United States v. Irizarry-Colon

• Citation: 820 F.Supp.2d 306
• Decision Date: 18 October 2011
• Docket Number: Criminal No. 11–231 (FAB).
• Parties: UNITED STATES of America, Plaintiff, v. Efren IRIZARRY–COLON, Defendant.
• Court: U.S. District Court — District of Puerto Rico

820 F.Supp.2d 306

UNITED STATES of America, Plaintiff,

v.Efren IRIZARRY–COLON, Defendant.

Criminal No. 11–231 (FAB).

United States District Court, D. Puerto Rico.

Oct. 18, 2011.

Vernon Benet Miles, United States Attorneys Office, District of Puerto Rico, San Juan, PR, for Plaintiff.

Montilla–Brogan, San Juan, PR, for Defendant.

OPINION AND ORDER

BESOSA, District Judge.

Before the Court is defendant Efren Irizarry–Colon's “Motion to Dismiss” the indictment against him. (Docket No. 17.) For the reasons set forth below, his motion to dismiss is DENIED.

I. Background

On June 17, 2011, the grand jury returned an indictment charging defendant Irizarry–Colon with thirty-five counts: one count of conspiracy to defraud the United States, in violation of 18 U.S.C. § 371; thirty counts of making a false entry in any book, report or statement of the Department of Agriculture's Farm Service Agency (“FSA”) with the intent to defraud the United States, in violation of 18 U.S.C. §§ 2, 1006; and four counts of making false statements on loan applications submitted to the FSA, in violation of 18 U.S.C. §§ 2, 1014. The indictment also seeks forfeiture of assets under 18 U.S.C. § 982(a)(2)(A). (Docket No. 1.)

In his motion to dismiss the indictment against him, defendant Irizarry–Colon argues (1) that the government violated his right to a speedy trial, as guaranteed by the Sixth Amendment of the Constitution of the United States and codified by the Speedy Trial Act (“STA”), 18 U.S.C. § 3161; and (2) that the government violated his Fifth Amendment due process rights. (Docket No. 17 at 1.) On September 12, 2011, the government opposed the motion to dismiss. (Docket No. 19.) On September 20, 2011, defendant Irizarry–Colon filed a reply to the government's opposition. (Docket No. 23.)

During the time period relevant to the indictment, defendant Irizarry–Colon was a prominent attorney in the northwest region of Puerto Rico. After Hurricane Georges struck Puerto Rico in September of 1998, defendant Irizarry–Colon acted as an FSA-approved closing agent and attorney. He was responsible for procuring emergency and operating loans for farmers in the Arecibo/Hatillo area through the FSA's economic disaster assistance program to help qualified farmers recover from losses sustained because of the hurricane. (Docket No. 1 at 1–3.) The indictment alleges that defendant Irizarry–Colon, conspiring with other indicted and unindicted persons, defrauded the FSA of more than $10,000,000 in emergency and operating loan funds by submitting fraudulent loan applications and documents relating to FSA loans. Id. at 3–44. The government filed similar criminal charges against him in 2005, 2007, and 2010. In each case, the indictment was dismissed without prejudice on speedy trial grounds. ( See Criminal No. 05–258 (GAG/CVR), Docket Nos. 1, 98; Criminal No. 07–146 (GAG), Docket Nos. 1, 74; Criminal No. 10–024 (CCC/BJM), Docket Nos. 1, 36.)

Defendant Irizarry–Colon filed his motion to dismiss charges in the 2010 indictment with prejudice on speedy trial and due process grounds on May 12, 2010. ( See Criminal No. 10–024 (CCC/BJM), Docket No. 15.) The government filed a response to the motion to dismiss on May 28, 2010, arguing that the dismissal should be without prejudice. ( See Criminal No. 10–024 (CCC/BJM), Docket No. 17.) The case was referred to Magistrate Judge McGiverin for a report and recommendation. In his report, the magistrate judge recommended that the charges be dismissed without prejudice. ( See Criminal No. 10–024 (CCC/BJM), Docket No. 31 at 20.) He noted that the government and defendant agreed that more than seventy non-excludable days had passed since Irizarry–Colon's initial appearance and that the only issue remaining was whether the case should be dismissed with or without prejudice. Id. at 5. The magistrate judge stated that the delay in bringing defendant to trial did not violate his Sixth Amendment speedy trial right or rise to the level of a Fifth Amendment due process violation. Id. at 17, 20. The district court adopted the magistrate judge's report and recommendation on December 19, 2010 and dismissed the indictment without prejudice. ( See Criminal No. 10–024 (CCC/BJM), Docket No. 36.)

The indictment in this case was issued on June 17, 2011. Irizarry's initial appearance and arraignment, at which he entered a plea of not guilty, took place on June 30, 2011. (Docket No. 7.) On July 21, 2011, a status conference was held. (Docket No. 14.) The government indicated that full discovery was provided and anticipated that a trial would be required. Id. A jury trial was set for September 8, 2011. Id. On August 15, 2011, however, defendant Irizarry–Colon filed a motion for extension of time until August 25, 2011 to file dispositive motions and that the government be granted until September 12, 2011 to respond. (Docket No. 15.) On August 16, 2011, the Court issued an order granting defendant's motion for extension of time, vacated the jury trial scheduled for September 8, 2011, and tolled the Speedy Trial Act in the interest of justice. (Docket No. 16.) Defendant filed the motion to dismiss on August 25, 2011. (Docket No. 17.)

II. DiscussionA. Speedy Trial Claim

The right to a speedy trial is intended to “guard against inordinate delay between public charge and trial.” Barker v. Wingo, 407 U.S. 514, 537, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) (White, J., concurring). In his motion to dismiss the indictment, Irizarry–Colon argues (1) that the government violated his right to a speedy trial under the STA because the government moved to dismiss his previous indictment and thereafter reindicted him without bringing him to trial within the prescribed statutory time limit; and (2) that the prolonged period of delay between Irizarry–Colon's first indictment filed in 2005 and today, when no trial has yet been held, constitutes a violation of his right to a speedy trial under the Sixth Amendment of the United States Constitution. (Docket No. 17 at 4–6.) The Court will consider each argument in turn.

1. Speedy Trial Act

The Speedy Trial Act, 18 U.S.C. § 3161, provides that a defendant be tried “within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs.” 18 U.S.C. § 3161(c)(1)(2006). If any indictment or information is “dismissed upon motion of the defendant,” and the defendant is thereafter reindicted, the seventy-day clock resets and runs anew. See 18 U.S.C. § 3161(d)(1)(2006); see also United States v. Rojas–Contreras, 474 U.S. 231, 239, 106 S.Ct. 555, 88 L.Ed.2d 537 (1985) (Blackmun, J., concurring). If an indictment is dismissed “upon motion of the attorney for the Government,” and the defendant is thereafter reindicted, however, the seventy-day clock continues to run from the first indictment but the period during which no indictment is outstanding is excluded from the seventy-day calculation. See 18 U.S.C. § 3161(h)(5)(2008); ¹ see also Rojas–Contreras, 474 U.S. at 239, 106 S.Ct. 555; United States v. Colombo, 852 F.2d 19, 23–24 (1st Cir.1988) (internal citations omitted) (discussing how the STA excludes the time between the indictments and “not the time during the pendency of the first indictment” when a government voluntarily dismisses charges).

Defendant Irizarry–Colon contends that the government's response to his motion to dismiss the third indictment is a “motion ... of the Government” under 18 U.S.C. § 3161(h)(5) and that the court dismissed the indictment on that motion. (Docket No. 17 at 3–4.) He suggests that STA seventy-day clock was merely suspended on the dismissal of the third indictment. Id. at 4. Irizarry–Colon argues that ninety non-excludable STA days had already passed when the third indictment was dismissed. Id. He further argues that when he appeared for the fourth indictment, the seventy-day clock resumed and did not start anew. Id. The government, however, contends that the STA clock started anew with the defendant's arraignment—on June 30, 2011—after the fourth indictment. (Docket No. 19 at 7–8.)

In applying 18 U.S.C. § 3161(h)(5), courts have suggested that an indictment is dismissed “upon motion of ... the Government” when the government affirmatively initiates a request for relief. See, e.g., Colombo, 852 F.2d at 23–24 (discussing voluntary dismissal of charges by the government for the purposes of § 3161(h)(6)); United States v. Leone, 823 F.2d 246, 247 (8th Cir.1987) (emphasizing that the government dismissed the indictment “on its own motion”). Furthermore, other circuits have found that a district court dismissed an indictment on a defendant's motion even when the government requested a dismissal without prejudice in its response. See United States v. Blackeagle, 279 Fed.Appx. 588, 588–89 (9th Cir.2008) (holding that the district court dismissed on defendant's motion by specifically granting that motion in its order); ² United States v. Story, 131 F.3d 150 (9th Cir.1997) (unpublished table decision) (finding that the district court granted defendant's motion to dismiss even though the government conceded the propriety of dismissing the indictment).

In this case, defendant Irizarry–Colon simply states that his third indictment was dismissed “upon government motion,” glossing over the fact that he filed the motion to dismiss that indictment on STA grounds and that the government merely filed a response to that motion. ( See Docket No. 17 at 4.) Defendant Irizarry–Colon provides no argument or supporting legal authority indicating that the government's response to his motion to dismiss the third indictment should constitute a motion by the government for the purposes of the STA calculation. See id. at 4–5. In his reply to the government's opposition, Irizarry–Colon cites United States v. Fernandez Santos, No. 10–73(JAG)...