by Bill Knowles
TRINIDAD — Last week, United States District Court Judge R. Brooke Jackson dismissed charges against Anastacio Montoya, who was indicted by federal authorities on July 27, 2017, on two counts of possession of methamphetamine and heroin with intent to distribute while he was residing in Trinidad, CO.
Montoya was arrested by agents from the D.E.A. in the 3rd Judicial District courtroom in Trinidad during a preliminary hearing on the charges brought by district attorney Henry Solano.
A Federal grand jury seated in Denver had filed an indictment against Montoya with a trial date set for Oct. 10, 2017.
However the trial date was up against a deadline of either Oct. 18 or Oct. 19, 2017, set by the Speedy Trial Act of 1974, which could have prompted the defense to file an “ends of justice” motion.
An ends of justice motion is defined as, “A defendant may not expressly waive his rights under the Speedy Trial Act… However, if the trial judge determines that the “ends of justice” served by a continuance outweigh the interest of the public and the defendant in a speedy trial, the delay occasioned by such continuance is excluded from the Act’s time limits,” according to the Speedy Trial Act of 1974.
The Denver federal court has noted that historically in nearly every case defendants request exclusion of time from the initial STA deadline at least once according to the Order of Dismissal document produced by the court, but Montoya didn’t file an “ends of justice” motion at any time during the preliminary stages of the case.
Reasons for the delay
The court then learned laboratory analysis of the drugs had not been completed, prompting the government to file a motion for a continuance of the trial, which was opposed by the defense. On Oct. 4, the court declined to exclude time from the 70-day STA deadline and reset the trial for Oct. 18, 2017. On Oct. 6, without explanation, the government moved to dismiss the indictment without prejudice, prompting the defendant to file a motion to avoid violation of the STA to dismiss the charges with prejudice.
According to the Order of Dismissal, the government stated on Oct. 5 that it would be filing the motion for two reasons: “First, a witness before the grand jury had erroneously testified about the quantity of drugs seized, and the government wished to correct the error before the same grand jury, but this could not be accomplished before the October 18, 2017 rescheduled trial date due to the grand jury’s schedule; and, second, it was unlikely the full drug analysis would be completed before the rescheduled trial date.”
The next question to be settled was the dismissal of Montoya, which would be determined by the court and the prosecution.
The government stated that defense counsel indicated the defendant would not object to the government’s motion. Left unsaid is whether defense counsel indicated that he would not object to dismissal without prejudice, although the government’s intent seems obvious given the comments about possible refiling and interim detention. Also left unsaid by either party is any discussion of applicable law.
The government may dismiss a case without prejudice during the STA period. However, “[w]here the government moves to dismiss the indictment, and then refilles a second indictment alleging the same charges, the government does not get a new seventy-day clock.”
“The reason for this rule is obvious. If the clock began anew, the government could circumvent the limitations of the Speedy Trial Act by repeatedly dismissing and refilling charges against a defendant.” Instead, “the time is tolled from the dismissal of the original count until the reindictment” on the newly brought charge.”
“Accordingly, while I will grant the motion to dismiss without prejudice, and determine that there are 12 days remaining in the speedy trial period if the case is refiled. I direct the government to provide at least two weeks’ notice to the defense and the court before it refiles. I also inform the government that the amount of delay before refiling will be a factor that the court will consider in any further detention proceedings,” Judge Jackson stated at the conclusion of his order.