     17-2133-cr
     United States v. Sarmiento

                                         UNITED STATES COURT OF APPEALS
                                            FOR THE SECOND CIRCUIT

                                                SUMMARY ORDER

     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
     SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY
     FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
     CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
     EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
     “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON
     ANY PARTY NOT REPRESENTED BY COUNSEL.

 1          At a stated term of the United States Court of Appeals for the Second Circuit, held at
 2   the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
 3   on the 3rd day of July, two thousand eighteen.
 4
 5   PRESENT:
 6              JON O. NEWMAN,
 7              JOSÉ A. CABRANES,
 8              SUSAN L. CARNEY,
 9                          Circuit Judges.
10   _________________________________________
11
12   UNITED STATES,
13
14                       Appellee,
15
16                                v.                                                        No. 17-2133-cr
17
18   ELIANA SARMIENTO,
19
20              Defendant-Appellant.
21   _________________________________________
22
23   FOR APPELLANT:                                                JAMES R. DEVITA, Law Offices of James
24                                                                 R. DeVita PLLC, White Plains, NY;
25                                                                 Arthur K. Womble Jr., Zeman & Womble,
26                                                                 Brooklyn, NY.
27



     
         The Clerk of Court is directed to amend the official caption as set forth above.
 1   FOR APPELLEE:                                      WON S. SHIN (Eun Young Choi, Andrew
 2                                                      C. Adams, on the brief), Assistant United
 3                                                      States Attorneys, for Geoffrey S. Berman,
 4                                                      United States Attorney for the Southern
 5                                                      District of New York, New York, NY.
 6
 7           Appeal from a judgment of the United States District Court for the Southern District
 8   of New York (Kimba M. Wood, Judge).

 9           UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
10   ADJUDGED, AND DECREED that the judgment of conviction entered on July 5, 2017,
11   is AFFIRMED.

12           Defendant-appellant Eliana Sarmiento appeals her conviction by a jury of two counts
13   of conspiracy to steal government funds, two counts of theft of government funds, and two
14   counts of aggravated identity theft. See 18 U.S.C. § 371, § 641, § 1028A(a)(1). Sarmiento
15   argues that her prosecution violated the Speedy Trial Act (“the Act”) because she was not
16   tried within 70 days of her indictment or arraignment, and that the District Court should
17   therefore have dismissed the indictment against her. See 18 U.S.C. § 3161(c)(1) (requiring trial
18   within 70 days unless exclusion applies). We assume the parties’ familiarity with the facts and
19   the record of the prior proceedings, to which we refer here only as necessary to explain our
20   decision to affirm.

21           Sarmiento contends that her 70-day “clock” expired no later than June 4, 2015,
22   because the District Court did not explicitly exclude time under the Act during the period
23   from February 23, 2015, to October 19, 2015. On December 4, 2015, the District Court
24   denied Sarmiento’s pretrial motion to dismiss the indictment against her on that basis.
25   Sarmiento was ultimately re-indicted in August 2016 and convicted by a jury in September
26   2016.

27           The Speedy Trial Act provides that the 70-day trial clock is paused while pretrial
28   motions are being briefed. See 18 U.S.C. § 3161(h)(1)(D). The Act also provides that any
29   automatic exclusion of time applicable to one defendant tolls the Act’s clock for all of the
30   codefendants “when the defendant is joined for trial with a codefendant as to whom the time

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 1   for trial has not run and no motion for severance has been granted.” 18 U.S.C. § 3161(h)(6)
 2   (emphasis added).

 3            Relying on these provisions, the District Court concluded that Sarmiento’s
 4   prosecution did not violate the Act because another defendant’s pretrial motion was being
 5   briefed during the contested period. United States v. Santana, No. 13 CR 147 (KMW), 2015
 6   WL 8078928, at *3 (S.D.N.Y. Dec. 4, 2015). We review de novo the District Court’s legal
 7   conclusions regarding whether the Speedy Trial Act was violated and the District Court’s
 8   underlying factual findings for clear error. United States v. Shellef, 718 F.3d 94, 101 (2d Cir.
 9   2013).

10            The pretrial motion invoked by the District Court was a pro se motion filed by Julio
11   Alexander Lara Trinidad. Sarmiento contends that Trinidad’s pending motion did not pause
12   her 70-day trial clock under the Act, because she was not “joined for trial” as a
13   “codefendant” with Trinidad in 2015. Trinidad was separately indicted in proceedings
14   assigned to the same case number as Sarmiento and fourteen other defendants, all of whom
15   were alleged to be involved in the same criminal scheme. The government argues that there
16   was an informal understanding among all participants that it would jointly indict, at some
17   later time, all separately indicted defendants who proceeded to trial, and that this
18   understanding sufficed for the court to treat all defendants as “joined for trial” under
19   Section 3161(h)(6) during the entire prosecution. Sarmiento asserts, however, that the
20   government did not comply with the Federal Rules of Criminal Procedure related to joinder,
21   see Fed. R. Crim. P. 8(b), 13, and that there was in fact uncertainty about Trinidad’s place in
22   the prosecution of the 16 defendants named in the same docket number in a hodgepodge of
23   group and individual indictments.

24            We need not determine whether “informal” joinder is sufficient to toll a defendant’s
25   Speedy Trial Act clock under Section 3161(h)(6), because we conclude that any error
26   committed by the District Court was harmless.1



     1 We observe, however, that literal compliance with Rules 8(b) and 13 will usually avoid troublesome issues
     that might jeopardize convictions in the future.
                                                           3
 1           First, in denying Sarmiento’s motion to dismiss, the District Court explained that, if
 2   Sarmiento’s rights under the Act had been violated, it would have dismissed her indictment
 3   without prejudice, allowing the government to immediately reindict her and continue
 4   expeditiously to trial on the same charges. Santana, 2015 WL 8078928 at *3-4. The District
 5   Court did not abuse its discretion in deciding dismissal without prejudice would be the
 6   appropriate sanction for any violation of Sarmiento’s Speedy Trial Act rights. See United States
 7   v. Taylor, 487 U.S. 326, 335-36 (1988) (decision to dismiss an indictment without prejudice
 8   reviewed for abuse of discretion). Sarmiento’s offense was serious, the delay was not an
 9   attempt by the government to gain a tactical advantage, and Sarmiento had been released on
10   bail pending trial. See 18 U.S.C. § 3162(a)(2). Although the District Court could have more
11   thoroughly “explain[ed] the administrative neglect that caused the particular delay at issue, as
12   well as consider[ed] any potential administrative changes that might be warranted in light of
13   that violation,” United States v. Bert, 814 F.3d 70, 83 (2d Cir. 2016), “Congress did not intend
14   any particular type of dismissal to serve as the presumptive remedy for a Speedy Trial Act
15   violation,” id. at 79.

16           Second, an error is “harmless”—and, thus, does not provide a basis for vacatur of a
17   conviction—if it does not affect the defendant’s “substantial rights.” Fed. R. Crim. P. 52(a);
18   see also Neder v. United States, 527 U.S. 1, 7 (1999) (courts will presumptively apply harmless-
19   error review to most errors in criminal cases). We have previously held that failure to dismiss
20   an indictment under the Act without prejudice is harmless if the government successfully
21   reindicted the defendant on the same charges. United States v. Gambino, 59 F.3d 353, 363 (2d
22   Cir. 1995). Here, unlike in Gambino, Sarmiento was reindicted after the District Court denied
23   her motion to dismiss the indictment. But, as in Gambino, Sarmiento was convicted at trial by
24   a jury after her reindictment.

25           Sarmiento argues that the harmless error holding in Gambino was abrogated by Zedner
26   v. United States, 547 U.S. 489 (2006). In Zedner, the Supreme Court held that “when a district
27   court makes no findings on the record in support of a [Section] 3161(h)(8) continuance,



                                                     4
 1   harmless-error review is not appropriate.” Id. at 509. The Section 3161(h)(8),2 or “ends-of-
 2   justice,” continuance allows district courts in their discretion to exclude time that would
 3   otherwise count towards the Act’s 70-day clock. Continuances granted under this provision
 4   are subject to stringent requirements, however: the court must state on the record the
 5   reasons for the continuance, taking into account specified factors, and must weigh those
 6   reasons against the interests of the public and defendant in a speedy trial. 18 U.S.C.
 7   § 3161(h)(7)(A), (B).

 8              The Zedner Court relied in part on those “detailed requirements” of ends-of-justice
 9   continuances in finding that harmless error review did not apply in that context. Zedner, 547
10   U.S. at 507-08. The codefendant exclusion at issue here, however, is not subject to the same
11   kind of detailed requirements. Compare 18 U.S.C. § 3161(h)(6) (codefendant exclusion) with
12   18 U.S.C. § 3161(h)(7). We thus see no “strong support,” Zedner, 547 U.S. at 507, for
13   rejecting the presumptive applicability of harmless error review in the context of the
14   codefendant exclusion. Accordingly, we conclude that Zedner does not foreclose harmless
15   error review here.

16              As noted above, Sarmiento, like the defendant in Gambino, was reindicted repeatedly,
17   including after the District Court denied her motion to dismiss. She was ultimately convicted
18   at trial. Had the District Court dismissed the indictment without prejudice on Sarmiento’s
19   motion, we see no reason to doubt that the government would have indicted her once again
20   and brought her to trial on or before her actual trial date of September 2016. We therefore
21   conclude that any error made by the District Court was harmless, and Sarmiento is not
22   entitled to vacatur of her conviction.

23                                                         * * *

24

25

26



     2   This provision is now codified at 18 U.S.C. § 3161(h)(7).
                                                              5
1   The judgment of the District Court is therefore AFFIRMED.

2                                          FOR THE COURT:
3                                          Catherine O’Hagan Wolfe, Clerk of Court




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