United States District Court, D. Maryland
MEMORANDUM AND ORDER
J. Garbis United States District Judge.
Court has before it Defendant's Motion to Dismiss
Indictment for The Government's Failure to Comply with
the Requirements of The Speedy Trial Act [ECF No. 15], the
Government's Nunc Pro Tunc Motion to Exclude Time
Pursuant to The Speedy Trial Act [ECF No. 14], and the
materials submitted relating thereto. The Court has conferred
with counsel and finds that a hearing is unnecessary.
Indictment, filed December 13, 2017, charges Defendant Kamal
Dorchy with aiding and abetting sex trafficking and the sex
trafficking of a minor in violation of 18 U.S.C. §
159l(a) (occurring between September 2016 and July 2017), and
multiple counts of production of child pornography in
violation of 18 U.S.C. § 2251(a) (occurring July 2017).
He made his initial appearance on December 22, 2017 and was
arraigned on January 19, 2018, pleading not guilty.
Speedy Trial Act provides:
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 . . . of the . . .
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.
18 U.S.C. § 3161(c)(1). Thus, under the Speedy Trial
Act, Defendant Dorchy's trial was required to be
commenced by March 5, 2018.
March 20, 2018, defense counsel called the prosecutor and
stated that the Speedy Trial clock had expired. The next day,
Government counsel filed the instant motion seeking to cure
the timing with a nunc pro tunc motion to exclude
time. Defendant Dorchy filed the instant motion to seek
dismissal of the Indictment due to a violation of the Speedy
the Government's nunc pro tunc motion is
granted, the Court must grant the Defendant's motion.
There was no excludable period between the December 22, 2017
initial appearance and the March 5, 2018 deadline for trial
commencement. Moreover, the Government had made no motion to
exclude time prior to the running of the 70 day period
prescribed by the Speedy Trial Act.
settled that, under the Speedy Trial Act, nunc pro
tunc continuances after expiration of the time
prescribed by the Act for the commencement of the trial are
invalid. United States v. Carey, 746 F.2d 228, 230
(4th Cir. 1984). Accordingly, the Court finds that it must
grant Defendant's motion and dismiss the charges.
Court must next decide whether to dismiss the charges with
prejudice or without prejudice so as to provide the
Government with the opportunity to seek a new indictment. As
stated by the Supreme Court in United States v.
Taylor, 487 U.S. 326, 333 (1988), for a Speedy Trial Act
violation, “the decision to dismiss with or without
prejudice was left to the guided discretion of the district
court, and that neither remedy was given priority.” In
the Speedy Trial Act, “Congress specifically and
clearly instructed that courts ‘shall
consider, among others, each of [the specified]
factors, ' § 3162(a)(2) (emphasis added), and
thereby put in place meaningful standards to guide appellate
review.” Id. at 334. The Act states:
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
18 U.S.C. § 3162(a)(2). The Supreme Court has added to
these three factors an additional relevant factor: whether
the Defendant would face prejudice. Taylor, 487 U.S.
at 334 (1988) (“Although the discussion in the House is
inconclusive as to the weight to be given to the presence or
absence of prejudice to the defendant, there is little doubt
that Congress intended this factor to be relevant for a
district court's consideration.”).
instant case, the charged offenses are quite serious, based
upon the Defendant allegedly engaging in sex trafficking of a
minor and using a minor in the production of child
pornography. The Indictment was filed on December 3, 2017,
based upon Defendant's alleged commission of the charged
offenses in the period of September 2016 to July 2017, years
prior to any statute of limitations concerns. While it is
true that the prosecutor did not carefully monitor the case
to avoid Speedy Trial Act issues, she functioned with
reasonable diligence and by no means took actions to delay
the progress of the case towards trial. The late-filed Nunc
Pro Tunc Motion to Exclude Time Pursuant to The Speedy Trial
Act presented grounds that, had they been presented prior to
the expiration of the 70 days, would have resulted in the
motion being granted and the elimination of the Speedy Trial
Act issue. Moreover, the Defendant has not suffered
ascertainable prejudice warranting the Court's dismissal
with prejudice of the serious charges he faces.
Court finds that a dismissal without prejudice and permitting
the Government to prosecute the Defendant again will not
adversely affect the administration of the Speedy Trial Act
or the administration of criminal justice in the District. On
the other hand, dismissal with prejudice and granting the
Defendant immunity from prosecution of serious charges in
return for a relatively minor delay in trial scheduling would
not serve the public. The absence of any indication of
Governmental intent to delay ...