United States v. Fahnbulleh ( 2010 )

UNITED sTATEs DISTRICT CoURT F 1 L E D
FoR THE i)1sTR1cT oF CoLUMBIA
) OCT - 7 2010
~ - k t
UN"ED SWES OF AMERICA» § £::‘:i:z?i.‘it:;i:i;%it;i:,':ii,ia
)
v. ) Criminal Action No. 09-359 (RBW)
)
MORRIS FAHNBULLEH, )
)
Defendant. )
g
MEMORANDUM OPINION
Morris Fahnbulleh, one of three co-defendants in this criminal case,’ is charged with,
gel La, one count of Conspiracy to Defraud the United States, 18 U.S.C. § 371; one count of
Conspiracy to Commit Mail and Wire Fraud, 18 U.S.C. § 1349; four counts of Mail Fraud, 18
U.S.C. § 1341; two counts of Wire Fraud, 18 U.S.C. § 1343; and four counts of submitting False
Claims, 18 U.S.C. § 287. Indictment W l-l7. Currently before the Court is the Defense Motion
to Dismiss lndictment With Prejudice for Speedy Trial Act Violation (the "Def.’s Mot. to
Dismiss lndict.").z After considering the defendant’s motion, the government’s memorandum in
opposition to the defendant’s motion to dismiss (the "Gov’t’s 8/27/ 10 Opp’n to Dismiss
Indict.")f and all relevant documents and exhibits attached thereto," the Court concludes for the
following reasons that it must deny the defendant’s motion to dismiss the indictment.
' The other defendants in this case are Joe Bondo, who is also before the Court in this case, and Thomas Parker, who
has been indicted but yet to be arrested.
2 The defendant is now representing himself, and his pr_o §§ motion was filed on August 10, 2010.
3 The defendant, through counsel, initially filed a motion to dismiss the indictment on July l, 2010, to which the
government filed a memorandum in opposition (the "Gov’t’s 7/9/ 10 Opp’n to Dismiss lndict"). The defendant,
however, moved p_rg se to withdraw the motion to dismiss filed by his former counsel (and current stand-by
counsel), and the Court granted his request. Aug. 5, 2010 Order at 1. The defendant then proceeded to file the
(continued . . .)
I. BACKGROUND
The government filed a criminal complaint against the defendant on May l8, 2009,
alleging that he committed acts of theft, fraud, and other related crimes, see Compl. at l-5, in
connection with an alleged "scheme to steal hundreds of thousands of dollars worth of
humanitarian assistance from the" Food Support for Community Resettlement and Rehabilitation
Project, i_d_., Ex. 1 (Affidavit of Special Agent Alcides Evora) 11 18, a program in which the
United States Agency for lnternational Development "contributes commodities (like surplus U.S.
wheat and oil) to targeted communities in exchange for community members’ work on
infrastructure projects, such as road rehabilitation, latrine construction, and hand pump
construction," i;d. 1[ ll. Specifically, the government alleges that the defendant, along with
others, "directed a scheme to divert [these] commodities intended for Liberian beneficiaries, sell
those commodities, and keep the profits for their own personal benefit," and also to "divert
construction materials intended for numerous community projects [for use at] their own personal
residences." I_d. il l8. Based on these allegations, Magistrate Judge Deborah A. Robinson of this
Court issued a warrant for the defendant’s arrest. Warrant at l. The defendant was subsequently
(. . . continued)
motion to dismiss that is currently before the Court, and in its memorandum in opposition to this motion, the
govemment explicitly incorporates all of the arguments raised in its original opposition memorandum to the
defendant’s initial motion to dismiss the indictment. Gov’t’s 8/27/10 Opp’n to Dismiss Indict. at l. In addressing
the current motion to dismiss the indictment, therefore, the Court will also consider the arguments made in the
govemment’s earlier filing_
4 In addition to the defendant’s motion to dismiss, the govemment’s memorandum in opposition to that motion, and
the govemment’s memorandum in opposition to the defendant’s July l, 2010 motion to dismiss the indictment, the
Court considered the following documents in reaching its decision: (l) the Criminal Complaint (the "Compl."); (2)
the July 16, 2009 Letter From the United States District Court for the Southern District of New York to the United
States District Court for the District of Columbia (the "July 16, 2009 Letter"); (3) the Arrest Warrant (the
"Warrant"); (4) the Govemment’s Motion to Exclude Ceitain Time From Speedy Trial Calculation filed on August
14, 2009 (the "Gov’t’s 8/l4/09 Mot."); (5) the Goverriment’s Motion to Exclude Certain Time From Speedy Trial
Act Calculation filed on October 19, 2009 (the "Gov’t’s 10/19/09 Mot."); (6) the Defendant’s Motion to Dismiss
Complaint (the "Def.’s l\/lot. to Dismiss Compl."); and (7) the United States’ Response to Defendant’s Motion to
Dismiss Complaint (the "Gov’t’s Opp’n to Dismiss Compl.").
arrested in the Southern District of New York on July l5, 2009. Def.’s Mot. to Dismiss Indict. at
2; Gov’t’s Opp’n to Dismiss Compl. at l. The defendant waived any rights he had to challenge
his transfer to the District of Columbia for prosecution, July 16, 2009 Letter at l, and he arrived
in this jurisdiction on August ll, 2009, where he made his initial appearance in this Court before
Magistrate Judge Alan Kay, Minute Entry, United States v. Fahnbulleh, Criminal Action No. 09-
359 (RBW) (D.D.C. entered Aug. ll, 2009).
After the defendant’s arrival in this jurisdiction, the parties convened for a status hearing
on August 14, 2009 before Magistrate Judge Kay. Minute Entry, United States v. Fahnbulleh,
Criminal Action No. 09-359 (RBW) (D.D.C. entered Aug. 14, 2009). Immediately prior to that
hearing, the government filed a written motion with the Court seeking to exclude twenty-seven
days--between July l5, 2009 to August ll, 2009-from the time period in which the
government was required under the Speedy Trial Act, 18 U.S.C. § 3161 (2008),5 to obtain an
5 Section 3161 states the following:
(a) ln any case involving a defendant charged with an offense, the appropriate judicial officer, at
the earliest practicable time, shall, after consultation with the counsel for the defendant and the
attorney for the Government, set the case for trial on a day certain, or list it for trial on a weekly or
other short-term trial calendar at a place within the judicial district, so as to assure a speedy trial.
(b) Any information or indictment charging an individual with the commission of an offense shall
be filed within thirty days from the date on which such individual was arrested or served with a
summons in connection with such charges. lf an individual has been charged with a felony in a
district in which no grand jury has been in session during such thirty-day period, the period of
time for filing of the indictment shall be extended an additional thirty days.
(h) The following periods of delay shall be excluded in computing the time within which an
information or an indictment must be filed, or in computing the time within which the trial of any
such offense must commence:
(l) Any period of delay resulting from other proceedings conceming the defendant, including but
not limited to--
(continued . . .)
indictment. Gov’t’s 8/14/09 Mot. at 1. In support of its motion, the government argued that the
delay was attributable to "the defendant’s transfer proceedings." l;d. at 2. The government then
orally reiterated its request at the status hearing for the exclusion of time from the Speedy Trial
Act clock, but arguing this time that it was entitled to an exclusion of the aforementioned twenty-
seven days because the delay was attributed to the defendant having been "moved from the
Southern District of New York to Washington, D.C." Hr’g Tr. at 65:11-12, Aug. 14, 2009.
Based on the govemment’s representations, Magistrate Judge Kay concluded that "the interests
of justice" in granting the exclusion, although not "necessarily outweigh[ing] the best interest[s]
of the [d]efendant," did "outweigh the best interests of the public . . . in a speedy trial," and, as a
result, he granted the govemment’s motion, I;d. at 65:23-66:8.
During the same status hearing (and in the written motion submitted prior to the hearing),
the government also moved for a separate exclusion of time under 18 U.S.C. § 3161(h)(8) due to
delay resulting from the govemment’s efforts to collect evidence located in the Republic of
Liberia. g Gov’t’s 8/14/09 Mot. at 2. Specifically, the government requested that the Court
exclude time from the Speedy Trial Act clock beginning on August 14, 2009 "until the date on
which the Republic of Liberia responds to the govemment’s request for evidence located in
(. . . continued)
(E) delay resulting from any proceeding relating to the transfer of a case or the removal
of any defendant from another district under the Federal Rules of Criminal Procedure;
(F) delay resulting from transportation of any defendant from another district, or to and
from places of examination or hospitalization, except that any time consumed in excess
of ten days from the date an order of removal or an order directing such transportation,
and the defendant’s arrival at the destination shall be presumed to be unreasonable;
(8) Any period of delay, not to exceed one year, ordered by a district court upon an application of
a party and a finding by a preponderance of the evidence that an official request, as defined in
section 3292 of this title, has been made for evidence of any such offense and that it reasonably
appears, or reasonably appeared at the time the request was made, that such evidence is, or was, in
such foreign country.
Liberia" because it had made an official request for the evidence from the Liberian govemment
for various records, and that it was still awaiting a response. I;d. The defendant, through his
counsel, opposed the government’s motion, arguing that because the govemment made the
request for foreign evidence in January 2009, "the Court should [not] grant the Govemment’s
exclusion for anymore than a year[] dating from the date of their request." Hr’ g Tr. at 62:10-16.
Magistrate Judge Kay agreed with the defendant that the continuation should not be "open-
ended," yet at the same time acknowledged that "the [g]ovemment does[ not] have any control as
to the speed [at] which the Liberian authorities will furnish the requested inforrnation." l;d. at
62:20-63:1. As a result, Magistrate Judge Kay granted the government’s motion, i_d_. at 10-11,
but only up until October 16, 2009, § at 64:17-25, at which point the government, if it desired
any additional exclusion of time, would have to appear before Magistrate Judge Robinson for a
status hearing to provide an update as to its efforts to collect evidence from the Liberian
government, § § at 62:17-20 ("[M]y inclination . . . is to grant the [g]ovemment a designated
period of time . . . , and then hold a status hearing and find out what the status is."); i_cL at 63:10-
13 ("I’m going to grant an extension to the [g]ovemment . . . under the Speedy Trial Act, and set
a status hearing at [which] point . . . the [g]ovemment will make whatever representations it
needs to make.").
At the October 16, 2009 status conference, the government orally moved for additional
relief under Section 3l6l(h)(8) to exclude time beginning October l7, 2009. Hr’ g Tr. at 16:12-
17, Oct. 16, 2009. Magistrate Judge Robinson declined to hear the request because the
government had not submitted a written motion asking for such relief. I_d. at 18:5-8. She then
directed the government to file a written motion setting forth the basis for its request on or before
October 19, 2009. I_d. at 18:8-10. The government complied with Magistrate Judge Robinson’s
directive and filed its request for relief on October 19, 2009. Gov’t’s 10/19/09 Mot. at 1. In
support of its motion for relief, the government alleged essentially the same facts that were
asserted in its previous motion for the same relief that had been granted by Magistrate Judge Kay
on August 14, 2009, i.e., that the government had transmitted a "diplomatic note" on January 23,
2009 "to the Republic of Liberia requesting that certain materials be provided to the [United
States] Department of Justice," and that "the Republic of Liberia [was] still in the process of
responding to the govemment’s request." I_d. at 2.
Rather than filing a memorandum in opposition to the govemment’s motion, the
defendant, who was still represented by counsel at the time, moved to dismiss the criminal
complaint on the grounds that the govemment failed to secure an indictment in this case within
thirty non-excludable days from the date of the defendant’s arrest as required under 18 U.S.C. §
3l6l(b). Def.’s Mot. to Dismiss Compl. at l. Specifically, the defendant argued that the time
period between July l5, 2009 and August 11, 2009 could not be excluded under 18 U.S.C. §
3161(h)(E) because there had been "[n]o delay . . . attributable to [a] transfer proceeding," § at
2, and that the government was only entitled to an exclusion of ten days under 18 U.S.C. §
316l(h)(1)(F) resulting from the defendant’s transfer to this jurisdiction, § at 3. The defendant
further argued that because Magistrate Judge Kay only excluded time under the Speedy Trial Act
until October 16, 2009, the govemment only had ten days from that point in which to secure an
indictment. § Those ten days having elapsed before an indictment was filed, the defendant
argued that he was entitled to a dismissal of the criminal complaint. §
The government filed a memorandum in opposition to the defendant’s motion to dismiss
on November 13, 2009. Gov’t’s Opp’n to Dismiss Compl. at 8. As to the defendant’s claim that
Magistrate Judge Kay erred in excluding the time period between July l5, 2009 and August ll,
2009, the government acknowledged that it should have sought relief under Section
3l6l(h)(l)(F) rather than Section 3161(h)(1)(E). § at 6. Nonetheless, the government argued
that even if time was improperly excluded under Section 3161(h)(1)(F), and that it was only
entitled to an exclusion of ten days between July l5, 2009 and August ll, 2009 under Section
3161(h)(1)(E), the additional seventeen days within that time period "would still be properly
excluded under . . . 18 U.S.C. § 3161(h)(8) because the govemment’s request to Liberia was
clearly outstanding between [those] dates." § at 7.
Magistrate Judge Robinson issued a memorandum opinion and order on December 16,
2009, denying the govemment’s motion under Section 3161(h)(8) to exclude additional time as
of October 17, 2009. United States v. Fahnbulleh, 674 F. Supp. 2d 214, 215 (D.D.C. 2009). ln
her opinion, Magistrate Judge Robinson concluded that Section 3161(h)(8) does not allow for the
"exclusion of a period of delay of up to one year . . . from the calculation of the time within
which an indictment must be filed." § at 218; §§ § at 221 ("[T]he undersigned finds that
Section 3161(h)(8) of Title 18 does not provide for the exclusion of time within which an
indictment must be filed . . . ."). Furthermore, Magistrate Judge Robinson concluded that the
period of exclusion ordered by Magistrate Judge Kay expired on October 16, 2009, and because
the government at that point had yet to obtain an indictment, the defendant was entitled to a
dismissal of the criminal complaint without prejudice. § at 221.
The government then appealed to Chief Judge Royce C. Lamberth of this Court for an
emergency stay of Magistrate Judge Robinson’s order and reversal of the findings rendered in
her memorandum opinion. Motion for Emergency Stay of Magistrate Judge’s Dismissal Order
Pending Hearing and Motion for Review and Appeal of Dismissal Order at 1. Chief Judge
Lamberth granted the request for a stay of the order and directed the parties to appear before him
on December 22, 2009, for a hearing on the merits of the govemment’s appeal. Order, l
States v. Fahnbulleh, No. 09-293 (DAR), at 1 (D.D.C. Dec. 17, 2009) (Lamberth, J.). Before the
hearing occurred, the grand jury returned an indictment against the defendant on December 18,
2009, charging him with the aforementioned crimes. See generally Indictment 1111 1-17.
The defendant, who is now representing himself, moves to dismiss the indictment on
essentially the same grounds relied upon by Magistrate Judge Robinson in her December 16,
2009 memorandum opinion dismissing the criminal complaint. See generally Def.’s Mot. to
Dismiss lndict. at 1-33. The defendant also argues that the govemment is only entitled to a five-
day exclusion of time under Section 3161(h)(1)(F), § at 7, rather than the ten days he initially
conceded to in his motion to dismiss the criminal cornplaint, Def’ s Mot. to Dismiss Compl. at 3.
Furtherrnore, the defendant contends that Magistrate Judge Robinson, while correctly dismissing
the criminal complaint, erred in doing so without prejudice, as he suffered actual prejudice as a
result of the govemment’s delay in obtaining an indictment from the grand jury. See generally
Def.’s Mot. to Dismiss lndict. at 20-32.
Not surprisingly, the government opposes the defendant’s motion to dismiss the
indictment, arguing that Magistrate Judge Robinson erred in dismissing the criminal complaint
because ( 1) she lacked the authority under the Federal Magistrate Act to dispose of this matter,
Gov’t’s 7/9/ 10 Opp’n to Dismiss Indict. at 7-8; (2) she erroneously concluded that Section
3161(h)(8) cannot be relied upon to exclude time from the thirty-day period in which the
government is required under Section 3161(b) to secure an indictment in this case, § at 11; and
(3) even putting aside her holding regarding Section 3161(h)(8), the time period that the
government had remaining to obtain an indictment had not yet expired, § at 13.
II. LEGAL ANALYSIS
The sole issue before the Court is whether the indictment filed in this case should be
dismissed with prejudice because of the government’s failure to timely secure an indictment
under the Speedy Trial Act. To resolve this issue, the Court must first turn to the Act itself,
which provides the rubric for calculating the time period in which the government must secure
an indictment against a criminal defendant. Specifically, the Act requires that the govemment
obtain an indictment or file an information against a criminal defendant within thirty days from
the date of arrest. 18 U.S.C. § 3l6l(b). ln calculating this thirty-day period, however, the Act
provides that certain periods of delay must be excluded by the Court. S_e§ 18 U.S.C. § 3161(h)
(stating that that certain "periods of delay § be excluded in computing the time within which
an information or indictment must be filed"). Notwithstanding these provisions for exclusion,
should the government fail to secure an indictment within thirty non-excludable days from the
date of arrest, the charges brought against the defendant in the criminal complaint must be
dismissed either with or without prejudice. 18 U.S.C. § 3162(a)(1) (2008); see also United
States v. Bowman, 496 F.3d 685, 688 (D.C. Cir. 2007) (noting that upon a finding that the
Speedy Trial Act has been violated, "[t]he [C]ourt may dismiss the complaint with or without
prejudice"). And, if the Court concludes that the criminal complaint should be dismissed with
prejudice, then the government is barred from filing an indictment charging the defendant with
the same crimes alleged in the criminal complaint. Bowman, 496 F.3d at 688.
Both parties agree that the defendant was arrested on July l5, 2009. Def.’s Mot. to
Dismiss lndict. at 2; Gov’t’s Opp’n to Dismiss Compl. at 1. As noted above, Section 3l61(b)
provides that the government must obtain an indictment "within thirty days from the date" the
defendant was arrested. Excluding the day of the defendant’s arrest, §§ United States v. Harris,
491 F.3d 440, 443 (D.C. Cir. 2007) (construing the requirement under the Speedy Trial Act that
a trial commence "_wi_th_i_r_i seventy days from the filing" of the indictment to mean that the date on
which the indictment is filed does not count toward the seventy-day total), the govemment was
required to secure an indictment by August 14, 2009. The indictment, however, was filed on
December 18, 2009_126 days later_so the Court is obligated to dismiss the criminal complaint
unless the record reflects that the delay in filing the indictment can be excluded under the various
provisions of 18 U.S.C. § 3161(h).
The defendant raises several arguments in support of his motion to dismiss the
indictment. First, he argues that Magistrate Judge Kay erroneously excluded the entire time
period between July l5, 2009 and October 16, 2009, and that the government, at most, was
entitled to an exclusion of only five days within that time frame as a result of his transfer from
the Southern District of New York to this District. Def.’s Mot. to Dismiss lndict. at 7. Second,
he contends that Magistrate Judge Kay improperly excluded under Section 3161(h)(8) the fifty-
eight day period between August 11, 2009 and October 16, 2009, because this exclusionary
provision does not apply in the pre-indictment context. § at 25. Third, he asserts that while
Magistrate Judge Robinson correctly concluded that Section 3161(h)(8) does not apply to the
exclusion of time during the pre-indictment period, she erred in dismissing his case without
prejudice.° ee generally § at 20-32. And fina11y, the defendant argues that because he was
entitled to have the criminal complaint dismissed with prejudice, the government was barred
from securing an indictment alleging the same charges listed in the criminal complaint. § §
at 30 (contending that "dismissal was based on [a] violation of the Speedy Trial Act," and
6 To that end, the Court rejects the govemment’s argument that the filing of the indictment renders the defendant’s
challenge under the Speedy Trial Act moot, as the filing of the indictment does not extinguish the issue of whether
the dismissal of the criminal complaint without prejudice was in error.
10
therefore "[r]eprosecution is barred in this case[] for the same charges"). After a thorough
review of the record,7 however, the Court concludes the government secured the indictment
within thirty non-excludable days from the defendant’s arrest, and therefore dismissal of the
criminal complaint was in error."
A. Exclusion of Time Between July l5, 2009 and August ll, 2009
In regards to the exclusion of time between July l5, 2009 and August ll, 2009, the
record is unclear as to what provision under Section 3 l61(h) provided the basis for the exclusion
of this twenty-seven day period. lnitially, the govemment filed a written motion with the Court
on August 14, 2010, asserting that it was entitled to exclude these twenty-seven days under
Section 161(h)(1)(E), because the delay "result[ed from] the defendant’s transfer proceedings,"
Gov’t’s 8/14/09 Mot. at 2, but nowhere in their motion did the government provide any detail
regarding any proceeding which caused the delay that it sought to exclude from the Speedy 'l`rial
Act calculation. That same day, the government appeared before the Court for a status hearing,
at which point it implicitly relied upon 18 U.S.C. § 3161(h)(1)(F) to exclude time because the
defendant "was _rn_<§ from the Southern District of New York to Washington, D.C." Hr’ g Tr.
at 65:11-12, Aug. 14, 2009. Again, the government did not specify at the hearing why it
believed it was entitled to an exclusion of twenty-seven days for the transfer of the defendant to
this jurisdiction from New York. Despite the lack of foundation for the invocation of these
Speedy Trial Act exclusionary provisions, the govemment’s request to exclude time under the
Speedy Trial Act was granted. The basis for excluding these twenty-seven days, however, was
7 lt is settled law in the District of Columbia Circuit that the undersigned member of the Court has the authority to
review a magistrate judge’s decision to dismiss a criminal complaint. S_eg Bowman, 496 F.3d at 691 (observing that
"even if the magistrate judge had authority to dismiss [a] criminal complaint with prejudice, nothing barred the
district court from reviewing that dismissal").
8 The Court, therefore, need not address the issue of whether the Federal Magistrate Act authorizes a magistrate
judge to dismiss a criminal complaint.
ll
neither Section 316l(h)(1)(E) nor Section 3161(h)(1)(F), but rather 18 U.S.C. §
3161(h)(1)(7)(A), as the Court found that "the interests of justice" in granting the exclusion,
although not "necessarily outweigh[ing] the best interest of the defendant," did "outweigh the
best interests of the public . . . in a speedy trial." § at 65:23-66:2; see also 18 U.S.C. §
3161(h)(7)(A) (providing for the exclusion of time when a judge makes "findings that the ends
of justice served by [a continuance] outweigh the best interest of the public and the defendant in
a speedy trial"). Although the record is somewhat muddled as to the basis upon which the time
period between July l5, 2009 and August 11, 2009 was excluded from the Speedy Trial Act
calculation, it is apparent to the Court that the exclusion of all twenty-seven days within this time
period was improper under any of these three provisions.
As to the govemment’s initial argument that Section 3161(h)(1)(E) provided the basis for
excluding these twenty-seven days, the government has acknowledged, and the Court agrees
with the government, that this provision is not an appropriate basis for exclusion under the
circumstances of this case, _s_§;e_ Gov’t’s Opp’n to Dismiss Compl. at 6 (acknowledging that "the
[d]efendant is correct that . . . the government should have moved to exclude time under 18
U.S.C. § 3161(h)(1)(F) and not 18 U.S.C. § 3161(h)(1)(E)"), because "[t]he transfer proceeding
occurred on the day of the [d]efendant’s arrest," § at 3, and thus no delay in this matter can be
attributed to that proceeding. Furthermore, Section 3161(h)(1)(F) does not provide the
appropriate basis for excluding the entire twenty-seven day period between July l5, 2009 and
August ll, 2009, as that provision explicitly provides that "any time consumed in excess of teg
days" in transferring a defendant from another district "shall be presumed to be unreasonable."
18 U.S.C. § 316l(h)(1)(F) (emphasis added). Finally, the govemment is not entitled (nor did it
request) to have these twenty-seven days excluded under 18 U.S.C. § 3161(h)(7)(A) because no
12
finding was ever made "orally or in writing" to support the conclusion that the "ends of justice"
outweighed the interests of both the public and the defendant in a speedy trial, as is required
under that provision, § Zedner v. United States, 547 U.S. 489, 507 (holding that "without on-
the-record findings, there can be no exclusion under" 18 U.S.C. § 3161(h)(7)(A)). ln fact, the
government’s request was granted despite uncertainty as to whether the "interests of justice" in
granting the exclusion "necessarily outweigh[ed] the best interest of the [d]efendant," Hr’g Tr.,
Aug. 14, 2009 65:25-66:2, even though the plain language of Section 3161(h)(7)(A) requires that
the interests of justice in granting a continuance must outweigh Lh "the best interests of the
public ag_d the defendant in a speedy trial," 18 U.S.C. § 3161(h)(7)(A) (emphasis added); §e_e
also United States v. Kellam, 568 F.3d 125, 137 (4th Cir. 2009) ("The purpose of the [Speedy
Trial] Act is to protect the interests of § the defendant and the public . . . ," (emphasis
added)); United States v. Hall, 181 F.3d 1057, 1062 (9th Cir. 1999) ("[T]he Speedy Trial Act
assigns district courts an independent responsibility to protect § the defendant’s and the
public’s strong interest in the timely administration of justice." (emphasis added)). The
exclusion of the entire period between July l5, 2009 and August ll, 2009, therefore, could not
be solely based on Section 3161(h)(l)(E), Section 316l(h)(1)(F), or Section 3161(7)(A).
This is not to say that the govemment is precluded from receiving agy exclusion of time
between July l5, 2009 and August ll, 2009, as neither party disputes that the defendant was
transferred from the Southem District of New York to this District. As a result, the govemment
is entitled under Section 316l(h)(1)(F) to an exclusion of time, not to exceed ten days, for the
time period in which the defendant was in transit to this jurisdiction. As far as the Court can
discern from the entire record, the government has not disclosed at any point in this litigation the
amount of time it took to transfer the defendant. On the other hand, the defendant asserts in his
13
motion to dismiss the indictment that he was in transit for five days beginning August 5, 2009,
and concluding on August 9, 2009. Def.’s Mot. to Dismiss lndict. at 7. The government does
not refute the defendant’s assertion in its opposition memorandum; consequently, the Court will
accept the defendant’s contention and exclude only five days from the thirty-day period in which
the govemment is required to obtain an indictment in this case.
B. Exclusion of Time Between August 1 1, 2009 and December 18, 2009
As for the defendant’s assertion that the exclusion of time under 18 U.S.C. § 3161(h)(8)
is not available in the pre-indictment context, the Court finds this argument to be wholly without
merit. ln construing the meaning of 18 U.S.C. § 3161(h)(8), several well-settled principles of
statutory interpretation must guide the Court’s analysis. The first step in interpreting any statute
is to "‘begin with the language employed by Congress and the assumption that the ordinary
meaning of that language accurately expresses the legislative purpose."’ United States v.
Albertini, 472 U.S. 675, 680 (1985) (quoting Park ‘N Fly, lnc. v. Dollar Park & Flv, Inc., 469
U.S. 189, 194 (1985)). Where the language of the statute is "plain, ‘the sole function of the
courts is to enforce it according to its terms."’ United States v. Ron Pair Enters., Inc., 489 U,S.
235, 241 (1989) (quoting Caminetti v. United States, 242 U.S. 470, 485 (1917)). Furthermore,
the Court should also interpret the statute so as "to give effect, if possible, to every clause and
word of a statute.” Duncan v. Walker, 533 U.S. 167, 174 (2001) (quoting United States v.
Menasche, 348 U.S. 528, 538-39 (1955)). And, the Court must be mindful of the object and
policy of the entire statutory scheme in interpreting a provision within that scheme. §§
Richards v. United States, 369 U.S. 1, 11 (1962) (holding that courts must not construe statutory
provisions "in isolation from the context of the whole Act," but rather courts "must look to the
provisions of the whole law, and to its object and policy").
14
Applying those principles to Section 3161(h)(8), there can be no dispute that this
provision applies in the pre-indictment context. Specifically, Section 3161(h)(8) provides the
following:
(h) The following periods of delay shall be excluded in computing the time within
which an information or an indictment must be filed, or in computing the time
within which the trial of any such offense must commence:
(8) Any period of delay, not to exceed one year, ordered by a district court
upon an application of a party and a finding by a preponderance of the
evidence that an official request, as defined in section 3292 of this title,
has been made for evidence of any such offense and that it reasonably
appears, or reasonably appeared at the time the request was made, that
such evidence is, or was, in such foreign country.
18 U.S.C. § 3161(h)(8) (emphasis added). Thus, so long as the govemment can establish by a
preponderance of the evidence that it made an official request for evidence from a foreign
country, and that it is reasonable to conclude that such evidence is located in that country, then
the Court is compelled under a plain reading of 18 U.S.C. § 3161(h)(8) to exclude that time from
the thirty-day requirement of 18 U.S.C. § 3161(b). Indeed, to adopt the defendant’s
interpretation and find that this provision does not apply in the pre-indictment context would
require the Court to simply read out the requirement that "[t]he following periods of delay shall
be excluded in computing the time within which . . . an indictment must be filed." 18 U.S.C. §
3161(h)(8) (emphasis added).
The defendant asserts that Congress’s use of the word "or" within the text of Section
3161(h), rather than "and," suggests that the various exclusion provisions under Section 3l6l(h)
are to be applied either exclusively within the pre-indictment context or exclusively within the
post-indictment context. Def.’s Mot. to Dismiss lndict. at 14; see also 18 U.S.C. § 3161(h)
("The following periods of delay shall be excluded in computing the time within which an
15
information or indictment must be filed, g in computing the time within which the trial of any
such offense must commence . . . ." (emphasis added)). lnterpreting the use of conjunctives and
disjunctives in statutes is not so simplistic, however, To be sure, use of the word "‘or’ is
[generally] accepted for its disjunctive connotation . . . . [b]ut this canon is not inexorable, for
sometimes a strict grammatical construction will frustrate legislative intent." United States v.
Moore, 613 F.2d 1029, 1040 (D.C. Cir. 1979). lndeed, as Justice Harlan astutely observed in
writing for the majority of the Supreme Court in De Sylva v. Ballentine, 351 U.S. 570, 573
(1956):
We start with the proposition that the word "or" is often used as a careless
substitute for the word "and"; that is, it is often used in phrases where "and"
would express the thought with greater clarity. That trouble with the word has
been with us for a long time.
Judge Becker, speaking for the Third Circuit, provided further insight in United States v. One
1973 Rolls Rovce, V.I.N. SRH-l6266, 43 F.3d 794, 814-15 (3d Cir. 1994), regarding the
interpretation of statutes containing conjunctives or disjunctives:
The argument that the existence of the word "or" . . . requires a disjunctive
reading . . . arguably overlook[s] the importance of context in determining
whether the conditions should be treated as disjunctive or conjunctive. Whether
requirements in a statute are to be treated as disjunctive or conjunctive does not
always turn on whether the word "or" is used; rather it tums on context.
The Court, therefore, cannot simply rely on Congress’s usage of "and" or "or" to reach a
definitive determination regarding the application of the various exclusionary provisions of
Section 3161(b). Rather, the Court must view all of these provisions in the context of the entire
Speedy Trial Act to discem Congress’s intent.
ln taking a more holistic approach to interpreting Section 316l(h), rather than focusing
solely on Congress’s use of a disjunctive, it is evident to the Court that the statutory structure of
Section 3l61(b) precludes the defendant’s proffered construction. In drafting the statute,
16
Congress did not separate and categorize one set of provisions for the pre-indictment context and
the remaining provisions for the post-indictment setting; rather, it grouped together all of the
exclusionary provisions under one heading. Despite the structure of this statute, if the defendant
is correct that Congress’s use of a disjunctive in Section 3 l61(h) reflects an intent to have certain
exclusionary periods apply exclusively to the pre-indictment context, while having the remaining
periods only apply post-indictment, then a court would have to speculate as to which provisions
apply in one context versus the other. Under the defendant’s interpretation of Section 3l6l(h),
the Court, for example, would have to assess whether it could exclude time under Section
3161(h)(1)(F) due to the defendant’s transfer from New York, or whether that provision only
applies to transfers that take place after an indictment is filed. But there is no limiting principle
in Section 3l61(b) (or anywhere else in the Speedy Trial Act, for that matter) from which the
Court could conclude that it lacks the authority to exclude pre-indictment time resulting from
inter-district transfer delay; indeed, there is no logical reason why the filing of an indictment
should serve as the dividing line for when a court may exclude time for the delay resulting from
a defendant’s transfer from one district to another. Thus, under the defendant’s proffered
construction of Section 3161(h), the Court would be required to engage in a guessing game that
is unnecessary based on the more straightforward interpretation as discussed above.
The Court also finds the defendant’s reliance on United States v. Kozenv, 541 F.3d 166(2d Cir. 2008), to be misplaced. In gy, the Second Circuit addressed the issue of whether
the govermnent could seek to toll a statute of limitations under 18 U.S.C. § 3292(a)(1) where the
limitations period had expired but an indictment had yet been issued. § at 172. But here, the
govemment is not seeking to toll the statute of limitations; rather, it is requesting that a period of
17
time be excluded from the limitations period specifically authorized under the Speedy Trial Act.
Thus, Kc§y is inapposite.
Finally, the defendant argues that applying 18 U.S.C. § 3161(h)(8) in the pre-indictment
context "would violate the Fifth, Sixth[,] Eighth[,] and Fourteen[th] Amendments" of the United
States Constitution because doing so could result in an individual being imprisoned for up to one
year without being indicted, Def.’s Mot. to Dismiss Indict. at 25. While it is true that in
construing a statutory provision, the Court when possible is obliged to interpret it in a manner
that avoids a constitutional infirrnity, Skilling v. United States, U.S. ___, __, 130 S. Ct.
2896, 2940 (2010) (quoting United States ex rel. Attorney General v. De1aware & Hudson Co.,
213 U.S. 366, 407 (1909)) ("[W]hen the constitutionality of a statute is assailed, if the statute be
reasonably susceptible of two interpretations, by one of which it would be unconstitutional and
by the other valid, it is our plain duty to adopt that construction which will save the statute from
constitutional infirmity."), the application of 18 U.S.C. § 3161(h)(8) to the pre-indictment
context does not raise any constitutional difficulties because none of the four amendments cited
by the defendant proscribe pre-indictment detention of any specific duration as a matter of law.
With regards to the Fifth Amendment, the Court is not aware of any case where another court has
held that a specific length of pre-indictment detention rises to the level of a §§ g constitutional
violation;° indeed, in the Sixth Amendment context, the Supreme Court has explicitly held
9 lf anything, the Supreme Court has held that the determination of whether a due process violation has occurred
requires a fact-specific inquiry into the circumstances of a particular case. §e_e United States v. l\/larion, 404 U.S.
307, 324 (1971) (concluding that dismissal for pre-indictment delay is appropriate only where "it [is] shown at trial
that the pre-indictment delay in [the] case caused substantial prejudice to [the accused’s] rights to a fair trial and that
the delay was an intentional device to gain tactical advantage over the accused"); Kennedv v. Mendoza-Martinez,
372 U.S. 144, 168-169 (1963) (holding that whether a pre-trial sanction constitutes a due process violation will
depend on a multitude of factors). Given the individualized nature of a due process analysis, the Court cannot find
that applying 18 U.S.C. § 3161(h)(8) in the pre-indictment context would violate the Fifth Amendment as a matter
of law.
18
otherwise.‘° § Barker v. Wingo, 407 U.S. 514, 523 ("We find no constitutional basis for
holding that the speedy trial right can be quantified into a specified number of days or months.").
The Eighth Amendment also does not pose any interpretive difficulties here, as the Speedy Trial
Act is concerned with the right to o_btai_n a "speedy" adjudication of the charges being brought
against a defendant, while concerns about the constitutionality of a punishment under the Eighth
Amendment" do not arise "until a_ft_e_r . . . a formal adjudication of guilt in accordance with due
process of law" is secured. ingraham v. Wright, 430 U.S. 651, 671 n.40 (1977) (emphasis
added). The Fourteenth Amendment is likewise inapplicable because the present case involves a
federal prosecution, while the prohibitions prescribed in the Fourteenth Amendment are directed
only to the states. § U.S. Const. amend. XlV ("No St§ate_ shall . . . abridge the privileges or
immunities of citizens of the United States; nor shall any § deprive any person . . . due
process of law[,] nor deny an person . . . the equal protection of the laws." (emphasis added)).
Under these well-settled principles of constitutional law, the Court finds that the defendant’s
arguments are without merit.
m While the defendant’s motion is one to "[d]ismiss [the] [i]ndictment [w]ith [p]rejudice for [a] Speedy Trial Act
[v]iolation," Def.’s Mot. to Dismiss lndict. at l, he is also now proceeding in this matter §§ Y, and thus the Court
has an obligation to construe his filings liberally, see, e.,<.x., Brown v. District of Columbia. 514 F.3d 1279, 1283
(D.C. Cir. 2008). ln doing so, it is appears to the Court that the defendant, whether knowingly or unknowingly,
could be found to have alleged a due process violation resulting from undue pre-indictment delay. §§g Def.’s Mot.
to Dismiss lndict. at 4 (allegation by the defendant that the govemment’s arguments regarding the applicability of 18
U.S.C. § 3161(h)(8) in the pre-indictment context are "intentionally erroneous, prejudicial, misapplied[,] and [were]
certainly [made] to gain [a] tactical advantage over [the] defendant") . But even assuming that the defendant has
raised such a claim, the Court does not find any evidence in the record that would support the defendant’s request
for relief. Under Marion, the defendant must establish, i§r _a_l§ that the government "purposefully" caused delay
"to gain [a] tactical advantage over the [defendant]." 404 U.S. at 324. Here, the defendant does not allege a single
fact in support of his allegation that the govemment engaged in any dilatory tactics, except to say that it erroneously
sought to exclude time under 18 U.S.C. § 3161(h)(8) As the Court concludes, however, the govemment’s claim is
hardly misguided, as it is plainly entitled to such relief under the Speedy Trial Act.
The defendant also asserts that his due process rights were violated because he was denied an opportunity "to
respond to [the g]ovemment’s August 14, 2009 written motion" to exclude time under 18 U.S.C. §§ 3 l61(h)(l)(E)
and 3161(h)(8) Even assuming, without deciding, that Magistrate Judge Kay committed error as the defendant
suggests, such error was harmless, as the defendant’s objections to the exclusion of time under these provisions have
been fully considered by this Court in resolving his motion to dismiss the indictment.
19
Having resolved the issue of whether Section 3161(h)(8) applies in the pre-indictment
context, and having concluded that it does apply in this case, the Court must now tum to the facts
of this case and determine whether the government is entitled under that provision to exclude the
129 days between August 11, 2009 and December 18, 2009. For the Court to grant an exclusion
under this provision, the government must show by a preponderance of the evidence that (l) "an
official request, as defined [by S]ection 3292[(d)], has been made for [foreign] evidence,"" and
(2) "it reasonably appears, or reasonably appeared at the time the request was made, that such
evidence is, or was, in such foreign country." 18 U.S.C. § 3161(h)(8) Here, the record reflects
that the government submitted an official request to the Liberian government pursuant to Article
18 of the United Nations Convention Against Transnational Organized Crime, § Gov’t’s
Speedy Trial Mot., Ex. A (January 9, 2009 Letter from the United States Department of Justice
to The Competent Authority of the Republic of Liberia) at 1, and in the letter the government
requested, ing §, public or official records that unquestionably would be located in Liberia,
35 €L
se_e § at 5-6 (seeking "[i]ncome tax records, property and deed records," and various business
documents for numerous Liberian entities). Furtherrnore, the Court has no reason to doubt the
government’s assertion in its October 19, 2009 motion to exclude time from the Speedy Trial Act
clock that as of that date, "Liberia [was] in the process of responding to the request, [but] the
[United States] govemment ha[d] yet to receive any response." Gov’t’s 10/19/09 Mot. at 3.
Thus, the Court concludes that the govemment has more than met its burden of proving its
entitlement to exclude those 129 days between August 11, 2009 and December 18, 2009 under
18 U.S.C. § 316l(h)(8).
ll Section 3292(d) defines "official request" as "a letter rogatory, a request under a treaty or convention, or any other
request for evidence made by a court of the United States or an authority of the United States having criminal law
enforcement responsibility, to a court or other authority of a foreign country."
20
C. Total Sum of Davs Excluded From The Speedy Trial Act Calculation
As noted above, the Court would be required to dismiss the indictment in this case unless
the govemment can demonstrate that it is entitled under the various provisions of 18 U.S.C. §
3 l61(h) to exclude at least 126 days from the thirty days in which it was required to secure an
indictment under 18 U.S.C. § 3161(b). _S_