United States District Court, D. Massachusetts
ORDER GRANTING MOTION TO DISMISS
TALWANI UNITED STATES DISTRICT JUDGE
the court is Defendant Elwood Cortes-Navedo's Motion
to Dismiss for Violation of the Speedy Trial Act [#33].
Mr. Cortes-Navedo argues that the delay of more than thirty
days between his arrest and indictment violated the Speedy
Trial Act, 18 U.S.C. § 3161 (the “Act”). The
government responds that the Act was tolled by an unresolved
motion for detention brought by the government against a
codefendant in a related criminal proceeding. For the reasons
set forth below, the court finds that the motion concerning
the other defendant's detention does not support
excluding delay here, and that dismissal is appropriate.
However, in consideration of the factors set forth in 18
U.S.C. § 3162(a)(1), the court concludes that dismissal
should be without prejudice.
Cortes-Navedo, Rodrigo Tevares, and Rony DeFreitas were
charged with unlawful dealing in firearms, in violation of 18
U.S.C. § 922(a)(1)(A). Criminal Complaint, 19-mj-06292
[#4]. On April 24, 2019, all three Defendants were arrested.
The next day, the Defendants made their initial appearances
and the government moved for detention. See Elec.
Clerk's Notes, 19- mj-06292 [#9]. At the three
Defendants' requests, the court set detention and
probable cause hearings. Id.
April 30, 2019, Mr. Tevares requested and was granted a
continuance of his probable cause and detention hearings.
Elec. Clerk's Notes, 19-mj-06292 [#14]. According to the
docket, Mr. Tevares never sought to have the detention
hearing rescheduled, and instead remained in custody.
April 30, 2019, and May 1, 2019, the government withdrew its
motions for detention as to Mr. DeFreitas and Mr.
Cortes-Navedo, respectively, and the two Defendants were
released. Elec. Clerk's Notes, 19-mj-06292 [#14]; Elec.
Clerk's Notes, 19-mj-06292 [#21].
30, 2019, the government offered Mr. DeFreitas a plea
agreement pursuant to which he would waive indictment and
plead guilty to an information. Plea Agreement, 19-cr-10227
3, 2019, the Assistant United States Attorney
(“AUSA”) sent an email to Mr. DeFreitas and Mr.
Cortes-Navedo's attorneys stating that his office
“believe[d] that the Speedy Trial Act [was] tolled as
to [Mr. Cortes-Navedo and Mr. DeFreitas] because the motion
for detention [of Mr. Tevares] remains pending.”
Gov't's Opp'n 2 [#36]. The government asked
defense counsel to communicate any disagreement with that
position and noted that the “additional time also gives
us an opportunity to continue to discuss pre-indictment
resolution.” Id. Although defense counsel for
Mr. DeFreitas assented, defense counsel for Mr. Cortes-Navedo
never responded to the Speedy Trial Act question posed by the
2, 2019, the government charged Mr. DeFreitas in an
Information. 19-cr-10227-NMG [#20].
18, 2019, the government offered Mr. Tevares a plea
agreement, pursuant to which he too would waive indictment
and plead guilty to an information. Plea Agreement,
31, 2019, the government sent a draft plea agreement to
counsel for Mr. Cortes-Navedo. Gov't's Opp'n 3
[#36]. Mr. Cortes-Navedo declined the offer and the
government indicted him on August 7, 2019, 104 days after he
was arrested. Id.
October 10, 2019, Mr. Tevares accepted the plea agreement and
was charged by information. Plea Agreement, 19-cr-10392-PBS
[#27]; Information, 19-cr-10392-PBS [#26].
October 15, 2019, Defendant filed a Motion to
Dismiss [#33] on the basis that more than thirty days
had passed between his arrest and indictment. The government
filed an Opposition [#36] to the motion, arguing
that the government's detention motion tolled the
government's deadline to indict Mr. Cortes-Navedo ...