United States v. Hernandez

UNITED STATES OF AMERICA, v. ABRAHAM HERNANDEZ, Defendant.

19 CR 97(VM)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

August 5, 2020

DECISION AND ORDER

VICTOR MARRERO, U.S.D.J.:

Defendant Abraham Hernandez ("Hernandez") has filed a motion for dismissal with prejudice of the Indictment in this action, claiming a violation of his statutory and constitutional rights to a speedy trial. (See Dkt. No. 43.) For the reasons stated below, the Indictment is dismissed without prejudice.

The parties agree that the Speedy Trial Act, 18 U.S.C. Section 3161 et seq., requires dismissal of the Indictment because more than 70 days of unexcluded time has elapsed since the Defendant entered a guilty plea, and he has not yet been brought to trial. See id. §§ 3161(c)(1); 3162(a)(2). However, the parties dispute whether the dismissal should be with or without prejudice. The remedy provision of the Speedy Trial Act instructs:

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.

Id. Additionally, the "presence or absence of prejudice to the defendant" is "relevant for a district court's consideration." United States v. Taylor, 487 U.S. 326, 334 (1988).

Hernandez asserts that the offense with which he is charged is less serious than many others, that the Speedy Trial Act violation resulted from administrative neglect, that Hernandez suffered prejudice during the 17-months he has been on curfew and an ankle monitor, and that the administration of the Speedy Trial Act and justice weigh in favor of dismissal with prejudice.

The Court is not persuaded that dismissal with prejudice is warranted in this case. First, the possession of child pornography is a serious offense. United States v. Mora, No. 04 CR 530, 2005 WL 1354042, at *5 (S.D.N.Y. June 7, 2005). Hernandez emphasizes that the Government is not charging him with producing or distributing child pornography or sexually abusing children and attempts to analogize his offense to the non-violent crime of felony mail theft. But the Government is correct that all "child pornography crimes at their core demand the sexual exploitation and abuse of children." United States v. Reingold, 731 F.3d 204, 216 (2d Cir. 2016). The abuse children suffer is exacerbated and continued by the individual possessors of child pornography who, "often for years after the fact," maintain "a graphic record of the child's abuse." Id.; New York v. Ferber, 458 U.S. 747, 759 n.10 (1982) (explaining that a child victim of pornography "must go through life knowing that the recording is circulating within the mass distribution system for child pornography") (quotations and citations omitted). Reflective of its severity, the possession of child pornography carries a maximum sentence of between 10 and 20 years, depending on the age of the minors depicted in the images. See 18 U.S.C. §§ 2252(a)(5)(B) & (b)(2). The seriousness of the offense with which Hernandez is charged weighs against dismissal with prejudice.

The second consideration -- the facts and circumstances leading to the dismissal -- do not weigh strongly in favor of dismissal with prejudice. "The Supreme Court has . . . instructed that courts should only preclude reprosecution of a serious crime upon a showing of 'something more than an isolated unwitting violation,' such as a finding of 'bad faith' or a 'pattern of neglect.'" United States v. Bert, 814 F.3d 70, 80 (2d Cir. 2016) (quoting Taylor, 487 U.S. at 339). At the same time, "negligent conduct . . . renders the second factor . . . neutral at best where the delay is not overly long and there has been no showing of prejudice." Id. (quotations and citations omitted). In assessing the facts and circumstances of the violation, the Court must also consider the length of the delay. See id.

Evaluating the facts and circumstances requires a review of the timeline of this case. Hernandez acknowledges that his Speedy Trial Act clock began only after he entered a not guilty plea before the magistrate judge on February 19, 2019. See United States v. Nixon, 779 F.2d 126, 130 (2d Cir. 1985); United States v. Foley, No. 18 CR 333, 2020 WL 423342, at *3 (D. Conn. Jan. 27, 2020). The time between the February 19, 2019 arraignment and the initial conference before this Court on February 22, 2019 was not excluded under the Speedy Trial Act. At the February 22 conference, this Court scheduled a subsequent conference for April 5, 2019 and, upon motion by the Government and with the consent of the Defendant,¹ excluded time under the Speedy Trial Act until April 5, 2019. When the parties reconvened on April 5, the Court -- again upon the Government's motion and with the Defendant's consent -- excluded time until the date of the next conference: July 19, 2019. The Court also set a briefing schedule on Hernandez's anticipated motion to suppress evidence. Hernandez subsequently requested and received a two-week extension on the briefing schedule, and he filed his motion papers on May 20, 2019. The Government filed an opposition on June 10, 2019.

At the request of the Government, and with no objection from the Defendant, the Court adjourned conferences scheduled for July 19, 2019 and August 2, 2019 and excluded time until September 6, 2019. On September 6, 2019, the Court heard oral argument on Hernandez's motion to suppress and granted Hernandez's request for an evidentiary hearing, which the Court scheduled, without objection, for November 6, 2019.

On September 26, 2019, the Court rescheduled the evidentiary hearing for November 26, 2019. The Defendant did not object. After hearing testimony from several witnesses on November 26, the Court ordered that the hearing be continued on December 5, 2019 to allow the Court to hear testimony from additional witnesses. One day before the scheduled hearing, the Government notified the Court of the unavailability of a witness the defense intended to call and requested that the Court excuse the witness's attendance. Defense counsel filed a letter in response, stating that the Defendant had no objection to rescheduling the hearing to accommodate the witness's schedule. After considering the parties' correspondence, the Court rescheduled the continuation of the evidentiary hearing to January 7, 2020 to allow defense counsel to call the witness. After hearing additional testimony and the parties' closing statements on January 7, 2020, the Court closed the evidentiary hearing and reserved judgment. The Government made no motion to exclude time between January 7, 2020 and June 16, 2020, when the Court issued a 121-page Decision and Order denying Hernandez's motion to suppress.

The time between February 22, 2019 and September 6, 2019 was excluded from Speedy Trial Act calculations pursuant to this Court's orders. Additionally, the time between September 6, 2019, when the Court granted Hernandez's request for an evidentiary hearing, and January 7, 2020, when the Court took the matter under advisement, was automatically excluded under the Speedy Trial Act. See 18 U.S.C. § 3161(h)(1)(D) (excluding 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"). The Act also automatically excluded the first thirty days during which the motion was under advisement, a period ending on February 5, 2020. See id. § 3161(h)(1)(H).

As the Court was in the process of deciding the motion, several key dates passed. A period of non-excluded time began to accrue on February 6, 2020. As Hernandez argues, the 67 days remaining on the Speedy Trial Act clock expired on April 13, 2020, and the Act's 70-day period was exceeded by sixty-nine days before the Court issued its 121-page Decision and Order denying Hernandez's motion to suppress.

As Hernandez points out, counsel for the Government could have asked the Court to exclude time under 18 U.S.C. Section 3161(h)(7). But the Court deems credible the representation by counsel for the Government that their failure to do so was inadvertent. As the above recitation of the facts demonstrates, counsel for the Government had, prior to February 6, been attentive to Hernandez's speedy trial rights. Their previously consistent and often proactive conduct in this regard counsels strongly against a finding that their attitude with respect to this case, or speedy trial rights more generally, is lackadaisical. Cf. United States v. Giambrone, 920 F.2d 176, 180-82 (2d Cir. 1990). Indeed, counsel for the Government, upon identifying the violation, promptly notified the Court and defense counsel. See Bert, 814 F.3d at 84 (explaining that "any action" by the Government to notify the Court of expired speedy trial deadlines is "properly taken into consideration when evaluating the facts and circumstances of the case which led to the dismissal and may weigh in favor of dismissal without prejudice" (quotations and citations omitted)). The Court is not aware of a broader pattern of negligence on the part of the United States Attorney's Office in the Southern District of New York with respect to speedy trial rights. Cf. Giambrone, 920 F.2d at 182. The Court further observes that the temporary lack of vigilance with regard to the Speedy Trial Act clock in this case coincided with a period of drastic changes to the conduct of criminal proceedings in this District necessitated by the COVID-19 pandemic. While this context does not excuse inattentiveness, it contributes to the Court's understanding of the violation in this case as one of an isolated and unintentional nature.

Additionally, the length of the delay does not tip the "facts and circumstances" consideration strongly in favor...