Opinion
NO. 00-381.
January 4, 2001.
ORDER AND REASONS
Before the Court is defendant Cecil Brown's Motion to Dismiss for Speedy Trial Act Violation. For the following reasons, Brown's motion is GRANTED. The indictment against Brown is DISMISSED WITHOUT PREJUDICE, and the Government is granted leave to reindict.
BACKGROUND
On November 29, 1999, a federal grand jury for the Middle District of Louisiana indicted defendant Cecil Brown on charges of extortion, interstate travel in aid of unlawful activity, and conspiracy. On December 14, 1999, Brown appeared in court and entered a plea of not guilty. On July 19, 2000, the court held a scheduling conference at which Brown's trial was set for January 16, 2001.
On November 30, 2000, Chief Judge Carolyn Dineen King of the United States Court of Appeals for the Fifth Circuit assigned Brown's case to this Court. At the request of both parties, this Court continued the trial until February 5, 2001 in order to allow defense counsel additional time for adequate preparation.
Brown now moves the Court to dismiss the indictment against him on the grounds that (1) the original scheduling conference was not held within the time limits set forth in the Speedy Trial Act, 18 U.S.C. § 3161, and (2) even if the scheduling conference had been timely held, his trial was continued beyond the Act's seventy-day deadline without a finding that the continuance served the ends of justice.
LAW AND ANALYSIS
Under the Speedy Trial Act, defendant Brown's trial was required to commence no later than seventy days from his first appearance before the federal magistrate on December 14, 1999. See 18 U.S.C. § 3161(c)(1). However, the Act also contains several technical exclusions that allow extension of this seventy-day period due to delays such as the defendant's involvement in another trial or the court's consideration of pre-trial motions. See Id. at § 3161(h).
§ 3161 provides that, "In any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs."
In the case at bar, Brown and the Government dispute whether an exclusion was properly applied to allow Brown's trial to be set beyond the Act's deadline. Specifically, Brown argues that the Speedy Trial Act was violated in two instances. First, he claims that the scheduling conference on July 19, 2000 did not occur until after the Speedy Trial Act's deadline had expired. Second, even if the scheduling conference were timely held, Brown argues that the court continued his trial to January 16, 2001 without making the specific finding that a continuance served the ends of justice.
A. Scheduling Conference
In the case at bar, Brown's scheduling conference did not occur until 218 days after his initial court appearance. However, the Government argues that 158 of these days should be excluded from this time period for various reasons. First, the Government submits that the 122 days during which Brown stood trial inUnited States v. Edwards, Crim. No. 98-165 ("Edwards trial"), should be excluded under 18 U.S.C. § 3161(h)(1)(D) as "delay resulting from trial with respect to other charges against the defendant." In addition, the Government argues that the 26 days between Brown's initial court appearance in the instant matter and the beginning of the Edwards trial should also be excluded under § 3161(h)(1)(D) as pretrial preparation. Finally, the Government argues that the ten days in June during which the court considered whether an attorney for one of Brown's co-defendants had a conflict of interest should be excluded under § 3161(h)(l)(F), which excludes "delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion." If all three of these exclusions are proper, Brown's scheduling conference would have taken place on the 60th day of the Act's seventy-day countdown.
However, Brown disputes the Government's calculation and contends that the scheduling conference was not held until after the expiration of the deadline. Brown concedes that the clock stopped during the Edwards trial and during the attorney-conflict hearing, but he claims that the Fifth Circuit has never allowed pretrial preparation for another trial to be excluded from the Speedy Trial Act countdown. If pretrial preparation for the Edwards trial is not excluded, the scheduling conference took place 16 days after the Speedy Trial Act expired.
The Fifth Circuit has never directly addressed the Government's argument that pretrial preparation for another trial may be excluded as "delay resulting from trial with respect to other charges." 18 U.S.C. § 3161(h)(l)(D). In support of its position, the Government cites a Ninth Circuit case which held that the Speedy Trial Act's exclusion of "'delay resulting from trial' includes the period of time utilized in making necessary preparation for trial." United States v. Lopez-Espindola, 632 F.2d 107, 111 (9th Cir. 1980).
The Fifth Circuit, however, has not adopted such a broad interpretation. In United States v. Bigler, 810 F.2d 1317 (5th Cir. 1987), the Fifth Circuit favorably quoted Lopez-Espindola, but it did so in the context of excluding time spent by a defendant in state custody because of another trial in state court. Given this particular context, the Bigler court reasoned that "[w]hile the federal prosecutor is required to exercise `a reasonable scrutiny over the progress of state court proceedings,' a federal court should interfere with the state court 'only in exceptional cases.'" Id. at 1320 (quotingLopez-Espindola, 632 F.2d at 111). The Fifth Circuit narrowed its holding to allow a federal court to exclude time spent by a defendant in state custody awaiting a state trial as "delay resulting from trial with respect to other charges against the defendant." See id.
The Court finds that the Bigler rationale does not apply to the instant case, in which Brown's present trial and his "trial with respect to other charges" were both on the docket of the same federal district. In Brown's situation, the problem of monitoring or interfering with a state court does not exist. Furthermore, unlike the defendant in Bigler, Brown has not been in custody awaiting trial. Accordingly, the Court is unable to expand theBigler court's pretrial exclusion beyond the state custody context.
Finally, the Government argues that prohibiting the exclusion of pre-trial preparation for another trial may be a "hyper-technical construction" of the Speedy Trial Act. See United States v. Eakes, 783 F.2d 499, 504 (5th Cir. 1986) (declining "to apply a hyper-technical construction to the language of the Act . . ."). However, the Court is simply strictly construing the statute and declining to adopt a broad new exclusion that has not been explicitly authorized by the Fifth Circuit. Accordingly, the Court finds (1) that pretrial preparation for the Edwards trial may not be excluded from the Speedy Trial Act countdown, (2) that the seventy-day deadline expired on July 3, 2000 and (3) that delaying the scheduling conference until July 19, 2000, even at the request of defense counsel, violated the Speedy Trial Act.
B. Continuance of Trial
For the reasons stated above, the Court finds that the July 19, 2000 scheduling conference fell outside of the Speedy Trial Act's deadline. However, even if the conference had been timely held, Brown argues that the Act would still have been violated because his trial was continued beyond seventy days without a finding that a continuance served the ends of justice. Under 18 U.S.C. § 3161(h)(8)(A), a district court is required to "set forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial, " but Brown argues that the record contains no ends of justice findings that can justify scheduling his trial in January, 2001.
Although the record is unclear as to the court's reasons for continuing the trial, it is undisputed that the parties mutually agreed to the continuance. In his memo in support of the instant motion to dismiss, Brown admits that there is "no question that . . . this case is so complex that it would be unreasonable to expect adequate preparation for pretrial proceedings or for the trial itself within the time limits established by the Speedy Trial Act and, accordingly, a delay pursuant to § 3161(h)(8)(A) is in order." Brown Mem. Supp. at 6. However, the defendant's acquiescence in a continuance does not exempt the district court from its "responsibility . . .to ensure that a request for a continuance in a criminal case which threatens to delay trial past the 70-day mark falls within one of the Act's exceptions." United States v. Willis, 958 F.2d 60, 62 (5th Cir. 1992).
The Government contends that, at the scheduling conference, the district court gave oral reasons as to what motivated it to continue the trial. However, the Government does not state what these reasons were, and after carefully examining the transcript of the conference, this Court is not aware of any explicit "reasons for finding that the ends of justice served by granting such continuance outweigh the best interests of the public and the defendant in a speedy trial." 18 U.S.C. § 3161(h)(8)(A).
Alternatively, the Government argues that this Court may make a retroactive ends of justice finding if such a finding actually relates back to the date of the scheduling conference. In United States v. Jones, 56 F.3d 581, 585 n. 9 (5th Cir. 1995), the Fifth Circuit stated that "virtually every Circuit has held that the entry of findings in the record after granting the continuance is not reversible error so long as the findings were not actually made after the fact." In the instant case, however, the enunciation of the requisite findings by the previous trial judge at this time may not satisfy the stringent requirements of 18 U.S.C. § 3161(h)(8)(A). Accordingly, this Court holds that, even if the scheduling conference were timely held, the Speedy Trial Act was violated because the record does not contain a finding that continuing Brown's trial beyond the seventy-day deadline served the ends of justice.
C. Remedy
The remedy for failure to comply with the provisions of the Speedy Trial Act is dismissal of the indictment with or without prejudice. In determining whether to dismiss the case with or without prejudice, the court shall consider "the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of [the Speedy Trial Act] and on the administration of justice." 18 U.S.C. § 3162(a)(2). In the case at bar, dismissing Brown's indictment "does not necessarily mean that any crimes [he may have] committed will go unpunished."Bigler, 810 F.2d at 1323. First, Brown has been charged with the very serious offense of extortion. Second, although there has been a violation of the Speedy Trial Act, Brown himself has admitted that he could not have adequately prepared for trial within the Act's time limitations. In fact, prior to filing the instant motion to dismiss, Brown asked for and received a continuance beyond the January 16, 2001 trial date. Furthermore, Brown did not raise the Speedy Trial Act issue until over five months after the Act's deadline had passed. See United States v. Cobb, 975 F.2d 152, 157 (5th Cir. 1992) (noting that the defendant failed to press his right to a speedy trial before the court). Finally, the Court finds that allowing the Government to reindict Brown will not adversely impact the administration of the Speedy Trial Act or the administration of justice. By dismissing Brown's indictment and allowing the Government to file a new one, the Court is preserving the integrity of the Speedy Trial Act and giving Brown the time he needs to adequately prepare his defense.
CONCLUSION
IT IS ORDERED that the indictment filed against defendant Cecil Brown on November 29, 1999 in federal district court for the Middle District of Louisiana is hereby DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that the Government is granted leave to reindict.
IT IS FURTHER ORDERED that all pending motions filed by Brown and the Government are DISMISSED AS MOOT, to be renoticed if necessary in any subsequent case. Due to this Court's familiarity with the present case and the judicial resources already expended on the parties' previous motions, IT IS ORDERED that the trial of any further indictments in this matter shall be held on March 12, 2001 by this Court.