Opinion
CRIMINAL ACTION NO. 2:19cr189
07-22-2020
UNITED STATES of America, v. Javaid PERWAIZ, Defendant.
Elizabeth M. Yusi, Emily Rebecca Gantt, V. Kathleen Dougherty, Kevin Patrick Hudson, United States Attorney's Office, Norfolk, VA, for United States of America. Lawrence Hunter Woodward, Jr., Ruloff Swain Haddad Morecock Talbert & Woodward, PC, Virginia Beach, VA, Emily Meyers Munn, Norfolk, VA, for Defendant.
Elizabeth M. Yusi, Emily Rebecca Gantt, V. Kathleen Dougherty, Kevin Patrick Hudson, United States Attorney's Office, Norfolk, VA, for United States of America.
Lawrence Hunter Woodward, Jr., Ruloff Swain Haddad Morecock Talbert & Woodward, PC, Virginia Beach, VA, Emily Meyers Munn, Norfolk, VA, for Defendant.
MEMORANDUM ORDER
REBECCA BEACH SMITH, SENIOR UNITED STATES DISTRICT JUDGE
This matter comes before the court on the Defendant's Motion for Speedy Trial and supporting Memorandum of Law, filed on July 5, 2020. ECF Nos. 56, 57. On July 10, 2020, the Government filed a Motion for Findings under the Speedy Trial Act and Memorandum in Support. ECF No. 59. The Defendant filed a Response to the Government's Motion on July 11, 2020. ECF No. 60.
I.
A two-count criminal Complaint and supporting affidavit were filed against the Defendant on November 8, 2019. ECF Nos. 3, 4. On the same day, Magistrate Judge Lawrence R. Leonard issued a Temporary Detention Order. ECF No. 10.
The Government filed a Motion for Detention on November 13, 2019. ECF No. 11. Magistrate Judge Robert J. Krask held a Detention and Preliminary Hearing on November 14, 2019, and issued a Detention Order that day. ECF Nos. 12, 15.
The Defendant filed a Motion for Revocation of the Detention Order on November 25, 2019. ECF No. 20. An eleven-count Indictment was returned against the Defendant on December 5, 2019. ECF No. 21. On December 18, 2019, the Defendant was arraigned before Magistrate Judge Leonard. ECF No. 26. The court, with the parties' agreement, deemed the case complex; the court accepted the waiver of speedy trial; and the jury trial was set for June 2, 2020. Id.
On December 19, 2019, the Defendant filed a motion to continue the hearing on the Motion for Revocation of the Detention Hearing. ECF No. 27. The court granted the motion to continue on the same day. ECF No. 29. The court held a hearing on the Motion for Revocation of the Detention Order on January 17, 2020, ruling that the Defendant be detained pending trial. ECF No. 36. On January 29, 2020, the court issued an Order to this effect. ECF No. 37.
On April 21, 2020, the Government filed a consent Motion for Speedy Trial Findings. ECF No. 44. The Motion requested the court to incorporate the findings from General Orders 2020-02, 2020-06, 2020-07, and 2020-12, which collectively continued criminal jury trials until June 10, 2020, and made corresponding findings under the Speedy Trial Act, due to the Coronavirus ("COVID-19") pandemic. See ECF No. 44 at 4. The Motion further requested that the court "find that the interests of justice outweigh the public and the defendant's interest in speedy trial, and that failure to grant such a continuance would not only make a continuation of that proceeding impossible but result in a miscarriage of justice." Id. at 5. The Defendant did not oppose the Motion. See id.
All General Orders are from Case No. 2:20mc7 and are publicly available online via the court's website. See http://www.vaed.uscourts.gov/covid-19.html. Citations to the General Orders will be to the Order number itself within Case No. 2:20mc7.
On April 22, 2020, the court granted the Motion, and found that "the ends of justice outweigh the best interest of the public and the defendant in a speedy trial, and that the failure to grant such a continuance would prevent the completion of full and fair jury proceedings and result in a miscarriage of justice." ECF No. 45. Accordingly, the court cancelled the June 2, 2020, trial date and stated that the trial would be rescheduled to a later date. Id.
On May 26, 2020, Chief Judge Mark S. Davis issued General Order No. 2020-16. This General Order found that, after balancing the factors in 18 U.S.C. § 3161(h) (7) (B), the "ends of justice" served by granting a further continuance of criminal jury trials outweighed the interests of the public and the defendant in a speedy trial and continued all criminal jury trials until July 7, 2020. General Order No. 2020-16 at 15 n.10, 16. Accordingly, General Order 2020-16 excluded the time period of June 11, 2020, through July 6, 2020, from speedy trial calculations. See id. at 15 n.10.
On June 19, 2020, a 63-count Superseding Indictment was returned against the Defendant. ECF No. 50. The Defendant was arraigned on June 24, 2020. ECF No. 54. At the arraignment, the Defendant's trial was set for September 2, 2020, within the speedy trial cutoff at that point. See id.; 18 U.S.C. § 3161(c) (1) (trial to be set seventy (70) days from first appearance on charges).
On June 30, 2020, Chief Judge Davis issued General Order 2020-19. This General Order found that, after balancing the factors in 18 U.S.C. § 3161(h) (7) (B), the "ends of justice" served by granting a further continuance of criminal jury trials outweighed the interests of the public and the defendant in a speedy trial and continued all criminal jury trials until September 14, 2020. General Order 2020-19 at 22-23. Accordingly, the General Order excluded the time period of July 7, 2020, through September 13, 2020, from speedy trial calculations. Id. at 22. Pursuant to General Order 2020-19, on July 1, 2020, the court entered a written notice on the case docket removing the Defendant's September 2, 2020, jury trial date from the trial calendar, with a new trial date to be set "as appropriate" after September 13, 2020.
On July 7, 2020, Chief Judge Davis issued General Order 2020-20. This General Order adopted a modified jury summons packet to be sent to prospective jurors within the entire Eastern District of Virginia, for reporting on Friday, September 11, 2020, for criminal jury trials to begin on September 14, 2020. See General Order 2020-20 at 1-2, Attachment 1 (jury summons packet).
II.
The Defendant filed his Motion for Speedy Trial on Sunday, July 5, 2020, ECF No. 56, and the Government filed its Motion for Findings under the Speedy Trial Act on Friday, July 10, 2020, ECF No. 59. The court held a hearing on the respective Speedy Trial Motions on July 14, 2020, during which the court heard argument from counsel for the Defendant and counsel for the Government. See ECF No. 61.
After due consideration, and for the reasons set forth below, the undersigned presiding judge GRANTS the Defendant's Motion to the extent it requests that trial be commenced within the cutoff date set by the Speedy Trial Act of 1974, 18 U.S.C. § 3161, and DENIES the Defendant's Motion to the extent the court's General Orders are challenged. In so doing, the court makes findings under the Speedy Trial Act, which render the Government's Motion MOOT.
As the presiding judge, the undersigned takes no issue and concurs with the COVID-19 General Orders issued by the court in Case No. 2:20mc7. See supra note 1.
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III.
Under the Speedy Trial Act, a trial normally must commence within seventy (70) days of the indictment or the Defendant's first appearance, whichever is later. 18 U.S.C. § 3161(c) (1). The Defendant's first appearance after the Superseding Indictment was June 24, 2020. See supra Part I. However, the Defendant did not object to General Order 2020-16, which excluded the time period from June 11, 2020, through July 6, 2020, from speedy trial calculations. See General Order 2020-16 at 15-16. Thus, the speedy-trial clock did not begin to run anew until July 7, 2020, at which time the current Motion had been filed on July 5, 2020.
"Any period of delay resulting from ... any pretrial motion" and "reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement by the court" is excluded from the speedy trial calculation. 18 U.S.C. § 3161(h) (1) (D), (H) ; see United States v. Tinklenberg, 563 U.S. 647, 650, 131 S.Ct. 2007, 179 L.Ed.2d 1080 (2011). Moreover, "the speedy-trial clock automatically stops when a defendant files any type of pretrial motion, including a motion to dismiss for a Speedy Trial Act violation." United States v. Stewart, 729 F.3d 517, 523 (6th Cir. 2013). Accordingly, the time between the Defendant's filing of this Motion and the issuance of this Memorandum Order is excluded from the speedy trial calculation in determining when the Defendant's trial must commence. That period is seventeen (17) days, i.e., July 5, 2020, to July 22, 2020.
Thus, the Defendant's trial must commence within seventy (70) days of July 22, 2020. Seventy (70) days after July 22, 2020, is Wednesday, September 30, 2020. Therefore, the cutoff under the Speedy Trial Act for the Defendant's trial to commence is Wednesday, September 30, 2020.
IV.
The Clerk is DIRECTED to set the Defendant's criminal jury trial to begin on Tuesday, September 29, 2020, at 11:00 A.M., in Norfolk. The Clerk is further DIRECTED to send a copy of this Memorandum Order to counsel for the Defendant and the United States Attorney at Norfolk.