Opinion
CR 20-02360-TUC-JGZ (EJM)
11-25-2020
United States of America, Plaintiff, v. Gwendolynn Ann Lewis, Defendant.
REPORT AND RECOMMENDATION
Pending before the Court is the defendant's Motion to Dismiss With Prejudice based on the government's failure to timely secure an indictment. The defendant argues that dismissal is mandatory when the government fails to indict a person by the deadlines imposed in 18 U.S.C. § 3161. Thus, the defendant contends that the only question is whether the dismissal should be with or without prejudice. The defendant argues that the factors that a court must consider when faced with a motion to dismiss based on the failure to timely indict weigh in favor of dismissal with prejudice. The government agrees that dismissal is mandatory, but argues that the equities weigh in favor of dismissal without prejudice. For the reasons discussed below, the Court recommends that the District Court grant the Motion to Dismiss, in part, and order that the charges against the defendant be dismissed without prejudice.
At the time of the filing of this motion, the defendant was pending charges alleged in a criminal complaint. An indictment against the defendant was obtained on November 4, 2020, the day after the instant motion was filed.
FACTUAL BACKGROUND
The defendant, Gwendolyn Ann Lewis, was arrested on May 20, 2020 based on a suspicion that she was transporting illegal aliens. On May 21, 2020, a criminal complaint was filed against the defendant charging her with transportation of illegal aliens for profit, in violation of 8 U.S.C. § 1324. [Doc. 1.] The defendant appeared for her Initial Appearance on May 22, 2020. At that hearing, the Court ordered that the defendant be assessed for her suitability in an in-patient substance abuse treatment facility. On June 4, 2020, this Court ordered the defendant released pursuant to certain pretrial release conditions, including her residing and participation in an in-patient substance abuse treatment program when bed space became available on June 10, 2020.
Pursuant to 18 U.S.C. § 3161(b), the government was required to obtain an indictment against the defendant within 30 days of her arrest. However, at the time of the defendant's arrest, grand jury proceedings in the District of Arizona were suspended pursuant to a General Order entered by the Chief Judge because of the COVID pandemic. On June 19, 2020, the government made an unopposed Motion for Extension of Time to Indict. [Doc. 12.] On June 22, 2020, this Court granted that motion and extended the time to indict for 30 days. [Doc. 13.] On July 29, 2020, the government made a second Motion for Extension of Time to Indict. [Doc. 19.] Although this motion was untimely by over a week, the defendant did not object to a 60-day extension of the indictment date. On September 21, 2020, the Court (finally) granted the second Motion for Extension of Time to Indict which extended the time for indictment for 60 days. [Doc. 21.] However, that 60-day extension related back to when the second Motion to Extend was filed on July 29, 2020, which meant that the indictment deadline expired on or the day after the date of the Court's September 21, 2020 Order granting the second motion to extend the indictment date. On September 21, 2020, the Chief Judge entered a General Order lifting the suspension of grand jury proceedings, which recommenced on September 23, 2020. The government did not seek a third extension of the indictment date.
The Court notes that it "dropped the ball" in not ruling on the second Motion for Extension of Time to Indict until shortly before the expiration of the indictment deadline date as extended by the Court's September 21, 2020 Order. This motion "fell through the cracks" between the hundreds of motions to extend the indictment date filed with this Court while grand jury proceedings were suspended. As a result of this Court's belated ruling, as well as the government's failure to detail the precise indictment deadline dates in its motions to extend, there is confusion about the extended indictment deadline dates. As discussed infra, the Court believes that the indictment deadline date which resulted from the second motion to extend was in mid-September (around the time that the Court issued its order on the second motion to extend). The parties calculate that indictment deadline date as October 17, 2020. Nevertheless, both parties agree that the indictment obtained on November 4, 2020 is untimely.
On October 14, 2020, Pretrial Services filed a petition against the defendant alleging violations of pretrial release conditions. On October 17, 2020, the defendant was arrested pursuant to an arrest warrant issued in connection with the violation petition. At the defendant's Initial Appearance on the pretrial violation petition on October 20, 2020, the Magistrate Judge ordered the defendant detained pending an admit/deny hearing set before this Court on October 30, 2020.
At the admit/deny hearing on October 30, 2020, defense counsel requested a continuance of the hearing and also made an oral motion to dismiss the complaint based on the failure of the government to timely obtain an indictment against the defendant. The Court directed defense counsel to file a written motion to dismiss so the government could adequately respond. However, because the Court found that the defense motion may well have merit and to minimize the prejudice to the defendant, the Court ordered the defendant released to the supervision of Pretrial Services. The Court reset the admit/deny hearing to December 2, 2020.
On November 3, 2020, the defense filed the instant Motion to Dismiss With Prejudice. On November 4, 2020, a federal grand jury sitting in Tucson, Arizona returned a two-count indictment against the defendant charging her with Conspiracy to Transport Illegal Aliens for Profit and Transportation of Illegal Aliens for Profit. The government filed their response to the Motion to Dismiss on November 17, 2020.
DISCUSSION
Under the Speedy Trial Act, an indictment charging an individual with the commission of a felony offense shall be filed within 30 days from the date on which such individual was arrested. 18 U.S.C. § 3161(b). If the government fails to indict a person within this 30-day period, dismissal is mandatory pursuant to 18 U.S.C. § 3162(a)(1). United States v. Antonio, 705 F.2d 1483, 1486 (9th Cir. 1983). The government agrees with the defense that the indictment obtained on November 4, 2020 - more than 30 days past the second extended deadline to indict - is untimely and dismissal of the indictment is required under § 3162(a)(1). The dispute is whether the dismissal should be with or without prejudice. As such, the Court now turns to that discussion.
As noted above, the defense calculates the indictment deadline date as October 17, 2020; the government agrees with that deadline. The defense calculation factored in an automatic 30-day extension of the indictment date under 18 U.S.C. § 3161(b) because no grand jury was in session during the 30-day period following the defendant's arrest. Thus, the parties reason that the government's first motion to extend the indictment date applied to the time period after this automatic 30-day extension. As a result of this reasoning, the indictment date deadline calculated by the parties is almost a month longer than that calculated by the Court. The Court is not convinced that the parties' calculation is accurate given that the government did not seek a 30-day automatic extension of the indictment date under 18 U.S.C. § 3161(b), but rather the interests of justice exception under 18 U.S.C. § 3161(h)(7)(A). That said, the Court need not engage in higher math because the indictment was untimely regardless of the extended deadline to obtain an indictment, and the length of delay is not a factor that impacts the Court's analysis of the instant motion.
The Ninth Circuit has held that the decision as to whether an indictment should be dismissed with or without prejudice is left to the discretion of the district court. United States v. Lewis, 518 F.3d 1171, 1172 (9th Cir. 2008). The Speedy Trial Act sets forth the following factors to be considered by the district court in determining whether the dismissal should be with or without prejudice: (1) the seriousness of the offense; (2) the facts and circumstances of the case which led to dismissal; and (3) the impact of a reprosecution on the administration of this chapter and on the administration of justice. In addition to these factors, the Supreme Court has held that the district court should also consider whether the defendant played a role in causing the delay, and whether the defendant suffered any prejudice from the delay. United States v. Taylor, 487 U.S. 326, 339-341 (1988). The prejudice analysis includes any restriction on a defendant's liberty, whether or not they are in custody, as even release on bail includes disruptions and curtailments on a person's ordinary life. Taylor, 487 U.S. at 340-341. The Court addresses each factor in turn.
1. The Seriousness of the Offense.
The defense contends that alien smuggling is not a serious felony offense because it does not carry a mandatory minimum sentence, and therefore, does not deny the defendant a chance at a probationary sentence. [Doc. 33 at 7.] The defense further argues that alien smuggling "is not a violent offense, nor one with notable victims, nor one that poses an inherent danger." Id. Thus, the defense concludes that alien smuggling is on the less serious end of the felony spectrum, and it is either a neutral factor or weighs in favor of dismissal with prejudice. Id.
The government argues that the instant offenses are serious because they carry a maximum prison sentence of ten years, a fine of up to $250,000, and a three-year term of supervised release. The government also points out that under the U.S. Sentencing Guidelines, if convicted of the offenses, the base offense level would be 12.
The Court concludes that the alien smuggling offenses alleged against the defendant are serious felony offenses. See United States v. Salgado-Hernandez, 790 F.2d 1265 (5th Cir. 1986) (alien smuggling offense deemed a serious felony). While the defendant does not face a mandatory minimum sentence if convicted of one or both of the offenses, and could therefore receive a probationary sentence, those facts are not dispositive in determining the seriousness of the offenses. The defense's argument that alien smuggling offenses are not serious offenses ignores the specific allegations supporting the instant offenses. The defendant faces an enhanced maximum sentence of ten years in prison (rather than a maximum of five years) on each offense because it is alleged that she committed the offenses for profit, and was not simply doing a favor or acting as a good Samaritan. More importantly, and contrary to the defense's contentions, the charged offenses involve notable victims - the people being smuggled - and posed an inherent danger because three victims were lying down in the backseat, presumably without safety restraints. The Court concludes that the enhanced maximum penalty and the danger posed to these individuals illustrate the seriousness of the charged offenses, which weighs in favor of dismissal without prejudice.
2. The Facts and Circumstances of the Case Which Led to Dismissal.
The defense argues that the government's neglect which led to dismissal of the charges weighs in favor of dismissal with prejudice. Although the defense acknowledges the need to extend indictment deadlines because of the COVID pandemic and the suspension of the grand juries, the defense points out that the government had more than six weeks since the suspension was lifted to obtain an indictment. [Doc. 33 at 7.]
The government does not specifically address the defense's claim of neglect, other than to point to a "calculation error." Rather, the government points out that the delay in indictment was only 18 days (assuming October 17, 2020 was indeed the deadline to indict). The government also points out that after being "notified of the delay on October 30, 2020, the defendant was indicted the next time the Grand Jury was seated." [Doc. 39 at 4.]
The Court first notes that the government cannot rely on the fact that an indictment of the defendant was obtained as soon as possible after the government was notified by the defense of the delay at the admit/deny hearing on October 30, 2020. The Indictment was still untimely. The burden was on the government, not the defense, to keep track of the extended indictment deadlines. As noted earlier, this Court's belated ruling on the second Motion to Extend may have caused confusion regarding the indictment deadline date. But, again, the government was nevertheless obliged to track the status of the indictment deadline date and either bring to the Court's attention the delay in obtaining a ruling on the second Motion to Extend, or file another motion to extend once the Court eventually issued its Order extending the indictment date for a second time.
All that said, the Court finds that the government merely made a mistake which does not amount to blatant neglect and/or disregard of the indictment deadlines that weighs in favor of dismissal with prejudice. That finding is supported by the defense's failure to allege that the government acted in bad faith in not securing a timely indictment, or that there has been a pattern and/or practice by this prosecutor specifically or the government generally to ignore indictment deadlines. Additionally, although less importantly, the defense consented to extensions of the indictment deadline for a total of 90 days, and did not object to the second extension request which was filed a week after the indictment deadline resulting from the first extension request. And the defense does not claim that it would not have consented to a third extension of the indictment deadline. The reality of the situation is that the impact of a health pandemic on the Court, prosecutors, defense attorneys, and defendants is unprecedented. Under these circumstances, as well as the other facts set forth above, the government's mistake in failing to either obtain another extension of the indictment date or timely indict the defendant weighs in favor of dismissal of the charges without prejudice.
3. The Impact on a Reprosecution on the Administration of the Speedy Trial Act and on the Administration of Justice.
The defense argues that the impact of reprosecution on the administration of the Speedy Trial Act and justice weighs in favor of dismissal with prejudice. The defense notes that the Supreme Court has explained that this factor pertains to ensuring that the Speedy Trial Act is not "toothless" in terms of remedying violations; and dismissal with prejudice "sends a stronger message" and is "more likely to induce salutary changes in procedures, reducing pretrial delays." [Doc. 33 at 8 (quoting Taylor, 487 U.S. at 342).] The defense argues that dismissal without prejudice would be a "toothless" remedy and would send no meaningful message about the administration of justice because the government can easily re-file charges against Ms. Lewis. Id.
The government argues that the concerns raised by the defense are not relevant when there is no evidence or an allegation of bad faith on the part of the government, and the "delay in indicting the defendant was based on a calculation error." [Doc. 39 at 4.] The government points out that there "was not an intentional attempt to disappear witnesses or degrade evidence," and the evidence against the defendant is exactly the same as it would be if the case was timely indicted. Id.
The Court first notes that the analysis of this factor - i.e., the administration of the Speedy Trial Act and justice - is linked to and shaped by the other factors that a court must consider in deciding whether a case should be dismissed with or without prejudice. The Court finds that although dismissal without prejudice may well be a "toothless remedy," the draconian remedy of dismissal with prejudice is not warranted to ensure the administration of the Speedy Trial Act or the administration of justice in the case at hand. Again, the delay in obtaining a timely indictment was the result of a mistake, and not bad faith. Thus, there is no need to send a strong message to the government by dismissing this case with prejudice. Simply stated, the administration of the Speedy Trial Act and justice are not served by dismissing serious felony charges with prejudice when the government makes a mistake and, as discussed below, the defendant has not been prejudiced. As such, this factor weighs in favor of dismissal without prejudice.
4. Whether the Defendant Played a Role in Causing the Delay, and Whether the Defendant Suffered Any Prejudice from the Delay.
The defense argues that Ms. Lewis "has not done anything to occasion delays in this case." [Doc. 33 at 7.] The defense also argues that Ms. Lewis suffered prejudice as a result of the delay in "the form of multiple restrictions" on her liberty. Id. at 8. The defense points to the two-week period that Ms. Lewis was incarcerated as a result of pretrial release violation allegations after the indictment deadline had passed. Even though the Court released her from custody pending her hearing on the alleged pretrial violations, the defense argues that Ms. Lewis "is still under pretrial supervision and faces restrictions on her liberty that continue to impede her as long as this case continues." Id. at 8-9. The defense contends that these are the sorts of prejudice that favor dismissal with prejudice.
The government argues that the defendant has not been prejudiced by the delay in obtaining an indictment because she "is in no different position had she been" timely indicted. [Doc. 39 at 5.] Specifically, "[h]er trial can proceed as it would have had she" been timely indicted; "[h]er ability to question witnesses or locate evidence has not been impeded"; and had the defendant been timely indicted, she would likely still be in custody as a result of the alleged pretrial violations. Id.
The Court first notes although the defendant agreed to extensions of the indictment deadline, the defendant clearly played no role in the ultimate delay in the government obtaining an indictment. However, the Court concludes that the defendant did not suffer sufficient prejudice as to warrant a dismissal of the charges with prejudice. The two-week period of time that the defendant spent in custody stemmed from the alleged pretrial violations, and not because she was being held indefinitely because her case was in legal "limbo" as a result of the government not securing a timely indictment. Stated another way, the defendant would have spent that time in custody, and would have likely been detained pending her hearing on the alleged violations, even if her case was timely indicted. As noted earlier, this Court released the defendant pending her hearing on the alleged violations because the Court believed that the defense motion had merit and, as a result, the Court wanted to minimize any prejudice to Ms. Lewis resulting from her incarceration while the motion was pending. Additionally, the liberty restrictions on the defendant as a result of her pretrial release conditions would have been in place even if a timely indictment had been obtained. Finally, as the government points out and the defense does not refute, Ms. Lewis's ability to defend against the charges has not been in any way prejudiced as a result of the failure to obtain a timely indictment. Therefore, the Court concludes that the prejudice factor weighs in favor of dismissal without prejudice.
CONCLUSION
For the reasons set forth above, the Court concludes that the charges against the defendant must be dismissed, but that dismissal should be without prejudice. As such, the Court recommends that the District Court grant the Motion to Dismiss, in part, and dismiss the pending charges without prejudice.
Pursuant to 28 U.S.C. § 636(b) and Rule 59(b)(2) of the Federal Rules of Criminal Procedure, any party may serve and file written objections within fourteen (14) days after being served with a copy of this Report and Recommendation. No reply shall be filed unless leave is granted from the District Court. If objections are filed, the parties should use the following case number: CR 20-02360-TUC-JGZ.
Failure to file timely objections to any factual or legal determination of the Magistrate Judge in accordance with Fed. R. Crim. P. 59 may result in waiver of the right of review.
DATED this 25th day of November, 2020.
/s/_________
Eric J. Markovich
United States Magistrate Judge