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United States v. Hicks

United States District Court, D. Colorado

July 10, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
4. BRIAN HICKS, a/k/a

ORDER

WILEY Y. DANIEL, Senior District Judge.

I. INTRODUCTION AND BACKGROUND

THIS MATTER is before the Court on the Government's Motion and Brief in Support of Dismissal without Prejudice (ECF No. 1479), filed May 29, 2015, and the Defendant's Motion and Brief to Dismiss with Prejudice for Speedy Trial Act Violation (ECF No. 1480), filed May 29, 2015. On June 29, 2015, the parties filed simultaneous responses. On July 7, 2015, the Court held a hearing during which the parties engaged in oral argument on these motions.

By way of background, on February 11, 2014, a Judgment (ECF No. 1362) was entered in this case, in which the Defendant pleaded guilty to and was convicted of: (1) one count of possession with intent to distribute more than five kilograms of a mixture or substance containing a detectable amount of cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(ii)(II); (2) one count of possession of a firearm or ammunition by a felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); and (3) one count of possession of body armor by a felon previously convicted of a crime of violence in violation of 18 U.S.C. §§ 931 and 924(a)(7). The Defendant was sentenced to a total term of 240 months imprisonment to be served concurrently with the sentence imposed in Denver County District Court Case No. 08CR10479, and a total of five years of supervised release.

On February 25, 2014, the Defendant filed a Notice of Appeal (ECF No. 1375) from the conviction and sentence imposed by the Court. The Defendant raised two arguments in his appeal. Namely, that the Court erred in denying his two motions to dismiss based on alleged violations of his speedy trial rights under the Speedy Trial Act and Sixth Amendment, and that the Court violated the prohibition against judicial participation in plea negotiations. In United States v. Hicks, 779 F.3d 1163 (10th Cir.2015), the Tenth Circuit affirmed in part and reversed in part the Court's ruling, and remanded with directions. Specifically, the Tenth Circuit concluded that the Defendant's Speedy Trial Act rights were violated, but his Sixth Amendment rights were not. The Tenth Circuit then remanded with directions to determine whether the charges against the Defendant will be dismissed with or without prejudice. The Tenth Circuit did not address the Defendant's argument that the Court improperly participated in plea negotiations because the Tenth Circuit concluded that the Defendant is entitled to relief under the Speedy Trial Act.

For the reasons stated below, the Government's Motion and Brief in Support of Dismissal Without Prejudice (ECF No. 1479) is granted, and the Defendant's Motion and Brief to Dismiss With Prejudice for Speedy Trial Act Violation (ECF No. 1480) is denied. Accordingly, the charges against the Defendant are dismissed without prejudice.

II. STANDARD OF REVIEW

The factors that a court shall consider in deciding whether to dismiss a case with or without prejudice for a violation of the Speedy Trial Act include: "the seriousness of the offense; the facts and circumstances of the case that led to the dismissal; and the impact of a reprosecution on the administration of... [the Speedy Trial Act] and on the administration of justice." 18 U.S.C. § 3162(a)(2); see also United States v. Toombs, 713 F.3d 1273, 1280 (10th Cir.2013). "Prejudice to a defendant occasioned by the delay should also be considered." Toombs, 713 F.3d at 1280. "The district court retains broad discretion whether to dismiss the indictment with or without prejudice." United States v. Abdush-Shakur, 465 F.3d 458, 462 (10th Cir.2006). A dismissal of an indictment with prejudice "should be reserved for more egregious violations." Id.

III. ANALYSIS

A. Seriousness of the Offense

As to the first factor, in the Tenth Circuit "felony drug charges have [generally] been treated as serious offenses" under the Speedy Trial Act. United States v. Saltzman, 984 F.2d 1087, 1093 n. 8 (citing United States v. Taylor, 487 U.S. 326, 337-38 (1988)). If the charges against the defendant are deemed to be serious offenses, this factor weighs in favor of dismissal without prejudice. Toombs, 713 F.3d at 1280. "[W]hen the charges are serious, courts should impose the sanction of dismissal with prejudice only for a correspondingly serious delay, especially in the absence of a showing of prejudice." Saltzman, 984 F.2d at 1093 (internal quotations marks omitted).

On July 12, 2011, a third superseding indictment (ECF No. 1059) was issued, which included the following charges: one count of conspiracy to distribute five kilograms or more of a schedule II controlled substance and 280 grams or more of a schedule II controlled substance in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii)(II), and (b)(1)(A)(iii), and 21 U.S.C. § 846; three counts of knowing use of a communication facility in committing and in causing and facilitating the commission of one or more felonies in violation of 21 U.S.C. §§ 843(b) and (d); one count of knowing distribution and possession with intent to distribute more than 500 grams, but less than five kilograms of a schedule II controlled substance in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(ii)(II); one count of knowing and unlawful possession of a firearm and ammunition by a previously convicted felon in violation of 18 U.S.C. § 922(g)(1); and one count of knowing and unlawful purchase, ownership, or possession of body armor by a previously convicted felon in violation of 18 U.S.C. § 931.

The Government asserts and the Defendant concedes that his offenses in this case are serious. I agree that the Defendant's offenses are serious and note that the Tenth Circuit has treated felony drug charges, such as the Defendant's, as serious offenses under the Speedy Trial Act. Accordingly, ...


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