Opinion
Case No. 1:03-CR-212
May 19, 2004
ORDER
In accordance with the opinion filed this date, IT IS HEREBY ORDERED that defendant Andrew Ouwenga's motion for joinder in all motions filed by defendant Karen Ouwenga is GRANTED. IT IS FURTHER ORDERED that defendants' motion to dismiss for violation of the Speedy Trial Act is DENIED.
OPINION
Defendant Karen Ouwenga filed a motion to dismiss for violation of the Speedy Trial Act. The motion was filed on the morning of May 18, 2004, shortly before commencement of the trial in this matter. Defendant Andrew Ouwenga proceeded to file a motion to join in all motions filed by Karen Ouwenga, specifically including a request to join in defendant Karen Ouwenga's motion to dismiss for speedy trial violations and speedy trial violations of the 6th Amendment.While defendant Andrew Ouwenga's motion is not timely, the Court will grant the motion and allow Andrew Ouwenga to join in Karen Ouwenga's motion to dismiss for violation of the Speedy Trial Act. Defendants' motion to dismiss for violation of the Speedy Trial Act is DENIED for the reasons that follow.
Defendants contend that the Speedy Trial Act, 18 U.S.C. § 3161, as well as the Speedy Trial Provision contained within the 6th Amendment of the United States Constitution have been violated. In support of their motion, defendants make several arguments with which the Court will deal in turn.
I.
A brief recitation of the facts is necessary in order to rule on this motion. Defendants were found to be in civil contempt on March 7, 2003 for failing to comply with a grand jury subpoena and failing to appear and show cause in front of the Chief Judge of the United States District Court for the Western District of Michigan when ordered to do so. Defendants were held in custody from March 7, 2003 until August 27, 2003 as a result of being found in civil contempt of these orders.Thereafter, on August 27, 2003, defendants were indicted and charged with (1)conspiring to defraud the government in violation of 18 U.S.C. § 371 in count 1; (2)willfully attempting to evade and defeat payment of income taxes for calender years 1997, 1998, 1999, and 2000, in violation of 26 U.S.C. § 7201 in counts 2 through 5; (3)failing to appear before the grand jury after having been served with grand jury subpoenas, in violation of 18 U.S.C. § 401(3) in count 6; and (4)failing to appear before the Chief Judge of the United States District Court for the Western District of Michigan after having been ordered to do so, in violation of 18 U.S.C. § 401(3) in count 7. Additionally, a third defendant, Judith Cormier, was also charged in the same indictment, with failing to appear before the grand jury after having been served with grand jury subpoena and with failing to appear before the Chief Judge of the United States District Court for the Western District of Michigan, after having been ordered to do so.
On September 8, 2003, the three defendants charged in connection with the indictment made their first appearance before the Court, in front of a magistrate judge.
On September 12, 2003, the magistrate judge entered an order of commitment for a competency evaluation as to defendant Judith Cormier. On April 2, 2004, the Court found Judith Cormier competent to stand trial and entered a plea of guilty to the charges against her. The Court accepted her plea on that date and sentenced her to time served. Trial in this matter as to the remaining defendants was then scheduled for May 18, 2004 and commenced as scheduled.
II.
Under the Speedy Trial Act, a criminal defendant must be brought to trial within 70 days of the later of either the filing of an indictment or information against him or her, or his or her first appearance before a judicial officer of the Court in which the charge is pending. 18 U.S.C. § 3161. United States v. Richmond, 735 F.2d 208, 211 (6th 1984).
Defendants first argue that the 70 day time period should commence on August 27, 2003, the date when defendants were indicted. However, because defendants' first appearance before a judicial officer occurred after their indictment, the Speedy Trial Act begins to run on the date of their first appearance, which is September 8, 2003. See United States v. Richmond, 735 F.2d at 211. The last day of the period in question in the case was May 18, 2004, the day on which trial commenced, since commencement of trial marks the end of the countable time under the Speedy Trial Act. 18 U.S.C. § 3161(c)(1); Richmond, 735 F.2d at 211.
The primary issue raised in defendants' motion is whether there is sufficient excludable time within the 252 days between defendants first appearance before the magistrate judge and the commencement of trial to bring this case within the 70 day limit established by the Speedy Trial Act.
Defendants concede that the period between October 10, 2003 until January 28, 2004 and the period between March 16, 2004 until April 1, 2004, should be excluded from the time calculation because there were two motions pending before the Court. This total period of exclusion is 127 days.
Defendant Andrew Ouwenga filed an "application for writ of habeas corpus" on October 10, 2003 which the Court denied on January 28, 2004. Karen Ouwenga filed a Motion for Bill of Particulars on March 15, 2004, which the Court denied on April 5, 2004. These pretrial motions would have served to exclude from calculation any delay resulting from their filing of the motions to the conclusion of the hearings or other prompt dispositions of the motions, pursuant to 18 U.S.C. § 3161(h)(1)(F). Thus, even assuming that these were the only exclusions that would apply to the time calculations, defendants mistakenly conclude that the clock should commence again on April 1, 2004 while the Court considered the Bill of Particulars, rather than on April 5, 2004 when the Court issued its order denying this motion. However, the Court need not address this further since the Court finds that the entire time from September 12, 2003 until April 2, 2004 should be excluded in computing the time for purposes of the Speedy Trial Act.
However, defendants argue that the time period from August 27, 2003 to October 10, 2003 should be counted. Similarly, defendants argue that the time period from January 29, 2004 to March 15, 2004 and the time period from April 2, 2004 to May 17, 2004 should also be counted. Thus, defendants contend that they were held awaiting trial for 125 days, 55 days over the time allowed under the Speedy Trial Act.
Under the Speedy Trial Act, § 3161(h) provides for the exclusion of various time periods. Among them, § 3161(h)(1)(A) excludes any delay resulting from any proceeding, including any examinations, to determine the mental competency or physical capacity of the defendant. Section 3161(h)(7) provides that "a reasonable period delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted."
The Sixth Circuit has ruled that under § 3161(h)(7), "an exclusion applicable to one defendant applies to all co-defendants." United States v. Holyfield, 802 F.2d 846, 847 (6th Cir. 1986); U.S. v. Gurley, et al., 1990 U.S. App. LEXIS 20113, *14 (6th Cir. 1990).
In Gurley, defendants claimed that delays between their initial indictments on July 22, 1987 and the commencement of the trial on July 18, 1989 violated their rights under the Speedy Trial Act and the Sixth Amendment. Gurley, 1990 U.S. App. LEXIS 20113, *12. In Gurley, the two year period of delay included a sixteen month delay due to the mental incompetency of one of the defendants to stand trial. The Sixth Circuit found that the period of incompetency was excludable as to all of the defendants.
Similarly, the delay resulting from determinations of competency with respect to defendant Judith Cormier's is excludable. The period from September 12, 2003 until April 2, 2004, which covers 202 of the 252 days from the period when defendants first appeared until commencement of this trial, are excluded from calculation. Thus, the Court concludes that once the excluded time is subtracted, the total delay was less than seventy days.
This exclusion applies to all defendants, particularly where as here, a motion for severance was filed on February 11, 2004 by defendant Karen Ouwenga but was later withdrawn by Defendant Karen Ouwenga on February 24, 2004. Indeed, on February 24, 2004, after defendant Karen Ouwenga withdrew the motion to sever, the Court explained to defendants that by withdrawing the motion, defendants would have to continue to wait for defendant Judith Cormier's competency determination. The Court also explained that it would have likely granted the motion to sever had it not been withdrawn and would have also, on its own motion, severed defendant Andrew Ouwenga's case, and the two defendants would have been tried together sooner rather than later. Both defendants said that they understood the consequences, however, neither were inclined to move to sever at that stage. The Court then told defendants that they could refile a motion to sever at any time.
On March 29, 2004, defendant Karen Ouwenga did then file a motion to sever from defendant Judith Cormier but the Court denied the motion as moot on April 2, 2004 since defendant Cormier had pled guilty and severance was no longer an issue. Accordingly, defendants cannot now complain about delay resulting from a co-defendant when they did not attempt and indeed withdrew attempts to sever their case from defendant Cormier until 3 days before it was no longer an issue.
Additionally, defendants have attempted to continue to delay trial in this matter. Both have filed motions for continuance. Defendant Karen Ouwenga requested a one month continuance and defendant Andrew Ouwenga requested a two week continuance after the May 18, 2004 trial date.
Defendants also appear to argue, in a somewhat conclusory fashion, that should the Court fail to determine that the speedy trial act was violated during that time period, then the Court should include in its calculations the time between March 7, 2003 and August 27, 2003 when defendants were held in custody as a result of being found in civil contempt for failure to comply with grand jury subpoenas and failure to appear and show cause in front of the Chief Judge of the United States District Court for the Western District of Michigan when ordered to do so.
Defendants cite absolutely no authority for the proposition that a speedy trial calender should begin to run on criminal charges when individuals are detained for civil matters. Defendants in this case were not indicted in connection with the charges for which they stand trial until August 27, 2003. Detainment as a result of civil contempt charges does not commence the speedy trial calender. Accordingly, the Court declines defendants' invitation to include for purposes of Speedy Trial Act calculations the time period when defendants were held in connection with civil contempt.
Thus, defendants motion to dismiss based on Speedy Trial Act violations is DENIED.
Defendants also assert that their Sixth Amendment rights to a speedy trial were violated. In order to evaluate this claim, the Court applies a four-part test weighing the length of delay, the reason for delay, the defendant's assertion of his or her right, and prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530 (1972); See also U.S. v. Holyfield, 802 F.2d 846, 848 (6th Cir. 1986); Gurley, 1990 U.S. App. LEXIS 20113, *15-16.
In Gurley, the court found that while a two year delay was considerable, the reasons for the delay, including the incompetency of one of the defendants, substitution of counsel as to another defendant, and the filing of motions by defendants were responsible for the delay. Id. at *15-16. During that time period, the defendants in Gurley did not raise the speedy trial issue though they claimed they were prejudiced. The court concluded, after weighing the factors, that the defendants sixth amendment rights were not violated.
Here, the delay, under 9 months, is substantially less than the delay found acceptable in Gurley. Additionally, the reasons for the delay also weigh against defendants. These reasons include the incompetency of one of the defendants, the various pretrial motions filed by defendants, and substitution of counsel by defendant Karen Ouwenga. Like in Gurley, defendants did not adequately assert or raise the speedy trial issue prior to trial. Moreover, unlike the defendants in Gurley, defendants in this case make absolutely no claim that they have been prejudiced nor do they discuss the issue of prejudice in conjunction with their argument. Accordingly and after weighing these factors, the Court finds that defendants sixth amendment right to a speedy trial were not violated.
Defendant Karen Ouwenga was originally represented by appointed counsel. On February 24, 2004, defendant Karen Ouwenga filed a motion to substitute counsel, which was granted. Prior to that motion, defendant Karen Ouwenga also attempted to retain other out of state counsel, who was subsequently denied admission to practice, and thus that attempt at substitution of counsel was denied. While defendant Andrew Ouwenga did not move to substitute counsel, he was originally represented by an attorney. Defendant Andrew Ouwenga then moved to represent himself, which the Court allowed but the Court appointed standby counsel to assist defendant Andrew Ouwenga. Then during the course of trial in this matter, defendant Andrew Ouwenga requested representation and waived his right to represent himself, which the Court has allowed. However, defendant Andrew Ouwenga's late request for counsel has again delayed proceedings for at least part of an afternoon of trial. Defendants were thus at least partly responsible for the delay by attempting to substitute counsel numerous times.
Thus, defendants' motion to dismiss based on violation of the speedy trial provision of the sixth amendment is DENIED.
An order consistent with this opinion shall follow.