Opinion
00 Cr. 94 (RPP)
May 22, 2000.
Mary Jo White, United States Attorney Southern District of New York By: David M. Siegal, A.U.S.A., One St. Andrew's Plaza, New York, N.Y. 10007, Tel: 212-637-2281, Fax: 212-791-8056.
Counsel for Defendant: Shearman Sterling By: Tai H. Park, Esq. 599 Lexington Avenue, New York, N.Y. 10022, Tel: 212-848-4000, Fax: 212-848-7179.
OPINION AND ORDER
Background
On or about October 4, 1999, while in an automobile at the intersection of 57th Street and Second Avenue in Manhattan, defendant was arrested by the New York City Police Department. (Compl. Oct. 5, 1999, ¶ 2.) Based on documents recovered from defendant's car and information from employees of Chase Manhattan Bank, a complaint was drafted on October 5, 1999 charging defendant with bank fraud under 18 U.S.C. § 1344.
Defendant was incarcerated on the bank fraud charge from October 5, 1999 to February 3, 2000. (Def.'s Letter, May 9, 2000, at 1.) During that time, by motion of the Government to which defense counsel consented, the Court ordered three 30-day continuances of the time within which the Indictment had to be filed, pursuant to the Speedy Trial Act, 18 U.S.C. § 3161(h)(8)(A). (Govt.'s Mem., Apr. 6, 2000, at 2.)
On February 3, 2000, one day before the final Speedy Trial Act deadline, an Indictment was filed, charging that:
From at least on or about October 5, 1999, up to and including on or about November 8, 1999, in the Southern District of New York and elsewhere, HILLARY OKECHUKWO AGUGBO, a/k/a/ "Hillary Agugbo," a/k/a/ "Daniel Freeman," the defendant, being an alien, unlawfully, wilfully, and knowingly did enter, and was found in, the United States after having been deported from the United States, and without having obtained the express consent of the Attorney General of the United States to reapply for admission . . .
in violation of 8 U.S.C. § 1326(a) and (b)(2). (Indictment, Feb. 3, 2000.)
The bank fraud charge was not dismissed when the Indictment was filed. On March 1, 2000, the Government filed a slip requesting dismissal of the complaint without prejudice. The dismissal was so ordered by United States Magistrate Judge Theodore H. Katz on March 3, 2000.
Although the Government calls this action a motion, it does not constitute a motion since it did not comply with Local Criminal Rule 12.1.
Defendant filed a motion pro se on March 17, 2000 in which he argued that the Indictment should be dismissed because his prior conviction was not an "aggravated felony" for purposes of 8 U.S.C. § 1326(b)(2). On March 23, 2000, defendant sent a letter to his attorney at the time, Philip L. Weinstein, Esq. and forwarded a copy to the Court. In that letter, which the Court docketed on March 30, 2000, the defendant recommended that two additional motions be made on his behalf: 1) a motion to suppress illegally seized evidence; and 2) a motion to dismiss the complaint for violation of the Speedy Trial Act.
At oral argument on April 27, 2000, the Court dismissed defendant's motion to dismiss the Indictment. (Apr. 27, 2000 Tr. 33.) Also at oral argument, defendant's present attorney, Tai Park, Esq., stated that the motion to suppress would not be pursued unless the Government superseded the Indictment and indicted defendant for bank fraud, but pressed the motion suggested by defendant to Mr. Weinstein to dismiss the complaint with prejudice for violation of the Speedy Trial Act. (Apr. 27, 2000 Tr. 3.)
Discussion
The Speedy Trial Act states that "[a]ny information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges." 18 U.S.C. § 3161(b). That time may be extended under § 3161(h). Section § 3162(a)(1) provides that, if the requirements of § 3161(b), in conjunction with § 3161(h), are not met, the charge "shall be dismissed or otherwise dropped." Although the Speedy Trial Act uses the mandatory "shall" and § 3161(b) requires the filing of an information or indictment within 30 days of arrest, unless that time is extended under § 3161(h), and § 3162(a)(1) requires the dismissal of charges not filed in compliance with § 3161(b), the Speedy Trial Act does not require that the charges be dismissed with prejudice. "In determining whether to dismiss the case with or without prejudice, the court shall consider among others, each of the following factors: the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of this chapter and on the administration of justice." 18 U.S.C. § 3162(a)(1). The Supreme Court has instructed that district courts should also consider "the presence or absence of prejudice to the defendant" in deciding whether to dismiss a charge with or without prejudice. United States v. Taylor, 487 U.S. 326, 334 (1988). The Supreme Court also noted in Taylor that "the decision to dismiss with or without prejudice [is] left to the guided discretion of the district court, and . . . neither remedy [is] given priority." 487 U.S. at 335. There is no showing that Judge Katz was informed that the speedy trial deadline had passed when he dismissed the complaint or that he considered the factors in § 3162(a)(1). Therefore, this Court will consider the defendant's motion de novo.
Defendant argues that the bank fraud charge is a nonviolent offense and should not be deemed "serious," that the dismissal was the result of a "deliberate and strategic decision [by the Government] not to pursue the bank fraud charge," that the administration of the Speedy Trial Act and the administration of justice would be better served by a dismissal with prejudice, and that the defendant would be prejudiced by a dismissal without prejudice. (Def. Letter, May 9, at 2-5.)
I. Seriousness of the Offense
For purposes of the Speedy Trial Act, bank fraud is a serious offense. Bank fraud is punishable by a maximum of thirty years in prison and a $1,000,000 fine. Moreover, the Fifth Circuit has held that, for purposes of the Speedy Trial Act, "[b]ank fraud is a serious offense." United States v. Castle, 906 F.2d 134, 138 (5th Cir. 1990). In addition, contrary to defendant's argument that bank fraud should not be considered a serious offense because it is nonviolent, the Sixth Circuit has observed that "various courts have found . . . nonviolent crimes involving mendacity to be serious offenses for speedy trial purposes." United States v. Pierce, 17 F.3d 146, 148 (6th Cir. 1994).
II. Facts and Circumstances Which Led to Dismissal
The facts and circumstances which led to the dismissal of the bank fraud charge in this case were as follows: defendant was charged with bank fraud on October 5, 1999, for which he was incarcerated; after three extensions of the thirty-day speedy trial deadline, he was indicted on a different charge, illegal reentry, on February 3, 2000; when seeking the Indictment, the Government decided not to present evidence of the bank fraud to the grand jury; finally, almost a month after the speedy trial deadline, the Government filed a request to have the bank fraud charge dismissed without prejudice. (See Govt. Mem., Apr. 6, 2000, at 1-3.)
There is no question that, since no information or indictment was filed with respect to the bank fraud charge on or before February 4, 2000, the complaint had to be dismissed or dropped pursuant to § 3162(a)(1). The facts and circumstances of this case do not necessitate either dismissal with prejudice or dismissal without prejudice. The fact that the Government made a deliberate and strategic decision not to indict on the bank fraud charge is not dispositive, nor is the fact that the charge was eventually dismissed without prejudice at the Government's request. Therefore, consideration of the other factors in § 3162(a)(1) will be more instructive.
III. Impact of Reprosecution on the Administration of the Speedy Trial Act and the Administration of Justice
Defendant contends that, because the Government made a deliberate decision not to prosecute defendant on the bank fraud charge before February 4, 2000, the administration of the Speedy Trial Act and the administration of justice would be better served by a dismissal with prejudice. (Def.'s Letter, May 9, 2000, at 4.) In United States v. Hernandez, the Second Circuit held that, "in the absence of a factually supported finding of bad faith or a pattern of neglect by the local United States Attorney, an `isolated unwitting violation' of the Speedy Trial Act cannot support a decision to dismiss with prejudice." Hernandez, 863 F.2d 239, 244 (2nd Cir. 1988) (quotingUnited States v. Taylor, 487 U.S. 326, 339 (1988)). The violation of the Speedy Trial Act in this case is different than the violation in Hernandez. In Hernandez, in which the defendant was arrested in Nevada and ordered to appear before a United States Magistrate Judge in Vermont, the A.U.S.A. "was operating under the good faith belief that the entire period [between the date when defendant's removal to Vermont was ordered and the date of his court appearance in Vermont] constituted an excludable delay" for purposes of the Speedy Trial Act and that the indictment was filed within the speedy trial period in Vermont. 863 F.2d at 244. In this case, the A.U.S.A. knew when he filed the Indictment for illegal reentry that the speedy trial period expired for the bank fraud charge on February 4, 2000. He was also aware of that fact when he filed for dismissal of the complaint on March 1, 2000, though he was evidently unaware prior to that time that he was required to formally request for dismissal of the bank fraud charge when he filed the Indictment on the illegal reentry charge. Though the act in this case was not "unwitting" in the Hernandez sense, it is similar to Hernandez, and there is no evidence that the act was done in bad faith or was part of a neglectful pattern of Speedy Trial Act violations by the United States Attorney for the Southern District of New York. As such, the administration of the Speedy Trial Act and the administration of justice are not better served by dismissal with prejudice than by dismissal without prejudice.
IV. Prejudice to the Defendant
Defendant cites two ways in which he has been prejudiced by dismissal of the bank fraud charge without prejudice: 1) he should have been left in a position on February 4, 2000 of knowing the charges against him so he could prepare a full defense to those charges; and 2) he is currently faced with"anxiety and confusion" regarding whether he will be prosecuted on the bank fraud charge during these proceedings. (Def. Letter, May 9, 2000, at 4.)
While it is true that the defendant was placed in a position of uncertainty because of the late dismissal of the bank fraud charge, this uncertainty is not sufficient to constitute prejudice to the defendant. During this period of uncertainty, obviously the defendant assumed that there was still a risk that he would be indicted on the bank fraud charge. The dismissal of the charge without prejudice did not significantly alter his understanding.
The anxiety caused by knowing that a dismissed charge may again be brought also does not constitute prejudice to the defendant. In assessing whether a dismissal within the thirty-day speedy trial period should be with or without prejudice, the Fourth Circuit observed in United States v. Quinteros that, "while a target of a possible prosecution undoubtedly continues to suffer anxiety [after the dismissal of charges without prejudice], it is the kind of strain suffered by any citizen who is `openly subject to a criminal investigation.'" 769 F.2d 968, 972-73 (4th Cir. 1985) (quoting United States v. MacDonald, 456 U.S. 1, 9 (1982)); (Govt.'s Letter, May 15, at 7).
Defendant has offered no convincing evidence of prejudice to him if the bank fraud charge remains dismissed without prejudice. No claim has been made that the defendant's ability to defend himself on either charge has been adversely affected. Moreover, the fact that defendant was incarcerated on the bank fraud charge from October 4, 1999 and February 3, 2000 but was indicted on an illegal reentry charge instead also does not constitute prejudice. Had defendant not been held in a federal prison during that time, he would have been held on the illegal reentry charge in view of his prior felony conviction or held in an Immigration and Naturalization Service detention facility. Defendant's incarceration at a federal prison instead of an INS detention facility can hardly be said to be prejudicial.
Conclusion
Because the balance of the factors in § 3162(a)(1) support dismissing the bank fraud charge without prejudice, the Court finds that a dismissal without prejudice is appropriate and will not disturb the March 3, 2000 dismissal of the charge without prejudice.
IT IS SO ORDERED.