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United States v. Howe

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


January 12, 2009

UNITED STATES OF AMERICA, PLAINTIFF,
v.
KENNETH EUGENE HOWE, DEFENDANT.

ORDER DISMISSING INDICTMENT WITH PREJUDICE

On January 6, 2009, this matter came on for hearing on Defendant's Motion to Dismiss. The United States was represented by Assistant United States Attorney Kenneth Melikian. Mr. Howe was present in custody and represented by Rachelle Barbour of the Federal Defender's Office. The Court considered the matter and granted the defendant's motion to dismiss the indictment with prejudice.

The Court hereby finds the following facts: Mr. Howe complied with the Interstate Agreement on Detainers, 18 U.S.C. App. 2. The Court and the government received written notice of Mr. Howe's demand under the Interstate Agreement on Detainers on or before February 28, 2008. Mr. Howe was not brought to trial within one hundred and eighty days of that date.

The Interstate Agreement on Detainers requires the government to bring a prisoner to trial within one hundred and eighty days after it and the Court receive notice of a prisoner's demand for a speedy trial.

18 U.S.C. App. 2, § 2, Article III(a); United States v. Johnson, 196 F.3d 1000, 1002 (9th Cir. 1999). The government did not bring Mr. Howe to trial within one hundred and eighty days of the receipt of the demand.

The Court determines that the dismissal shall be with prejudice. See Johnson, 196 F.3d at 1004 (setting out considerations). The Court dismisses with prejudice based the following facts: The government failed to bring Mr. Howe to trial despite its admitted receipt of three copies of his written demand. Mr. Howe is serving a state sentence on a related case in Washington. The government's failure to bring him to trial has deprived him of the potential opportunity for sentence credits and concurrent time.

For the above stated reasons, the indictment is hereby dismissed with prejudice. The United States Marshals Office shall return Mr. Howe to the institution where he is serving his state sentence.

SO ORDERED.

20090112

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