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Fifteen months of inaction by federal prosecutors has prompted a Northern District of New York judge to issue a rare opinion dismissing with prejudice all charges against a man caught with more than 100 pounds of marijuana in his car. U.S. District Judge David N. Hurd said that if the Speedy Trial Act did not mandate dismissal of the indictment in U.S. v. Peppin and Mercier, it would be rendered meaningless — “a paper tiger with no teeth.” “It must be emphasized that this case presents a very unique set of facts,” Hurd wrote. “Fortunately, the government seldom ignores a case for fifteen months after charges are filed. Dismissal under the Act will continue to be very, very rare.” The case involves Gilles Mercier, who was arrested May 13, 2003, near Plattsburgh, N.Y. He was stopped for allegedly talking on a cell phone and making an improper left turn. Police found more than 100 pounds of marijuana in his vehicle. Mercier was charged immediately with possession of marijuana with intent to distribute. However, he was not indicted for 15 months, at which time the government added conspiracy charges. A co-defendant, Rejean Peppin, had been arrested shortly after Mercier’s arrest. Peppin also was found alone in a car with more than 100 pounds of marijuana. On Aug. 11, 2004, 15 months after his arrest, Mercier was named in a five-count indictment. One count related to the charge for which he was initially arrested, two contained new charges alleging conspiracy with Peppin and distribution, and two related solely to Peppin. At issue before Hurd was whether the initial charges against Mercier must be dismissed under the Speedy Trial Act, whether they must be dismissed with prejudice and whether the additional charges contained in the Aug. 11 indictment must also be dismissed as government gilding. Hurd held for the defendant on all counts. The court noted that Assistant U.S. Attorney Paul D. Silver of Albany, N.Y., readily acknowledged that the Speedy Trial Act had been violated as to the initial charge of possession with intent to distribute, and accepted full blame. According to court records, Silver added he “has not paid as much attention to the Speedy Trial Clock as it deserves” and has other cases in similar peril. “It is presumed that such candor is offered under the belief that it doesn’t matter that the government ignores a case as long as it doesn’t do so for strategic purposes or with some other ‘bad faith’ intention,” Hurd wrote. “This interpretation of what conduct offends the Act is rejected.” Hurd characterized the government’s conduct as “willful negligence” and dismissed the initial count with prejudice. GILDING EXCEPTION A more difficult question arose over whether the Speedy Trial Act requires dismissal of the remaining counts. On this issue, Hurd applied the “gilding” exception. He relied on the sole decision applying the exception, a 1986 Eastern District ruling, U.S. v. Bilotta, 645 F. Supp. 369. The Speedy Trial Act requires dismissal only of the initial charges, and does not affect prosecution on subsequent charges, even when those charges arise from the initial complaint. But a rarely applied exception to that rule for “gilding” — or embellishing a charge to get around procedural problems — requires dismissal. In this case, Hurd found that the government’s “dilatory approach” and the “disingenuous nature of the added charges compel an inference that the government gilded the indictment, at least in part, to avoid the Speedy Trial Act.” He noted that the prosecution knew when it framed the indictment that charges based on the arrest were in speedy trial jeopardy. “To the extent that this holding expands the previously undefined contours of the gilding exception, it is believed that there is little risk that this will promote judicial interference with prosecutorial discretion,” Hurd wrote. “On the facts of this case, the exception still has little breadth as almost any governmental activity would have served to negate the inference of bad faith on the part of the government.” CIRCUIT HOLDING Silver, in a motion for reconsideration filed this week, argues that Hurd’s holding is “directly contrary” to the 2nd Circuit’s holding in U.S. v. Gaskin, 364 F.3d 438. In Gaskin, the 2nd U.S. Circuit Court of Appeals said that charges lodged for the first time in an indictment handed up beyond the time limit in the Speedy Trial Act are not generally subject to dismissal. Silver took issue with Hurd’s conclusion that the 2nd Circuit, in Gaskin, could not have intended that trial courts “should merely line up the elements of the individual charges and finding some left over in the subsequent pleading, determine that the Speedy Trial Act has not been violated.” “This is exactly what Gaskin requires,” Silver said in motion papers. Hurd, however, addressed Gaskin at length in his opinion. He said that in Gaskin, the prosecution had taken some steps to pursue a case challenged on speedy trial grounds. In Mercier, by contrast, the prosecution did nothing, Hurd said. Silver also contends that Hurd’s opinion conflicts with an unreported decision in U.S. v. Michael Reidy, 04-CR-447. In Reidy, Senior Northern District Judge Thomas J. McAvoy held that Gaskin does not permit dismissal of a marijuana conspiracy charge that was filed more than 30 days after the defendant appeared pursuant to a complaint accusing him of a single distribution of marijuana. Hurd agreed to hear arguments on the government’s motion for reconsideration on May 27. Stanley L. Cohen of Manhattan represents Mercier.

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