United States v. Cervantes

644 F.Supp.3d 891

UNITED STATES of America, Plaintiff, v. 21. Jesse CERVANTES, Defendant.

Criminal Case No. 20-cr-292-WJM-21

United States District Court, D. Colorado

Signed December 5, 2022

Stephanie P. Podolak, Bradley William Giles, Jeremy S. Sibert, Peter Andrew McNeilly, Robert M. Brown, Sonia J. Dave, Susan Diane Knox, Tonya Shotwell Andrews, Federal Agency Attorneys, U.S. Attorney's Office District of Colorado, Denver, CO, Craig Gordon Fansler, Federal Agency Attorney, DOJ-USAO, Denver, CO, for Plaintiff.

David L. Owen, Jr., David L. Owen Jr., P.C., Law Office of, Highlands Ranch, CO, for Defendant.

ORDER DENYING DEFENDANT JESSE CERVANTES'S MOTION TO DISMISS SUPERSEDING INDICTMENT FOR VIOLATION OF THE SPEEDY TRIAL ACT AND RESETTING TRIAL DATE

William J. Martinez, United States District Judge

Defendant Jesse Cervantes is charged in the Superseding Indictment with one count of conspiracy to distribute and possess with the intent to distribute heroin; one count of knowingly and intentionally using a telephone in causing and facilitating the conspiracy; one count of traveling in interstate commerce with the intent to promote manage, establish, carry on, and facilitate the promotion, management, establishment, and carrying on of the conspiracy; and one count of possession with intent to distribute one kilogram and more of a mixture and substance containing a detectable amount of heroin. (ECF No. 213.) Defendant is charged in the 43-count Superseding Indictment alongside 22 codefendants. (Id.)

On September 7, 2022, the Court, sua sponte, directed counsel for Defendant and the Government to file a Joint Notice "provid[ing] the Court with the parties' calculations of Defendant Cervantes's speedy trial date as of the date of the filing of the Joint Notice." (ECF No. 458.) The Joint Notice, filed on September 12, 2022, revealed the parties substantial disagreement on the proper method for calculating Defendant's speedy trial clock. (ECF No. 463.) Critically, the parties agreed that either the Government's calculation is correct and the speedy trial clock will not expire until well into 2023, or Defendant's calculation is correct and a speedy trial violation has long since occurred. (Id. at 9.) In light of the Joint Notice, the Court directed Defendant to file a motion to dismiss and set a full briefing schedule. (ECF No. 493.)

Now before the Court is Defendant's Motion to Dismiss Superseding Indictment for Violation of the Speedy Trial Act ("Motion"). (ECF No. 497.) The Government filed its response on October 17, 2022 (ECF No. 508), and Defendant filed his reply on October 23, 2022 (ECF No. 516). For the reasons explained below, the Motion is denied.

I. BACKGROUND

The original indictment in this case was filed on September 3, 2020, and an arrest warrant was issued the same day. (ECF No. 497 at 1-2.) Defendant was arrested on October 1, 2020, in the Eastern District of California. (Id. at 2.) Defendant was ordered detained and remanded to the custody of the United States Marshal for transportation to the District of Colorado. (Id.) Defendant made his initial appearance in this district on January 26, 2021. (Id. at 2-3.) On February 3, 2021 the Superseding Indictment, which did not change any of the counts or allegations relating to Defendant, was filed. (Id. at 3.) Defendant made his initial appearance on the Superseding Indictment on February 24, 2021. (Id.)

The Court has granted three ends of justice ("EOJ") motions during the pretrial proceedings in this case. (ECF Nos. 263, 307, 370.) The parties' methods for calculating the speedy trial clock differ, and their views on the effect of the EOJ motions granted by the Court differ as a consequence. (Compare ECF No. 497 at 4 with ECF No. 508 at 5.) Defendant contends the speedy trial clock expired on June 29, 2022. (ECF No. 497 at 4.) The Government argues the speedy trial clock would have expired on February 15, 2022, except it has been tolled since June 21, 2021. (ECF No. 508 at 5.)

Starting in June 2021, the many codefendants in this case began reaching dispositions with the Government. (Id. at 6.) The codefendants' notices of disposition ("NODs") and change of plea hearings have been filed and held on a rolling basis. (See id.) Because of the sheer number of codefendants in this case, from June 21, 2021 to November 23, 2022, there was always at least one codefendant awaiting a change of plea hearing after filing an NOD. (Id.) The period between June 21, 2021, and November 23, 2022, is 520 days.

II. LEGAL STANDARDS

A. Speedy Trial Act

"The dual purpose of the Speedy Trial Act is to protect a defendant's constitutional right to a speedy indictment and trial, and to serve the public interest in bringing prompt criminal proceedings." United States v. Saltzman, 984 F.2d 1087, 1090 (10th Cir. 1993) (quoting United States v. Noone, 913 F.2d 20, 28 (1st Cir. 1990)). The Speedy Trial Act reads in relevant part:

In any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs. If a defendant consents in writing to be tried before a magistrate judge on a complaint, the trial shall commence within seventy days from the date of such consent.

18 U.S.C. § 3161(c)(1).

The Speedy Trial Act provides that certain periods of delay are not included in computing the time limits for trial. Id. at § 3161(h)(1)-(8). Three categories of exclusions under the Speedy Trial Act are relevant in this case: delays attributable to pretrial motions, delays attributable to the consideration by the court of a proposed plea deal, delays attributable to codefendants, and ends of justice continuances.

First, 18 U.S.C. § 3161(h)(1)(D) provides for the exclusion of periods of "delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion." Additionally, § 3161(h)(1)(H) excludes "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."

The United States Court of Appeals for the Tenth Circuit has "explained that these subsections work in concert such that 'if a motion is one that does not require a hearing, the Act excludes time through the period of its prompt disposition, but only if that period does not exceed thirty days from the date the motion is taken under advisement.' " United States v. Margheim, 770 F.3d 1312, 1318 (10th Cir. 2014) (quoting United States v. Williams, 511 F.3d 1044, 1048 (10th Cir. 2007)). In other words, "[i]f under advisement, the maximum excludable delay for the court's determination is 30 days." Id. at 1322 (quoting United States v. Willie, 941 F.2d 1384, 1387 (10th Cir. 1991) (emphasis in original)).

In Henderson v. United States, 476 U.S. 321, 331, 106 S.Ct. 1871, 90 L.Ed.2d 299 (1986), the Supreme Court instructed that "[t]he provisions of the Act are designed to exclude all time that is consumed in placing the trial court in a position to dispose of a motion." The Supreme Court defined "under advisement" to begin at "the time the court receives all the papers it reasonably expects." Id. at 329, 106 S.Ct. 1871. In Margheim, the Tenth Circuit stated that it has interpreted Henderson's holding to mean that if the district court seeks "more information upon which to make its ruling" on a motion, the advisement period does not begin "[u]ntil the court obtains that information." Margheim, 770 F.3d at 1322 (quoting Willie, 941 F.2d at 1388 n.2).

Second, § 3161(h)(1)(G) excludes "delay resulting from consideration by the court of a proposed plea agreement to be entered into by the defendant and the attorney for the Government."

Third, time is excluded for 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." 18 U.S.C. § 3161(h)(6).

Fourth, time is excludable for

[a]ny period of delay resulting from a continuance granted by any judge on his own motion or at the request of the defendant or his counsel or at the request of the attorney for the Government, if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial. No such period of delay resulting from a continuance granted by the court in accordance with this paragraph shall be excludable under this subsection unless the court sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial.

Id. at § 3161(h)(7)(A).

"When a defendant demonstrates a violation of the Act, the proper remedy is dismissal of the indictment." Margheim, 770 F.3d at 1318 (citing 18 U.S.C. § 3162(a)(2)). "[T]he district court retains broad discretion whether to dismiss the indictment with or without prejudice." Id. (quoting United States v. Abdush-Shakur, 465 F.3d 458, 462 (10th Cir. 2006)).

B. Sixth Amendment Speedy Trial Right

The Sixth Amendment states that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." United States v. Seltzer, 595 F.3d 1170, 1175 (10th Cir. 2010). The remedy for violating this right is dismissal of the indictment. See id. "[I]t is the prosecution's burden (and ultimately the court's) and not the defendant's responsibility to assure that cases are brought to trial in a timely manner." Id. at 1175-76.

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