Opinion
4:01CR3034
September 9, 2002
MEMORANDUM AND ORDER ON GOVERNMENT'S MOTION TO RECONSIDER
Before me is the government's motion to reconsider the order granting Defendant Salvador Ortega's motion to dismiss the indictment pursuant to the Speedy Trial Act, 18 U.S.C. § 3161 et seq., filing 168. A hearing was held concerning this motion on August 27, 2002. (See filing 169.) At this hearing, the government argued, inter alia, that the indictment should not have been dismissed because the time period within which the defendant must be brought to trial has not yet lapsed. Upon reconsideration, I find that I agree with the government. For the following reasons, the order dismissing the indictment, filing 167, must be vacated.
Under the Speedy Trial Act, a federal criminal defendant must be brought to trial within seventy days from the filing of the indictment or from the date the defendant appears before a judicial officer of the court in which the charge is pending, whichever is later. See 18 U.S.C. § 3161(c)(1); United States v. Cordova, 157 F.3d 587, 598-99 (8th Cir. 1998). However, certain delays are excluded from the computation of time within which a defendant must be brought to trial.See 18 U.S.C. § 3161(h). In this case, the defendant filed a motion to dismiss the indictment on the ground that the seventy days allotted by the Speedy Trial Act had expired. (See filing 163.) I analyzed the defendant's motion and concluded that as of January 28, 2002, seventy-four non-excludable "speedy trial days" had lapsed. (See Mem. and Order on Def.'s Mot. to Dismiss, filing 167.) Since the defendant had not been brought to trial within the time limits established by the Speedy Trial Act, I ordered that the indictment against the defendant be dismissed with prejudice. (See id. at 167.) However, it now appears that my calculation of excludable time contained an error.
The defendant's trial was scheduled to begin on January 28, 2002, until an indefinite continuance was ordered shortly before trial. See infra note 2.
On November 16, 2001, Noe Munoz Jr., one of Mr. Ortega's co-defendants, filed a motion for a continuance. (See filing 123.) I entered an order granting this motion on December 3, 2001. (See filing 128.) Pursuant to 18 U.S.C. § 3161(h)(1)(F) and (J), the days from November 16, 2001, through December 3, 2001, should not have been included in the speedy trial time calculation. See 18 U.S.C. § 3161(h)(1)(F), (J). See also United States v. Driver, 945 F.2d 1410, 1414 (8th Cir. 1991) (noting that time period during which a motion for a continuance was pending must be excluded from the seventy-day speedy trial period); United States v. Fuller, 942 F.2d 454, 457 (8th Cir. 1991) ("Motions filed by one defendant in a multi-defendant case count as motions filed by all of the defendants, and the reasonable time taken to determine those motions will count as excludable time for all defendants."). Although I excluded the days from November 16 through November 21, 2001, from the speedy trial time calculation for other reasons (see Mem. and Order on Def.'s Mot. to Dismiss, filing 167, at 7), I erred by failing to exclude the days from November 22 through December 3. This error inflated my calculation of non-excludable time by twelve days, and, after correcting my count, I find that as of January 28, 2002, only sixty-two "speedy trial days" had lapsed.
In addition, I find that the defendant has been "absent" within the meaning of 18 U.S.C. § 3161(h)(3)(B) since January 25, 2002. Counsel for the defendant has argued quite cogently that the defendant's absence did not actually cause any delay in bringing the defendant to trial in this rather unusual case, and therefore the days from January 25, 2002, through the date of the order dismissing the indictment should not be excluded from the speedy trial calculation pursuant to section 3161(h)(3)(A). However, my research suggests that the events specified in section 3161(h) generally result in "automatic" exclusions of time, and no showing that a delay of the trial was actually caused by the specific event is needed to trigger the speedy trial time exclusion. See, e.g.,United States v. Stuart, 689 F.2d 759, 762-63 (8th Cir. 1982) (rejecting defendant's argument that time associated with pretrial motions is not excludable under section 3161(h)(1)(F) unless the trial is actually delayed by the filing of the motions); United States v. Miles, 290 F.3d 1341, 1350-51 (11th Cir. 2002) (finding that time was excludable under section 3161(h)(3)(A) regardless of whether witness's unavailability actually caused a delay in the trial).
On January 24, 2002, I entered an order continuing the trial indefinitely. (See Order Continuing Trial, filing 144.) The circumstances that motivated this continuance were explained by Michelle Oldham, a former Special Assistant United States Attorney, who testified at the hearing held on August 27, 2002. Oldham testified that in January 2002, she requested a meeting with defense counsel and me to discuss the status of the government's case against the defendant. Her request was granted, and a meeting was held on January 24, 2002. At this meeting, Oldham stated that the government would be unable to proceed with the trial on January 28, 2002, due to a "witness problem." She requested that the case be taken off of the court's schedule, and she indicated that proceedings might be initiated against the defendant "in Iowa." Oldham did not learn of the defendant's absence from the District of Nebraska until sometime after the January 24 meeting. Thus, it seems that the government's motion to continue the trial was not predicated on the defendant's absence.
The defendant has been absent since January 25, 2002. As of that date, the seventy days allotted under the Speedy Trial Act had not lapsed. Since the period of the defendant's absence is to be excluded under 18 U.S.C. § 3161(h)(3)(A), it appears that the defendant may yet be brought to trial within the time limits established by the Speedy Trial Act.
IT IS THEREFORE ORDERED that the order granting the defendant's motion to dismiss the indictment dated August 2, 2002, filing 167, is vacated.
IT IS FURTHER ORDERED that defendant's motion to dismiss the indictment, filing 163, is denied.