The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER DENYING MOTION TO DISMISS INDICTMENT FOR VIOLATION OF SPEEDY TRIAL ACT AND MOTION TO DISMISS INDICTMENT FOR VINDICTIVE PROSECUTION [Docket 7]
In an indictment filed January 16, 2008, the government charged defendant Aurelio Luna-Sanchez with two counts of importation of marijuana, in violation of 21 U.S.C. § 952 and 960, and two counts of possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Defendant pleaded not guilty to all charges. Defendant now moves to dismiss the indictment for violation of the Speedy Trial Act and for vindictive prosecution. The court held a hearing on these motions on February 29, 2008. Pursuant to court order, Defendant submitted supplemental briefing on March 3, 2008, and the government on March 5, 2008. For reasons set forth below, the court hereby DENIES both motions.
The following facts are undisputed.
On September 12, 2005, Defendant was arrested entering the United States at the Otay Mesa port of entry. Customs officials seized 29.25 kilograms of marijuana from the car Defendant was driving. The government indicted Defendant on September 21, 2005. (See Case no. 05cr1661 JAH (Doc. no. 5).) That indictment was dismissed on August 11, 2006. (See id. (Doc. no. 45).)
On December 4, 2007, Defendant was again arrested at the Otay Mesa port of entry. Customs officials seized several kilograms of marijuana hidden in the car Defendant was driving. The government filed a complaint on December 5, 2007, alleging that customs agents found 3.94 kilograms of marijuana hidden in the car. On December 23, 2007, Defendant's attorney indicated by written document that Defendant accepted the government's pre-indictment fast track offer. On January 2, 2008, the day before the preliminary exam, Defendant informed the government that he had changed his mind and decided not to waive his right to indictment. He claims his decision resulted from a discrepancy between the evidence processing slip prepared by customs officers, which indicated that only 2.32 kilograms of marijuana were found in the car, and the declaration supporting the complaint, which indicated that 3.94 kilograms were found in the car.
At a January 3, 2008 hearing, Defendant informed the court of his decision not to waive indictment. At the preliminary exam later that day, the government moved to dismiss the complaint without prejudice. The magistrate judge granted the motion. The government then filed a new complaint containing the allegations included in the original complaint, and Defendant was arraigned on the complaint. On January 16, 2008, a federal grand jury returned an indictment on the following counts, including a re-indictment related to the 2005 arrest:
Count 1: Importation of approximately 29.25 kilograms of marijuana into the United States, arising out of the 2005 arrest, in violation of 21 U.S.C. §§ 952 and 960 Count 2: Possession of approximately 29.25 kilograms of marijuana with intent to distribute, arising out of the 2005 arrest, in violation of 21 U.S.C. § 841(a)(1) Count 3: Importation of approximately 3.94 kilograms of marijuana into the United States, arising out of the 2007 arrest, in violation of 21 U.S.C. §§ 952 and 960 Count 4: Possession of approximately 3.94 kilograms of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1)
Defendant was arraigned and pleaded not guilty on January 17, 2008.
A. Motion to Dismiss Indictment for Violation of Speedy Trial Act
Defendant argues that the court should dismiss counts 3 and 4 of his indictment (relating to the 2007 arrest) with prejudice, due to failure to obtain an indictment within 30 days of Defendant's arrest.
Under the Speedy Trial Act, the government must file any indictment or information on the charge or charges for which a defendant is arrested or served with a summons within 30 days. 18 U.S.C. § 3161(b).
If any indictment or information is dismissed upon motion of the defendant, or any charge contained in a complaint filed against an individual is dismissed or otherwise dropped, and thereafter a complaint is filed against such defendant or individual charging him with the same offense or an offense based on the same conduct or arising from the same criminal episode, or an information or indictment is filed charging such defendant with the same offense or an offense based on the same conduct or arising from the same criminal episode, the provisions of ...