy Trial Act and two different conspiracy charges, it analogizes this situation to cases decided under the Constitution's Double Jeopardy Clause, where courts have held that conspiracies charged under separate statutes are separate and distinct charges. [Id. at 7-9 ()]. The government goes on to argue that the elements of a § 371 conspiracy as charged in the complaint were different than the § 1705 conspiracy charged in the indictment, and therefore, consistent with Meyers, the 2019 complaint and the present indictment charge separate crimes and, thus, neither the indictment nor the Count One conspiracy charge are subject to dismissal.
[Doc. 50 at 10-11]. It also contends that Counts Two through Four, charging substantive violations of §§ 554 and 1705 are not subject to dismissal because those charges were not contained in the 2019 complaint. [Id. at 11-13]. Finally, the government argues that if the indictment or any count is subject to dismissal, dismissal should be without prejudice, because Hajavi is charged with serious crimes; the delay (four months), if any, is not correspondingly severe; the delay resulted from the parties' attempts to resolve the case; and Hajavi has not shown how he is prejudiced or how the delay affected the administration of justice. [Id. at 14-15].
In his reply, Hajavi first contends that he did not agree to the form of the dismissal of the initial complaint, having advised the government that he wanted dismissal with prejudice and that he was reserving his rights to a speedy indictment or trial prior to arraignment on the new complaint. [Doc. 67 at 2]. He complains that despite his stated position, the government submitted to the magistrate judge, ex parte, the version of the motion seeking dismiss of the initial complaint without prejudice, representing that it was without his objection. [Id.]. He also contends that his counsel modified the government's draft "Speedy Trial Tolling Agreement and Waiver of Preliminary Hearing," and argues that such changes reflect his intent to protect his speedy trial rights, and therefore, the government's ex partesubmissions should not be treated as a waiver by him. [Id. at 2-3]. The Court construes Hajavi's argument on this point to be that since he recognizes that the government in the draft motion to dismiss indicated its intent to file another complaint, he has not waived his rights to challenge the indictment as untimely. [Id. at 3-4].
Hajavi next argues that the government is wrong that the indictment contains none of the charges in the complaint, and also is incorrect that the Court should not consider the initial complaint. [Id. at 4]. He contends that the initial complaint charged violations of 13 U.S.C. § 305 and 18 U.S.C. § 554, and the second complaint charged violations of 18 U.S.C. §§ 371 and 554 and 50 U.S.C. § 1705, while the indictment charges violations § 554 in Counts One and Two and § 1705 in Counts One, Two, Three, and Four; and thus, as a result, "there are no new charges." [Id.]. He then argues that the indictment should be dismissed with prejudice, because the facts belie that the crime is serious since the products he sold to another did not have direct military application, the charges have resulted in a delay in his naturalization, and the administration of justice is adversely affected because he has had to vociferously assert that he did not waive his Speedy Trial rights. [Id. at 5-6].
The Speedy Trial Act requires the government to file an indictment within thirty days from the date of the defendant's arrest or the service of a summons on a complaint. 18 U.S.C. § 3161(b). The government's failure to comply with this provision may lead to the dismissal of the charge against the defendant:
If, in the case of any individual against whom a complaint is filed charging such individual with an offense, no indictment or information is filed within the time limit required by section 3161(b) . . . of this chapter, such charge against that individual contained in such complaint shall be dismissed or otherwise dropped.
18 U.S.C. § 3162(a)(1). The plain language of the Speedy Trial Act disposes of Hajavi's first argument. He was not arrested on the initial complaint issued July 24, 2017 (No. 1:17-MJ-608), nor is there any evidence that he was served with a summons as to that complaint. Only a " 'federal arrest' triggers the running of the thirty day time period set forth in § 3161(b)." United States v. Pineda, No. 1:06-CR-350WSD, 2008 WL 686239, at *2 (N.D. Ga. Mar. 10, 2008) (quoting United States v. Benitez, 34 F.3d 1489, 1493 (9th Cir. 1994)). Since the initial complaint was dismissed before Hajavi was arrested or served with a summons, the protections of the Speedy Trial Act were not triggered by the failure to timely indict him.
Notwithstanding the above, Hajavi's contention that what he agreed to when he did not object to dismissal of the initial complaint was different than the version actually submitted by the government to the court is exceptionally troubling. Upon...
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