Opinion
Case No. 2:04-CR-154 TS.
February 22, 2005
ORDER DENYING DEFENDANT'S PRO SE MOTION TO DISMISS
This matter is before the court on Defendant Mark Crew's pro se Motion to Dismiss. On or about October 21, 2004, Defendant Mark Crew sent a letter to the court seeking a copy of the docket for the purpose of filing a request for final disposition under the Interstate Agreement on Detainers Act (IADA). 18 App. 2. At that time, Defendant Crew was represented by counsel and there were two Motions to Suppress pending, one filed by Defendant Crew and one filed by Defendant McKellips.
On December 3, 2004, Mr. Crew wrote again seeking new counsel and requesting that the case be dismissed based on his 180-day disposition request under the IADA. Defendant Crew's letters were lodged in the file and a hearing was scheduled before the Magistrate Judge.
On December 16, 2004, the government filed a Response to Defendant's Motion to Dismiss. There was not a formal Motion to Dismiss filed at the time. Apparently, the government was responding to Defendant Crew's attachment to his letter asking for a new attorney.
On December 20, 2004, new counsel was appointed for Defendant Crew. On December 30, 2004, the trial date was continued for all three defendants herein to allow Defendant Crew's new counsel sufficient time to prepare for trial. In view of the government's Response, the court construed Defendant Crew's letter as a pro se Motion to Dismiss and granted additional time for his newly appointed counsel to respond. The Reply brief filed by Defendant Crew's new counsel asserts, without citation or argument, that the following periods are not excluded for purposes of the Speedy Trial Act or the IADD: April 6, 2004, through June 1, 2004; June 1, 2004, through December 14, 2004; and December 15, 2004 to December 20, 2004.
Defendant's pro se Motion notes that his request for disposition was filed in April 2004. The Government represents that it was filed with the court on April 6, 2004.
Defendant Crew moves to dismiss contending that his case has not been resolved within 180 days as required under the IADA. The government contends that the time has not yet run because it was tolled by the delay attributable to the time necessary to resolve Defendant Crew's Motion to Suppress.
Neither party addresses the scope of Defendant Crew's April 19, 2004 Waiver of Rights under Interstate Agreement on Detainers.
Defendant Crew is currently held at the Utah State Prison and the United States lodged a detainer against him for purposes of the charges in the present case. A "detainer . . . is a request filed by a criminal justice agency with the institution in which a prisoner is incarcerated, asking that the prisoner be held for the agency, or that the agency be advised when the prisoner's release is imminent." Fex v. Michigan, 507 U.S. 43, 44-45 (1993). The United States and all of the States are parties to the Interstate Agreement on Detainers (IAD). 18 U.S.C. App. § 1 Statutory Notes (listing jurisdictions).
The Interstate Agreement on Detainers Act, ("IADA"), 18 U.S.C. .App. pp. 585-620 (1985), provides a procedure by which a prisoner against whom a detainer has been lodged may request the speedy disposition of the charges giving rise to the detainer. Article III(c) of the IADA provides that: [t]he warden, . . . having custody of the prisoner shall promptly inform him of the source and contents of any detainer lodged against him and shall inform him of his right to make a request for final disposition of the indictment, information, or complaint on which the detainer is based. IADA § 2, Art. III(c). If the prisoner requests final disposition of the charges, the jurisdiction that lodged the detainer must bring the prisoner to trial within 180 days. IADA § 2, Art. III(b). If the prisoner is not brought to trial within the 180 day period, the court "shall enter an order dismissing the [indictment] with prejudice." IADA § 2, Art. IV(c). Where the detainer is lodged by the United States, the order dismissing the indictment may be with or without prejudice. IADA § 9(1), 18 U.S.C.A. App. § 9(1).U.S. v. Tummolo, 822 F.Supp. 1561, 1563 (S.D. Fla.,1993) (citations omitted).
The IADA contains provisions for granting extensions of the 180-period. However, the Circuits are split on whether a Defendant waives the limitation period during the time it takes to resolve matters raised by that Defendant. See U.S. v. Whiting, 28 F.3d 1296, 1307 (1st Cir. 1994) (explaining split). In the case Knox v. Wyoming Dept. of Corrections, 34 F.3d 964, 966-67 (10th Cir. 1994), the Tenth Circuit examined the split but declined to decide the tolling issue. In the absence of case law in this circuit, this court will follow the majority position allowing tolling as explained in U.S. v. Collins, 90 F.3d 1420, 1426-27 (9th Cir. 1996).
In the present case, Defendant Crew filed a Motion to Suppress on June 2, 2004. The court held an evidentiary motion on the motion, the matter was briefed, and the order was issued on November 19, 2004. Co-defendant McKellip's entirely separate Motion to Suppress was decided on December 14, 2004. Trial is now set to begin on February 22, 2005. Considering that the 180-day period was tolled during the time necessary to resolve Defendant Crew's Motion to Dismiss, the 180-day period has not expired and his Motion to Dismiss pursuant to the IADA will be denied. It is therefore
ORDERED Defendant that Mark Crew's pro se Motion to Dismiss is DENIED.