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United States v. Ochoa

United States District Court, S.D. Florida, Miami Division

May 9, 2017

UNITED STATES OF AMERICA,
v.
DANIEL OCHOA, Defendants.

          ORDER DISMISSING COUNT 3 WITHOUT PREJUDICE

          JAMES LAWRENCE KING DISTRICT JUDGE.

         THIS CAUSE comes before the Court upon Defendant DANIEL OCHOA's Motion to Dismiss Pending Charge Pursuant to Speedy Trial Act Violation (DE 190), filed April 3, 2017. The Court has additionally considered the Government's Response in Opposition to the Motion to Dismiss (DE 14), filed April 14, 2017. Defendant failed to file any reply in support of the motion, and the time to do so has passed.

         INTRODUCTION

         Defendant seeks dismissal of Count 3 of the Superseding Indictment (DE 34) with prejudice based upon the failure to bring him to trial within the timeframe required by the Speedy Trial Act, 18 U.S.C. § 3161(e).[1] The Government concedes that this matter must be dismissed for failure to comply with the Speedy Trial Act, but requests a dismissal without prejudice

         RELEVANT PROCEDURAL HISTORY

         On September 18, 2014, Defendant was charged by indictment with knowingly obstructing, delaying, and affecting commerce and the movement of articles in commerce by means of robbery in violation of 18 U.S.C. § 1951(a) (Count 1), possession of a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(iii) (Count 2), and felon in possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) (Count 3).[2]

         Without opposition from the government, Defendant moved to have the trial of Counts 1 and 2 severed from the trial of Count 3, which the Court granted. DE 44; DE 45. The trial of Counts 1 and 2 commenced on September 19, 2016 and the jury returned a verdict of guilty as to both counts on September 22, 2016. DE 123. The trial of Count 3 commenced on September 26, 2016 and, after the jury was unable to reach a decision, the Court declared a mistrial on September 27, 2016. DE 161.

         The day after the mistrial was declared, on September 28, 2016, the Court entered a scheduling order setting the retrial of Count 3 for the two-week calendar commencing January 19, 2017. DE 138. Approximately three weeks before the scheduled retrial date, counsel for Defendant filed a motion to withdraw from the case, which was granted following a hearing on the motion, and the retrial was continued. DE 153; DE 165. As Defendant was at that point seeking court-appointed counsel, [3] the Court referred this matter to Magistrate Edwin G. Torres to determine if Defendant qualified for same. DE 165. On January 30, 2017, Magistrate Judge Torres appointed the Federal Public Defender to represent Defendant, and AFPD Katie Carmon filed her appearance on February 1, 2017. DE 171; DE 173. Two days later, AFPD Carmon filed a notice with the Court in which she requested sixty days to prepare for the trial. DE 174. AFPD Carmon's filing made no mention of any then-existing Speedy Trial Act violations, nor did she at any time file a Speedy Trial Act Report as required by Rule 88.5 of the Local Rules for the Southern District of Florida. See id.

         Based on AFPD Cannon's request for sixty days to prepare for the trial, the Court set the retrial of Count 3 for the two-week calendar commencing April 17, 2017. DE 175. The scheduling order advised the parties, inter alia, of the following:

ALL PARTIES SHALL TAKE NOTICE THAT THE SCHEDULED TRIAL DATE IN THE ABOVE-STYLED CASE MAY BE SET BEYOND THE TIME LIMITS OF THE SPEEDY TRIAL ACT. THE COURT SHALL DEEM SPEEDY TRIAL TO BE WAIVED UNLESS THE PARTIES OTHERWISE NOTIFY THE COURT WITHIN TEN (10) DAYS AFTER RECEIPT OF THIS ORDER THAT THEY OBJECT TO THIS TRIAL DATE AND INSIST. IN WRITING, ON A TRIAL DATE WITHIN THE SPEEDY TRIAL ACT DEADLINES.

DE 138 at 1-2 (emphasis in original). No objections to the trial date were filed, and none of the parties submitted Speedy Trial Act reports as required by Rule 88.5. See S.D. Fla. L.R. 88.5.

         CALCULATION OF SPEEDY TRIAL PERIOD[4]

         The Speedy Trial Act states, in pertinent part,

If the defendant is to be tried again following a declaration by the trial judge of a mistrial or following an order of such judge for a new trial, the trial shall commence within seventy days from the date ...

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