Opinion
Case No. 2:01-cr-44.
January 9, 2002
OPINION
Defendant Dale Ernest Manthey is charged in a three-count indictment with possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1), possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i), and dealing in firearms without a license, in violation of 18 U.S.C. § 922(a)(1)(A). Defendant moves to dismiss the indictment arguing that the government failed to comply with the Speedy Trial Act, 18 U.S.C. § 3161(c)(1).
The Speedy Trial Act requires dismissal of defendant's case, with or without prejudice, if defendant "was not tried seventy days after his indictment or the date he first appear[ed] in court, whichever date last occur[red]." United States v. Jenkins, 92 F.3d 430, 438 (6th Cir. 1996),cert. denied, 520 U.S. 1170 (1997). Defendant first appeared in court on August 30, 2001, before Magistrate Judge Timothy P. Greeley. Paul A. Peterson, defendant's original attorney, was present. Defendant was indicted on September 12, 2001. Dkt #10. Because defendant's indictment followed his first appearance in court, the Speedy Trial Act began to run on September 12, 2001.
Trial was scheduled to commence on November 13, 2001 (dkt. # 16), which was well within the 70-day period provided for by the Speedy Trial Act. On November 5, 2001, a final pretrial conference was held, at which time defendant repeatedly expressed concern that his attorney was not prepared to go to trial the following week. Transcript, Pretrial Conference, Nov. 5, 2001 (Dkt. #24), at 4-6, 12-13, 17, 22. Magistrate Judge Greeley continued the November 5, 2001, pretrial conference until November 7, 2001, informing counsel and defendant that he expected them to put in the necessary time in order to determine whether they would be prepared to go to trial on November 13, 2001. Id. at 17, 20. On November 7, 2001, a second final pretrial conference took place. Citing the breakdown in the attorney-client relationship between defendant and Paul Peterson, Magistrate Judge Greeley granted on his own motion an ends-of-justice continuance in order to appoint defendant new counsel and give new counsel an opportunity to meet with defendant. See 18 U.S.C. § 3161(h)(8)(A), (B); see also Dkt. #23. Trial was adjourned without date, but a third final pretrial conference was set for November 29, 2001. Dkt. #23. On November 29, 2001, trial was set for December 17, 2001, with a fourth final pretrial conference scheduled for December 11, 2001. On December 10, 2001, defendant filed this motion to dismiss, claiming that the 70-day period provided for by the Speedy Trial Act, even taking account of excludable periods under the Act, had already run. Dkt. #27.
Defendant's motion for dismissal claims a violation of the Speedy Trial Act as of December 10, 2001. "[I]n the precincts patrolled by the Speedy Trial Act, a motion for dismissal is effective only for periods of time which antedate the filing of the motion." United States v. Tinson, 23 F.3d 1010, 1012 (6th Cir. 1994) (quoting United States v. Connor, 926 F.2d 81, 84 (1st Cir. 1991)). In addition, defendant states that the filing of this motion for dismissal stops the 70-day speedy trial clock until resolution of the motion. Thus, the only question addressed by the Court on this motion for dismissal is whether the 70-day speedy trial deadline had run by December 10, 2001.
Defendant is correct that 88 days had elapsed between September 12, 2001, the day on which the 70-day period began to run, and December 10, 2001, when defendant filed his motion to dismiss based on violation of the Speedy Trial Act. As defendant correctly asserts, unless those 18 days are excludable from the 70-day speedy trial deadline, the Speedy Trial Act has been violated in this case.
While the speedy trial clock began to run on September 12, 2001, the day of indictment is not included when calculating the 70-day period.See United States v. Mentz, 840 F.2d 315, 326 (6th Cir. 1988).The Act excludes from the 70-day period "[a]ny period of delay resulting from other proceedings concerning the defendant." See 18 U.S.C. § 3161(h)(1). October 5, 2001, the day of defendant's arraignment, is excluded. See Mentz, 840 F.2d at 326. The seven days between October 11, 2001, and October 17, 2001, during which time defendant's motion to review detention order was under advisement, are excluded. See 18 U.S.C. § 3161(h)(1)(F) (excluding "any delay resulting from any pretrial motion"). The parties also agree that November 5, 2001, and November 29, 2001, the days on which final pretrial conferences were held, are excluded from the 70-day period. See 18 U.S.C. § 3161(h)(1); see also United States v. Santiago-Becerril, 130 F.3d 11, 16 (1st Cir. 1997). Thus, the day of indictment, the delay occasioned by consideration of defendant's detention motion, and the two days on which final pretrial conferences were held are excluded from the 70-day period. Even before considering the effect of the November 7, 2001, ends-of-justice for purposes of computing the speedy trial calendar. Defendant's Motion and Brief to Dismiss the Indictment with Prejudice Pursuant to the Speedy Trial Act ¶ 4 at 2. The Speedy Trial Act excludes from the speedy trial calculation "delay resulting from consideration by the court of a proposed plea agreement to be entered into by the defendant and the attorney for the Government." 18 U.S.C. § 3161(h)(1)(I) (emphasis added). As defendant points out, consideration by the defendant of a plea offer does not fit squarely within the statutory exception. The Court's interpretation of the exclusion for ends-of-justice continuances, found at 18 U.S.C. § 3161(h)(8), renders unnecessary a decision on whether the delay from November 30, 2001, through December 3, 2001, is excluded from the speedy trial calculation under 18 U.S.C. § 3161(h)(1)(I).
Defendant states that the delay from November 30, 2001, through December 3, 2001, during which time defendant considered a plea offer from the government, also "might be regarded as excludable delay" continuance on the speedy trial calendar, 10 of the original 18 days by which the 70-day deadline was exceeded are excluded from the speedy trial calculation.
The Speedy Trial Act also excludes from the 70-day deadline, any period of delay resulting from an ends-of-justice continuance, so long as the judge entering the continuance sets forth either orally or in writing the reasons why granting the continuance outweighs the public's and the defendant's interest in a speedy trial. See 18 U.S.C. § 3161(h)(8)(A). Magistrate Judge Greeley granted an ends-of-justice continuance on November 7, 2001, setting forth in writing the reasons for the continuance, but adjourning the trial without date. As a result, the issue in this case is the period of time that the ends-of-justice continuance tolled the speedy trial clock. In his motion, defendant states that only November 7 and November 8, 2001, during which time defendant obtained new counsel, are excluded from the speedy trial calculation.
Christopher Yates entered an appearance on behalf of the defendant on November 8, 2001. Dkt. #25.
The Speedy Trial Act provides that any period of delay that results from the granting of an ends-of-justice continuance is excluded in calculating the 70-day period. See 18 U.S.C. § 3161(h)(8)(A). When an ends-of-justice continuance is entered without setting a new trial date, for what period of time is the speedy trial clock tolled?
Several Circuits have held that an open-ended ends-of-justice continuance is permissible under the Speedy Trial Act so long as the delay involved is ultimately reasonable to length. See, e.g., United States v. Spring, 80 F.3d 1450, 1458 (10th Cir.) (holding that "an open-ended continuance for a reasonable time period is permissible" and that based on the circumstances of the case the open-ended continuance granted was reasonable in length), cert. denied, 519 U.S. 963 (1996);United States v. Lattany, 982 F.2d 866, 868 (3d Cir. 1992) (holding that open-ended ends-of-justice continuances "are not prohibited if they are reasonable in length"), cert. denied, 510 U.S. 829 (1993); United States v. Rush, 738 F.2d 497, 508 (1st Cir. 1984) (holding that a bar against open-ended continuances would not serve the need for flexibility required of the adversary system but noting that "some sort of reasonableness limitation [might be] appropriate to prevent continuances from delaying trials unfairly and circumventing the dismissal sanctions in the Speedy Trial Act"). cert. denied, 470 U.S. 1004 (1985); but see United States v. Jordan, 915 F.2d 563, 565 (9th Cir. 1990) (holding that an ends-of-justice exclusion is proper only if made for a specified period of time). The Sixth Circuit recently weighed in on the question. InUnited States v. Sabino, ___ F.3d ___, 2001 U.S. App. LEXIS 26889 (6th Cir. Dec. 19, 2001), the Sixth Circuit held that "open-ended ends-of-justice continuances for reasonable time periods are permissible in cases where it is not possible to preferably set specific ending dates." Id. at *13. The Court went on to conclude that "there was no unreasonable delay in the management of [the] case and the [Speedy Trial Act] was not violated by the district court's granting of open-ended ends-of-justice continuances." Id. at *14. Therefore, if the period of delay occasioned by an open-ended ends-of-justice continuance is reasonable, that period of time is excluded when calculating the Speedy Trial Act's 70-day deadline. See 18 U.S.C. § 3161(h)(8)(A).
While it is certainly preferable to set a new trial date when entering an ends-of-justice order, the facts of this case indicate that adjourning the trial without date was warranted. First, the reason for granting the ends-of-justice continuance was to appoint new counsel for defendant. Dkt. #23. A new attorney needs time to become familiar with the case and to prepare for trial. Because defendant's new counsel was not present at the November 7, 2001, pretrial conference, Magistrate Judge Greeley was unable to determine the time necessary for counsel to prepare for trial. In addition, in this case, the Federal Public Defender's Office, which was appointed to represent defendant after the November 7, 2001, pretrial conference, is located several hundred miles from where defendant is being detained. Magistrate Judge Greeley would want to ensure that defendant's new counsel had adequate time to travel in order to meet with his new client, as well as prepare for trial Not having the benefit of new counsel's input on the time necessary to prepare for trial, it was reasonable for Magistrate Judge Greeley to adjourn the November 13, 2001, trial without date.
Second, Magistrate Judge Greeley did set a final pretrial conference date of November 29, 2001, in the ends-of-justice order, and, at the November 29 conference, trial was set for December 17, 2001. Therefore, while a trial date was not set, the ends-of-justice order was not left completely open-ended with the defendant uncertain as to when further proceedings in his case would occur. See United States v. Hill, 197 F.3d 436, 443 (10th Cir. 1999) (finding that open-ended ends-of-justice continuance did not violate Speedy Trial Act and noting that a little over a month after granting the continuance the district court had scheduled a status conference, at which time a trial date was set).
The Court also finds that the delay between November 13, the originally scheduled trial date, and December 17, the rescheduled day for trial, was reasonable. First, the Court notes that had trial gone forward on December 17, the delay in commencing trial would have been 34 days — just shy of five weeks. This is not a case in which trial was put off for several months or which involved multiple orders continuing trial based on ends-of-justice findings. The only reason that trial did not go forward on December 17, 2001, was because defendant filed this motion to dismiss on the day before the December 11, 2001, final pretrial conference. Given the distance that defendant's counsel had to travel in order to meet with his client in order to prepare for trial, a delay in commencing trial of less than five weeks is not per se unreasonable.
Second, any delay in this case was caused by defendant, and was necessary to ensure that defendant was adequately represented. The purpose of the ends-of-justice continuance was to appoint new counsel for defendant, who would need time to prepare for trial. Two issues raised at the November 5 and November 7, 2001, final pretrial conferences indicate that the delay in commencing trial until December 17, 2001, was reasonable. At the November 5, 2001, final pretrial conference, defendant complained that his attorney was not prepared to go to trial, in part, because his attorney had not talked to 15 people whom defendant thought should be subpoenaed for trial. Dkt. #24 at 5. Paul Peterson told Magistrate Judge Greeley that he would not be able to go to trial on November 13, if there were 15 witnesses of whom he was unaware. Id. at 12. At the November 7, 2001, final pretrial conference, Peterson indicated that defendant might raise an insanity defense. Government Response to Defendant's Motion to Dismiss the Indictment with Prejudice Pursuant to the Speedy Trial Act ¶ 5 at 2. While defendant stated that he did not want to assert an insanity defense, he did want to put on witnesses to testify that he was "not himself." Id. In the ends-of-justice order, Magistrate Judge Greeley ordered the Federal Public Defenders' Office to notify him no later than November 21, 2001, as to whether defendant intended to file a notice of insanity defense. Dkt. #23. Given defendant's assertion that there were 15 witnesses with whom defense counsel needed to speak coupled with the need for new defense counsel to evaluate whether to file an insanity defense, as well as otherwise prepare for trial, a delay in commencing trial until December 17, 2001, certainly was not unreasonable.
In conclusion, there was no unreasonable delay in the management of this case. The Court finds that the period of time from November 7, 2001, when Magistrate Judge Greeley granted an ends-of-justice continuance, until December 17, 2001, when trial was to have taken place, is excluded from the 70-day deadline imposed by the Speedy Trial Act. As a result, as of December 10, 2001, fewer than 70 non-excludable days had run on the speedy trial clock. Therefore, no violation of the Speedy Trial Act has occurred in this case.
An order consistent with this opinion will be entered forthwith.
ORDER
In accordance with the Court's Opinion of even date,
Defendant's motion to dismiss the indictment with prejudice pursuant to the Speedy Trial Act (Dkt. #27) is DENIED.
IT IS SO ORDERED.