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United States v. Cardenas-Rodriguez

United States District Court, D. Kansas

April 4, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
MARCO ANTONIO CARDENAS-RODRIGUEZ, Defendant.

          MEMORANDUM AND ORDER

          ERIC F. MELGREN UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Defendant Marco Cardenas-Rodriguez's Motion to Dismiss and Release (Doc. 16). Defendant argues that the Indictment should be dismissed and that he should be released from custody for failure to comply with the Speedy Trial Act, 18 U.S.C. § 3161 (the “STA”). For the reasons discussed below, the Court grants the motion and dismisses the Indictment without prejudice.

         I. Factual and Procedural Background

         Defendant is charged in a one-count Indictment with illegal reentry of a previously deported/removed alien in violation of 8 U.S.C. § 1326(a) and (b). On August 10, 2018, Defendant appeared before a U.S. Magistrate for his first appearance and was temporarily detained. He subsequently waived his right to a detention hearing, and the Government's motion for detention was granted on August 15, 2018.

         On August 20, the Court entered its Pretrial and Criminal Case Management Order scheduling the jury trial for October 9, 2018. On September 6, Defendant filed a Motion to Dismiss raising a jurisdictional challenge to his previous deportation proceeding based on the Supreme Court's decision in Pereira v. Sessions[1] (the “Pereira motion”). The Government responded to the Pereira motion on September 27. On September 28, the Court issued a Notice via text entry on CM/ECF cancelling the jury trial and stating that it is “to be rescheduled upon ruling on open motion.” Defendant filed a reply to the motion to dismiss on October 4. On March 6, 2019, the Court issued its Memorandum and Order denying the Pereira motion.

         While the Pereira motion was pending, Defendant filed the instant motion before the Court. Defendant contends that the speedy trial clock has run and asks the Court to dismiss this case with prejudice and release him from custody. According to Defendant, the Court's September 28 open-ended continuance did not toll the speedy trial clock, and the Pereira motion only tolled the speedy trial clock for 30 days. The Government opposes Defendant's motion.

         II. Analysis

         Under the STA, a defendant's trial “shall commence within seventy days” of the indictment or the defendant's first appearance, whichever occurs last.[2] The STA further provides that a defendant must not “be held in custody pending trial” for more than 90 days.[3] Certain events are excluded from these deadlines, including delays resulting from ends-of-justice continuances under 18 U.S.C. § 3161(h)(7) and motions under § 3161(h)(1)(D) and (H).

         A. The September 28 Notice Did Not Toll the Speedy Trial Clock

          An ends-of-justice continuance will toll the speedy trial clock under 18 U.S.C. § 3161(h)(7). That section excludes periods of delay “resulting from a continuance granted by any judge on his own motion.”[4] But, to excuse such delay, the court must specify “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.”[5]

         Defendant argues that the September 28 notice issued by the Court did not toll the speedy trial clock because it contained no ends-of-justice findings required by the STA. The Court agrees. The notice merely stated that the jury trial was cancelled and that it would be rescheduled upon the Court's ruling on the Pereira motion. It did not specify why the continuance outweighed the best interests of the public and Defendant in a speedy trial. Accordingly, the delay resulting from the September 28 continuance was not excusable under § 3161(h)(7).

         B. The Pereira Motion Only Tolled the Speedy Trial Clock for 30 Days.

         Delays resulting from pretrial motions toll the speedy trial clock, but only for 30 days once the motion is “actually under advisement.” Section 3161(h)(1)(D) of the STA “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.' ”[6]Furthermore, § 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.”[7] The Tenth Circuit has held that these two subsections work in conjunction, so “if a motion is one that does not require a hearing, the [STA] 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.”[8]

         The issue before the Court is when the Pereira motion became “under advisement.” Defendant contends that the Pereira motion has been “under advisement” since October 4, 2018, and thus only tolled the speedy trial clock for 30 days. The Government, however, contends that the motion was “under advisement” as of February 5, 2019. According to the Government, Defendant stated in his reply brief that he expected additional pertinent case law regarding the jurisdictional issue in the Pereira motion to be forthcoming and left open the express intent to supplement his briefing. The most recent case cited by the Court in its Memorandum and Order denying the Pereira motion issued on February 5, 2019. Thus, the Government argues that the matter was “under advisement” as to all matters that the Court relied upon in its decision-making as of that date, and the Court met its 30-day deadline when it issued its decision 29 days later on March 6.

         The Court is not persuaded by the Government's argument. A motion is “actually under advisement” when the trial court receives all the papers it expects to receive regarding a motion.[9]As the Tenth Circuit has explained, “the 30-day advisement period does not begin to run until all necessary information is before the Court. Excludable time includes ‘all time that is consumed in placing the trial court in a position to dispose of a motion.' ”[10] While Defendant's reply brief may have suggested that there will be additional case law discussing the jurisdictional issue present in the Pereira motion, this case law is not necessary information that the Court needed to dispose of the motion. Indeed, two other judges in this District issued opinions on the same jurisdictional issue without having used this case law to inform their decision. Furthermore, none of the recent decisions cited by the Court in its Order were binding precedent. Accordingly, because the Court did not hold a hearing on the Pereira motion, the motion was under advisement as of October 4, 2018.

         Based on this finding, the Court calculates the total number of days countable toward the speedy trial and custodial clocks to be at least 128 ...


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