United States v. Kifwa

UNITED STATES OF AMERICA, v. MUKONKOLE HUGE KIFWA, DEFENDANT

CRIM. NO. 2:19-CR-194-DBH-01

UNITED STATES DISTRICT COURT DISTRICT OF MAINE

October 6, 2020

DECISION AND ORDER ON DEFENDANT'S MOTION TO DISMISS HIS INDICTMENT FOR VIOLATION OF THE SPEEDY TRIAL ACT AND OTHER PROVISIONS

This case concerns primarily the Speedy Trial Act's requirement that a defendant be indicted within 30 days of his arrest. Mukonkole Huge Kifwa has filed a motion to dismiss the case for violation of that Speedy Trial Act provision, as well as the Constitution and Criminal Rule 48(b) (ECF No. 92). He also requests an evidentiary hearing. For the reasons described below, I conclude that I need no hearing to determine that the government did not violate the Constitution or Fed. R. Crim. P. 48(b) but that it did violate the Speedy Trial Act and what remedy is appropriate. Kifwa's motion to dismiss for violation of the Speedy Trial Act is GRANTED, but it is granted without prejudice for reasons I will explain.¹

FACTS

On November 20, 2018, the complaint in this case was filed against Kifwa and a codefendant, and arrest warrants issued. Compl. (ECF No. 1); Arrest Warrant (ECF Nos. 4, 7). That was also the date for Kifwa's completion of his prison time in a federal prison in Pennsylvania on a 2016 sentence I imposed after a jury earlier convicted him of visa fraud and possession of a weapon by a non-immigrant alien. Judgment, No. 2:15-cr-177-DBH (D. Me. June 15, 2016) (ECF No. 118). In that 2016 sentence, I ordered that "[u]pon completing his prison term, Defendant is to be surrendered to the Department of Homeland Security, Bureau of Immigration and Customs Enforcement for deportation." Id. at 3. That is what happened. According to the Pretrial Services Report for this case, prepared on December 12, 2018, Kifwa was then "incarcerated in York County Prison on an Immigration and Customs Enforcement detainer." PSR at 1 (ECF No. 22). Federal officers arrested his codefendant on the charges in this case on November 27, 2018 (ECF Nos. 12, 19), and arrested Kifwa on December 13, 2018 (ECF No. 29). Kifwa was transported to Maine and had his initial appearance in Maine on January 15, 2019 (ECF No. 24). The Magistrate Judge appointed counsel for him, and Kifwa has been detained since then. See Order of Detention Pending Trial (ECF No. 28).

The codefendant and the government filed four joint motions under the so-called "ends of justice" exclusion to exclude time under the Speedy Trial Act (ECF Nos. 33, 35, 41 & 44) and delay indictment. The Magistrate Judge granted each motion and entered a corresponding Speedy Trial Order. Speedy Trial Order of March 4, 2019 (ECF No. 34) (excluding time from November 27, 2018, through March 29, 2019); Speedy Trial Order of April 2, 2019 (ECF No. 36) (March 29 through May 24, 2019); Speedy Trial Order of May 31, 2019 (ECF No. 42) (May 24 through July 26, 2019); Speedy Trial Order of July 29, 2019 (ECF No. 45) (July 26 through September 26, 2019). Cumulatively, they excluded the period from November 27, 2018 (the date of the codefendant's arrest), through September 26, 2019. In each of the four orders, the Magistrate Judge found that the ends of justice served by excluding the time from the speedy trial clock outweighed the best interests of the public and of the codefendant in a speedy trial. E.g., Speedy Trial Order of March 4, 2019, at 1 (ECF No. 34). He also found "that such an enlargement of time is reasonable as to all of the parties" and gave Kifwa five days to object. E.g., id. at 2. No objections were entered for Kifwa.

Kifwa and his codefendant were indicted on October 11, 2019 (ECF No. 56), i.e., within the Speedy Trial Act's 30-day limit if the exclusions were effective.

On July 22, 2019—after the first three motions to exclude time but before the fourth—the Clerk's Office received from Kifwa two pro se motions to dismiss. One was a motion to dismiss for a Speedy Trial Act violation, the other a motion to dismiss for failure to state a criminal offense. Letter from Clerk to counsel (ECF No. 43); see Def.'s Reply Ex. 1 (ECF No. 115-1) (public copy of pro se motion). Because Kifwa was then represented by counsel, the Clerk forwarded the motions to his attorney and did not publicly enter them on the docket. Id.

Kifwa was represented by counsel throughout the period from January 15, 2019, when he made his initial appearance and his counsel was appointed, through his arraignment on the Indictment on October 21, 2019. However, his attorney filed a motion to withdraw on September 3, 2019, citing a breakdown in the attorney-client relationship. Mot. to Withdraw (ECF No. 47). The Court denied the motion after a hearing (ECF No. 52). A month later, the attorney filed a second motion to withdraw (ECF No. 54). The Court granted that motion on October 21, the day Kifwa was arraigned (ECF No. 61), and appointed new (and current) counsel on October 25.

ANALYSIS

Speedy Trial Act

The Speedy Trial Act requires that a defendant be indicted no more than 30 days after he is arrested,² subject to certain circumstances that allow a court to exclude time from that 30-day clock (for example, delay for transportation from another District, as in Kifwa's case, 18 U.S.C. § 3161(h)(1)(F)).

Kifwa makes several arguments to support his assertion that the government failed to meet the 30-day limit: (1) that the clock started running when ICE detained him on November 20, 2018 (before his arrest on the charges in this case on December 13, 2018), because the ICE detention was a ruse to extend the government's time to indict him, Def.'s Mot. to Dismiss at 6-7 & n.9 (ECF No. 92); (2) that he did not agree to any of the extensions that his codefendant and the government obtained, Def.'s Reply at 2-3 (ECF No. 115); (3) that a Speedy Trial Act provision allowing an extension for one codefendant to apply to the other codefendant applies only in calculating the 70-day period of time to trial, not the 30-day limit of time to indictment, Def.'s Reply to Gov't's Opp'n at 1-2 (ECF No. 182); and (4) that retroactive extensions are impermissible under the Speedy Trial Act, Def.'s Resp. to Proc. Order at 5-7 (ECF No. 170).

When the Speedy Trial Act Clock Started Running

Kifwa's codefendant was arrested on November 27, 2018. Regardless of whether Kifwa's time in ICE detention should be counted, the Speedy Trial Act clock does not start to run until the arrest of the last defendant. See United States v. Casas, 425 F.3d 23, 31 (1st Cir. 2005) (citing Henderson v. United States, 476 U.S. 321, 323 n.2 (1986)). So even if I treat Kifwa as having been arrested on November 20, when ICE took custody, the clock would not start to run until the later date of November 27, 2018. If the exclusions approved by the four Speedy Trial Orders as to the codefendant were valid as to Kifwa as well, the Indictment on October 11, 2019, was timely.

Effect of Codefendant's Motions to Exclude Time

Kifwa claims that none of the Speedy Trial orders should apply to him. All four of the motions to exclude time were joint motions between only Kifwa's codefendant and the government. Kifwa did not expressly agree to any of them. But the law does not require that he register his agreement. The Speedy Trial Act allows for exclusions of 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). The First Circuit has held repeatedly that "[t]his provision 'stops the [Speedy Trial] clock for one defendant in the same manner and for the same amount of time as for all co-defendants.'" United States v. Maryea, 704 F.3d 55, 64 (1st Cir. 2013) (quoting United States v. Rush, 738 F.2d 497, 504 (1st Cir. 1984)). It has also made clear that "cases involving multiple defendants are governed by a single speedy trial clock." United States v. Barnes, 251 F.3d 251, 259 (1st Cir. 2001); see also Casas, 425 F.3d at 31 ("[A]ny defendant's motion resulting in excludable time toll[s] the [Speedy Trial] clock for his codefendants." (quoting United States v. Santiago-Becerril, 130 F.3d 11, 19 (1st Cir. 1997))).

Although the First Circuit has "assume[d] without deciding . . . that a reasonableness requirement applies" to the question whether one codefendant's excluded time should also be excluded from another's clock, the exclusion is likely to be reasonable so long as the defendant has not moved to sever. Maryea, 704 F.3d at 66. In Maryea, the defendant argued that it was not reasonable to apply her codefendant's motion for continuance to her, because the continuance gave the codefendant more time to reach a plea deal, which undermined Maryea's defense strategy. Noting that some circuits actually "requir[e] a defendant to file a motion for severance in order to challenge the reasonableness of the delay on appeal," the First Circuit said that Maryea's "failure to move to sever [was] an important consideration" in its ultimate holding that it was reasonable to exclude from Maryea's clock the codefendant's agreed continuance. Id. at 67, 69. Here, Kifwa did not move to sever his case from his codefendant, and I see no reason why I should depart from the usual rule that "cases involving multiple defendants are governed by a single speedy trial clock." 251 F.3d at 259.

Moreover, each Speedy Trial Order in this case made clear that it would apply to Kifwa unless he objected within five days of the order. See, e.g., Speedy Trial Order of March 4, 2019, at 2 (ECF No. 34) ("The court further finds that such an enlargement of time is reasonable as to all of the parties . . . . Any co-defendant objecting to the new deadline(s) set forth in this Order shall file a specific objection within 5 business days of the entry of this Order."). Kifwa never filed an objection to any of the orders. He now claims that his prior lawyer did not have authority to consent to the extensions and that...