United States v. Ramos

• Decision Date: 06 July 1984
• Docket Number: No. 84 Cr. 281 (SWK).,84 Cr. 281 (SWK).
• Citation: 588 F. Supp. 1223
• Parties: UNITED STATES of America v. Iris RAMOS, Defendant.
• Court: U.S. District Court — Southern District of New York

588 F. Supp. 1223

UNITED STATES of America v. Iris RAMOS, Defendant.

No. 84 Cr. 281 (SWK).

United States District Court, S.D. New York.

July 6, 1984.

Rudolph W. Giuliani, U.S. Atty., S.D.N.Y. by David Spears, Sp. Asst. U.S. Atty., New York City, for United States.

Frederick H. Block, New York City, for defendant.

MEMORANDUM OPINION AND ORDER

KRAM, District Judge.

The above-captioned action is before this Court upon the motion of defendant, filed contemporaneously with her arraignment on and the assignment of the indictment herein, for dismissal of the indictment for violation of her right to a speedy trial. For the reasons stated below, the motion is denied.

BACKGROUND

This case followed a somewhat confused path before reaching the criminal docket of this Court. A brief description of that path is necessary for an understanding of the motion currently before the Court.

On April 19, 1983, a complaint was filed charging the defendant and Sinecio Brown-Cabrera with conspiring to violate sections 1001 and 1546 of Title 18, United States Code, by filing false petitions with the Immigration and Naturalization Service ("INS"), in violation of section 371 of Title 18, United States Code. Warrants were issued for the arrest of the defendant and Brown-Cabrera on that day.

Defendant was arrested pursuant to the warrant on April 25, 1983, and was arraigned, along with Brown-Cabrera, later that day before Magistrate Tyler. Defendant and Brown-Cabrera were released after posting bail on the same day.

Following this presentment, information was exchanged between the Government and counsel for the respective defendants. A series of continuances was sought by the Government, and consented to by defendant and Brown-Cabrera, to facilitate plea discussions and to move toward the ultimate disposition of the case. The continuances excluded the period of time from May 25, 1983, through September 28, 1983, from any speedy trial calculations pursuant to 18 U.S.C. § 3161(h)(8)(A).

On September 28, 1983, apparently pursuant to plea negotiations, defendant was named in a one-count information, 83 Cr. 605, charging her with the misdemeanor offense of conspiring to violate section 1325 of Title 8, United States Code, in order to cause the illegal entry of aliens into the country, in violation of section 371 of Title 18, United States Code. Brown-Cabrera, on the other hand, was indicted for the felony offense and his case was assigned to another district judge, 83 Cr. 461.

On October 7, 1983, defendant waived her right to a trial before a district judge and attempted to enter a plea of guilty to the information before Magistrate Bernikow. Apparently defendant failed to allocute adequately to the crime charged, however, and her plea was not accepted.

One week later, on October 14, 1983, defendant again attempted to plead guilty to the information. This time Magistrate Washington was unable to accept the plea.

On October 21, 1983, defendant again waived her right to trial before a district judge, and, before Magistrate Buchwald, entered a plea of guilty to the information. Magistrate Buchwald then set a sentencing date of December 2, 1983.

On December 2, 1983, Magistrate Buchwald approved a substitution of counsel for defendant and adjourned the sentencing on defendant's plea.

On March 2, 1984, after two additional adjournments of the sentencing on defendant's plea, Ramos applied for permission to withdraw her plea. Defendant had been advised by counsel of the possibility that she would be prosecuted on felony charges, but she chose to withdraw her plea anyway. Magistrate Buchwald eschewed finding any substance to defendant's claim that she was coerced by her former attorney to enter the guilty plea, but granted her application to withdraw the plea as a matter of discretion. Magistrate Buchwald further found, just in case it was necessary,^* that all the time between the filing of the information and the withdrawal of her guilty plea was excludable for speedy trial calculations, since the information was filed in contemplation of a plea. Defendant consented to that finding.

On March 29, 1984, the Government wrote to Magistrate Gershon, to whom the information had been assigned following defendant's withdrawn plea. In that letter the Government noted its intention "to seek a superceding sic indictment of defendant Ramos charging her with the commission of one or more felonies" (emphasis added). The Government continued,

this case will then be assigned to a District Judge. Accordingly, there is no need to set a trial date for the present misdemeanor charge.

It will be this office's position upon issuance of any superceding sic indictment that the time allowed under the Speedy Trial Act will begin to run from the date any indictment is issued

(emphasis added). The Government asserts that after the guilty plea was withdrawn, an investigation into defendant's participation in the conduct underlying the complaint and information described above was conducted. "In the course of this investigation, the Government learned that defendant had been involved in more serious crimes than was originally believed." Affidavit of David Spears, dated May 29, 1984, ¶ 4.

On May 9, 1984, the indictment at issue here, 84 Cr. 281, was filed. Therein the Grand Jury charged defendant with two felony counts: (1) conspiracy to violate sections 1001 and 1546 of Title 18, United States Code, in violation of section 371, Title 18, United States Code; and (2) violation of sections 1001 and 2 of Title 18, United States Code. On the cover sheet attached to copies of the indictment the spaces provided for indicating that the indictment is related to a pending case — including the space for indicating a superseding indictment — were left blank. Likewise, on the form entitled "Defendant Information Relative to a Criminal Action — in U.S. District Court" the space provided to indicate that "this prosecution relates to a pending case involving this same defendant" was left blank. The date of arrest, however, was noted as April 25, 1983.

On May 17, 1984, defendant appeared for arraignment and entered a plea of not guilty to the charges contained in the indictment. The case was then assigned to me for all purposes. On the same day, defendant filed the within motion to dismiss the indictment, filed eight days earlier, for failure to comply with the speedy trial strictures of this Court.

DISCUSSION

Defendant contends that the speedy trial clock for this indictment began to run on March 2, 1984, with the withdrawal of the guilty plea to the information. Defendant argues further that, as of May 17, 1984, more than seventy days had passed without the commencement of trial on the indictment and, therefore, that the indictment should be dismissed.

The Government, on the other hand, contends that the speedy trial clock with respect to the indictment did not begin to run until May 17, 1984, with the arraignment of defendant on the charges contained therein.

It is beyond peradventure that, with respect to the information, the time limits began to run on March 2, 1984. Section 3161(i) provides that when, as here, a defendant withdraws a plea of guilty "to any or all charges in an indictment or information, the defendant shall be deemed indicted with respect to all charges therein contained ... on the day the order permitting withdrawal of the plea becomes final." 18 U.S.C. § 3161(i); see also "Statement of Time Limits and Procedures for Achieving Prompt Disposition of Criminal Cases for the Southern District of New York" (hereinafter "Southern District Plan"), ¶ 4(c); "Guidelines Under the Speedy Trial Act" for the Court of Appeals for the Second Circuit (hereinafter "Second Circuit Guidelines"), ¶ I(G), pp. 14-15.

Defendant urges the Court to find that the indictment is a superseding charge replacing an information that is now (and, more importantly, was at the filing of the indictment) still pending, thus incorporating the time attributable to that pending charge. Section 3161 does not have a provision directly applicable to the situation argued to be present here — to wit, a superseding charge replacing a still pending charge. The Court finds guidance in the Southern District Plan and the Second Circuit Guidelines in assessing defendant's argument. Paragraph 4(d) of the Southern District Plan provides, in relevant part, as follows:

Superseding Charges. If, after an ... information has been filed, an ... indictment ... is filed which charges the defendant with the same offense or with an offense required to be joined with that offense, the time limit applicable to the subsequent charge will be determined as follows:

* * * * * *

(2) If the original ... information was pending at the time the subsequent charge is filed, the trial shall commence within the time limit for commencement of trial on the original indictment

(emphasis added).

Paragraph II(L) of the Second Circuit Guidelines, entitled "Subsequent Charges," provides in relevant part, as follows:

(1) If, after an ... information has been filed, an ... indictment ... ("subsequent charge") is filed which includes the same offense or any offense required to be joined with that offense ("originally charged offenses"), the time limits ... applicable to the originally charged offenses will be determined as follows:

* * * * * *

(c) If the original ... information is pending at the time the subsequent charge is filed, (at that time) the statutory period for the trial of the original indictment or information ceases to run until the arraignment on the subsequent charge is held.... The trial of the originally charged offenses included in the subsequent charge shall commence within the time limit for commencement of trial on the original ... information

(emphasis added).

As the underscored language indicates, a prerequisite to the applicability of these provisions is that the subsequent filing contain "the same...