Either Actual Ignorance or Deliberate Indifference to it is inexcusable, John! I will cite some case law to show and tell you how wrong you were in taking seven years to announce your sentencing on February 5, 2014 after the jury’s conviction of CITGO’S two counts of criminal offenses on June 27, 2007. And it was even more outrageous to postpone your written restitution order until April 30, 2014 without the presence of the crime victims, not to mention their “right to speak directly to you and to be heard in person.”
Your delay is not seven hours but seven years, Mr. Delay Rainey.
“The CVRA gives victims the right to speak directly to the judge at sentencing.” The phrase “to be reasonably heard” is ambiguous, but the legislative history “makes it clear that the CVRA created a right to be heard in person.” Finally, the court concluded that a victim’s right to speak is mandatory, and is not subject to the discretion of the court. See U.S. v. Degenhardt, 405 F. Supp. 2d 1341, 1343–45 (D. Utah 2005); see also Kenna v. U.S. Dist. Court for the Central Dist. of Calif., 435 F.3d 1011, 1015–16 (9th Cir. 2006) (Kenna I); U.S. v. Marcello, 370 F. Supp. 2d 745, 746–50 (N.D. Ill. 2005).
THE SPEEDY TRIAL ACT OF 1974 (18 U.S.C. §§ 3161-3174)
The Act establishes time limits for completing the various stages of a federal criminal prosecution. Government attorneys should comply with the time limits established by the Act. For more information, see the Criminal Resource Manual at 628.) See 18 U.S. Code Chapter 208 – SPEEDY TRIAL | LII / Legal … & 18 U.S. Code § 3161 – Time limits and exclusions | LII … — Shouldn’t the presiding judge also comply with the time limits established by the Act?
“The Speedy Trial Act of 1974 was designed to regulate the time in which a trial is to begin, to ensure that criminal prosecutions are not unduly delayed. Generally, the Act requires a trial to begin within 70 days of the filing of information or an indictment or the initial appearance of the defendant. The Act was designed to benefit defendants, but also to prevent extended delays from impairing the deterrent effects of punishment and “… to assist in reducing crime and the danger of recidivism by requiring speedy trials…” (H.R. Rep. No. 93-1021, pp 6–8). However, specific exclusions are delineated in the Act allowing pretrial delays during the 70-day period under certain circumstances. Such circumstances include, but are not limited to: the defendant’s involvement in another proceeding, the unavailability of the defendant, or the mental or physical incompetence of the defendant to stand trial (18 U.S.C.S. §3161(h)(2005)).
The Act also includes a provision that allows courts discretion to make an “ends of justice continuance” to account for limited delays in complicated cases. The Act provides the court with flexibility within certain specific procedural boundaries. After considering certain factors, the court is allowed to grant a continuance if it weighs the need for the continuance against the public’s and defendant’s interests and does so on the record. A list of acceptable reasons is provided in the Act to satisfy the ends of justice threshold and include factors such as the defendant’s need for “reasonable time to obtain counsel,” “continuity of counsel,” and “effective preparation” of counsel (18 U.S.C.S. §3161(h)(8)(B)(iv)(2005)). If the court fails to follow these specific guidelines and the trial fails to begin on time, sanctions are contained in the Act allowing the defendant to move for a dismissal before the start of the trial or entry of a guilty plea. The district court by law must, in those circumstances, dismiss the charges, but has the discretion to dismiss the charges with or without prejudice.
In the case at bar, the Supreme Court concluded that a prospective waiver of the application of the Act is not permissible. In its reasoning, the Court looked to the plain language of the Act and to legislative history. The Court held that Congress has explicitly enumerated areas of exclusion in the Act and that there is no provision within these acceptable exclusions that allows the district court discretion to make an “ends of justice continuance” to account for seven years’ delays in sentencing after the jury’s guilty verdict in complicated cases. The omission of this provision was considered by Congress, and thus district court cannot opt out of the Act.
Moreover, the Court emphasized the dual purposes of the Act, not only to protect the defendant’s rights to a speedy trial, but also to protect the “public interest.” To allow the district court the right to waive the Act when the right is not solely held by the defendant or the district court would not protect societal interests, as intended by the Congress. See Zedner v. United States, 126 S. Ct. 1976 (2006).
Rainey’s seven-year delay was ridiculous, illogical, irrational, senseless, thoughtless, unreasonable, and was contrary to the Congressional intent that the Act was designed to benefit defendants, but also to prevent extended delays from impairing the deterrent effects of punishment and “… to assist in reducing crime and the danger of recidivism by requiring speedy trials…”
Furthermore, Rainey did not adequately follow section 3572(b), which directs the district court to impose a fine “only to the extent that such fine . . . will not impair the ability of the defendant to make restitution.” $2 million fine for two counts of Clean Air Act violations is itself insufficient and disproportionate to CITGO’s culpability and reprehensibility of crimes and its assets. Most importantly, the fine did not impair the ability of the defendant to make restitution, but allowed the defendant to get away with the crimes committed. In all conscience, $0 restitution violated the restitution rights of the crime victims, and the best interests of the public.
TWO PRECEDENTS COMPLYING WITH THE SPEEDY TRIAL ACT OF 1974
I. The parties filed a joint request to exclude a period of delay for purposes of computing Speedy Trial Act time limits. After noting that a public hearing on this matter would require further notice to the victims, but that a written submission would not, the court allowed the parties to submit a joint written waiver form and then approved the waiver in a written order. See U.S. v. Turner, 367 F. Supp. 2d 319, 321–28 (E.D.N.Y. 2005). This opinion contains an extended discussion of many of the CVRA’s provisions, the legislative history, potential problems that courts may face, and actions courts may take in attempting to balance the various interests involved.
II. When the defendant and the prosecutor jointly moved to continue the trial for ninety days, the New Hampshire Democratic Party (NHDP) claimed it was a “victim” under section 3771(e) and filed an objection to the motion, arguing that the continuance would violate the “right to proceedings free from unreasonable delay” under section 3771(a)(7). In light of the rights of the ostensible victims, “and taking into account the court’s statutory obligation to ‘ensure that [all] crime victim[s][are] afforded the rights described,’” the court stated that “the parties are hereby put on notice that no further continuance will be granted in the absence of extraordinary circumstances.” Cf. Turner, 367 F. Supp. 2d at 321 (court notes that it allowed the parties to exclude a period of delay in computing the time within which an indictment must have been filed by simply filing with the court a written waiver form signed by counsel for both parties, an action that did not require notice to the victims). See U.S. v. Tobin, No. 04-CR-216-01-SM (D.N.H. July 22, 2005).
* I bet for the 7-year delay in sentencing, you didn’t have a written waiver form signed by counsel for both parties, did you? Why? Because you are above the law without having to compute Speedy Trial Act time limits, John?
TO BE CONTINUED.
Paul Chen
* Click Images for judge skipper koetter’s corruption, and you will see 12 photos. Click any one of them, wait awhile, and it will take you to more than 70 images linking to my BLOG. Have these given you sleepless nights, Skipper and John?
MANDAMUS: VOID Orders/Judgments 