MEMORANDUM OPINION
BERYL
A. HOWELL CHIEF JUDGE.
The
government seeks review of a magistrate judge's
dismissal, with prejudice, of a criminal complaint against
the defendant Peter Beler, which complaint charged him with
distribution of child pornography, in violation of 18 U.S.C.
§ 2252(a)(2). Gov't's Amended Request for Review
of Magistrate Order of Dismissal with Prejudice
(“Gov't's Req.”) at 1-3, ECF No.
21.[1]
The magistrate judge granted this remedy after determining
that the defendant's rights under the Speedy Trial Act
(“STA”), 18 U.S.C. §§ 3161-74, had been
violated due to delays in the defendant's transportation
to Bureau of Prisons (“BOP”) medical facilities
for a competency evaluation and then for competency
restoration. After consideration of the parties'
submissions and a hearing on this motion, the magistrate
judge's dismissal decision is vacated and the criminal
complaint is reinstated.
I.
BACKGROUND AND FINDINGS
The
defendant was arrested on April 17, 2019 on a one count
criminal complaint for distribution of child pornography, in
violation of 18 U.S.C. § 2252(a)(2), and made his
initial appearance before the magistrate judge the same day.
Def.'s Motion to Dismiss (“Def.'s Mot.”)
at 1, ECF No. 16; Gov't's Opp'n to Def.'s
Motion to Dismiss (“Gov't's Opp'n”)
at 1, ECF No. 18. Two motions were made at the
defendant's initial appearance: (1) the government made
an oral motion for the defendant's temporary pretrial
detention and (2) both the defendant and government jointly
orally moved for a forensic screening of the defendant to
ascertain whether further evaluation was necessary to
determine his competence to stand trial. See Min.
Entry (Apr. 17, 2019); Referral and Order (“Forensic
Screening Order”) at 1, ECF No. 3 (directing forensic
screening examination to be conducted by a District of
Columbia Department of Behavioral Health psychologist on
April 19, 2019, with a report to be submitted “as soon
as practical” thereafter). A hearing on the
government's detention motion, along with a preliminary
hearing, was set for April 22, 2019. See Min. Entry
(Apr. 17, 2019). Within three days, by the next scheduled
court date, the forensic screening report had been completed.
See Forensic Screening Report (Apr. 22, 2019) at 1,
ECF No. 6.
At the
hearing on April 22, both parties expressed agreement to
follow the recommendation of the forensic psychologist for a
more extensive evaluation of the defendant's competence,
and defense counsel moved to continue the preliminary hearing
“pending the outcome of the competency
determination.” Min. Entry (Apr. 22, 2019). Defense
counsel's motion was denied. Id. (deferring
“the entry of the order committing the defendant to the
custody of the Attorney General for an evaluation until the
threshold issue is resolved”). The preliminary and
detention hearings were set for the following day.
Id.
On
April 23, the magistrate judge found, following the
preliminary hearing, probable cause for the defendant's
arrest, Min. Entry (Apr. 23, 2019), and then entered an order
committing the defendant to the custody of the Attorney
General so that he could be sent to a suitable facility for a
thirty-day competency evaluation, pursuant to 18 U.S.C.
§ 4247(b). Order (April 23, 2019) (“Competency
Evaluation Order”) at 1, ECF No. 8. The parties jointly
moved orally to continue the detention hearing “until
the competency evaluation has been completed, ” and
this motion was granted, with a status conference set for
June 18, 2019. Min. Entry (Apr. 23, 2019).
Although
the Competency Evaluation Order was entered on April 23,
execution of that order was so delayed that the defendant did
not arrive in BOP's designated federal correctional
institution (“FCI”) in Englewood, Colorado for
the evaluation until 38 days later, on May 31. See
U.S. Marshals Serv. (“USMS”) Individual Custody
and Detention Rep. (“USMS Rep.”) at 2, ECF No.
30.[2]
During defendant's evaluation at FCI Englewood he was
seen for a 15-minute arrival screening, an initial 75-minute
evaluation session, and a second evaluation session lasting
90 minutes. Forensic Evaluation of Defendant (July 29, 2019)
(“Forensic Eval.”) at 3, ECF No. 14 (describing
the evaluation procedures). Although these interactions with
forensic evaluators at the facility totaled only three hours,
he remained at the facility for 55 days partly owing to a
prolonged period of medical isolation to address a separate
medical issue. Id. at 2 (explaining that the
defendant was in medical isolation “until July 1,
2019”); USMS Rep. at 2 (showing that defendant left FCI
Englewood on July 25, 2019). Over this period, hospital staff
“oberv[ed] . . . his behavior at the facility”
and those observations aided the forensic psychologist in
preparing her report. Forensic Eval. at 2. On July 25, the
defendant was moved to a jail in Oklahoma, where he stayed
for two weeks until, on August 8, he was transferred to a
jail in Piedmont, Virginia. USMS Rep. at 2.[3] Meanwhile, the
BOP forensic psychologist at FCI Englewood prepared her
report, which the magistrate judge received and docketed,
under seal, on August 6. See Forensic Eval. at 1.
Due to
the delays in receiving the forensic evaluation from the
government, the previously scheduled June 18 status
conference had to be postponed twice. See Def.'s
Consent Mot. to Cont. Status Hr'g at ¶¶ 3-4,
ECF No. 9 (seeking to continue status conference for 30 days
because, due to transport delays, defendant's
“examination has not yet been completed, ” as of
June 13, 2019, and stating that “[t]his thirty-day time
period is automatically excluded under the [STA], ”
citing 18 U.S.C. § 3161(h)(1)(A)); Gov't's
Consent Mot. to Cont. Status Hr'g at ¶¶ 5, 7,
ECF No. 12 (seeking to continue status conference for 27 days
because additional time was needed to complete evaluation
“due to a high volume of forensic cases” and
stating that “[t]his time period is automatically
excluded under the Speedy Trial Act, ” citing 18 U.S.C.
§ 3161(h)(1)(A) (internal quotation marks omitted). The
next court hearing occurred on August 14, a week following
receipt of the BOP forensic evaluation originally ordered
almost four months earlier on April 23. See Min.
Entry (Aug. 14, 2019) (explaining that the “[c]ase was
set for a Control/Status Hearing, but the defendant was
returned to this jurisdiction and a Competency Hearing was
held instead”).
On
August 14, the magistrate judge held the competency hearing,
at which the parties concurred with the BOP forensic
psychologist's report that the defendant was incompetent
to stand trial and should be referred for competency
restoration treatment. See id. After finding
“that the defendant is not competent at this time to
proceed, ” id., the magistrate judge ordered
that the defendant be committed to a BOP facility to obtain
treatment for sixty days in an effort to achieve that
restoration, with the next hearing set for October 7.
See Order (Aug. 14, 2019) (“Competency
Restoration Order”) at 1-2, ECF No. 15.
Six
weeks after the entry of the Competency Restoration Order,
defense counsel alerted the magistrate judge that not only
had the defendant's competency not been restored, the
defendant had not even started his treatment. Def.'s Mot.
at 2. Instead, as of the date the motion was filed, September
24, the defendant had been “awaiting transport to the
[BOP] for forty-one days for a competency restoration and is
still sitting in the D.C. Jail.” Id. at 1. In
fact, the government advised that the defendant would not be
transferred to a hospital until December 2019.
Gov't's Opp'n at 8-9; see also Tr. of
Hr'g (Oct. 7, 2019) on Def.'s Mot. to Dismiss before
Magistrate Judge (“Oct. 7 MJ Hr'g”) at 26,
ECF No. 22. By the date of the next hearing, on October 7,
the defendant had been awaiting transport for competency
restoration for “54 days.” Def.'s Reply to
Gov't's Opp'n at 2, ECF No. 19.
This
troubling delay in transporting the defendant to an
appropriate BOP facility to execute the Competency
Restoration Order was addressed by the magistrate judge at
the October 7 hearing. The magistrate judge found that the
delay was presumed unreasonable under the STA and that the
government had thus failed timely to indict the defendant.
Oct. 7 MJ Hr'g at 21. As a result, she dismissed the
complaint against the defendant with prejudice. Id.
at 26-27. The government has now sought review of the
magistrate judge's dismissal decision. See
generally Gov't's Req.
II.
LEGAL STANDARD
Magistrate
judges are assigned certain duties and powers to handle
criminal matters before a case is assigned to a district
judge. D.D.C. Crim. R. 57.17(a); see also 28 U.S.C.
§ 636(b)(3) (permitting district courts to
“assign[] . . . additional duties [to magistrate
judges] as are not inconsistent with the Constitution and
laws of the United States”). When a party requests
review of a magistrate judge's order issued pursuant to
one of those powers, that order “may be accepted,
modified, set aside, or recommitted to the magistrate judge
with instructions, after de novo review by the Chief
Judge.” D.D.C. Crim. R. 59.3(b); see also United
States v. Wheeler, 746 F.Supp.2d 159, 161 (D.D.C. 2010)
(Lamberth, C.J.) (reviewing de novo same magistrate
judge's order dismissing a criminal complaint for
violations of the STA, without addressing magistrate
judge's power to exercise this authority).
III.
DISCUSSION
A
threshold matter raised by the government's request for
review is whether magistrate judges are authorized to dismiss
criminal complaints, absent the government's consent, for
reasons other than lack of probable cause. This
jurisdictional issue is addressed first before turning to the
merits of the magistrate judge's decision that the
defendant's STA rights were violated and properly
remedied by dismissal with prejudice of the criminal
complaint. As explained below, the magistrate judge lacks the
authority to dismiss a criminal complaint for STA violations
and, construing her decision as a recommendation, the Court
concludes that, despite the troubling and lengthy delays in
executing the magistrate judge's orders, no STA violation
occurred and therefore the criminal complaint should not have
been dismissed.
A.
MAGISTRATE JUDGE LACKED AUTHORITY TO DISMISS THE CRIMINAL
COMPLAINT.
The
question of whether a magistrate judge has the power to
dismiss a criminal complaint without the government's
consent is unresolved by the D.C. Circuit. United States
v. Bowman, 496 F.3d 685, 688-89 (D.C. Cir. 2007)
(explaining that, although “the [district] court held
that the magistrate lacked authority to dismiss a felony
complaint with prejudice, ” the appeals panel did not
need to “resolve the underlying authority of the
magistrate judge in order to decide [the] case”);
see also United States v. Fahnbulleh, 742 F.Supp.2d
137, 142, 144 n.8 (D.D.C. 2010) (noting that the government
argued that the magistrate judge “lacked the authority
under the Federal Magistrate Act to” dismiss a criminal
complaint on STA grounds, but because reversal was warranted
on other grounds finding no need to “address the issue
of whether the Federal Magistrate Act authorizes a magistrate
judge to dismiss a criminal complaint”). The courts to
have addressed the issue have answered in the negative.
See, e.g., United States v. Bowman, No.
04-cr-60, Mem. Op. & Order at 5, ECF No. 9 (D.D.C. Mar.
31, 2004) (Collyer, J.), aff'd, 496 F.3d 685
(D.C. Cir. 2007)(finding magistrate judge's order
dismissing criminal complaint with prejudice
“contravened [] limitations” in Federal
Magistrates Act); United States v. Segal, 2002 WL
538775 at *2-3 (N.D. Ill. Apr. 10, 2002) (holding that a
magistrate judge “lacks the legal authority to
involuntarily dismiss a felony criminal complaint with
prejudice”); United States v. Trybus, No.
05-mj-2161, 2006 WL 1763672, at *4 (W.D.N.Y. Jun. 23, 2006)
(“given the ultimate dispositive nature of a dismissal
of a Complaint with prejudice, a Magistrate Judge lacks
jurisdiction under 28 U.S.C. § 636 to order dismissal on
that basis”).
The
Federal Magistrates Act (“FMA”), 28 U.S.C.
§§ 631-39, governs the selection, tenure and
authorities of federal magistrates and, in section 636,
defines their jurisdiction and powers. “Through gradual
congressional enlargement of magistrates' jurisdiction,
the [FMA] now expressly authorizes magistrates to preside at
jury trials of all civil disputes and criminal misdemeanors,
subject to special assignment, consent of the parties, and
judicial review, ” and to handle certain
“pretrial and post-trial matters, specifying two levels
of review depending on the scope and significance of the
magistrate's decision.” Gomez v. United
States, 490 U.S. 858, 871 (1989). Specifically, as
pertinent here, subsection (a) lists the powers magistrate
judges “shall have, ” including those
“conferred” by the Federal and Local Rules of
Criminal Procedure, 28 U.S.C. § 636(a)(1), as well as
the power to “administer oaths, ” issue pretrial
release or detention orders, “take” affidavits
and depositions, id. § 636(a)(2), conduct
misdemeanor trials with the consent of the defendant,
id. § 636(a)(3), see also 18 U.S.C.
§ 3401(b) (requiring a misdemeanor defendant's
consent to magistrate judge jurisdiction), and “enter a
sentence for a petty offense” or, with the parties'
consent, for a class A misdemeanor, 28 U.S.C. §§
636(a)(4)-(5). The FMA's incorporation of the Federal
Rules of Criminal Procedure means that magistrate judges have
the authority to dismiss a criminal complaint when, at a
preliminary hearing, they “find[] no probable cause to
believe an offense has been committed.” Fed. R. Cr. P.
5.1(f).
The
next subsection authorizes a district court judge to
“designate” a magistrate judge to
“determine any pretrial matter, ” except for a
discrete list of motions, conduct hearings for those excepted
motions and certain other post-trial or prisoner
applications, 28 U.S.C. §§ 636(b)(1)(A)-(B), or
serve as a special master, id. § 636(b)(2).
Among the excepted motions that a magistrate may not resolve
are a “motion . . . to suppress evidence in a criminal
case, ” a “motion . . . to dismiss or quash an
indictment or information, ” or to otherwise
“involuntarily dismiss an action.” Id.
§ 636(b)(1)(A). A magistrate judge designated to hold an
evidentiary or other hearing on any excepted motions must
file “proposed findings and recommendations” for
the court's “de novo determination.”
Id. § 636((b)(1)(C) (“A judge of the
court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate
judge.”); see Elgin v. Dep't of the
Treasury, 567 U.S. 1, 19 (2012) (noting that
“Congress has authorized magistrate judges, for
example, to conduct evidentiary hearings and make findings of
fact relevant to dispositive pretrial motions, although they
are powerless to issue a final ruling on such
motions”). The district court may also assign to a
magistrate judge “such additional duties as are not
inconsistent with the Constitution and laws of the United
States” and “establish rules” to govern the
“discharge [of] their duties.” Id.
§ 636(b)(3)-(4).[4]
The
magistrate judge in this case was not designated to hear and
determine the defendant's motion to dismiss the criminal
complaint, rendering subsection 636(b) inapplicable. The
defendant argues to the contrary, suggesting that the local
rules of this Court have the effect of such a designation.
Def.'s Br. Addressing the Magistrate Judge's
Authority to Dismiss the Compl. with Prejudice
(“Def.'s Supp. Br.”) at 2-3, ECF No. 33.
Under the defendant's theory, because criminal cases are
not assigned to district court judges until the filing of an
information or indictment, see D.D.C. Crim. R.
57.10(a)(2), all pre-indictment criminal complaints are
referred to magistrate judges. Even were the local rules read
to effect this freestanding referral, the FMA does not grant
the magistrate judge authority to dismiss a criminal
complaint in these circumstances. Any “involuntar[y]
dismiss[al]” of an action is an excepted motion that
may not be resolved by a magistrate judge, 28 U.S.C. §
636(b)(1)(A), but only determined by “[a] judge of the
court, ” id. § 636(b)(1)(C). As with
“all . . . dispositive matters, ” the magistrate
judge may only “make ‘proposed findings of fact
and recommendations.'” United States v.
Islam, 932 F.3d 957, 961 (D.C. Cir. 2019)
(quoting 28 U.S.C. § 636(b)(1)(B)); see
also Elgin v. Dep't of Treasury, 567 U.S. at 19
(commenting that magistrate judges are “powerless to
issue a final ruling” on “dispositive pretrial
motions”); H.R. Rep. No. 94-1609, at 2 (1976),
reprinted in 1976 U.S.C.C.A.N. 6162, 6162
(explaining that “the intent of Congress [was] that all
motions to dismiss, and therefore dispositive motions, will
be subject to the [report and recommendation] procedures of
[28 U.S.C. § 636(b)(1)(B)-(C)]”).
In
pressing his theory that magistrate judges have powers under
subsection (b) in pre-indictment cases, the defendant
contends that subsection (b)(3), which provides that
“[a] magistrate judge may be assigned such additional
duties as are not inconsistent with the Constitution and laws
of the United States, ” 28 U.S.C. § 636(b)(3),
allows magistrate judges to dismiss complaints for STA
violations. Def.'s Supp. Br. at 3-4. Given that other
provisions of the FMA withhold the power to ultimately
dispose of cases, that claim is dubious. Moreover, the
Supreme Court has cautioned that “[t]he general,
nonspecific terms of this paragraph [§ 636(b)(3)],
preceded by text that sets out permissible duties in more
precise terms, constitute a residual or general category that
must not be interpreted in terms so expansive that the
paragraph overshadows all that goes before.”
Gonzalez v. United States, 553 U.S. 242, 245 (2008).
In any
case, the defendant does not point to any rule that
“assigned” magistrate judges the authority to
dismiss criminal complaints in this District-and the reason
is that none exists. See Fed. R. Crim. P. 59(b)
(making clear that, when it comes to dispositive matters, a
district court may only refer them to a magistrate judge
“for recommendation”). Local Criminal Rule 57.17
catalogs the duties and powers of a magistrate judge and,
while listing several freestanding powers of a magistrate
judge, nowhere does this rule purport to grant magistrate
judges the power to dismiss a criminal complaint. D.D.C.
Crim. R. 57.17(a). Instead, the Local Criminal Rules withhold
the power to enter dispositive orders even when the case is
referred to a magistrate judge from a district court judge.
See D.D.C. Crim. R. 57.17(b) (granting the power to
“dismiss indictments, ” but only when the case
has been referred by a district court judge, the motion is
made by the government, and the defendant consents); D.D.C.
Crim. R. 59.1(a) (“At the request of the district judge
to whom a felony case is assigned, a magistrate judge may
hear and determine any nondispositive pretrial
motion.” (emphasis added)); Comment to D.D.C. Crim. R.
59.1 (“Section (a) has been amended to make clear that
magistrate judges may determine only nondispositive
motions or matters in a felony case.” (emphasis
added)); D.D.C. Crim. R. 59.2(a) (explaining that a
magistrate judge may “submit to the district judge
proposed findings of fact and recommendations for the
disposition of . . . motions to dismiss . . . or any matter
that may dispose of a charge or
defense”).[5] Simply put, magistrate judges have not
been assigned the authority to dismiss criminal complaints
for STA violations in this District.[6]
That
leaves only subsection 636(a), which provides an express
grant of powers to magistrate judges, as a possible source of
the authority for the magistrate judge's dismissal. Yet,
the authority to dismiss criminal complaints for a violation
of the STA is not among the express powers magistrate judges
automatically enjoy under that provision. At the same time,
this subsection incorporates the Federal and Local Rules of
Criminal Procedure, 28 U.S.C. § 636(a)(1), but as
described above, those rules limit a magistrate judge's
authority to recommending disposition of a case, not
determining it. In fact, the only scenario in which a
magistrate judge may dismiss a complaint on her own authority
without the parties' consent is following a finding that
the government lacked probable cause to charge the ...