Case 1:10-cr-20753-PAS Document 157

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 10-20753-CR-SEITZ UNITED STATES OF AMERICA vs. PATRICK BRINSON, Defendant. / GOVERNMENTS RESPONSE TO DEFENDANT PATRICK BRINSONS MOTION TO DISMISS INDICTMENT BASED ON VIOLATION OF THE SPEEDY TRIAL ACT The United States of America, by and through the undersigned Assistant United States Attorney, files this Response to Defendants Motion to Dismiss Indictment Based on Violation of the Speedy Trial Act. The defendants Motion claims that this Courts March 1, 2011 Order Continuing Trial [DE 95] to June 9, 2011 violated his speedy trial rights. The defendants Motion is wholly without merit and more than delves into the waters of frivolity. As such, the governments response aspires to be as brief as possible. The governments brevity is not a difficult aspiration, because the defenses own actions when informed by the plain letter of the Speedy Trial Act, quickly compels the conclusion that the Motion must fail. The defenses Motion is nine (9) pages long, it summarizes a number of events and proceedings [that] have taken place, Mtn. at 1including a description-laden timeline of the docket sheetbut nowhere does it mention that counsel for defendant Brinson joined in the motion for continuance that led to the March 1, 2011 Order. This is the very Order that the defense now claims violated defendant Brinsons speedy trial rights. Indeed, the defense

mentions Neil Fagans Motion to Reset Trial [DE 94] in the instant Motion, summarizes the basis for the continuance at issue in defendant Fagans Motion to Reset Trial, but fails to Page 1 of 5

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mention that counsel for defendant Brinson joined in the motion. 1 Indeed, in Fagans Motion to Reset Trial counsel for Fagan represented that: (1) he had contacted the attorneys representing each of the co-defendants and they all join in this motion to continue the trial . . . and (2) [a]ll defendants agree that the time from the filing of this motion to the resetting of the trial would be excludable time for any speedy trial computations. See DE 94 at 8-9. Upon reading these representations in Fagans March 1, 2011 Motion to Reset Trial alongside the instant Motion, the undersigned contacted counsel for defendant Brinson to confirm that he, in fact, had joined in defendant Fagans March 1, 2011 Motion to Reset Trial. The undersigned genuinely entertained the possibility that maybe counsel for Brinson forgot that he had joined in defendant Fagans March 1, 2011 Motion to Reset Trial and, upon realizing this oversight, he might withdraw the Motion. Counsel for defendant Brinson quickly disabused the undersigned of that possibility and, in fact, confirmed to the undersigned that he had agreed to the continuance requested in defendant Fagans March 1, 2011 Motion to Reset Trial. Notwithstanding the fact that Brinsons counsel took no issue with the fact that he joined in Fagans March 1, 2011 Motion to Reset Trial and agreed that the time from the filing of [Fagans] motion to the resetting of the trial would be excludable time for any speedy trial computations, DE 94 at 9, counsel for Brinson informed the undersigned that he would not withdraw the instant Motion to dismiss on speedy trial grounds because his client wanted him to file the Motion. The government respectfully submits that, in light of these facts, no word other than frivolous can be used to describe the instant Motion. See Malautea v. Suzuki Motor Co., Ltd., 987 F.2d 1536, 1546-47 (11th Cir. 1993) (An attorney's duty to a client can never

Interestingly, despite the fact that Brinsons counsel joined in Fagans March 1, 2011 Motion, Brinsons speedy trial motion reads as if that never happened. See Mtn. at 4 (The Court granted Codefendant Neil Fagans motion without a hearing. At no time did defendant, Patrick Brinson, waive his right to Speedy Trial.) (emphasis added).

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outweigh his or her responsibility to see that our system of justice functions smoothly. . . . Too many attorneys . . . have allowed the objectives of the client to override their ancient duties as officers of the court.). Its frivolity becomes even more apparent when one considers that defense counsels decision to join in the motion that led to this Courts March 1, 2011 Order Continuing Trial means that the Motion runs directly contrary to 18 U.S.C. 3161(h)(7)(A). That provision of the Speedy Trial Act provides that: The following periods of delay shall be excluded in computing the time . . . within which the trial of any such offense must commence: *** (7)(A) [a]ny period of delay resulting from a continuance granted by any judge on his own motion or at the request of the defendant or his counsel . . . if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial. Id. (emphasis added). The Courts March 1, 2011 Order provided that it had considered the motion (i.e., it incorporated the basis set forth in the motion) and concluded that the ends of justice served by continuing the trial outweigh the best interest of the public and the defendants in a speedy trial. DE 94. The fact that this Courts Order cited 18 U.S.C. 3161(h)(8)(A) rather than 18 U.S.C. 3161(h)(7)(A) is inapposite because defendant Brinson and his counsel joined in the Motion. As such, they cannot now hang their hat on a scriveners error to dismiss the indictment. See United States v. Rodriguez-Ramos, 704 F.2d 17, 20 n.2 (1st Cir. 1983) (Despite his several motions for continuance and his affirmations in so moving that continuance would create no Speedy Trial Act problems, appellant, with formidable temerity, filed a written motion on Page 3 of 5

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December 17, the third day of trial, moving for dismissal of the indictment on the grounds that the Speedy Trial Act had been violated. That motion was denied without comment.). Indeed, neither the defendant or his counsel have ever objected to any of this Courts orders that have continued this matter until the presently set trial date of September 12, 2011. Only now, on the eve of trial, does the defense complain about an Order Continuing Trial that was issued approximately 7 months ago at his joint behest. At minimum, the defense should have sought clarification from the Court regarding the Orders citation to 18 U.S.C. 3161(h)(8)(A) rather than file a motion to dismiss the indictment seven months after the Order issued. Based on the foregoing, the Court should deny the defendants Motion to Dismiss Indictment Based on Violation of the Speedy Trial Act without a hearing and before the September 2, 2011 calendar call. This Courts time, the governments time, and the other defendants time at the calendar call would be better spent on other matters. Respectfully submitted, WIFREDO A. FERRER UNITED STATES ATTORNEY By: /s/ Armando Rosquete Armando Rosquete Assistant United States Attorney Florida Bar No. 0648434 99 N.E. 4th Street, 4th Floor Miami, FL 33132 Tel: (305) 961-9377 Fax: (305) 530-6168 Armando.Rosquete@usdoj.gov

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was uploaded onto the Courts CM/ECF system and sent via CM/ECF this 29th day of August 2011 to defense counsel.

/s/ Armando Rosquete Armando Rosquete Assistant United States Attorney

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