Opinion
CASE NO. 8:02CR353
December 19, 2003
MEMORANDUM AND ORDER
This matter is before the Court on the Motion for Dismissal (Filing No. 156) filed pro se by the Defendant, Erroll Flynn Shepard. A hearing was not requested. Mr. Shepard filed a brief in support of his motion (Filing No. 185), and the government filed a brief in response (Filing No. 193).
Shepard appears pro se, and standby counsel has ben appointed. (Filing Nos. 150, 153.)
FACTUAL BACKGROUND
On October 24, 2002, Shepard was charged together with five codefendants in a one-Count Indictment charging that Shepard conspired to distribute and possess with intent to distribute 50 grams or more of a mixture or substance containing cocaine base, i.e., crack cocaine. (Filing No. 1.) Shepard was arrested in California, and on April 30, 2003, appeared before Magistrate Judge Robert N. Block in the Central District of California in a proceeding governed by Federal Rule of Criminal Procedure 40. (Filing No. 95.) Judge Block detained Shepard. (Filing No. 93.) On June 3, 2003, Judge Block held an identity hearing and found that Shepard was the individual charged in the Indictment, ordering that Shepard be held on the charge and transported to this district for purposes of further proceedings. (Filing No. 107.) Shepard first appeared in this district on June 20, 2003. (Filing No. 110.)
Additional relevant factual details are set out in the respective portion of the "discussion" section of this Memorandum and Order.
DISCUSSION
Shepard's primary argument regards issues surrounding his arrest warrant. He argues a violation of his Fifth Amendment due process rights, as well as Federal Rule of Criminal Procedure 5 and the Interstate Agreement on Detainers Act ("IADA"), 18 U.S.C. § 1-9, 18 U.S.C. App. 2. Shepard argues that these various laws were violated because he was never shown or provided a copy of the Nebraska arrest warrant prior to his extradition to this district. Therefore, Shepard argues that he was arrested without a warrant and it follows that a complaint should have been filed in Nebraska pursuant to Federal Rule of Criminal Procedure 5(b). He objects to the fact that the warrant was signed by the Clerk of the Court for the District of Nebraska as opposed to a district or magistrate judge.
Shepard also raises his familiar argument that his "due process, constitutional, and substantial rights" were violated because of matters addressed in previous orders, i.e., alleged lack of investigator, paralegal, and access to law library.
Finally, although the issue is not raised in his motion, Shepard argues in his brief that his rights under the Speedy Trial Act, 18 U.S.C. § 3161, et seq., were violated.
Each issue raised in Shepard's motion and brief is discussed below. Warrant
Federal Rule of Criminal Procedure 5(b) requires that, in an arrest absent a warrant, a complaint showing probable cause be filed in the district where an offense was allegedly committed. Federal Rule of Criminal Procedure 5(c) governs situations involving an arrest in a district other than where the offense was allegedly committed. Fed.R.Crim.P. 5(c) 40(b). Rule 5(c) provides, in relevant part, the following specific procedures:
(3) Procedures in a District Other Than Where the Offense Was Allegedly Committed. If the initial appearance occurs in a district other than where the offense was allegedly committed, the following procedures apply:
. . .
(D) the magistrate judge must transfer the defendant to the district where the offense was allegedly committed if:
(I) the government produces the warrant, a certified copy of the warrant, a facsimile of either, or other appropriate form of either; and
(ii) the judge finds that the defendant is the same person named in the indictment, information, or warrant; and
(E) when a defendant is transferred and discharged, the clerk must promptly transmit the papers and any bail to the clerk in the district where the offense was allegedly committed.
Federal Rule of Criminal Procedure 9(b) provides that an arrest warrant on an indictment be signed by the clerk.
This requirement is in contrast with Federal Rule of Criminal Procedure 4(b)(1)(D), which requires that an arrest warrant on a complaint be signed by a judge.
The IADA, at § 2, Art. III, sets out various requirements regarding cases involving, among others, a detainer of one federal district court lodged in another federal district court.
Shepard's case was initiated by Indictment. (Filing No. 1.) Therefore, Rule 9(b), requiring that the arrest warrant be signed by the clerk of the court, was triggered. The warrant reflects that it was properly signed by Gary D. McFarland, Clerk of the United States District Court for this district. The warrant also reflects that it was properly executed on Shepard by a United States Marshal on March 6, 2003. (Filing No. 112.)
The docket sheet from Shepard's case in the Central District of California was transmitted to this Court pursuant to Rule 5(c)(3)(E). The California docket sheet reflects that the warrant and supporting affidavit were filed and brought to the attention of the California court on April 30, 2003, the date of Shepard's initial appearance in the California court. (Filing No. 91.) Therefore, the requirement of Rule 5(c)(3)(D)(I) (producing the warrant) was met. After an identity hearing held on June 3, 2003, the California magistrate judge found that Shepard was the person charged in the Indictment (Filing No. 107), meeting the requirements of Rule 5(c)(3)(D)(ii).
After careful review, the Court finds that Rule 5 was complied with in all respects. Therefore, the Court concludes that Shepard's initial proceedings and extradition did not violate his due process or other constitutional rights, any provisions of the Federal Rules of Criminal Procedure, or the IADA. Due Process
Shepard did not argue that any specific provision of the IADA was violated.
Shepard again argues that his "due process, constitutional, and substantial rights" were violated because of the alleged lack of investigative and paralegal services, denial of access to a law library or an adequate law library in jail, and other similar claims. Shepard did not provide additional argument or legal authority in support of these general allegations included in his motion. Accordingly, this argument is deemed waived pursuant to NELR 7.1(a)(1). Shepard's motion is also denied for the reasons previously stated by the Court in its Memorandum and Order resolving other pretrial motions filed by Shepard. (Filing No. 178.)
Speedy Trial
Shepard did not include an alleged violation of the Speedy Trial Act ("Act"), 18 U.S.C. § 3161, et seq., in his motion. In his brief, however, Shepard raises a general claim that he has not been brought to trial within the seventy-day period required by the Act. Beyond this general statement, Shepard does not provide his own speedy trial calculation or any detailed statement as to the manner in which he alleges that the Speedy Trial Act has been violated. With the aid of the record and the government's speedy trial calculation, the Court will nonetheless calculate Shepard's speedy trial time.
On April 30, 2003, Shepard first appeared on this matter before the California Magistrate Judge. On the same day, Shepard's identity hearing was continued to May 8, 2003. On May 8, 2003, the identity hearing was continued to May 22, 2003. On May 22, 2003, the identity hearing was continued to May 30, 2003. On May 27, 2003 Shepard filed a motion to dismiss the Indictment, and the motion was still pending on May 29, 2003, when the identity hearing was again continued to June 3, 2003. On June 3, 2003, the identity hearing was held. On that date, Shepard's case was removed to this district.
The government argues that as long as Shepard's speedy trial case was pending in the Central District of California, the speedy trial clock had not started to run. 18 U.S.C. § 3161(c)(1). Although the clock otherwise would have begun on the day after his first appearance in California, the government argues that, pursuant to 18 U.S.C. § 3161(h)(1)(F), the starting of the clock was prohibited by the continued motions to continue the identity hearing until it was finally held on June 3, 2003.
Section 3161(h)(1)(F) allows for excludable time for any "pretrial motion" through hearing on or prompt disposition of the motion. Thus, the question is raised whether an identity hearing is held upon a "motion" for purposes of the Speedy Trial Act. The Federal Rules of Criminal Procedure only refer to the magistrate judge's "find[ing]" that a defendant is the person named in the Indictment. Fed.R.Crim.P. 5(c)(3)(D)(ii). The formal definition of a "motion" is "[a] written or oral application requesting a court to make a specified ruling or order." Black's Law Dictionary 1031 (7th ed. 1999). Procedurally, an identity hearing does not occur upon a formal "motion" as such. Rather, a criminal defendant appearing in a removal hearing pursuant to Rule 40 is advised upon the right to an identity hearing when the charges are based on an indictment or information. Bench Book for U.S. District Court Judges § 1.05 (HTML Version). If a defendant does not contest identity, a hearing on the issue is waived. Where the issue of one's identity is contested, however, the defendant essentially moves for an identity hearing. Therefore, the Court concludes that when a criminal defendant contests identity, in essence the defendant moves for an identity hearing, thereby triggering § 3161(h)(1)(F). Moreover, the Eighth Circuit Court of Appeals has stated that "[d]elays which have been caused by the accused himself can not, of course, be complained of by him." Shepherd v. United States, 163 F.2d 974, 975 (8th Cir. 1947). See also United States v. Sawyers, 963 F.2d 157, 162 (8th Cir. 1992) (stating that a speedy trial challenge is without merit when the time is tolled based on pending motions raised by a defendant). Therefore, the Court concludes that because Shepard contested his identity, the speedy trial clock was stopped through the date the issue was decided on June 3, 2003.
Also on June 3, 2003, once Magistrate Judge Block found that Shepard was the person named in the Indictment, he held Shepard to answer the charges in this district. Judge Block ordered the Marshal to transport Shepard to Nebraska "forthwith." (Filing No. 107.) Shepard's initial appearance in this district was on June 20, 2003. (Filing No. 110.) The time resulting from removal of a case to another district is excludable under 18 U.S.C. § 3161(h)(1)(G).
Therefore, Shepard's speedy trial clock first began to run on June 21, 2003. 18 U.S.C. § 3161(c)(1). It appears that the clock ran until July 7, 2003, resulting in 17 days being used. On July 8, 2003, a motion was filed, resulting in a July 9, 2003, order excluding the time from July 8, 2003 until July 31, 2003. (Filing No. 114.) On July 31, 2003, codefendant Barry Renfold Cooley filed a pretrial motion for a bill of particulars. (Filing No. 120.) Cooley's motion was decided on September 9, 2003. (Filing No. 132.) Also, a motion for a bill of particulars or to suppress (Filing No. 71) filed by codefendant Tony Skannell on April 1, 2003 was scheduled for hearing on September 22, 2003. (Filing No. 134.) Meanwhile, Shepard filed a motion to extend the progression order filed on September 11, 2003. (Filing No. 136.) The September 12, 2003, order granting the motion to amend the progression order stopped the clock until October 3, 2003. (Filing No. 137.) Also, on October 1, 2003, Shepard filed a motion to extend the pretrial motion deadline. (Filing No. 144.) The Order granting the motion excluded the time until defense attorney W. Russell Bowie's motion to withdraw (Filing No. 139) and Shepard's motion for leave to represent himself (Filing No. 140) would be decided. (Filing No. 145.) Those motions were decided on October 20, 2003. (Filing No. 153.) On October 20, 2003, the Court also granted Shepard to November 14, 2003, to file pretrial motions and excluded the time until November 14, 2003. (Filing No. 153.) Meanwhile, on October 22, 2003, Shepard filed several pretrial motions. (Filing Nos. 156-161.) Magistrate Judge Gossett stated that one of those motions (Filing No. 156) would be deemed submitted upon the receipt of the parties' briefs. (Filing No. 178.) The briefing on this motion was completed on December 1, 2003. (Filing No. 193.) The motion at Filing No. 156 is the motion now under consideration. The clock is still stopped. 18 U.S.C. § 3161(h)(1)(J).
The Court notes that, in calculating Shepard's speedy trial time, it did not reference other events that delayed the clock if those matters were mooted by virtue of the delays discussed above. In sum, the Court agrees with the government that only 17 days have elapsed under the Speedy Trial Act and concludes that Shepard's speedy trial rights have not been violated.
CONCLUSION
For the reasons discussed, and after very careful review, the Court will deny the Motion for Dismissal (Filing No. 156).
IT IS ORDERED that the Motion for Dismissal (Filing No. 156) is denied.