New York Appellate Lawyer

48 Wall Street, 5th Floor, New York, NY 10005

Federal Criminal Appeals Throughout The United States and
New York State Criminal Appeals.

Located at 48 Wall Street, 5th Floor, New York, NY! 1-800-APPEALS (277-3257)

Right To A Speedy Trial In Federal Criminal Cases: Dismissal With Prejudice

Federal Right To A Speedy Trial:

The Speedy Trial Act  

United States v. Montecalvo 2012 WL 1862381 ___F.Supp.___ (EDNY 2012)

Decided May 21, 2012 by the Eastern District of New York

Issue: Whether the defendant was entitled to a dismissal of the indictment with prejudice for violations of the Speedy Trial Act.

Holding: The practical prejudice Montecalvo has suffered, in addition to the sheer length of the delay, weigh substantially in the Court’s analysis in favor of dismissal with prejudice.

While the delay was not designed to gain a tactical advantage for the government, the delay nevertheless demonstrates a lackadaisical attitude towards prosecution that cannot be tolerated under our system of justice.

In light of all of these factors, the Court finds that dismissal of this indictment with prejudice is warranted.

Legal Analysis

Under the Speedy Trial Act, 18 U.S.C. § 3161(c)(1), “the trial of a criminal defendant must generally commence within 70 non-excludable days, see 18 U.S.C. § 3161(h), of the filing of the information or indictment or of the defendant’s first appearance before a judicial officer, whichever occurs last.” United States v. Vanhoesen, 366 Fed App’x 264, 267 (2d Cir.2010). “If a defendant is not brought to trial within the time limit required by section 3161(c) as extended by section 3161(h), the information or indictment shall be dismissed on motion of the defendant.” The “[d]efendant bears the burden of proof supporting such a motion.” Here, the Government concedes that more than six years have passed since the return of the indictment against Montecalvo on December 16, 2005, only one year of which was excluded.

Therefore, since the trial did not commence within the 70 non-excludable days as set forth in the Speedy Trial Act, dismissal of the indictment is warranted. However, the Court must decide whether such dismissal should be with or without prejudice. The determination of whether to dismiss an indictment with or without prejudice is committed to the sound discretion of the district court. See United States v. Giambrone, 920 F.2d 176, 180 (2d Cir.1990).

The Speedy Trial Act states that “[i]n 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 justice.” The Supreme Court has further directed courts to consider the prejudice suffered by the defendant as a result of the delay. See United States v. Taylor, 487 U.S. 326, 334, 108 S.Ct. 2413, 101 L.Ed.2d 297 (1988)

As to the Seriousness of the Offense

It is well-settled that “[w]hen an indictment charges a serious offense; a court is more likely to rule in favor of a dismissal without prejudice.”

The Court has uncovered very few cases that deem a crime “non-serious” for Speedy Trial Act purposes.

Here, the crimes that Montecalvo is charged with are arguably serious. Bid-rigging is a form of racketeering and racketeering has been found to be “serious” for Speedy Trial Act purposes.

the actual losses sustained by the SCD PW and Brookhaven as a result of the inflated prices due to the bid-rigging scheme were in the sum of $326,343.20. The corporate defendants jointly forfeited $2.3 million, which represented the gross amount of the contracts awarded as a result of the conspiracy. These sums are a substantial amount.

Although the crime was non-violent in nature, this does not necessarily render it non-serious. Nevertheless, the non-violent nature of the crime is a factor to take into consideration and does weigh against the seriousness of Montecalvo’s offense.

The Court agrees that the laissez faire attitude demonstrated by the Government, as explored more fully below, weighs against the gravity ofMontecalvo’s crimes.

Accordingly, the Court finds that the factor of a serious offense in this case does not weigh in favor of either party. However, seriousness alone is not determinative.

As to the Facts and Circumstances Leading to Dismissal

“The dominating consideration here on the seriousness of the delay is the sheer length of the period involved.”

Here, the undisputed and unexcluded passage of time is approximately four years, which is quite extraordinary.

Thus, the sheer length of the delay here weighs heavily in favor of dismissal of the indictment with prejudice.

Reason for Delay

The Court may properly take into account whether the delay was attributable to “a demonstrably lackadaisical attitude on the part of the government attorney in charge of the case or a pattern of dilatory practices on the part of the United States Attorney’s office in the district in question.” When dismissing an indictment with prejudice pursuant to the Speedy Trial Act, “the court should specifically describe the Government’s conduct and find that conduct to be more than ‘an isolated unwitting violation,’ be it a ‘truly neglectful attitude,’ ‘bad faith,’ a ‘pattern of neglect,’ or other serious misconduct.”

The Court here does not find this to be an “isolated unwitting violation”  of the Speedy Trial Act. Hernandez, 863 F.2d at 244. Years passed without any documented effort on the part of the Government to move the case to the next stage of the criminal procedure, and this can only be properly characterized as a lackadaisical attitude towards Montecalvo’s prosecution. The Government explains its actions by stating that in good faith it relied on Montecalvo’s representations that he intended to follow through with the cooperation agreement he had reached with the government in principle in May 2006.

However, while the Government can point to certain plea negotiations as the reason for the initial delay and waiver of speedy trial until December 18, 2006, the Government provides no excuse for the lengthy period of time thereafter in which there was no documented activity on the part of the prosecution. Even if the Court were to credit the Government’s position that it was sporadically engaged in conversations with defense counsel over this extremely lengthy period, which is strongly disputed, the Court is not convinced that this is a sufficient justification for this substantial delay. As stated by the Second Circuit:

The Government certainly has great discretion and ability to control the manner of its prosecutions. However, this discretion must have limits, and this is precisely what the Speedy Trial Act represents.

Therefore, the facts and circumstances demonstrate an extremely lax attitude by the Government in this case and thus weigh heavily in favor of a dismissal of the indictment with prejudice.

As to the Impact of Reprosecution on the Administration of the Statute and the Administration of Justice

The Speedy Trial Act requires the Court, in determining whether to dismiss the action without prejudice, to weigh the impact of reprosecution.

The more egregious the Government’s role in the violation and the more severe the delay, the more dismissal with prejudice is warranted.”

In evaluating the effect of reprosecution, the Court must also consider the prejudice suffered by defendant, as a result of the delay.

Here, the Defendant claims that beyond the traditional prejudicial personal costs of pending charges, such as interference with his liberty, public obloquy, and anxiety, he has also suffered unique prejudicial circumstances due to this six year delay. Montecalvo asserts that he has lost the business. He has been banned from bidding on municipal projects.


Montecalvo is associated with Montecalvo Asphalt Paving Corporation. Montecalvo is alleged to have engaged in collusive conduct with the goal of rigging two separate projects.

The goal of the conspiracy was to obtain the paving work. Montecalvo was arrested on November 23, 2005. Montecalvo met with the Assistant United States Attorney (“AUSA”) assigned to the case and provided a complete and arguably remorseful account of his involvement in the collusive conduct. On December 16, 2005, Montecalvo was indicted along with nine other individual and corporate defendants.

Throughout 2006, Nicholas Kaizer, Esq., Montecalvo’s attorney at the time, engaged in plea negotiations. In or about May 2006, an initial cooperation agreement was drafted and forwarded to Kaizer. The Government claims that it was assured by defense counsel that Montecalvowas prepared to enter a guilty plea. On May 16, 2006, Kaizer emailed the AUSA and wrote: “John Montecalvo informs me that although he is working on the financial affidavit, it will take him two weeks to assemble. The Government claims that Kaizer informed them that only if the deferred prosecution option was rejected, would Montecalvo be willing to go forward and enter a guilty plea. Time was excluded under the Speedy Trial Act through December 18, 2006.

Ultimately, the Government did not agree to a deferred prosecution. In December 2006, the AUSA again sent a proposed cooperation agreement to Montecalvo’s attorney, in response to which he suggested modifications. The AUSA then responded by e-mail that she needed to have the changes reviewed by the other AUSAs, who would then contact defense counsel.

According to Montecalvo, he never received any further response from the Government and that in the ensuing four years, there was no further contact between the U.S. Attorney’s Office and counsel for the Defendant. The Government, on the other hand, claims that there were sporadic communications between the U.S. Attorney’s Office and defense counsel, but that these oral conversations all took place over the phone and for that reason cannot demonstrate any evidence of these exchanges. Although there is a factual dispute, there certainly is, as defense counsel described at oral argument, a seeming four year “black hole” during which the case did not progress.

On December 10, 2010, the Defendant’s counsel contacted the Government to request its consent to a dismissal of the indictment with prejudice. On January 18, 2012, the Government informed the Defendant’s counsel that it would not consent to a dismissal with prejudice.

On March 26, 2012, the Defendant filed the present motion to dismiss the indictment with prejudice.

The Defendant moves to dismiss the indictment against him, with prejudice, for violation of the Speedy Trial Act.