United States District Court, D. New Mexico
December 19, 2016
UNITED STATES OF AMERICA, Plaintiff,
CHRISTOPHER GARCIA, Defendant.
P. Martinez United States Attorney Maria Y. Armijo Randy M.
Castellano Matthew M. Beck Assistant United States Attorneys
Las Cruces, New Mexico Attorneys for the Plaintiff
Christopher W. Adams Law Offices of Christopher W. Adams,
P.C. Charleston, South Carolina --and-- Amy Sirignano Law
Office of Amy Sirignano, P.C. Albuquerque, New Mexico
Attorneys for the Defendant Christopher Garcia
Russell M. Aoki Aoki Law, PLLC Seattle, Washington
Court-Appointed Coordinating Discovery Attorney
MEMORANDUM OPINION AND ORDER 
MATTER comes before the Court on the Defendant's Opposed
Renewed Motion to Declare Case Complex, filed September 29,
2016 (Doc. 114)(“Renewed Motion to Declare
Complex”). The Court held a hearing on October 25,
2016. The primary issue is whether, pursuant to 18 U.S.C.
§ 3161(h)(7)(B)(ii), the nature of the prosecution, the
number of Defendants, or the existence of novel questions of
fact or law, make this case so complex that it is
unreasonable to expect the Defendant to adequately prepare
for trial within the normal time limits established by 18
U.S.C. § 3161(c)(1). Because the Court maintains its
conclusion that the present prosecution does not warrant a
complex designation at this time, the Court will deny the
Motion to Declare Complex, without prejudice to its renewal
at a later date.
purpose of its consideration of the Renewed Motion to Declare
Complex, the Court pulls its recitation of the facts from the
Indictment, filed December 1, 2015 (Doc. 1); the Superseding
Indictment, filed March 16, 2017 (Doc. 48); and the
Court's Memorandum Opinion and Order, filed November 16,
2016 (Doc. 133)(“MOO”). The Court has already, on
another occasion, provided a detailed explanation of the
charges and the history of the investigations giving rise to
this case. See United States of America v. Angel DeLeon,
et al., No. CR. 15-4268 JB, 2016 WL 3124632 (D.N.M. May
27, 2016)(Browning, J.). The facts that specifically pertain
to the present case are as follows.
March, 2015, the Federal Bureau of Investigation renewed
investigation of the Syndicato Nuevo Mexico
(“SNM”) prison gang. See MOO at 2-3.
“SNM's recent activities in a conspiracy to murder
high-ranking New Mexico Corrections Department Officials
inspired the investigation, which included both old murders
and new murder conspiracies, in addition to the racketeering
activities of current gang members that were out of
custody.” MOO at 2 (internal quotations omitted).
Accordingly, in response to the investigation, a federal
grand jury indicted Defendant Christopher Garcia in three
cases. In this case -- the drug case -- the grand jury
originally charged Garcia -- and only Garcia -- with four
counts for charges of (i) Distribution of Heroin, in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C);
(ii) Distribution of Cocaine Base, in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(C); and (iii) Distribution
of 100 Grams and More of Heroin, in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(B). See Indictment
at 1-2. In a related case -- United States v. DeLeon
-- which the Honorable Ken Gonzales, District Judge for the
United States District of New Mexico, declared complex on
January 11, 2016, Garcia is a Defendant, and has been
indicted and charged with: (i) Violent Crimes in Aid of
Racketeering (“VICAR”)(Conspiracy to Murder), in
violation of 18 U.S.C. §§ 1959(a)(5); (ii) Felon in
Possession of a Firearm, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2); and (iii) Using and
Carrying a Firearm During and in Relation to a Crime of
Violence Conspiracy to Commit Assault Resulting in Serious
Bodily Injury, in violation of 18 U.S.C. § 924(c).
See United States v. Deleon, No. CR. 15-4268 JB,
Superseding Indictment, filed April 21, 2016 (Doc. 367). That
case names thirty Defendants, all alleged SNM members or
associates, who have allegedly engaged in Violent Crimes in
Aid of Racketeering activity, under 18 U.S.C. § 1959 --
making it the “VICAR” case -- whereas the present
case solely makes allegations related to Garcia's
involvement in drug trafficking. MOO at 2. Some of the
Defendants in that case were death penalty eligible and have
had learned counsel appointed. See United States v.
Deleon, No. CR. 15-4268 JB, The United States'
Notice of Intent Not To Seek a Sentence of Death, filed June
6, 2016 (Doc. 567)(stating that it would not seek a death
sentence against twenty-one death-penalty eligible
has also been indicted in United States of America v.
Anthony Baca et al., No. CR 16-1613 JB
(D.N.M.)(Browning, J.), which names twelve Defendants, all
SNM members or associates, who have allegedly engaged in a
racketeering conspiracy, under 18 U.S.C. § 1962(d) --
making it the “racketeering case.” United
States v. Baca, No. CR 16-1613, Sealed Indictment, filed
April 21, 2016 (Doc. 1). The indictment in United States
v. Baca also makes allegations of Violent Crimes in Aid
of Racketeering activity; Garcia is charged with: (i)
Racketeering Conspiracy, in violation of 18 U.S.C. §
1962(d); and (ii) Violent Crimes in Aid of Racketeering
(Murder), in violation of 18 U.S.C. § 1959(a)(1).
See United States v. Baca, No. CR 16-1613, Sealed
Indictment, filed April 21, 2016 (Doc. 1). Garcia, and two
other Defendants, are named in United States v. Baca
and were originally death penalty eligible, and the Court
appointed learned counsel for them. See United States v.
Baca, No. CR 16-1613, The United States' Notice of
Intent Not To Seek a Sentence of Death, filed September 13,
2016 (Doc. 210)(stating that it would not seek a death
sentence against the three Defendants). The Court has
declared that case complex. See United States v.
Baca, No. CR 16-1613, Memorandum Opinion and Order,
filed October 20, 2016 (Doc. 238).
March 17, 2016, a federal grand jury returned a superseding
indictment in this case against Garcia alleging six charges
of (i) Distribution of Heroin, in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(C); (ii) Distribution of
Cocaine Base, in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(C); (iii) Distribution of 100 Grams and
More of Heroin, in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(B); (iv) Possession with Intent to
Distribute 100 Grams and More of Heroin, and Aiding and
Abetting, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(B), and 18 U.S.C. § 2; and (v) Possession with
Intent to Distribute Marijuana, and Aiding and Abetting, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(D), and
18 U.S.C. § 2. See Superseding Indictment at
1-2. According to the United States, 1, 389 pages of
discovery and seven audio recordings have thus far been
disclosed to Garcia. See United States' Response
to Defendant's Opposed Renewed Motion to Declare Case
Complex at 3, filed October 13, 2016 (Doc. 119)(“United
March 28, 2016, Garcia moved the Court to declare this case
complex given the complicated nature of the multiple cases
being brought against him. See Defendant's
Opposed Motion to Designate the Case Complex, filed March 28,
2016 (Doc. 56). The United States opposed that Opposed Motion
to Designate the Case Complex, because, while the cases
involving the prosecution of multiple SNM members'
involvement in racketeering activity might require a complex
designation, the present case is a stand-alone drug offense.
See MOO at 4. The Court denied the Defendant's
Opposed Motion to Designate the Case Complex, but without
prejudice to bringing a similar motion should it appear as
though the case warranted the complex designation in the
future. See MOO at 22.
now, again, moves the Court to declare the present case
complex given the complicated nature of the multiple cases
brought against him. See Renewed Motion to Declare
Complex at 1. The United States, again, opposes the Motion to
Declare Complex, because, “this is a drug case, ”
and “there is nothing about this case warranting a
complex case designation.” United States' Response
at 4. The Court recently continued trial in this matter to
November 30, 2016. See Order Granting Unopposed
Motion to Continue the October 24, 2016, Motions Deadline and
the October 31, 2016, Trial Setting, filed October 25, 2016
(Doc. 127). The Court will, again, deny Garcia's Motion
to Declare Complex without prejudice to renew later in the
The Renewed Motion to Declare Complex.
Renewed Motion to Declare Complex requests that the Court
designate his case complex pursuant to 18 U.S.C. §
3161(h)(7)(B)(ii). See Renewed Motion to Declare
Complex at 1. The Renewed Motion to Declare Complex primarily
relies on the interrelation amongst this case, the complex
case United States v. Deleon, No. CR. 15-4268 JB,
and the complex case United States v. Baca, No. CR
16-1613, all of which have named Garcia a Defendant.
See Renewed Motion to Declare Complex ¶¶
4-5, at 2. The Renewed Motion to Declare Complex notes that
learned counsel has been appointed for Garcia in all three of
the cases. See Renewed Motion to Declare Complex
¶¶ 6-7, at 3. Further, the United States had at one
point, according to the Renewed Motion to Declare Complex,
agreed to declare this case complex. See Renewed
Motion to Declare Complex ¶¶ 10-11, at 3-4.
argues that, thus far, the discovery disclosed is identical
in each of Garcia's three cases. See Renewed
Motion to Declare Case Complex ¶ 13, at 4. Garcia also
argues that he will need to respond to the discovery for all
three cases with his own independent analyses, and that such
will be complicated by them needing to proceed to trial in
accordance with usual deadlines. See Renewed Motion
to Declare Complex ¶ 28, at 9. To that point, the
Renewed Motion to Declare Case Complex explains that these
three cases are further interrelated, because, “[a]ll
of the counts in this case are alleged as Overt Acts in the
16-1613 case.” Renewed Motion to Declare Complex ¶
14, at 4. The Renewed Motion to Declare Complex also
emphasizes the difficulty Garcia has in receiving his
discovery, in each case, via tablet. See Renewed
Motion to Declare Complex ¶¶ 19-27, 30-31, at 6-9.
Garcia argues that this difficulty will increase the
case's complexity. See Renewed Motion to Declare
Complex ¶¶ 19-25, at 6-8.
the Renewed Motion to Declare Complex maintains:
Counsel has been reviewing discovery with Mr. Garcia in a
diligent fashion. Counsel respectfully requests the Court to
order this case complex due to the facts stated above, the
relatedness of all three of Mr. Garcia's cases (two which
have already been declared complex[)], the volume and number
of discovery documents, the number of defendants in the
related cases, novel questions of fact and law (CHS given a
cellular phone while incarcerated), the number of CHSs, and
discovery still outstanding.
Renewed Motion to Declare Complex ¶ 32, at 8.
The United States' Response.
United States responded to the Renewed Motion to Declare
Complex on October 13, 2016. See United States'
Response at 1. The United States' Response provides that
“this case involves undercover controlled drug
purchases that were recorded and photographed. There were
also search warrants that were executed on the Defendant'
residence and the Defendant's stash house.” United
States' Response at 4. Accordingly, the United States
argues that, although “the Defendant is facing more
serious charges in another case . . . there is nothing
complex about the facts of this case warranting a complex
designation.” United States' Response at 4. In
addition, “the United States does not intend to
introduce evidence of the Syndicato Nuevo Mexico (SNM) at
trial, unless it becomes relevant based on the defense.
Therefore, Defendant's claim that she has to review over
40, 000 pages of discovery is simply inaccurate.”
United States' Response at 4. The United States concludes
that it “is prepared to go to trial.” United
States' Response at 5.
The October 25, 2016, Hearing.
Court held a hearing on October 25, 2016. See
Transcript of Hearing, taken October 25, 2016
(“Tr.”). At the outset of the hearing, the Court
delivered to the parties the MOO denying Garcia's first
motion to declare the case complex. See Tr. at
2:22-24 (Court). The parties largely stuck to their
briefing's arguments, with Garcia beginning by arguing
that “the defense submits again that this case is so
unusual, due to the nature of prosecution, that it is
unreasonable to expect the defense to prepare for this trial
or pretrial proceedings within the time allotted under
3161.” Tr. at 3:20-24 (Sirignano). Garcia maintained
that, although it is “the Government's position
that the evidence that was disclosed in the companion cases
[is] not relevant to this case . . . that's completely
incorrect. The evidence that has been discovered by the
Government relates to all three cases.” Tr. at 4:19-25
(Sirignano). Garcia then explained that there was certain
evidence left to be discovered -- such as the identity of
confidential informants -- making it untenable to go to trial
on the usual deadlines. See Tr. at 6:1-9:1
(Sirignano). The Court then posited that, “I'll bet
they're going to get up here in a minute, and they're
going to tell you that for this case you have everything
they're going to introduce; that you have all the Brady
information; and they'll give you the Giglio at a certain
-- two weeks before trial.” Tr. at 9:2-8 (Court).
Garcia, in response, argued that he still did not have
information on the confidential informants, how a cellular
telephone got into the Department of Corrections, and how the
case began. See Tr. at 9:13-19 (Sirignano). The
Court was not certain, however, that Garcia would ultimately
be able to get that information in the course of discovery.
See Tr. at 9:20-23 (Court).
United States then took up argument, and the Court indicated
that “I get the feeling you're squeezing the
Defendant with these motions to continue for whatever
purposes the Government has with Mr. Garcia, but you're
not ready for trial either.” Tr. at 15:7-20 (Court).
The United States responded that, “in order to try this
case, ” Garcia “needs 1, 400 pages of discovery.
That's the Chris Garcia matter.” Tr. at 15:22-24
(Castellano). The United States then provided that,
“two weeks before trial, she'll have the
information. I will say that she has the recording of at
least one of those informants. We've turned over the
recordings. So they know who at least one of those people is.
And for purposes of this case, we're probably talking
about two informants, not 93 informants.” Tr. at
16:15-22 (Castellano). The Court, in response to the United
States' uncertainty with respect to the number of
informants, then pressed the United States about the precise
number of informants. See Tr. at 17:14-22 (Court).
The United States confirmed that it would only be two
informants, and that their identities -- and approximately 1,
400 pages of discovery -- would be disclosed by two weeks
before trial. See Tr. at 17:23-24 (Castellano). The
Court then addressed the issue of the tablets and inquired of
the United States whether, “on these 1400 pages, do you
care whether he has hard copies in prison?” Tr. at
22:5-8 (Court). The United States replied that only a small,
undefined subset might need to be kept on the tablet for
safety purposes, but that the discovery coordinator could
probably rush the delivery of Garcia's tablet, as he had
recently done for a defendant in another related case.
See Tr. at 22:13-25:3 (Castellano, Court).
Ultimately, the United States concluded that evidence related
to SNM would not be relevant to the prosecution's case
and that they were ready to try the case at that time.
See Tr. at 25:3-32:8 (Castellano, Court).
then again argued, indicating that it was imperative that the
attorneys be fully prepared to try this case before the trial
begins. See Tr. at 33:4-7 (Adams). Garcia reiterated
that, given the interrelation amongst the three cases, it
would be untenable to bring the drug case to trial before the
discovery was complete in the other cases, because, without
waiting, Garcia is unable to understand the full extent of
the “Government's spear, ” and the tip of
that spear was all of which he is aware of at the moment. Tr.
at 34:16-21 (Adams). Garcia then suggested that the Court
allow Russell Aoki, the discovery coordinator, to call into
the hearing so he could explain to the Court some of the
nuances of the discovery process as it pertains to the
tablets. See Tr. at 42:12-13 (Court).
explained to the Court that:
typically, we get the discovery. We take a look at it. And my
staff takes a pretty close look at it. What we're looking
for are errors in the copying process. . . . [W]e go through
and we check to see if the documents are OCRs, so they're
searchable. Then, the more complicated part ends up being the
audio and video files, because often they require a
proprietary player. And so we convert them into common file
types, like MP 3 and MP 4. . . . Some of the discovery in
this case could not be converted. So what we had to do is use
screen capture software, which basically, we're running
the video, this is for video, and the computer is capturing
it by the screen and re-recording it.
Tr. at 45:8-46:10 (Aoki). Aoki further provided that his
office receives discovery by mail, and that all of the
discovery the United States would mail came with a cover
letter explaining the items included in the package.
See Tr. at 46:10-47:11 (Aoki). With respect to
Garcia's standalone case, Aoki said that they use a
technology company to itemize the data, and that there are a
“little over 3, 000” items of discovery. Tr. at
47:17-25 (Aoki). That number, though, is not “pages;
it's not page equivalents. These are items. So an item
could be, for example, a text message; that's one item.
It could be a phone call; that's one item. So if you have
400 text messages, that's 400 items. If you have 100
missed calls, that's 100 items.” Tr. at 47:25-48:6
(Aoki). Aoki then recounted the issues he encounters with
password protection, delivery to the prisons, and open access
nature of the tablets with respect to various applications.
See Tr. at 48:6-53:14 (Aoki). Aoki explained that
four or five people at the New Mexico Department of
Corrections handled the intake, and that “they're
very busy, ” which leads to some delays. See
Tr. at 54:18-25 (Aoki).
United States then took up examination of Aoki, discussing
just how many materials had been produced specifically for
Garcia's standalone drug case. See Tr. at
57:22-62:23 (Aoki). Essentially, Aoki clarified that much of
the confusion as to how much discovery had been, or still
needed to be, disclosed could be attributed to the numbering
of items and material not readily reduced into pages.
See Tr. at 62:23-63:8 (Aoki). Aoki then spoke more
about the itemized cover letters the United States sends with
its discovery materials, explaining that the defense
“receive[s] the discovery with the cover letter
identifying which case it goes to. We host it on a discovery
management platform. They could search through it and group
things by defendant. It will return still a large number of
materials.” Tr. at 64:19-23 (Aoki).
the discussion with Mr. Aoki, the Court provided that,
“on the more narrow issue of whether to declare the
case complex, I'm not prepared to do that this afternoon.
Having recently issued the opinion, I think I've taken a
hard look at this case. Nothing today suggests to me that
we're still dealing with a complex case.” Tr. at
74:16-24 (Court). Accordingly, the Court told the parties
that it was inclined to deny the Renewed Motion to Declare
Complex without prejudice to Garcia raising it again down the
road. See Tr. at 75:11-13 (Court).
REGARDING THE SPEEDY TRIAL ACT, 18 U.S.C. §
dual purpose of the Speedy Trial Act is to protect a
defendant's constitutional right to a speedy indictment
and trial, and to serve the public interest in bringing
prompt criminal proceedings.” United States v.
Saltzman, 984 F.2d 1087, 1090 (10th Cir. 1993)(quoting
United States v. Noone, 913 F.2d 20, 28
(1st Cir. 1990)). The Speedy Trial Act, 18 U.S.C. §
3161(c)(1), reads in relevant part:
In any case in which a plea of not guilty is entered, the
trial of a defendant charged in an information or indictment
with the commission of an offense shall commence within
seventy days from the filing date (and making public) of the
information or indictment, or from the date the defendant has
appeared before a judicial officer of the court in which such
charge is pending, whichever date last occurs. If a defendant
consents in writing to be tried before a magistrate judge on
a complaint, the trial shall commence within seventy days
from the date of such consent.
18 U.S.C. § 3161(c)(1).
Speedy Trial Act requires “that an accused person's
trial must begin within seventy days of his indictment or
initial appearance, whichever is later.” United
States v. Cano-Silva, 402 F.3d 1031, 1034 (10th Cir.
2006)(citing 18 U.S.C. § 3161(c)(1)). The Speedy Trial
Act provides that certain periods of delay are not included
in computing the time limits for trial. 18 U.S.C. § 3161
states in relevant part:
(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:
(1) Any period of delay resulting from other
proceedings concerning the defendant, including but not
limited to --
(A) delay resulting from any proceeding,
including any examinations, to determine the mental
competency or physical capacity of the defendant;
. . . .
(F) 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
. . . .
(J) 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.
. . . .
(4) Any period of delay resulting from the
fact that the defendant is mentally incompetent or physically
unable to stand trial.
. . . .
(A) Any period of delay resulting from a
continuance granted by any judge on his own motion or at the
request of the defendant or his counsel or at the request of
the attorney for the Government, if the judge granted such
continuance on the basis of his findings that the ends of
justice served by taking such action outweigh the best
interest of the public and the defendant in a speedy trial.
No such period of delay resulting from a continuance granted
by the court in accordance with this paragraph shall be
excludable under this subsection unless the court sets forth,
in the record of the case, either orally or in writing, 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.
18 U.S.C. § 3161. Courts are instructed to consider
specific factors when determining whether to grant a
continuance, and thereby suspend the Speedy Trial Act's
deadlines, under section (A) of 18 U.S.C. § 3161(h)(7).
See 18 U.S.C. § 3161(h)(7)(B). Section
3161(h)(7)(B) sets forth the factors a court should consider:
(B) The factors, among others, which a judge
shall consider in determining whether to grant a continuance
under subparagraph (A) of this paragraph in any case are as
(i) Whether the failure to grant such a
continuance in the proceeding would be likely to make a
continuation of such proceeding impossible, or result in a
miscarriage of justice.
(ii) Whether the case is so unusual or so
complex, due to the number of defendants, the nature of the
prosecution, or the existence of novel questions of fact or
law, that it is unreasonable to expect adequate preparation
for pretrial proceedings or for the trial itself within the
time limits established by this section.
(iii) Whether, in a case in which arrest
precedes indictment, delay in the filing of the indictment is
caused because the arrest occurs at a time such that it is
unreasonable to expect return and filing of the indictment
within the period specified in section 3161(b), or because
the facts upon which the grand jury must base its
determination are unusual or complex.
(iv) Whether the failure to grant such a
continuance in a case which, taken as a whole, is not so
unusual or so complex as to fall within clause (ii), would
deny the defendant reasonable time to obtain counsel, would
unreasonably deny the defendant or the Government continuity
of counsel, or would deny counsel for the defendant or the
attorney for the Government the reasonable time necessary for
effective preparation, taking into account the exercise of
18 U.S.C. § 3161(h)(7)(B).
Supreme Court of the United States of America, in United
States v. Zedner, 547 U.S. 489 (2006), held that, when a
district court makes no findings on the record to support a
§ 3161(h)(8) continuance -- now § 3161(h)(7) --
harmless-error review is not appropriate. See 547
U.S. at 506-07. In United States v. Williams, 511
F.3d 1044 (10th Cir. 2007), the United States Court of
Appeals for the Tenth Circuit held that “the Act does
not allow a district court to retroactively grant an
ends-of-justice continuance. ‘Congress intended that
the decision to grant an ends-of-justice continuance be
prospective, not retroactive; an order granting a continuance
on that ground must be made at the outset of the excludable
period.'” 511 F.3d at 1055 (quoting United
States v. Doran, 882 F.2d 1511, 1516 (10th Cir. 1989)).
In granting an ends-of-justice continuance, a district court
must make explicit finds showing why the continuance is
necessary. See United States v. Hernandez-Mejia, 406
Fed. App'x 330, 336 (10th Cir.
2011)(unpublished).The Tenth Circuit has explained:
This court has interpreted strictly the requirements of
§ 3161(h)(7)(A) and (B). We have held (1) that to
satisfy the requirements of § 3161(h)(7)(A), the
district court must make explicit oral or written
on-the-record findings explaining the reasons why a trial
continuance is necessary, unless the facts supporting the
continuance “are obvious and set forth in the motion
for the continuance itself, ” United States v.
Occhipinti, 998 F.2d 791, 797 (10th Cir. 1993)(internal
quotation marks omitted); (2) that “the record must
clearly establish [that] the district court considered the
proper factors at the time such a continuance was granted,
” [United States v.] Toombs, 574 F.3d [1262, ]
1269 [(10th Cir. 2009)]; (3) that “it must be clear
from the record that the trial court struck the proper
balance when it granted the continuance, ” United
States v. Williams, 511 F.3d 1044, 1056 (10th Cir.
2007)(alteration and internal quotation marks omitted); and
(4) that although adequate trial-preparation time is a
permissible reason for granting a continuance and tolling the
Act, “such a reason must be supported by the
information and evidence presented to the district court,
” United States v. Gonzales, 137 F.3d 1431,
1435 (10th Cir. 1998).
United States v. Hernandez-Mejia, 406 F. App'x
at 336. See United States v. Fuentes, 2011 WL
2533079, at *5 (D.N.M. 2011)(Browning, J.).
3162(a)(1) and (2) of the Act sets out the sanctions
applicable when the United States has not filed an indictment
or information, or when the defendant is not brought to trial
within the time limits that § 3161(b) and (c) require:
(1) If, in the case of any individual
against whom a complaint is filed charging such individual
with an offense, no indictment or information is filed within
the time limit required by section 3161(b) as extended by
section 3161(h) of this chapter, such charge against that
individual contained in such complaint shall be dismissed or
otherwise dropped. 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 this chapter and on the administration of
(2) If a defendant is not brought to trial
within the time limit required by section 3161(c) as extended
by section 3161(h), the information or indictment shall be
dismissed on motion of the defendant. The defendant shall
have the burden of proof of supporting such motion but the
Government shall have the burden of going forward with the
evidence in connection with any exclusion of time under
subparagraph 3161(h)(3). 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 this chapter and on the administration
of justice. Failure of the defendant to move for dismissal
prior to trial or entry of a plea of guilty or nolo
contendere shall constitute a waiver of the right to
dismissal under this section.
18 U.S.C. § 3162(a)(1), (2).
United States v. Cano-Silva, the Tenth Circuit
stated: “The fact that a violation has taken place is
not alone sufficient for the application of the more severe
sanction of dismissal with prejudice, which should be
reserved for more egregious violations. Dismissal with
prejudice is a strong message indeed, and one ill-suited to
an isolated and inadvertent violation.” 402 F.3d at
While dismissal of the indictment is mandatory, the district
court retains discretion to determine whether the indictment
is dismissed with or without prejudice. In determining
whether to dismiss 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 this
chapter and on the administration of justice.”
United States v. Cano-Silva, 402 F.3d at 1034
(quoting 18 U.S.C. § 3162(a)(2))(citations omitted). The
offense's seriousness must be weighed against the
delay's severity. See United States v.
Jones, 213 F.3d 1253, 1257 (10th Cir. 2000). In
addition, the Supreme Court has suggested that the trial
court should also consider, when determining whether to
dismiss an indictment with prejudice, the prejudice to the
defendant that a Speedy Trial violation delay has caused.
See United States v. Taylor, 487 U.S. 326, 333-34
is self-evident that dismissal with prejudice always sends a
stronger message than dismissal without prejudice, and is
more likely to induce salutary changes in procedures,
reducing pretrial delays.” United States v.
Taylor, 487 U.S. at 342. “Preindictment delay that
rises to a constitutional violation requires dismissal of the
indictment with prejudice to retrial.” United
States v. Johnson, 120 F.3d 1107, 1110 n.2 (10th Cir.
1997)(citing United States v. Marion, 404 U.S. 307,
324 (1971)). “Where the delay is the result of
intentional dilatory conduct, or a pattern of neglect on the
part of the Government, dismissal with prejudice is the
appropriate remedy.” United States v.
Saltzman, 984 F.2d at 1093. See United States v.
Johnson, 120 F.3d at 1112 (“Ms. Johnson bears no
responsibility for the circumstances leading to the Speedy
Trial Act violation, and . . . she properly asserted her
rights under the Act.”). In United States v.
Johnson, one aspect of the Speedy Trial Act violations
that troubled the Tenth Circuit was that, although the nature
of the offense was relatively uncomplicated, the government
delayed almost two years in indicting her. See 120
F.3d at 1112.
United States v. Perez-Alcatan, 376 F.Supp.2d 1253
(D.N.M. 2005)(Browning, J.), the Court dismissed
Perez-Alcatan's indictment without prejudice, because the
United States, through inadvertent error, failed to indict
him within thirty days of the arrest, as the Speedy Trial Act
requires. See 376 F.Supp.2d at 1257. Thirty days
from Perez-Alcatan's arrest was May 26, 2005, and a grand
jury indicted Perez-Alcatan on June 14, 2005. See
376 F.Supp.2d at 1254. Perez-Alcatan argued that the Court
should dismiss his case with prejudice. See 376
F.Supp.2d at 1256. He contended that his charged crime,
re-entry into the United States after conviction for an
aggravated felony, which carried a 16-level enhancement under
the United States Sentencing Guidelines, was not a serious
crime. See 376 F.Supp.2d at 1257. His underlying
aggravated felony, however, was voluntary manslaughter.
See 376 F.Supp.2d at 1254. The Court looked to the
Sentencing Guidelines, stating that a 16-level enhancement is
among the largest in the Sentencing Guidelines, which signals
Congress' intent to consider the crime a serious one.
See 376 F.Supp.2d at 1256. Furthermore, the Court
stated that the Guidelines lack of authorization for
probation in such circumstances, and that Congress is hiring
more border agents and Assistant United States Attorneys to
slow the flow of immigration, and punish those who are
already felons, indicates the crime's seriousness.
See 376 F.Supp.2d at 1256. The Court concluded that
the seriousness of the offense favored dismissal without
prejudice. See 376 F.Supp.2d at 1256. The Court also
held that the facts and circumstances that led to the delay
did not favor dismissal with prejudice. See 376
F.Supp.2d at 1256-57.
most immigration cases in which a defendant waives a
preliminary hearing and detention hearing also involve a
waiver of presentment to the grand jury, Perez-Alcatan chose
to waive the detention hearing and the preliminary hearing,
but not presentment to the grand jury. See 376
F.Supp.2d at 1256. As a result of the unique situation, the
file cover in the United States Attorney's Office was
annotated “waiver” and was incorrectly filed,
causing untimely presentment. 376 F.Supp.2d at 1257. The
Court further held that, because the delay-producing conduct
was an administrative oversight and was without bad faith,
dismissing the case with prejudice would do little to prevent
such future mistakes. See 376 F.Supp.2d at 1257. The
Court stated that the “United States continues to
present its cases for indictment in a timely manner;
dismissal with prejudice would not improve the professional
efforts already in place in adhering to the Speedy Trial
Act.” 376 F.Supp.2d at 1257. The Court also stated that
Perez-Alcatan had not alleged any actual prejudice in his
ability to defend himself. See 376 F.Supp.2d at
1257. The Court, therefore, dismissed the case without
prejudice. See 376 F.Supp.2d at 1257.
present time, the Court is not persuaded that Garcia's
case meets the requirements of a complex designation.
Although Garcia has been indicted in other cases, for related
conduct, those cases are distinguishable in their complexity.
Garcia, in this case, is the sole Defendant, and he has been
charged only with routine drug crimes.
case, as of the time of the hearing, does not meet 18 U.S.C.
§ 3161(h)(7)(B)(ii)'s requirements for a complex
designation. The Court will deny Garcia's Renewed Motion
to Declare Complex, because it concludes that -- at the
present time -- the nature of the prosecution does not rise
to a level that warrants designating the case complex
pursuant to 18 U.S.C. § 3161(h)(7)(B)(ii) and consequent
suspension of the usual deadlines under the Speedy Trial Act.
The factors, among others, which a judge shall consider in
determining whether to grant a continuance under subparagraph
(A) of this paragraph in any case are . . . (ii) Whether the
case is so unusual or so complex, due to the number of
defendants, the nature of the prosecution, or the existence
of novel questions of fact or law, that it is unreasonable to
expect adequate preparation for pretrial proceedings or for
the trial itself within the time limits established by this
section . . . .
18 U.S.C. § 3161(h)(7)(B)(ii). Garcia's primary
argument in support of his Motion to Declare Complex is that
the Court has already, in related cases -- which involves the
exact same discovery materials as this case -- declared those
cases complex. See Renewed Motion to Declare Case
Complex ¶ 32, at 8. The Court is not convinced, however,
that the circumstances of that litigation -- which involves
multiple defendants and alleged violent racketeering activity
that spans many years -- are involved in this prosecution of
Garcia. As the United States argued in the United States'
Response, the prosecution in this case is of drug crimes, and
the United States does not intend to introduce evidence
related to SNM. See United States' Response at
3-4. That the very same drug trafficking plays a role in the
United States' prosecution of Garcia and his
co-Defendants in a related case premised upon racketeering
activity is of no moment with respect to the complexity of
the prosecution of the drug crimes in this case. The United
States has assured the Court that there will only be two
confidential informants, and that their identities, and all
other discovery, will have been produced by two weeks before
trial -- a trial they are ready to begin. See Tr. at
end, this case against Garcia is just another drug case which
fills the Court's docket. It is not unusual or complex.
There is only one Defendant, where in the Court's other
drug cases, there are multiple Defendants. The United States
may be trying to squeeze Garcia to plea so that it can use
him in other cases, but the nature of the prosecution is
straightforward. This is not a VICAR or racketeering case.
There does not appear to exist any unusual questions of fact
or law. It is not unreasonable to expect adequate preparation
for potential prosecution under usual deadlines. While the
Court can appreciate that Garcia's attorneys want to know
everything about the other cases before they litigate this
case, this standalone case can be fully prosecuted in
accordance with the time limits that the Speedy Trial Act
establishes. Accordingly, the Court concludes that, for the
time being, it is not “unreasonable to expect adequate
preparation for pretrial proceedings or for the trial itself
within the time limits” which the Speedy Trial Act
provides. Section 3161(h)(7)(B)(ii). The Court will, however,
leave open the potential for Garcia to bring another motion
to declare the case complex, pursuant to §
3161(h)(7)(B)(ii), should the normal deadlines soon become
ORDERED that the Defendant's Opposed Renewed Motion to
Declare Case Complex, filed September 29, 2016 (Doc. 114), is
denied without prejudice.
In its Sealed Memorandum Opinion and
Order, filed November 23, 2016 (Doc. 136)(“Sealed
MOO”), the Court inquired whether the parties had any
proposed redactions to protect confidential information
within the Sealed MOO before the Court publishes a public
version. Sealed MOO at 1 n.1. The Court gave the parties 14
calendar days to provide notice of any proposed redactions.
See Sealed MOO at 1 n.1. The parties have not
contacted the Court or made any filings within CM/ECF to
indicate that they have any proposed redactions.
Consequently, the Court is now re-filing the Sealed MOO in an
The Court's citations to the
transcript of the hearing refer to the court reporters
original, unedited version. Any final transcript may contain
slightly different page and/or line numbers.
United States v.
Hernandez-Mejia is an unpublished opinion, but the Court
can rely on an unpublished opinion to the extent its reasoned
analysis is persuasive in the case before it. See
10th Cir. R. 32.1(A) (“Unpublished opinions are not
precedential, but may be cited for their persuasive
value.”). The Tenth Circuit has stated:
In this circuit, unpublished orders are not binding
precedent, . . . and we have generally determined that
citation to unpublished opinions is not favored. However, if
an unpublished opinion or order and judgment has persuasive
value with respect to a material issue in a case and would
assist the court in its disposition, we allow a citation to
United States v. Austin, 426 F.3d 1266, 1274
(10th Cir. 2005)(citations omitted). The Court concludes that
United States v. Hernandez-Mejia, has persuasive
value with respect to material issues, and will assist the
Court in its preparation of this Memorandum Opinion and