Sunday, October 26th, 2008

Sir Speedy

United States v. Oberoi, No. 04-4545-cr (2d Cir. October 23, 2008) (Jacobs, Kearse, Katzmann, CJJ)

Tejbir Oberoi, proceeding pro se, claimed on appeal that he was denied a speedy trial. He lost the case, but it took the circuit about fifty pages to sort things out.


Oberoi was a dentist who defrauded insurance companies by making false reimbursement claims for procedures he never performed. He was first charged with mail and healthcare fraud in a complaint October of 1999. An indictment was returned against him about two months later; it charged 34 counts of mail fraud and 123 counts of making false statements in connection with health care benefits.

The case had a tortured procedural history, including competency proceedings, six or seven changes of counsel, and three interlocutory appeals. The trial was finally set for January of 2004, by which time Oberoi had made, and lost, a motion for dismissal under the Speedy Trial Act (the “STA”). Oberoi pled guilty to one count of mail fraud and one false statement count (the government agreed to dismiss the remaining 155 counts) on the day the trial was set to begin, having reserved the right to appeal the speedy trial issue. He was sentenced to 63 months’ imprisonment, which he has fully served. As the circuit noted, he filed more than a dozen motions in the court of appeals that “delayed the assignment of his appeal to a panel for nearly four years.”

Pre-Indictment Delay

Fifty-eight days passed between October 18, 1999, when Oberoi was charged in the complaint, and December 16, 1999, when he was indicted. He argued that this violated the 30-day time limit for the government to seek an indictment.

The STA provides that an indictment or information “shall be filed within thirty days from the day on which such individual was arrested … [on] such charges.” In Oberoi’s case, 17 days after his arrest on the complaint, a magistrate judge granted the parties’ joint request for an adjournment to December 1, 1999, but did not mention the STA. On December 1, 1999, the parties requested two more weeks, but this time the magistrate solicited the parties’ consent to excluding time. Fifteen days later, Oberoi was indicted.

The court found no pre-indictment STA violation. The STA requires dismissal only of “such charge” against the defendant “contained in such complaint,” language that the court reads “strictly.” Thus, an indictment is not untimely if it pleads different charges from those in the complaint, even if the indictment’s charges “arise from the same criminal episode as those specified in the original complaint or were known or reasonably should have been known at the time of the complaint.” The test is an elements test, similar to the familiar Blockburger double jeopardy test.

Here, the court held that the indictment charged something different from the complaint. The complaint charged Oberoi with healthcare and mail fraud from December 1992 to February 1999. But one of the counts in the indictment that he pled to was a false statement charge that was “fresh” to the indictment. While he also pled guilty to mail fraud, the count he pled to was quite specific: submitting a fraudulent claim to a particular employer’s dental plan on December 24, 1995. The complaint made no reference to that particular mailing, nor did the affidavit attached to it, which listed scores of mailings.

The court noted that it need not here “define what features would make two charges the same for the purposes” of the [STA]; it is enough that, here, the specific offenses to which Oberoi pled guilty did not appear in the complaint. Thus, neither count of conviction should have been dismissed under the STA as a result of pre-indictment delay.

Post-Indictment Delay

Oberoi also pointed out “28 discreet periods of post-indictment delay,” spanning “1,487 days” that he claimed were not “properly excluded under the STA. Before even getting to those periods, however, the court was called upon to resolve two questions that were open in this circuit.

1. Does the Clock Stop for Motion Preparation?

There is a “substantial question” as to the propriety of excluding time for preparing motions. Section 3161(h)(1)(F) of the STA stops the clock for “delay resulting … from the filing of [a pretrial] motion through the conclusion of the hearing on, or other prompt disposition of, such motion.” Much of the delay here was occurred as “various defense lawyers prepared to file pretrial motions.”

The problem is that this section is not clear as to whether the time for preparing the motions is excluded, or whether the clock stops only once the motion has been filed. According to the circuit, there is “consensus among the circuits” that motion preparation time can be excluded under the general “interests of justice” provisions of the STA – § 3161(h)(8)(A), as long as the judge makes a contemporaneous prospective finding that the exclusion is warranted.

But here, the exclusions were made under the motions section – (h)(1) – not under section (h)(8), and there is a split among the circuits as to whether motion preparation is covered under section (h)(1). The First, Seventh, Ninth, Tenth, Eleventh and D.C. Circuits have held that delay attributable to motion preparation can be excluded under section (h)(1). The Fourth and Sixth, however, take the opposite view.

Here, the Second Circuit joined the majority, holding “that the time needed for the preparation of pretrial motions can be excluded under § 3161(h)(1).” Since this section automatically stops the clock for the preparation of response papers, it make sense that it would also exclude the time for the preparation of the motion itself. However, there is one “critical” caveat. The lower court “must expressly stop the speedy trial clock, either on the record or in a written order.”

2. The Effect of a Magistrate Judge’s Report and Recommendation

Other “close questions” exist with respect to the filling of a report and recommendation by a magistrate judge. Such filings in this case caused delays that Oberoi argued should be counted on the STA clock.

Section (h)(1)(F) automatically stops the clock when the motion is first filed; once it is fully briefed, subsection (h)(1)(J) automatically stops the clock for up to 30 additional days while the motion is under advisement. When a motion is fully submitted to a magistrate judge is the clock stopped under § (h)(1)(J) while the motion is “under advisement” of the magistrate judge? And what happens when magistrate judge issues a report and recommendation – does this “effectively refile[]” the motion in the district court, stopping the clock again, or does it restart the clock until a party files an objection?

Once again, these questions, open in the Second Circuit, have been answered differently by other circuits. After surveying the cases, the court went along with the Eighth Circuit, which has held that once a pretrial motion has been fully briefed and submitted to a magistrate judge, subsection (h)(1)(J) gives the magistrate a 30-day “advisement” period within which to rule. Once the report and recommendation issues, a new excludable period begins under § (h)(1)(F).

3. Oberoi’s Periods of Delay

Based on these holdings, the opinion surveys Oberoi’s claimed periods of delay in great detail, and makes for fairly dull reading. But the bottom line is that the court found only 57 days could be counted on Oberoi’s speedy trial clock, fewer than the 70 days that the Act permits.

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