States v. Leftenant, 341 F.3d 338, 343-44 (4th Cir. 2003) (rejecting the Government’s attempt to
-tecast the nature of the criminal complaint); United States v. DeRose, 74 F.3d 1177, 1183 (11th
Cir. 1996) (explaining that the “mere presence of statutory language of the substantive offense
[does not] demonstrate[] that the complaint contained the substantive charge”). Therefore, only
one charge was charged in the complaint — being found in the United States without first
obtaining the permission of the Attorney General. The Superseding Indictment must, therefore,

be dismissed.

There remains the issue of whether the dismissal of the Superseding Indictment shall be
with or without prejudice. “In determining whether to dismiss the case with or without
prejudice, the court shall consider, among others, each of the following factors: the seriousness of
the offense; the facts and circumstances of the case which led to the dismissal; and the impact of
a reprosecution on the administration of this chapter and on the administration of justice.” 18
U.S.C. § 3162(a)(1); accord United States v. Taylor, 487 U.S. 326, 342 (1988). Courts must also
weigh the seriousness of the charged offense against the speedy trial violation. United States v.
Perez, 2002 US Dist LEXIS 12169, at * 12 (ND. Ill. July 3, 2002) (citing United States v.

Carreon, 626 F.2d 528, 532 (7th Cir. 1980)).

Illegal reentry into the United States after committing a dangerous felony is a serious
offense. See United States v. Mancia Perez, 331 F.3d 464, 468 (5th Cir. 2003); United States v.

Pena-Carillo, 46 F.3d 879, 882 (9th Cir. 1995).

In this case, the Defendant was previously convicted of multiple drug-related felony

offenses, including: (1) possession with the intent to distribute heroin and aiding and abetting;


attempting to illegally enter the United States without the permission of the Attorney General.
‘Before the thirty-day time limit expired, the Government indicted the defendant with the offense
of being found in the United States illegally without the permission of the Attorney General.
After the thirty-day time limit expired, the Government filed a superseding indictment charging
the defendant with attempting to enter the United States. The court held that the original charge
of being found in the United States did not toll the Speedy Trial Act’s thirty-day rule because
being found in the United States was a different offense than attempting to enter the United
States. Therefore, the superseding indictment the Government obtained for the attempted entry

offense was outside the thirty-day limit and was required to be dismissed.

Similarly, here, the Government first charged the Defendant with attempting to enter the
United States and then indicted him with the being found in the United States. The Government
next obtained a Superseding Indictment for the Attempted Entry offense. That Superseding
Indictment must be dismissed because it was obtained outside the Speedy Trial Act’s required
time limit.

The Government contends that the “attempting to enter” and “found in” the United States
charges are pled in the original complaint; and, therefore, Martinez-Espinoza is not controlling.
However, the complaint in this case charged the Defendant with a single offense ~ attempting to
enter the United States after having been lawfully deported without first obtaining the permission
of the Attorney General. The affidavit attached to the complaint is made a part of the criminal
complaint, according to the face of the complaint. Those facts only provide probable cause for
one offense — attempting to enter the United States. The complaint must be read in a common
sense, unitary manner and cannot be separated as the Government attempts to here. See United

3


and (2) conspiracy to possess with the intent to distribute and distribute heroin. Therefore, the

«illegal reentry of the Defendant into the United States is found to be a serious offense.

When evaluating the reason for the delay, courts must examine “the role played by the
Government and the defendant in causing the speedy trial violation and assess responsibility for
the delay.” Perez, 2002 US Dist LEXIS 12169, at *14 (citing Taylor, 487 U.S. at 338-40). The
Government is more culpable if it intentionally delayed to obtain a tactical advantage than if the

Government inadvertently neglected the matter. Perez, 2002 US Dist LEXIS 12169, at * 14-15.

Here, the Government mistakenly indicted the Defendant on the wrong charge. In prior
cases, the Government used the “found in” language of § 1326(a) to prosecute all violators at
O’Hare Airport. However, this language was challenged in another § 1326 case in another court.
The Government, therefore, obtained a Superseding Indictment against the Defendant, stating the
“attempted to enter” charge of § 1326(a), to avoid any such problems in this case. The
Defendant, moreover, cannot point to any intentional delay used by the Government as a tactical
advantage, nor can the Defendant point to a series of neglect and repeated abuses. These

circumstances do not warrant a dismissal with prejudice.

The impact on the administration of justice and the application of the Speedy Trial Act
caused by a reprosecution of this case must also be considered. “The court's analysis of this
factor is guided by three factors: (1) whether the defendant was prejudiced by the delay; (2)
whether the Government intentionally sought to delay the trial; and (3) whether the
circumstances causing the delay are likely to recur.” Perez, 2002 US Dist LEXIS 12169, at * 16

(citing Carreon, 626 F.2d at 533).



Minute Order Foren (96/97)

United States District Court, Northern District of Mlinois

f Assigned Jud Sitting Judge if Oth
veige Magistrate ude John W. Darrah than Asigned Judge
CASE NUMBER 03 CR 450 DATE 10/29/2003
CASE USA vs. Babajide Sobitan
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.]

MOTION:

DOCKET ENTRY:

(60) ao Filed motion of [ use listing in “Motion” box above.]

(2) a Brief in support of motion due

(3) oO Answer brief to motion due___. Reply to answer briefdue__.

(4) o Ruling/Hearingon___set for___at

(5) o Status hearing[held/continued to] [set.for/re-set for]on__——ssetfor__— at

(6) ao Pretrial conference{held/continued to] [set for/re-set forjon__——ssetfor__——saat_—
(7) Oo Trial[set for/re-set for]on_ at

(8) Oo {Bench/Jury trial] [Hearing] held/continued toa

(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(m) OLocal Rule 41.1 OFRCP41(a)(1) [FRCP41(a)(2).

ao) oi (Other docket entry] Status hearing held and continued to 11/5/03 at 9:00 a.m. For the reasons
stated in the attached memorandum opinion and order, defendant’s motion to dismiss the superseding
indictment under 18 USC 3161 for violation of the speedy trial act [23-1] is granted without prejudice.
This case is ordered stayed until 11/5/03. Enter Memorandum Opinion and Order.

(11) [For further detail see order attached to the original minute order.]

X | Nonotices required, advised in open court.

No notices required.
real snurober of notices

Notices mailed by judge’s staff.

Notified counsel by telephone,

Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

date mailed notice
courtroom

MF deputy’s
initials

iN" Date/time received in
ceritral Clerk's Office



oO Here, there is no allegation or showing that the Defendant was prejudiced by the delay.
Moreover, the Defendant does not claim that the Government intentionally delayed the trial.
Finally, it is highly unlikely that these circumstances would occur again. The administration of

justice and the application of the Speedy Trial Act will not be negatively impacted by dismissing

the case without prejudice to reindict the Defendant.
CONCLUSION

Therefore, the Court orders that the Defendant’s Motion to Dismiss the Superseding

Indictment is granted without prejudice.

ver Ded rhe A, 2008

Cony W. DARRAH
‘ted States District Judge


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

a EASTERN DIVISION pacered
UNITED STATES OF AMERICA

v. No: 03 CR 450

BABAJIDE SOBITAN, a.k.a.
PAUL A. MAKINDE

Judge John W. Darrah

MEMORANDUM OPINION AND ORDER

The United States of America (“the Government”) brought a one-count Superseding
Indictment against the Defendant, Babajide Sobitan, for illegally attempting to enter the country
in violation of 8 U.S.C. § 1326(a). Presently before the Court is the Defendant’s Motion to
Dismiss the Superseding Indictment Under 18 U.S.C. § 3161 for Violation of the Speedy Trial
Act. For the reasons that follow, the Defendant’s Motion is granted, and the Superseding
Indictment is dismissed without prejudice.

BACKGROUND

In 1996, the Defendant was deported from the United States for committing drug-related
felonies. On April 29, 2003, the Defendant was arrested at O’Hare International Airport as he
proceeded through Immigration. On April 30, 2003, he was charged, in a one-count criminal
complaint, with a violation of 8 U.S.C. § 1326(a) and (b), that he “entered, attempted to enter, or
was found in the United States” without first obtaining the approval of the Attorney General after
having been previously deported from the United States. Accompanying the complaint, however,

was an affidavit from Lori Glud, a Senior Immigration Inspector. The affidavit concludes as

follows: a G


“Based on the foregoing information and my experience in investigating reentry
>cases, I believe there is probable cause to believe that Babajide Olumuyiwa

- SOBITAN has violated Title 8, United States Code, Section 1326 (a) and (b) by
attempting entry into the United States when he has not received prior

authorization to come to, enter, and reside in the United States” (emphasis added).

(Aff. of Lori Glud, Criminal Compl. (emphasis added)).

On May 27, 2003, the Special February 2002-1 Grand Jury returned a one-count
Indictment against the Defendant. The Indictment charged the Defendant with being “present
and found in the United States” after having been deported without previously obtaining the
consent of the Attorney General. (Indictment, May 27, 2003 (emphasis added)). The Defendant
was arraigned, motion schedules were set, and the case was set for trial on August 18, 2003.

On August 12, 2003, the Government sought and obtained a Superseding Indictment
charging the Defendant with “knowingly and intentionally attemptfing] to enter the United
States” without having previously obtaining the consent of the Attorney General. (Superseding
Indictment, Aug. 12, 2003 (emphasis added)).

ANALYSIS

The Speedy Trial Act requires that any “indictment charging an individual with the
commission of an offense shall be filed within thirty days from the date on which such individual
was arrested or served with a summons in connection with such charges.” 18 U.S.C. § 3161(b).
The Defendant contends he was arrested and charged in the complaint with attempting to enter

into the United States and that he was not indicted on this charge until the Superceding

Indictment was returned, stating this offense, 105 days later, in violation of the Speedy Trial Act.

In support of his argument, the Defendant cites United States vy. Martinez-Espinoza, 299

F.3d 414 (Sth Cir. 2002). There, the defendant was charged in a criminal complaint with