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United States v. Cortes-Navedo

United States District Court, D. Massachusetts

December 9, 2019

UNITED STATES OF AMERICA
v.
ELWOOD CORTES-NAVEDO, Defendant.

          ORDER GRANTING MOTION TO DISMISS

          INDIRA TALWANI UNITED STATES DISTRICT JUDGE

         Before 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.

         I. Background

         Mr. 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.

         On 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.

         On 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].

         On May 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 NMG [#24].

         On June 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 AUSA. Id.

         On July 2, 2019, the government charged Mr. DeFreitas in an Information. 19-cr-10227-NMG [#20].

         On July 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, 19-cr-10392-PBS [#27].

         On July 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.

         On 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].

         On 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 ...


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