Court’s Speedy Trial Error Favors Gun Felon

     MANHATTAN (CN) – A violent felon caught with a firearm that had an obliterated serial number may skate a 10-year sentence because of an 11-month delay attributed to a federal judge’s mistake, the Second Circuit ruled Tuesday.
     On Jan. 19, 2012, authorities arrested Raheem Bert in his girlfriend’s Staten Island apartment inside the Arlington Terrace housing complex. Police had arrived at the building in response to reports of trespassing, and they arrested Bert after he dropped his gun out a 10th floor window.
     After police recovered the weapon, government witnesses said that Bert boasted that he could not be prosecuted because the gun did not work.
     Bert, who was brought up on a two-count federal indictment, later claimed that these statements could not be used against him because police never read him a Miranda warning and obtained the statements during an unlawful seizure.
     U.S. District Judge Roslynn Mauskopf scheduled a suppression hearing over these arguments on Nov. 20, almost 11 months after his arrest.
     Bert would spend more than a year in prison before Mauskopf finally ruled against him on Feb. 13, 2014.
     A week later, Bert filed a motion to dismiss his indictment on the grounds that prosecutors violated his right to a speedy trial.
     Despite granting the motion, Mauskopf gave prosecutors the option to file new charges because she said that she committed the error. The new indictment quickly went to trial, and a jury convicted him of charges that landed him a 10-year sentence.
     On Tuesday, the Second Circuit ordered the Mauskopf to take a closer look at whether she should have booted the charges with prejudice.
     “The [Speedy Trial] Act’s purpose of expeditiously bringing criminal cases to trial would not be served by assuring those charged with this responsibility that they need not fear the more severe sanction – no matter how egregious the violation – as long as they refrain from intentional efforts to circumvent the act,” U.S. Circuit Judges Rosemary Pooler and Peter Hall wrote in a 36-page majority opinion.
     Even though the court “fell on its sword,” the majority found that this did not absolve the prosecutors.
     “In this case, the government did not notify the court that the speedy trial deadline was approaching or had passed,” the majority said. “It took no action whatsoever in this case during the year in which Bert’s motion was under advisement.”
     Although they agreed that “neither the government nor the court acted out of any nefarious or underhanded motive,” the added that “bad faith is not a prerequisite to ordering dismissal with prejudice.”
     “We commend the district court’s honest and unequivocal acceptance of responsibility for the delay, but the mere fact that a speedy trial violation is attributable to the court and not the government does not expunge that violation, nor does it automatically render the violation any less serious,” the opinion states.
     U.S. Circuit Judge Dennis Jacobs, who dissented in part, defended Mauskopf’s decision as “so well supported by settled principles that it is unassailable, even uninteresting.”
     Courts typically give prosecutors an opportunity to refile serious cases that are thrown out for speedy trial violations, the dissent states.
     “Even if seriousness is scored on a continuum, the offense here is life-threatening,” Jacobs wrote.
     Bert’s prior offenses included witness tampering, drug trafficking and possession of a weapon to commit a homicide, he also noted.
     While the Second Circuit’s decision does mandate the case’s dismissal, it forces Mauskopf to reconsider her prior ruling according to the majority’s instructions.
     A full 13-judge panel of the Second Circuit declined to review the opinion en banc.
     Attorney James Darrow, who represents Bert for the Federal Defenders of New York, did not immediately respond to an email request for comment.

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