Summary
In Goward, the defendant, who was charged along with nine other co-defendants with various drug trafficking and weapons offenses, filed a motion contending that the Speedy Trial Act was violated.
Summary of this case from U.S. v. SimpsonOpinion
Case Number 02-20043-BC
January 15, 2004
OPINION AND ORDER DENYING DEFENDANT'S MOTION TO DISMISS INDICTMENT FOR SPEEDY TRIAL ACT VIOLATIONS
The Speedy Trial Act requires that a person arrested for a federal crime be formally charged by indictment or information within 30 days of his arrest, and once charged he must be brought to trial within 70 days. See 18 U.S.C. § 3161(b) (c)(1). The defendant, David A. Goward, who stands charged along with nine other co-defendants with various drug trafficking and weapons offenses, has filed a motion contending that both of these provisions have been violated, and he seeks dismissal of the second superseding indictment that is presently pending against him. The Court held a hearing on the motion on December 18, 2003 and took the matter under advisement. The Court now finds that Goward's arrest on federal charges occurred on August 29, 2002 when a complaint was filed accusing him of federal crimes. The grand jury returned the initial indictment against him on September 25, 2002, within the 30-day time limit prescribed by Section 3161(b) of the Act. The Court also finds that when certain periods of delay are properly excluded in accordance with Section 3161(h), the 70-day time limit has not yet elapsed. The Court, therefore, finds that no violation of the Speedy Trial Act has occurred and will deny the defendant's motion to dismiss.
I.
According to search warrant affidavits filed in connection with previous motions, David Goward came to the attention of Michigan State Police Trooper Scott Taylor some time during the summer of 2002 when Taylor was using an informant to investigate a marijuana trafficking operation in the mid-Michigan area. Taylor was assigned to the Bay Area Narcotics Enforcement Team, known by the acronym "BAYANET," which is a so-called "concept unit" consisting of the joint forces of federal, state and local police agencies authorized to enforce the controlled substance laws. A BAYANET unit learned that individuals intended to transport a trailer load of marijuana into the area, and surveillance was set up at the offloading site. The truck arrived on August 14, 2002, and the BAYANET team apprehended the individuals as they were unloading bricks of marijuana. Approximately 100 pounds of marijuana was siezed.Goward was arrested on August 14, 2002 and charged along with Armando Contreras and Chon Hinojosa in Michigan's 70th District Court with controlled substance violations under state law. Goward was arraigned and remained in custody. Unites States Drug Enforcement Agent John Jewett testified at the hearing on the present motion that he participated in the August 14 arrest through his involvement in BAYANET, but that the matter was not the subject of a federal investigation until he opened a DEA file on August 16, 2002. Jewett said that eventually a decision was made that the criminal prosecution would proceed in federal court, and that the state would handle the forfeiture proceedings. On August 28, 2002, a federal warrant was issued for Goward, Contreras and Hinojosa, and a complaint was filed against them the next day. The state charges were subsequently dismissed. The grand jury returned the indictment against these defendants on September 25, 2002. Goward was arraigned on October 15, 2002.
Motion practice began immediately. The magistrate judge had ordered the defendant detained on September 9, 2002, and Goward filed a motion on September 12, 2002 to amend that order. That motion was heard on September 24, 2002, and this Court entered an order denying the motion on Spetember 27, 2002. Goward filed a motion on October 2, 2002 seeking substitution of counsel, which was granted on October 18, 2002. On October 28, 2002, Magistrate Judge Charles E. Binder entered a scheduling order in which he determined that "time period from October 29, 2002 to December 16, 2002, be excluded for the purpose of computing the time limits under § 3161(g) [sic] pursuant to 18 U.S.C. § 3161(h)(8)(A)." October 31, 2002 Order Determining Excludable Delay and Criminal Trial Notice and Standing Order. He made this determination on the basis of a request from defense counsel for extensions of motion-filing deadlines so that discovery material could be obtained and reviewed and motions could be filed. All counsel stipulated that this period would be excluded from time computations under the Speedy Trial Act, and Goward makes no claim here that the excluded time should be counted against the 70-day requirement.
The grand jury returned a superseding indictment on November 13, 2002. Thereafter, the Court entered an order on December 31, 2002, based upon a stipulation filed by all counsel, finding "that the time period from December 11, 2002 to January 31, 2003 be excluded for the purpose of computing time limits pursuant to 18 U.S.C. § 3161(h)(8)(A)." December 31, 2003 Order Pursuant to Stipulation to Adjourn Motion Cut-Off, Plea Cut-Off and Trial Dates and Determining Excludable Delay. Goward does not challenge this finding. Then, on January 28, 2003, fellow defendant Contreras filed a motion to suppress evidence. Goward filed a similar motion on January 30, 2003. The government responded on February 20, 2003, and the Court scheduled a hearing on the motions for March 26, 2003. The hearing was rescheduled several times at the request of counsel, and Coward's motion ultimately was heard on May 14, 2003. On that same date, the Court adjourned the hearing on Contreras' motion and allowed him to file a supplemental brief. Goward's motion was taken under advisement. Goward does not contend here that any of the time from the filing of the suppression motion up to this point should be counted against the 70-day period under the Speedy Trial Act.
When the Court took Coward's suppression motion under advisement, it granted Goward's and the government's request to file supplemental briefs to address additional discovery items that Goward's attorney requested at the hearing. Goward was ordered to file his supplemental brief on or before May 28, 2003, and the government was given until June 11, 2003 to respond. In the mean time, however, a second superseding indictment was unsealed on May 22, 2003 adding seven new defendants, including the defendant's sister, Karen Lopez.
Arraignments were completed on the newly added defendants on July 18, 2003. Magistrate Judge Binder appointed counsel for one of the new defendants at approximately that time and ordered the new attorney to obtain the discovery materials from counsel for the co-defendants. Magistrate Judge Binder entered an order on July 23, 2003 determining that the time period from the unsealing of the second superseding indictment, that is, May 22, 2003, through the date of the last arraignment, July 18, 2003, was "deemed and "ends-of-justice" excludable delay for purposes of the Speedy Trial Act." July 23, 2003 Order Determining Excludable Delay and Notice of Scheduling Conference. Goward challenges this finding. Magistrate Judge Binder further found that the time period from July 23, 2003 through August 26, 2003 was excluded from the 70-day time requirement because the newly appointed attorney needed time to prepare. Goward does not contest this second finding. The magistrate judge set a scheduling conference for August 26, 2003.
On August 8, 2003, the Court issued its opinion and order denying Contreras' and Goward's motion to suppress evidence. Then on August 28, 2003, following the scheduling conference, Magistrate Judge Binder entered another order determining excludable delay from August 26 through October 26, 2003 based on the following finding:
Government counsel advised that it would be another two weeks before distribution of all discovery material would be complete. In light of this, defense counsel asked that they be afforded an additional sixty days to receive material, review the material with their clients, and make a determination on the necessity of pre-trial motions. Government counsel did not oppose the request. All counsel asked that the additional time be considered an "Ends-of-Justice" excludable delay for purposes of the Speedy Trial Act. Taking into consideration the number of defendants in this case, and the allegations of conspiracy, the Court finds the request for additional time to be reasonable, and further finds that the ends of justice served by a continuance outweigh the best interests of the public and the Defendants in a speedy trial.
August 28, 2003 Order Determining Excludable Delay and Criminal Trial Notice and Standing Order. Goward has not alleged that this finding was erroneous or that the time for preparation should not be excluded.
On October 3, 2003, co-defendant Karen Lopez filed eight motions including a motion to suppress evidence and a motion to suppress statements. A hearing was held on these motions on November 17, 2003. On November 25, 2003, the Court denied most of these motions; however the evidentiary hearing on the suppression motions was continued because of the unavailability of a government witness who was unable to travel to the district due to medical reasons. Subsequently, arrangements were made to take the testimony of this witness through the use of video-conferencing equipment, and the hearing was completed on December 22, 2003, and the motion was taken under advisement and remains pending.
Goward filed the present motion on October 31, 2003 along with a motion for discovery. The Court denied the discovery motion on November 6, 2003. Thus, the motions that remain pending in this case are Goward's present motion to dismiss, and co-defendant Karen Lopez's two suppression motions. Co-defendant Contreras has pleaded guilty, and the other co-defendants await trial.
Goward contends that there was an unlawful delay between his arrest and indictment. He also argues that the period from June 13, 2003 (30 days after his suppression motion was taken under advisement) until the motion was decided on August 8, 2003, coupled with previous non-excludable delay exceeds the Speedy Trial Act's 70-day limit and requires dismissal of the indictment. The government opposes the motion.
II. A.
The defendant's claim of excessive delay between arrest and indictment requires the Court to consult 18 U.S.C. § 3161(b), which states:
Any information or 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. If an individual has been charged with a felony in a district in which no grand jury has been in session during such thirty-day period, the period of time for filing of the indictment shall be extended an additional thirty days.
(Emphasis added.) If a court fails to comply with Section 3161, then "such charge against that individual contained in [the] complaint shall be dismissed or otherwise dropped." 18 U.S.C. § 3162(a)(1).
Goward argues that his arrest on August 14, 2002 by BAYANET officers on state drug charges provoked the commencement of Section 3161(b)'s time period. He reasons that the September 25, 2002 indictment, therefore, came too late. However, the 30-day time limit "is not triggered until there is a federal `arrest.'" United States v. Murphy, 241 F.3d 447, 454 (6th Cir. 2001). Goward was taken into custody on August 14 and charged with state offenses. DEA Agent Jewett's affiliation with BAYANET did not transform this detention into a federal enterprise. The Sixth Circuit elaborated on this concept in United States v. Blackmon, 874 F.2d 378, 381-82 (6th Cir. 1989) (citations omitted; emphasis added), where the court explained:
A defendant is not "arrested" for purposes of the Speedy Trial Act until formal federal charges are pending. An "arrest" refers to the point at which the defendant is charged with a crime, therefore, a defendant is not "arrested" until a formal complaint or formal charge is issued. Regardless of the degree of federal involvement in a state investigation and arrest only a federal arrest initiates the running of the time limit established by 18 U.S.C. § 3161. An arrest by state officers, who are accompanied by federal officers, does not constitute an "arrest" under Section 3161. There is no federal arrest until the defendant is taken into federal custody, notwithstanding the fact that the state and federal officials were cooperating when the defendant was in state custody.Blackmon, 874 F.2d at 381-82 (citations omitted; emphasis added). Thus, for purposes of the federal Speedy Trial Act, Goward was not "arrested" on August 14, 2002 even though he was incarcerated on state charges subjected to questioning by federal agents. He was only "arrested" within the meaning of the Act on August 29, 2002 when the federal complaint was filed. Goward's subsequent indictment on September 25, 2002 fell within the 30-day time limit prescribed by Section 3161(b), and his rights under the Act were not violated.
B.
The Speedy Trial Act requires that a defendant be brought to trial within 70 days of the return of the indictment, subject to the exclusion of certain time periods for trial preparation and other necessary events therein set forth that might arise in a given case. See 18 U.S.C. § 3161(h). Section 3161(c)(1) states:
In any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs. If a defendant consents in writing to be tried before a magistrate [United States magistrate judge] on a complaint, the trial shall commence within seventy days from the date of such consent.18 U.S.C. § 3161(c)(1). If a court fails to bring a defendant to trial within 70 days, the information or indictment upon which the defendant is charged "shall be dismissed on motion of the defendant." 18 U.S.C. § 3162(a)(2).
The pre-trial, post-indictment delays that are excluded from the 70-day period are described in 18 U.S.C. § 3161(h). When multiple defendants are joined in one indictment, as here, the excludable delay of one co-defendant is ascribed to all defendants. Blackmon, 874 F.2d at 380 (reasoning that Section 3161(h)(7) excludes "a reasonable period of delay when the defendant is joined for trial with a co-defendant as to whom the time for trial has not run and no motion for severance has been granted," and therefore "[a]ll defendants who are joined for trial generally fall within the speedy trial computation of the latest co-defendant").
The defendant bears the initial burden of demonstrating a Speedy Trial Act violation, although the government must come forward with evidence that certain time periods may be excluded from the time computation. See 18 U.S.C. § 3162(a)(2); Murphy, 241 F.3d at 454. "Once the defendant establishes a prima facie case that the government violated the Act (a simple matter of producing a calendar and showing that more than 70 days have passed since the indictment (or last appearance) and trial has yet to begin), the government has the burden of proving excludable time by a preponderance of the evidence." United States v. Jenkins, 92 F.3d 430, 438 (6th Cir. 1996).
The 70-day limit for trial begins to run from the latter of two days: when the defendant is indicted, or when the defendant "appear[s] before a judicial officer." 18 U.S.C. § 3161(c)(1). This Circuit construes the term "appear" to mean "arraignment," that is, when the defendant enters a not-guilty plea. See United States v. O'Dell, 154 F.3d 358, 360-62 (6th Cir. 1998); Blackmon, 874 F.2d 380. Goward was indicted on September 25, 2002, and arraigned on October 15, 2002. Although he first appeared before a United States Magistrate Judge on August 29, 2002 for a detention hearing, his arraignment was not completed until October 15, when the 70-day calculation thus would have begun to run. However, under Section 3161(h)(1)(F), time between the filing and the "prompt disposition" of a pre-trial motion is excluded. Goward had filed a motion challenging his detention on September 12, 2002, which was decided on September 27, 2002. He filed another motion on October 2, 2002. The October 2 motion was decided on October 18, and the time did not become countable, therefore, until October 19, 2002. It continued through October 27, 2002 when the magistrate judge made his finding that more delay for trial preparation was required. See 18 U.S.C. § 3161(h)(8)(A) (B)(iv). Nine days elapsed during that period.
As a result of the Court's findings in its December 23, 2003 order and the filing of motions, the time after October 27, 2002 continuing through at least the hearing on Coward's suppression motion on May 14, 2003 was excludable from the 70-day requirement. See 18 U.S.C. § 3161(h)(1)(F), (8)(A) (B)(iv). The defendant acknowledges this exclusion, and he also concedes that 30 additional days are excluded while the motion is under advisement. See 18 U.S.C. § 3161 (h)(1)(J) (excluding "delay reasonable attributed to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement by the court"). The defendant contends that the speedy trial clock commenced to run again on June 14, 2003, but this argument fails to consider when a motion actually becomes "under advisement." United States v. Mentz, 840 F.2d 315, 327 (6th Cir. 1988) (quoting Henderson v. United States, 476 U.S. 321, 329 (1986)). Thus when the motion requires a hearing, as in the case of Goward's suppression motion, and the court allows the parties to submit supplemental filings, "the `under advisement' period will normally begin to run the day after the court has received additional submissions from the parties." Ibid. Thereafter, an additional period of 30 days can be excluded on the theory that the court has taken the matter "under advisement" and will need time to decide the issue. Ibid.; United States v. Moran, 998 F.2d 1368, 1371 (6th Cir. 1993).
In this case, the government was given until June 11, 2003 to file a supplemental brief. The motion became "under advisement" the next day, and thus the time continued to be excluded through July 11, 2003. The time between that date and the next event that the defendant acknowledges gives rise to excludable delay — the order making a finding of necessary trial preparation time for the defendants added by the second superseding indictment beginning July 23, 2003 — was 12 days. When added to the previously-accumulated time, a total of 21 days elapsed. Because no more time has ticked off the speedy trial clock since August 26, due to the filing of motions by Goward and other defendants, the 70-day time limit set forth in Section 3161(c)(1) has not been exceeded and the defendant has not established a violation of the Speedy Trial Act.
There is, however, an additional period of time to be excluded which overlaps the time when the suppression motions were pending: the time from May 22, 2003 through July 18, 2003, as set forth in the first part of Magistrate Judge Binder's July 23, 2003 order. The magistrate stated that the "ends of justice" justified this delay because the added defendants had to be brought before the court and given counsel after the second superseding indictment was unsealed. The last of these defendants, Homero Cantu, first appeared before the magistrate judge on July 15, 2003, and his arraignment was concluded on July 18, 2003. Cantu's speedy trial clock did not commence to run until his first appearance, see 18 U.S.C. § 3161(c)(1), which was July 15. Under Sixth Circuit precedent, this Court could conclude that Goward's speedy trial clock was tethered to Cantu's and was reset at 70 days at that time. See United States v. Cope, 312 F.3d 757, 776-77 (6th Cir. 2002) (holding that where "multiple defendants are charged together and no severance has been granted, one speedy trial clock governs" and that "the excludable delay of one defendant is ascribed to that of all of his codefendants") (citing United States v. Culpepper, 898 F.2d 65, 66-67 (6th Cir. 1990).
However, the magistrate judge's order excluding the delay through July 18 was based on an additional finding, as follows:
On May 22, 2003, a Second Superseding Indictment was unsealed in this case which added seven defendants to this action. The last of those arraignments was completed on July 18, 2003. Last week the Court received a request from [one of the new defendants] Paul Lopez for court[-]appointed counsel. Today, attorney Robert Rhead was appointed to represent the Defendant, and Mr. Rhead was advised to contact prior counsel and make arrangements to receive discovery material any office file that may exist for Defendant, and Mr. Rhead was advised to contact prior counsel and make arrangements to receive discovery material and any office file that may exist for Defendant Paul Lopez.
July 23, 2003 Order Determining Excludable Delay and Notice of Scheduling Conference. Attorney Rhead was appointed to resolve a potential conflict of interest that presented itself when the same attorney appeared on behalf or Paul Lopez and his wife, Karen Lopez. Under Section 3161(h)(8)(A), the court should exclude from the 70-day period "[a]ny period of delay resulting from a continuance granted by any judge on his own motion or at the request of the defendant or his counsel or at the request of the attorney for the Government, if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial." 18 U.S.C. § 3161(h)(8)(A). The court must "set forth its reasons for granting an `ends of justice' continuance on the record, either orally or in writing." United States v. Richmond, 735 F.2d 208, 215 (6th Cir. 1984). Among the factors the court considers are whether the failure to continue the proceedings would result in a miscarriage of justice, or would deny the defendant a reasonable time to obtain counsel. See 18 U.S.C. § 3161 (h)(8)(B)(iv). Here, the magistrate judge observed that the new attorney for co-defendant Paul Lopez needed to obtain discovery materials and familiarize himself with the case. New counsel was appointed to eliminate a potential conflict of interest. The time through July 18, 2003, therefore, is properly excluded. That leaves a gap from July 19 to July 23, 2003, a period of four days. When added to the previous time, only 13 countable days have come off the 70-day time limit.
No other days are non-excludable since co-defendant Karen Lopez filed several motions including her motions to suppress, which remain pending. See Blackmon, 874 F.2d at 380 (the excludable delay of a codefendant is attributed to all fellow defendants).
III.
The defendant has not established a violation fo the Speedy Trial Act. Accordingly, it is ORDERED that the defendant's motion to dismiss indictment [dkt. #156] is DENIED.