UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA, NO. 09-MC-50670

Plaintiff,

 VS. CHIEF DISTRICT JUDGE GERALD E. ROSEN

JOSE CASTRO-RAMIREZ, MAGISTRATE JUDGE MONA K. MAJZOUB

Defendant.

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REPORT AND RECOMMENDATION

I. RECOMMENDATION: Defendant’s Motion for Reconsideration of the Order Granting

Leave to Dismiss Complaint Without Prejudice (docket no. 1) should be DENIED.

II. REPORT:

A. Facts and Procedural History

The Government filed a criminal Complaint against Defendant on June 9, 2008. (Docket no.

1 ex. C). The Complaint charged that Defendant executed a scheme to defraud Medicare in

violation of 18 U.S.C. § 1347. (Id.). Defendant made his initial appearance on June 10, 2008, and

he was released on bond. (Id. ex. A). His preliminary examination was adjourned twice, and on

April 28, 2009 the Government filed its Motion to Dismiss the Complaint without Prejudice. (Id.).

On May 1, 2009, Magistrate Judge Pepe granted the Government’s motion and dismissed the

Complaint without prejudice. (No. 08-mj-30267, docket no. 11).

Defendant now moves for reconsideration of the dismissal without prejudice and contends

that the dismissal should have been with prejudice. (Docket no. 1). Defendant contends that the

Order reflects a palpable defect by which the Court and the parties have been misled and correcting

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 Made applicable in criminal cases by E.D. Mich. LCrR 12.1. 

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the defect will result in a different disposition of the case because the Government’s “form” Motion

to Dismiss omitted to mention that the 30-day period prescribed by the Speedy Trial Act, 18 U.S.C.

§ 3161(b), had long ago expired, and Defendant never had an opportunity to address that issue.

(Docket no. 1 at 7). Defendant then goes on to argue that the Government’s inexcusable delay in

violation of the Speedy Trial Act compels dismissal of the Complaint with prejudice. (Id. at 8).

B. Standard

Pursuant to this Court’s local rules, motions for reconsideration that “merely present the

same issues ruled upon by the court” will not be granted. E.D. Mich. LR 7.1(g)(3).1 In addition,

“[t]he movant must not only demonstrate a palpable defect by which the court and the parties have

been misled but also show that correcting the defect will result in a different disposition of the case.”

(Id.). A “palpable defect” is a defect which is obvious, clear, unmistakable, manifest, or plain.

Guaranty Residential Lending, Inc. v. Homestead Mortgage Co., 2006 WL 2711815 at *1 (E.D.

Mich. Sept. 21, 2006).

C. Analysis

1. Palpable Defect which Misled Court or Parties

Defendant argues that the palpable defect is that “the Defendant never had an opportunity

to address the Speedy Trial Act violation, the fact of which was not brought to the attention of the

Court in the government’s Motion and Brief.” (Docket no. 1 at 7). To the extent that E.D. Mich.

LR 7.1(d)(1)(B) provided a 21-day time period after service of the motion for Defendant to file a

response to the motion, the entry of the dismissal order some four days after the filing of the motion

could be considered a palpable defect.

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Rule 7.1(g)(3) also requires Defendant to show that the Court and the parties have been

misled by the palpable defect. Defendant fails to explain how the defect misled the Court or any

party, however. (Docket no. 1 at 7-8). The Order dismissing the Complaint does not give any

indication that the Court was laboring under a misapprehension as to the length of time the

Complaint had been pending, and thus as to a possible Speedy Trial Act violation. By a brief review

of the docket sheet of the case (08-mj-30267; docket no. 1 at 17-18), the Court would have been

aware of the relevant dates in the action. To conclude that the Court or any party was misled would

be pure speculation on this record.

2. Different Disposition

Even if Defendant had shown a palpable defect by which the Court and parties were misled,

he has not made the required showing that correcting the defect will result in a different disposition

of the case. Rule 7.1(g)(3). When deciding whether to dismiss a complaint with or without

prejudice a court considers the seriousness of the offense, the facts and circumstances which lead

to the dismissal, and the impact of a reprosecution on the administration of the Speedy Trial Act and

on the administration of justice. 18 U.S.C. § 3162(a)(1).

a. Seriousness of Offense

In arguing that the charged offense was not serious, Defendant characterizes the offense as

“comparatively benign” and contends that there is no suggestion of bodily injury or that Dr. Castro

obtained large sums of money. (Docket no. 1 at 9). Defendant is correct that there is no claim of

bodily injury, however the affidavit in support of an arrest warrant for Defendant alleges that

Defendant received $40,000 from the scheme and that Defendant’s “involvement facilitated these

suspect companies being paid $7,981,798.62 in Medicare funds for suspected fraudulent claims.”

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(No. 08-mj-30267, docket no. 2 at 8-10). The Court finds that a scheme to defraud of this magnitude

is serious. See United States v. Brown, 2007 WL 470445, slip op. at *1 (M.D. Fla. Feb. 13, 2007)

(finding that under 18 U.S.C. § 3162(a)(2) a scheme to defraud insurers of 2.5 million dollars was

serious).

b. Facts and Circumstances Leading to Dismissal

Defendant has also failed to show that the facts and circumstances which led to the dismissal

favor a dismissal with prejudice. First, Defendant concedes that the continuances granted by the

court in this case expired on October 31, 2008. (Docket no. 1 at 8). In both continuances Defendant

stipulated that any order continuing the case would not affect the calculation of time under the

Speedy Trial Act. (No. 08-mj-30267, docket nos. 7, 8). Therefore, rather than a nine-month

unaccounted delay as Defendant argues, the unaccounted delay from October 31, 2008 until the

dismissal on May 1, 2009 is closer to six months. 

Defendant also argues that the Defendant’s previous acquittal after trial, at which the trial

judge noted the unconscionable delay in prosecuting the case, raises questions whether the

Government intentionally delayed this action or is reluctant to “let go” of Defendant. (Docket no.

1 at 10). This is speculation by Defendant.

Defendant also argues that if there is not sufficient evidence of his guilt to bring him to trial,

he should never have been arrested or had his assets seized. (Id.). The evidence that the

Government has accumulated against Defendant is not shown by the record. Simply because the

Government argues in its motion that it needs additional time to obtain evidence does not show that

Defendant never should have been arrested or had his assets seized. Defendant’s arrest was

judicially approved based on the Government’s showing. The affidavit supporting Defendant’s

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arrest sets out a considerable amount of evidence against him. At least some of the evidence is

based on documents rather than testimony, which at least removes any question of credibility of the

witness from the question whether the evidence is sufficient for a finding of guilt. In short,

Defendant has not shown that he never should have been arrested or had his assets seized.

c. Impact of Reprosecution

Turning now to the final factor, the Court considers the impact of reprosecution on the

administration of the Act and on the administration of justice. As pointed out above, the

unaccounted delay in this case is closer to six rather than nine months. Defendant argues that at

least one witness has apparently fled the country. (Docket no. 1 at 12). There is no support for this

contention. Even if this witness has fled, nothing supports Defendant’s contention that his ability

to prepare a defense has been severely prejudiced. As in the case of most defendants who are

charged with criminal offenses, Defendant contends that he has experienced a disruption of his

normal life, liberty, and ability to practice his profession while these charges were pending. The

Court finds that the final factor is in equipoise. Defendant rightly wishes for a quick resolution of

the charges against him. However, on the other hand, the Government has an equally weighty desire

to punish those who are defrauding Medicare of substantial amounts of money and in recovering any

assets linked to the criminal offense. Defendant has not shown that the impact of reprosecution on

the Act and on the administration of justice favors a dismissal with prejudice.

For all of these reasons, Defendant has failed to show that there is a qualifying defect in the

dismissal order and that, even if there was such a defect, correcting the defect in this action would

result in a different disposition of the motion. He has therefore failed to establish that

reconsideration should be granted. 

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III. NOTICE TO PARTIES REGARDING OBJECTIONS:

The parties to this action may object to and seek review of this Report and Recommendation,

but are required to act within ten (10) days of service of a copy hereof as provided for in 28 U.S.C.

§ 636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver

of any further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec’y of Health &

Human Servs., 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

Filing of objections which raise some issues but fail to raise others with specificity, will not preserve

all the objections a party might have to this Report and Recommendation. Willis v. Sec’y of Health

& Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n Of Teachers Local 231,

829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections

is to be served upon this Magistrate Judge.

Any objections must be labeled as “Objection #1,” “Objection #2,” etc. Any objection must

recite precisely the provision of this Report and Recommendation to which it pertains. Not later

than ten days after service of an objection, the opposing party must file a concise response

proportionate to the objections in length and complexity. The response must specifically address

each issue raised in the objections, in the same order and labeled as “Response to Objection #1,”

“Response to Objection #2,” etc.

Dated: July 17, 2009 s/ Mona K. Majzoub 

MONA K. MAJZOUB

UNITED STATES MAGISTRATE JUDGE

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PROOF OF SERVICE

I hereby certify that a copy of this Report and Recommendation was served upon Jose

Castro-Ramirez and Counsel of Record on this date.

Dated: July 17, 2009 s/ Lisa C. Bartlett 

Courtroom Deputy

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