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United States v. Beler

United States District Court, District of Columbia

November 6, 2019

PETER BELER, Defendant.



         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.


         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.


         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).


         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.


         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 ...

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