United States District Court, D. Kansas
MEMORANDUM AND ORDER
]DANIEL D. CRABTREE, District Judge.
This case again comes before the Court on defendant Lamont Ward, Jr.'s consolidated Motion to Dismiss Indictment (Doc. 44 in Case No. 13-40066; Doc. 12 in Case No. 14-40139). After considering the arguments asserted in Mr. Ward's motion and the government's response (Doc. 23 in Case No. 14-40139), the Court concluded that Mr. Ward had established a violation of the anti-shuttling provision of the Interstate Agreement on Detainers Act's ("IAD"), 18 U.S.C. App. 2 § 2, Art. IV(e). Consistent with this decision, the Court issued an Order on December 31, 2014, vacating the portion of its Order dismissing Mr. Ward's First Indictment (Doc. 43 in Case No. 13-40066) that designated the dismissal as one without prejudice. The Court also ordered that it would take Mr. Ward's Motion to Dismiss Indictment under advisement pending a hearing on the related issue presented by that motion, i.e., whether the IAD violation affecting the First Indictment requires the Court to dismiss that indictment with prejudice and, as a consequence, also dismiss the Second Indictment. At hearings conducted on January 6 and April 17,  the parties argued the remaining question: whether the factors in 18 U.S.C. App. 2 § 9(1) favored dismissing the First Indictment with or without prejudice. After carefully considering the parties' arguments, the Court concludes that the § 9(1) factors favor dismissal of the First Indictment without prejudice and it thus denies Mr. Ward's consolidated Motion to Dismiss the current indictment.
Mr. Ward asserted two principal arguments at the hearing: (1) the Court should not analyze the § 9(1) factors retroactively because doing so would prejudice Mr. Ward; and (2) if the Court does address the § 9(1) now, the factors favor dismissing the First Indictment with prejudice. The Court addresses each of Mr. Ward's arguments, in turn, below:
1. May the Court Revisit the § 9(1) Factors?
Generally, the IAD imposes harsh sanctions on a receiving state who violates one of its provisions. See, e.g., 18 U.S.C. App. 2 § 2, Arts. IV(e) (mandating dismissal with prejudice for violating the anti-shuttling rule), V(c) (mandating dismissal with prejudice for violating the IAD's trial clocks). But when the United States is the receiving state, a federal district court has discretion to dismiss the affected indictment with or without prejudice. The Anti-Drug Abuse Act of 1988 (Pub. L. 91-538, § 9, as added Pub. L. 100-690, Title VII, § 7059, Nov. 18, 1988) amended the IAD to include the following provisions:
§ 9. Special provisions when United States is a receiving State Notwithstanding any provision of the agreement on detainers to the contrary, in a case in which the United States is a receiving State-
1) any order of a court dismissing any indictment, information, or complaint may be with or without 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 the agreement on detainers and on the administration of justice; and
2) it shall not be a violation of the agreement on detainers if prior to trial the prisoner is returned to the custody of the sending State pursuant to an order of the appropriate court issued after reasonable notice to the prisoner and the United States and an opportunity for a hearing.
18 U.S.C. App. 2 § 9.
Subsection (1) of § 9 is this clear-when the United States is the receiving state, the IAD does not mandate dismissal with prejudice. Instead, the Court must determine whether to dismiss the affected indictment with or without prejudice by considering the factors specified in § 9(1). Those factors are: "[t]he 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 the agreement on detainers and on the administration of justice." Id.; see also United States v. Martinez, 376 F.Supp.2d 1168, 1175-78 (D.N.M. 2004) (applying the § 9(1) factors).
When the Court dismissed the First Indictment, it did not conduct the analysis required by § 9(1). At that time, neither the government nor Mr. Ward noticed this oversight or raised the issue. While noting the shared blame for failing to raise this issue, the Court nonetheless concluded that Mr. Ward's IAD rights were violated when the Court dismissed his First Indictment without conducting a § 9(1) analysis. But the Court has concluded that this violation did not require the drastic remedy of dismissal. Instead, the Court simply revisited its Order dismissing the First Indictment without prejudice, and provided Mr. Ward an opportunity to argue why the § 9(1) factors favored dismissal with prejudice. After considering the parties' arguments on this subject, the Court then would decide whether to dismiss the First Indictment with or without prejudice. The Court already has concluded that this remedy will protect Mr. Ward's rights under the IAD adequately without punishing either party unfairly.
Mr. Ward's first argument challenges the Court's conclusion that it can protect his rights by conducting a § 9(1) analysis now. His sole support for this argument is a narrow theory of prejudice that assumes the following: Had the Court conducted a hearing before dismissing the First Indictment, it would have expressed the inclination to dismiss with prejudice, and, in response, the government would have withdrawn its Motion to Dismiss Indictment. In this hypothesized circumstance, Mr. Ward asserts he could have pursued one of two options. He either could have demanded a speedy trial and argued that the government cannot admit wiretap evidence at that trial because it lacked the necessary location data. Alternatively, if the Court decided to continue the trial until it could resolve the Motion to Suppress Wiretap Evidence finally (Doc. 37 in Case No. 13-40066), Mr. Ward could have withdrawn his motion, and thereby reactived his speedy-trial clock. This situation, Mr. Ward theorizes, would have forced the government to prosecute him before it could process key evidence. According to Mr. Ward, because the government never faced the risk of dismissal with prejudice that would have arisen under the circumstances he hypothesizes, the government was able dismiss the indictment, gather crucial cellular location evidence, and reindict Mr. Ward. Thus, Mr. Ward contends, the Court cannot remedy the IAD violation by revisiting the factors now because it cannot undo the tactical advantage the government has acquired in the meantime.
But regardless of its merits, Mr. Ward's prejudice theory is moot because the Court concludes that if it had conducted a hearing before dismissing the First Indictment, it would have dismissed without prejudice. Notably, Mr. Ward does not argue that anything prevents the Court from analyzing the § 9(1) factors as they existed September 18, 2014. Consequently, the Court has conducted that analysis and, for the reasons explained below, concludes that the § 9(1) factors-as ...