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United States v. Erazo-Santa

United States District Court, E.D. Wisconsin

June 22, 2016



          J.P. STADTMUELLER U.S. District Judge

         1. INTRODUCTION

         On May 13, 2016, the defendant, Angel Erazo-Santa ("Erazo-Santa"), filed a motion to dismiss the indictment against him for violation of the Interstate Agreement on Detainers ("IAD"). (Docket #14). On June 8, 2016, Magistrate Judge Nancy Joseph issued her Report and Recommendation ("Report") on the motion, recommending that it be denied. (Docket #19). On June 16, 2016, Erazo-Santa filed an objection to the Report. (Docket #21). On June 20, 2016, the government filed its response to the objection. (Docket #24). For the reasons explained below, the motion to dismiss will be granted and the indictment will be dismissed without prejudice.


         Federal Rule of Criminal Procedure 59(b) governs dispositive motion practice initiated before magistrate judges. Parties have fourteen days to file "specific written objections" to a magistrate judge's report and recommendation on such a motion. Fed. R. Crim. P. 59(b)(2). As noted in the Court's previous, Erazo-Santa's objection was timely filed. (Docket #23). When reviewing a magistrate's recommendation, the Court is obliged to analyze the recommendation de novo. 28 U.S.C. § 636(b)(1)(C). Thus, the Court can "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." Id. In other words, the Court's de novo review of Magistrate Joseph's findings and recommendations is not limited to her legal analysis alone; rather, the Court may also review her factual findings, and accept, reject, or modify those findings as it sees fit based upon the evidence. Id.

         3. ANALYSIS

         3.1 The Motion to Dismiss

         For the purposes of this order, the Court assumes familiarity with the Report. The parties do not dispute the magistrate's finding that Erazo-Santa's November 6, 2015 letter started the IAD's 180-day clock. (Docket #19 at 4-5). The only remaining issue is how much time actually remains on the clock. Magistrate Joseph determined, after applying the IAD's tolling provision and relevant Seventh Circuit case law, that three days will remain on the clock from the moment this Court's order is issued. Id. at 5-6. The government agrees. (Docket #24 at 2). Erazo-Santa contends, for various reasons, that the magistrate applied tolling excessively and, thus, that the IAD clock has already run. (Docket #21 at 5-9).

         One of these reasons is dispositive. Erazo-Santa contends that the period from May 2 to May 4 (dates are from 2016, unless otherwise stated) should not have been included in the toll computation. (Docket #21 at 7). Though Erazo-Santa's first motion seeking an extension of the pretrial motion deadline was filed on May 2 (Docket #12), the deadline itself was not until May 4 (Docket #8). The extension did not actually begin until it was necessary, that is, on May 5. As noted in the magistrate's report and recommendation, May 4 was the 180th day from November 6, 2015. Thus, as of the stroke of midnight on May 4, the time to bring Erazo-Santa to trial in accordance with the IAD expired, and his request for extension of time began. By operation of the tolling provision, at the moment the Court issues the instant order, the 180-day period will be over.

         The government raises only one avenue in an attempt to avoid this result-waiver. In New York v. Hill, 528 U.S. 110, 114-15 (2000), the U.S. Supreme Court held that IAD rights may be waived by action of a defendant's counsel. In Hill, counsel for the parties appeared in court to set a trial date. Id. at 112. During the hearing, the prosecutor offered a trial date beyond the 180-day IAD period. Id. at 113. The court asked if that date was acceptable to the defense, and defense counsel agreed that it was. Id. Thus, it was clear that Hill's attorney expressly agreed to the IAD-violative trial date. Unfortunately, no such clarity exists here. Indeed, the minutes of the arraignment hearing reveal that, far from a silent waiver of Erazo-Santa's IAD rights, his counsel raised the issue more than once. See (Docket #8). Moreover, this Court's review of the audio transcript of the arraignment before Magistrate Judge David Jones confirms that defense counsel interposed an IAD objection and the magistrate acknowledged that it had been preserved. On the current record, the Court declines to extend Hill beyond its terms.[1] Erazo-Santa did not waive his IAD rights, and the 180-day period for his trial has ended, so the motion to dismiss must be granted.

         3.2 Dismissal of the Indictment.

         Having found a violation of the IAD, its standard provisions appear to suggest that dismissal of the indictment be with prejudice. 18 U.S.C. App. 2, § 2 Art. V(c) ("[I]n the event that an action on the indictment, …on the basis of which the detainer has been lodged is not brought to trial within the period provided in article III [180-days]…, the appropriate court of the jurisdiction where the indictment…has been pending shall enter an order dismissing the same with prejudice, and any detainer based thereon shall cease to be of any force or effect."). However, Section 9 of the IAD contains special provisions which apply when the United States is the "receiving state." The United States is the "receiving state" here because it filed the detainer against a Wisconsin state prisoner. Id. at Art. II(c). Section 9 allows for dismissal with or without prejudice upon consideration of,

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 the agreement on ...

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