The opinion of the court was delivered by: Linares, District Judge.
This matter comes before the Court on Defendant Juan Carlos Done'smotions to dismiss for violations of the Speedy Trial Act and Defendants Juan and Enrique Done's motion for severance. The court has considered the submissions of the parties and the arguments made by counsel before the Court on August 15, 2011. For the reasons set forth below, Count One of the Indictment as it pertains to Juan Done is dismissed without prejudice. Defendant Juan Done's pro se motion to dismiss Count Three of the Indictment is denied, and Defendants' joint motion for severance is denied.
Defendant Juan Done was arrested on June 5, 2009 in Wilmington, North Carolina pursuant to an arrest warrant and complaint filed June 3, 2009 in the District of New Jersey. Defendant Juan Done was brought before the United States Court for the Eastern District of North Carolina on June 9, 2009. A hearing was held pursuant to Fed. R. Crim. P. 5 before the Honorable Robert B. Jones, U.S.M.J. Defendant Juan Done was assigned temporary counsel only for purposes of the appearance and signed a waiver in which he agreed to hold any preliminary or detention hearings in the prosecuting district.
Defendant Done was held at the New Hanover County (NC) Detention Center from June 6, 2009 through June 12, 2009. He was then transferred to Wilson County (NC) Jail on June 12, 2009 where he remained until July 1, 2009. On June 15, 2009, during his detention at Wilson County Jail, he was treated at the Wilson Medical Center and Carolina Radiology for an unknown medical condition or illness.
On or about July 1, 2009, Defendant Juan Done was transferred to the Wake County (NC) Jail where he was held until July 6, 2009. He was transported by air and arrived at the Essex County (NJ) Jail on July 8, 2009, approximately 33 days after his arrest.
On July 13, 2009, Defendant Juan Done made his initial appearance in this District before the Honorable Patty Schwartz, U.S.M.J. Defendant Juan Done requested a preliminary hearing and detention hearing. A detention hearing was scheduled for July 20, 2009 at 11:30 A.M. A preliminary hearing was set for July 22, 2009 at 11:30 A.M.
By letter dated and filed July 18, 2009, Defendant Juan Done's then attorney Craig V. O'Connor, notified the Court that defendant Juan Done wished to withdraw his previously requested detention and preliminary hearings with leave to bring a bail hearing on short notice.
The Government filed an Indictment on August 10, 2009 charging Defendant Juan Done with one count of conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine and one kilogram of heroine.
The Government acknowledges that more than 30 days of chargeable time elapsed between the Defendant's arrest on June 5, 2009 and his Indictment on August 10, 2009. Specifically, the Government returned the indictment after 49 chargeable days. Pursuant to 18 U.S.C. § 3161(b), the Government has 30 days from the arrest to file an information or indictment. Thus, subtracting 30 days from the 49 chargeable days, the Government returned the indictment 19 days after the statutory deadline.
On May 9, 2010, Defendants Juan and Enrique Done were arraigned on a three count Superseding Indictment. Count One charges both Defendants with conspiring to distribute cocaine and heroine; Count Two charges Defendant Enrique Done with distributing cocaine base; and Count Three charges Defendant Juan Done with conspiring to launder proceeds of drug transactions.
On April 12, 2011, Defendant Juan Carlos Done filed a pro se motion to dismiss and on April 27, 2011 Defendant Juan Carlos Done's attorney filed a motion to dismiss on his client's behalf. Both motions seek to dismiss Count One of the Superseding Indictment as to Juan Carlos Done for violation of the Speedy Trial Act. Pursuant to the same Act, Juan Carlos Done's pro se motion also seeks to dismiss Count Three - the money laundering charge. Defendant alleges that the Government always intended to charge Defendant with money laundering, and therefore this charge should also have been brought within the specified time period.
1. Count Three - Money Laundering
Pursuant to United States v. Watkins, 339 F.3d 167 (3d Cir. 2003), the money laundering charge now pending against Defendant Juan Done cannot be dismissed for a violation of the Speedy Trial Act. In Watkins, the District Court determined that even though a complaint only explicitly charged Defendants with conspiracy to import cocaine, because the supporting affidavit also contained uncharged allegations of importation of cocaine, when the government committed a violation of the Speedy Trial Act, dismissal of both charges was ...