MEMORANDUM OPINION
Emmet
G. Sullivan, United States District Judge.
On
January 19, 2019, the government filed a complaint against
Michael Pitts in the District of Columbia Superior Court
(“Superior Court”), charging him with several
drug and firearm offenses. The complaint was based on Mr.
Pitts' arrest after a firearm and suspected drugs were
found in a common area of his mother's apartment where he
was allegedly living at the time. Mr. Pitts was arraigned,
detained for several days, and then released into high
intensity pretrial supervision, which included electronic
location monitoring, curfew restrictions, and weekly
in-person reporting. On February 22, 2019, while reporting
for pretrial supervision, Mr. Pitts was arrested again, but
this time on federal charges based on the identical alleged
criminal conduct that formed the basis for the Superior Court
complaint. After the second arrest, and a second period of
pretrial detention, Mr. Pitts was again released into high
intensity pretrial supervision. The Superior Court complaint
and the federal indictment were both filed by the United
States Attorney's Office for the District of Columbia;
Mr. Pitts was subject to jeopardy attaching simultaneously in
two courts until the government dismissed the Superior Court
complaint in mid-March.
Following
a number of unforced errors by the government, including a
failure to timely produce drug testing results and the
unintentional destruction of Mr. Pitts' cellphone, the
government now moves to dismiss the federal indictment
without prejudice under Federal Rule of Criminal Procedure
48(a). The reason for the government's motion is clear:
it failed to conduct forensic testing on the firearm
recovered during the search, and now cannot obtain those
results without violating Mr. Pitts' rights under the
Speedy Trial Act, (“Act”), 18 U.S.C. § 3161.
Because dismissal without prejudice constitutes a strategic
use of Rule 48 prohibited under District of Columbia Circuit
precedent, as well as persuasive authority in this district,
and objectively amounts to prosecutorial harassment, the
Court will dismiss the indictment with prejudice.
I.
Background
Mr.
Pitts was arrested on January 18, 2019, after District of
Columbia Metropolitan Police Department officers executed a
search warrant at his mother's apartment. Def.'s
Opp'n, ECF No. 23, at 1.[1] The officers obtained the search
warrant as a result of two tips received a day earlier.
Gov't Mot. for Detention (“Detention Mot.”),
ECF No. 7 at 1. The tipsters both stated that, within the
last two weeks, they saw an individual with a gun outside of
the apartment building. Id. During the search of the
apartment, the officers noticed a number of jackets hanging
on the inside of the front door. Hr'g Tr., ECF No. 37 at
60:13- 61:5, Apr. 30, 2019. In one of the jackets, the
officers found a firearm. Id. In another, the
officers found a credit card in Mr. Pitts' name.
Id.
The
government argues that the jackets belong to Mr. Pitts
because Mr. Pitts' mother stated that they did. Gov't
Mot., ECF No. 22 at 1; Hr'g Tr., ECF No. 37 at 59:2-11,
Apr. 30, 2019. Mr. Pitts was arrested and searched, and the
officers found approximately 6.06 grams of what was suspected
to be cocaine base on his person. Def.'s Opp'n, ECF
No. 23 at 1-2. The government also recovered a cell phone
belonging to Mr. Pitts. Detention Mot., ECF No. 7 at 2.
Mr.
Pitts was presented in Superior Court the following day,
January 19, 2019, and charged by a complaint with felon in
possession of a weapon and drug-related charges based on the
contraband recovered from the search. Def.'s Opp'n,
ECF No. 23 at 2. He was initially detained by the court on
the government's motion. Id. On January 23,
2019, five days after his arrest, the court ordered Mr. Pitts
released into high intensity pretrial supervision which
included a curfew from 10 p.m. to 6 a.m., electronic location
monitoring, and weekly in-person reporting to the Pretrial
Services Agency. See id.
On
February 22, 2019, while reporting to pretrial services, Mr.
Pitts was re-arrested. Hr'g Tr., at ECF No. 37 at 7:2-15,
Apr. 30, 2019. This new arrest stemmed from a federal
indictment charging Mr. Pitts with possession of a firearm
and ammunition after felony conviction, and several
drug-related charges based on the identical facts used to
obtain the complaint in Superior Court. See
generally Indictment, ECF No. 1. The federal indictment
was filed pursuant to a new practice of transferring
“felon in possession” cases from Superior Court
to this court.[2]
Mr.
Pitts was again detained after his arraignment in federal
court. Minute Entry (Feb. 22, 2019). The government again
moved for pretrial detention; however, on February 27, 2019,
five days after Mr. Pitts' detention, a magistrate judge
ordered him released again into high intensity pretrial
supervision. See Minute Entry (Feb. 27, 2019). At
that time, Mr. Pitts was facing charges in both federal court
and Superior Court for identical alleged criminal conduct.
The Superior Court charges were not dismissed until March 11,
2019. Def.'s Opp'n, ECF No. 23 at 3.
Mr.
Pitts' first hearing before this Court occurred on March
7, 2019, when he asserted his Speedy Trial rights.
See Minute Entry (Mar. 7, 2019). He requested a
trial date, and jury selection was scheduled to commence on
April 23, 2019. Id. The government did not file any
motions that could have tolled the Act. The parties agree
that, absent any tolling, the Act would require Mr.
Pitts' federal trial to commence by no later than May 3,
2019. See Def.'s Opp'n, ECF No. 23 at 3
(citing May 3, 2019 as the speedy trial deadline); see
also Gov't's Reply, ECF No. 27 at 4 (same).
At a
status hearing on March 28, 2019, Mr. Pitts, through counsel,
informed the Court that the government had neither produced
lab reports for the substances recovered in the apartment
where Mr. Pitts was arrested, nor produced any records
recovered from Mr. Pitts' cell phone. See Minute
Entry (Mar. 28, 2019). The Court ordered the government to
produce the records by April 8, 2019, and scheduled a status
hearing for April 9, 2019. Id. Mr. Pitts declined to
waive his rights under the Act and the April 23, 2019 trial
date remained calendared. Id.
At the
April 9th hearing, the government informed the Court that it
had failed to produce the telephone records or the drug
testing results by the April 8th deadline. See
Minute Order (April 9, 2019). The government stated that the
cell phone records were unintentionally destroyed and
therefore the government would not seek to introduce any cell
phone records during trial. Id. During the hearing
on the government's motion to dismiss the indictment, the
government's attorney further elaborated that Mr.
Pitts' cell phone fell off of a motorcycle and “got
run over” when a government agent was transporting the
phone for testing. Hr'g Tr., ECF No. 37 at 41:5-13, Apr.
30, 2019.
As for
the drug testing results, the government stated that it was
unable to turn over the results due to “confusion and
backlog” at the testing agency. Gov't. Mot., ECF
No. 22 at 2. The Court informed the parties that it would
exclude drug testing results and phone records from the
evidentiary record at trial because the government violated
the Court's order and because the defendant would be
prejudiced if the reports were produced at a later date.
See Minute Order (April 9, 2019).
On
April 15, 2019, the government moved to dismiss the
indictment without prejudice and stated that it was seeking
dismissal based on its failure to test the DNA swabs from the
gun recovered in the apartment. Gov't's Mot., ECF No.
22. at 1. The government explained that this was an
“oversight” and that it was seeking dismissal of
the indictment without prejudice “in order to get the
tests done.” Id. at 2. The government,
moreover, contends that due to this oversight, ...