The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER
The Court has before it Defendant's Motion to Dismiss for Violation of Speedy Trial Act (Docket No. 39) and Government's Motion to Dismiss Defendants Without Prejudice (Docket No. 59). The Court heard oral argument on the motions on February 19, 2010. Having reviewed all submitted memoranda as well as the record in the underlying criminal case, the Court enters the following order granting dismissal without prejudice.
A. Background and Summary of Issues
On August 18, 2009, a complaint was filed against Froylan Rubio Gomez ("Defendant") and his co-defendants, Horacio Deavila-Cabrera and Javier SilvaRangel (Docket No. 1).*fn1 The complaint charged the men with conspiring to manufacture and distribute 1,000 or more marijuana plants on public lands in Oregon and Idaho. On August 19, 2009, Defendant appeared before this Court. Magistrate Judge Ronald E. Bush signed an Order of Detention, ordering that Defendant be detained pending trial (Docket Nos. 8 and 13). On September 11, 2009, The Government filed an Indictment, charging the defendants with a variety of crimes under the Controlled Substances Act (Docket No. 21).
One hundred days*fn2 passed before Defendant was arraigned on the Indictment. The arraignment took place before this Court on December 21, 2009 (Docket No. 30). Trial was then scheduled to commence on February 16, 2010, one hundred and fifty-eight days*fn3 after the Indictment was filed. In the interim, no substantive pre-trial motion -- other than this Motion to Dismiss for Speedy Trial Violations -- was filed by any party.
On January 11, 2010, co-defendant Deavila-Cabrera filed a motion to dismiss with prejudice for violation of the Speedy Trial Act, 18 U.S.C. §§ 3161-3174. On January 19, 2010, Defendant joined in the motion to dismiss. DeavilaCabrera subsequently agreed to plead guilty to the Indictment. On February 9, 2010, the Government filed its motion to dismiss the Indictment against Defendant and co-defendant Silva-Rangel without prejudice.
The Court must resolve two issues: 1) whether the Speedy Trial Act mandates dismissal of the charges against Defendant; and, if so, 2) whether dismissal should be with or without prejudice. Having reviewed the briefing and heard oral argument, the Court will deny Defendant's Motion and grant the Government's Motion.
The Speedy Trial Act requires that the trial of a criminal defendant commence within seventy days from the date of the arraignment or the filing of the Indictment, whichever occurs later. 18 U.S.C. § 3161. When, as in this case, a defendant is arrested prior to Indictment, the seventy-day pretrial period runs from the date of the Indictment. U.S. v. Haiges, 588 F.2d 1273, 1274. If a defendant is not brought to trial within the time limit required by Section 3161(c) as extended by Section 3161(h), the Indictment shall be dismissed on motion of the defendant.
In moving for dismissal, the defendant bears the initial burden of demonstrating a violation of the Act. 18 U.S.C. § 3162(a)(2). Upon such a demonstration, the burden shifts to the Government to produce evidence that the time elapsed beyond the Act's seventy-day limit is excludable under 18 U.S.C. § 3161(h).
If dismissal is mandated, the Court must decide whether to dismiss with or without prejudice. See 18 U.S.C. § 3162(a)(2). Section 3162(a)(2) provides the legal ...