United States v. Prado
| Decision Date | 29 October 2018 |
| Docket Number | Criminal Action No. 3:16-CR-99-RJG-01 |
| Parties | UNITED STATES OF AMERICA Plaintiff v. LEONARDO RODRIQUEZ PRADO Defendant |
| Court | U.S. District Court — Western District of Kentucky |
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This matter comes before the Court on Defendant Leonardo Rodriquez Prado's Motion to Dismiss for Speedy Trial Violations (the "Motion to Dismiss") which was filed on September 14, 2018. [DE 114]. The United States filed a Response in opposition on September 28, 2018. [DE 117]. Mr. Prado filed a Reply on October 5, 2018. [DE 118]. This matter is now ripe for adjudication. For the reasons set forth below, the Court will DENY Defendant's Motion to Dismiss.
On August 17, 2016, Mr. Prado was indicted in the Western District of Kentucky. [DE 1]. The Indictment charged Mr. Prado with one count of Wire Fraud and three counts of Aggravated Identity Theft. [DE 1 at 1-3]. He was arraigned on September 19, 2016. [DE 16]. On December 21, 2016, a superseding indictment was issued, adding a fifth count: Possession of Unauthorized and Counterfeit Access Devices. [DE 22 at 46-49]. On September 6, 2017, a second superseding indictment was issued. [DE 62]. The Second Superseding Indictment charged Mr. Prado with one count of Wire Fraud, one count of Possession of Access Devices, and seven counts of Aggravated Identity Theft. [Id. at 350-56]. Additionally, the Second Superseding Indictment joined Ms. Diaz Garcia as a co-defendant, and jointly charged them with one count of Bank Fraud, four counts of Aggravated Identity Theft, and three counts of Money Laundering. [Id.]. Mr. Prado was arraigned on September 29, 2017. [DE 70]. Ms. Diaz Garcia was arraigned on November 30, 2017. [DE 79].
Mr. Prado filed the present Motion to Dismiss on September 14, 2018, asserting that more than seventy days had passed since his arraignment. [DE 114]. The United States filed a Response in opposition to that motion on September 28, 2018, asserting that once the excludable periods were properly calculated, there was no Speedy Trial Act violation. [DE 117 at 730-37]. Mr. Prado then filed a Reply on October 5, 2018, objecting to certain of the periods the United States considered excludable and alleging that the prosecutor was being "vindictive by ordering an irrelevant transcript and arguing that the Speedy Trial did not run until he ordered that transcript." [DE 118 at 750-51].
The Speedy Trial Act (the "Act"), 18 U.S.C. § 3161, "requires dismissal of a criminal case, with or without prejudice, if the defendant is not tried seventy days after his indictment or the date he first appears in court, whichever date last occurs." United States v. Jenkins, 92 F.3d 430, 438 (6th Cir. 1996) (citing United States v. Mentz, 840 F.2d 315, 324-26 (6th Cir. 1988)). The seventy-day period is not unqualified. The Act authorizes periods of time which are excludable, either as expressly stated in the Act or by a finding of the trial court that the interests of justice warrant such exclusion. United States v. Morata, No. 3:14CR-82-CRS, 2016 WL 4535664, at *1 (W.D. Ky. Aug. 30, 2016). Excludable delays permit the extension of the seventy-day "try by" period, but such extensions are not without limitation. Id.
A defendant moving for dismissal has the burden of providing a prima facie case that the Act had been violated, which merely requires a simple showing that more than seventy days havepassed since the indictment or first appearance and trial has not yet begun. Id. If the defendant does so, the burden then shifts to the government, which must prove beyond a preponderance of the evidence that once excludable time is factored in, the seventy-day period has not passed. Id. (citing Mentz, 840 F.2d at 326).
The Act provides that several periods are to be excluded when determining whether the seventy-day speedy-trial clock has run. See § 3161(h). Five general rules of exclusion are relevant to this case.
The first period of exclusion is the time between the filling of a pre-trial motion and the day on which a district court becomes able to dispose of that motion. This includes "the entire time from the filing of the motion through the date of the hearing" as well as "all the days during which [the district court] is waiting to receive information necessary to decide a pending pre-trial motion," including the parties' filings regarding that motion. Jenkins, 92 F.3d at 438-39 (citations omitted). This time also includes the "period after a pretrial motion during which the court is awaiting the preparation of a transcript needed to rule on the motion." United States v. Polan, 970 F.2d 1280, 1285 (3d Cir. 1992).
Second, also excludable is the "delay reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement by the court." 18 U.S.C. § 3161(h)(1)(H). If a district court refers a motion to a magistrate judge, there is one thirty-day period of exclusion while the motion is under advisement by the magistrate judge, and then a separate thirty-day period of exclusion that begins once the district court has received the magistrate judge's report and recommendations and all other materials required by the district court in order to review the report and recommendation. United States v. Andress, 943 F.2d 622, 626 (6th Cir. 1991) ().
Third, if a district court finds that the "ends of justice" are served by excluding the delay attendant to a continuance, that delay is excludable so long as the district court sets forth its reasons for finding that the ends of justice require the exclusion of that time. § 3161(h)(7)(A).
Fourth, "[t]he filing of a superseding indictment does not affect the speedy trial clock for offenses charged in the original indictment." Sylvester v. United States, 868 F.3d 503, 508-09 (6th Cir. 2017) (alteration in original) (collecting cases). However, "[a]ll defendants who are joined for trial generally fall within the speedy trial computation of the latest codefendant." Henderson v. United States, 476 U.S. 321, 323 n.2 (1986). Because of this, "absent evidence of bad faith or unreasonable delay, courts have generally restarted the speedy trial clock if the superseding indictment adds new defendants to the case." Sylvester v. United States, 110 F. Supp. 3d 738, 747 (E.D. Mich. 2015) (collecting cases), aff'd 868 F.3d 503 (6th Cir. 2017); see also United States v. Chen Chiang Liu, 631 F.3d 993, 998 (9th Cir. 2011) () (citing United States v. King, 483 F.3d 969, 973 (9th Cir. 2007)); United States v. Harris, 566 F.3d 422, 429 (5th Cir. 2009) (). After the issuance of a superseding indictment adding a defendant, 18 U.S.C. § 3161(h)(6) excludes from the speedy trial clock a "reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted."
Finally, when calculating the length of an excludable period, "both the date on which an event occurs or a motion is filed and the date on which the court disposes of a motion are excluded." United States v. Cope, 312 F.3d 757, 777 (6th Cir. 2002) (quoting United States v. Yunis, 723 F.2d 795, 797 (11th Cir. 1984)).
In the present case, the parties agree that the speedy trial clock originally began running on September 19, 2016, when Mr. Prado was arraigned on the original indictment. [DE 16]. The United States argues that several excludable periods are applicable to Mr. Prado's speedy trial clock. [DE 117 at 730-38]. This Court will address each period in turn.
Ms. Diaz Garcia was added to the case as a co-defendant with the filing of the Second Superseding Indictment on September 6, 2017. [DE 62]. Ms. Diaz Garcia was arraigned on November 30, 2017. [DE 79]. The delay between these dates was caused by the fulfilment of a writ of habeas corpus ad prosequendum that had been issued for Ms. Diaz Garcia. [DE 72].
Mr. Prado does not argue that that there is any evidence of bad faith or unreasonable delay in joining Ms. Diaz Garcia as a defendant in the Second Superseding Indictment, or that the delay between indicting and arraigning Ms. Diaz Garcia was unreasonable. Therefore, because Ms. Diaz Garcia's speedy trial clock began running on December 1, 2017, Mr. Prado's speedy trial clock was reset on that date. See 18 U.S.C. § 3161(h)(6); Sylvester 110 F. Supp. 3d at 747; United States v. Taylor, 489 F. App'x 34, 49 (6th Cir. 2012) (). Accordingly, Mr. Prado's speedy-trial clock was reset and had zero days on it as of November 30, 2017.1
On November 7, 2017, Mr. Prado filed a motion requesting a continuance. [DE 75]. On November 14, 2017, the district court granted that motion and set a new trial date of January 22, 2018. [DE 77]. The court found that the ends of justice required excluding the period from November 14, 2017, to January 22, 2018, from the speedy trial clock. [Id.]. That period is therefore excludable under § 3161(h)(7)(A). Mr. Prado's speedy trial clock, which had zero days on it as...
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