Opinion
No. 01-80308
October 30, 2002
OPINION KND ORDER
Defendant Todd Levon, as well as co-Defendants Bruce Levon and Steven Isaacs, were indicted on August 21, 2001 for conspiracy and possession of marijuana. Bruce Levon and Steven Isaacs pled guilty on June 11, 2002, and sentencing has not occurred, and therefore their pleas are still under advisement and have not been accepted by the Court. Defendant Todd Levon has not joined his co-defendants in pleading guilty and trial is set for December 2002. A superseding indictment containing an additional charge of felon in possession of a firearm was handed up against Todd Levon on May 22, 2002, and he was arraigned on October 15, 2002. Defendant Todd Levon argues that the indictment should be dismissed, preferably with prejudice, for violations of the Speedy Trial Act. The government, besides filing a response to Defendant's motion, has filed its own motion for excludable delay.
On October 29, 2002, a hearing occurred and these motions were taken under advisement. For the following reasons, Defendant's motion to dismiss the indictment is DENIED, and the government's motion for excludable delay is GRANTED.
LAW AND ANALYSIS
The Speedy Trial Act ("STA"), 18 U.S.C. § 3161-74, requires that the trial of a criminal defendant commence within seventy days from the date of the arrest, the filing of the indictment or information, or the first appearance before the court, whichever date last occurs. 18 U.S.C. § 3161 (c)(1); see also Henderson v. United States, 476 U.S. 321, 323 (1986). If the government fails to bring a defendant to trial within the seventy-day period, the court must dismiss the indictment or information on motion of the defendant. 18 U.S.C. § 3162 (a)(2). Certain pre-trial delays automatically toll the seventy-day limitation. 18 U.S.C. § 3161 (h); see also United States v. Blackmon, 874 F.2d 378, 380 (6th Cir. 1989). The trial judge may also exclude delays attributable to continuances granted when the "ends of justice" outweigh the interests of the public and the defendant in a speedy trial. 18 U.S.C. § 3161 (h)(8). Under the "ends of justice" inquiry, the court must state in the record its reasons for making such an exclusion. United States v. Kelly, 45 F.3d 45, 47 (2nd Cir. 1995) (court's failure to set forth "ends of justice" findings when continuance granted meant period was not excludable; retroactive finding was insufficient to make excludable).
"If the 70-day deadline is not honored, "the district court must dismiss the indictment, either with or without prejudice." 18 U.S.C. § 3162 (a)(2). There are a series of factors to be considered in making this determination including:
(1) the seriousness of the offense; and (2) the facts and circumstances that led to the dismissal; and (3) the impact of reprosecution on the administration of the Act and on the administration of justice.18 U.S.C. § 3162 (a)(2). Because the Court finds that the requisite seventy days have not passed, it is not necessary to engage in this analysis.
Once the defendant establishes a prima facie case that the government violated the Act (a simple matter of producing a calendar and showing that more than seventy days have passed since the indictment (or first appearance) and trial has yet to begin), the government has the burden of proving excludable time by a preponderance of the evidence. United States v. Mentz, 840 F.2d 315, 326 (6th Cir. 1988). Under 18 U.S.C. § 3161 (h)(1), a court should exclude all the days during which it is waiting to receive information necessary to decide a pending pre-trial motion. If the motion requires a hearing, the entire time from the filing of the motion through the date of the hearing is excludable. 18 U.S.C. § 3161 (h)(1)(F). The court should also exclude days during which it is waiting to receive supplemental filings after a hearing. Henderson., 476 U.S. at 331. If the motion does not require a hearing, a court should exclude all the days during which it is waiting for filings from the parties. Id. Regardless of whether a motion requires a hearing or not, after the court receives all the information necessary to decide a motion, a maximum of thirty days can be excluded on the theory that the court has taken the matter "under advisement." 18 U.S.C. § 3161 (h)(1)(J); Mentz, 840 F.2d at 327; United States v. Moran, 998 F.2d 1368, 1371 (6th Cir. 1993).
Furthermore, plea negotiations and the time from when a defendant states that he will plead guilty until the time the guilty plea is entered is excludable under the STA. United States. v. Bowers, 834 F.2d 607, 609-10 (6th Cir. 1987); United States v. Jenkins, 92 F.3d 430, 440 (6th Cir. 1996). Also, the time of period for the court's consideration of a defendants' plea agreement is excluded. United States v. Culpepper, 898 F.2d 65, 68 (6th Cir. 1990).
Significantly, where multiple defendants are charged in an indictment and no motion for severance has been granted (as in the case sub judice), only one speedy trial clock governs the action. "All defendants who are joined for trial generally fall within the speedy trial computation of the latest co-defendant." Blackmon, 874 F.2d at 380. "The excludable delay of one co-defendant may be ascribed to all defendants."Id. (citations omitted).
Here, Defendant has made out his prima facie case as more than seventy days have elapsed between September 4, 2001 (his first appearance) and his trial, which is set for December 2002. Yet, the government has explained that most of this intervening time is excludable under the STA, often for more than one reason. The Court analyzes each period the government claims is excluded.
The government states that the period from August 21, 2001 (the filing of the indictment) and September 4, 2001 is excluded because of Defendant's initial appearance. It is more accurate to state that the clock did not begin to run until September 4, 2001, because that was when he and his co-defendants were arraigned. See Culpepper, 898 F.2d at 66-67 (holding that speedy trial clock did not begin to run until the arraignment of the last codefendant). In any event, as confirmed at the hearing, Defendant does not argue that any time before September 4, 2001 counts under the STA.
In his motion, Defendant argues that the time between September 4, 2001 and November 15, 2001 (71 days) counts against the government, although defense counsel did not focus on this time period at the hearing. In any event, much of this time is excluded, although the government's arguments in its brief are not entirely persuasive on this point. On September 14, 2001, the Court ordered a hearing on September 17, 2001 concerning joint representation of Defendants. The government argues that September 14th through the 17th are excluded. While the Court believes the date of the hearing on September 17th should be excluded as an "other proceeding concerning the defendant" (see 18 U.S.C. § 3161 (h)(1)), there does not appear to be any authority (and the government does not provide any) that the 14th, 15th and 16th leading up to the hearing should be excluded. Therefore, the Court finds that the 14th-16th should not be excluded.
Importantly, if there had been a pretrial motion requesting a hearing, then the time from the filing of the motion up until the hearing would be excluded. But the docket does not reflect that there was any such pretrial motion.
The government argues that the time from October 3, 2001 until October 24, 2001 should be excluded because of time given for the filing of pretrial motions. As a preliminary point, it was not until October 5, 2001 that the Court entered a pretrial scheduling order setting a deadline for pretrial motions for October 24, 2001. There was, however, a status conference held on October 3, 2001. Status conferences are excluded under the STA as an "other proceeding, " so this day is excluded. See United States v. Martinez, 75 F. Supp.2d 360, 364 (D. New Jersey 1999) (holding that the day of the status conference is excluded as an "other proceeding concerning the defendant" pursuant to Section 3161(h)).
There appears to be a split of authority among circuits about whether the time for preparation of pretrial motions is considered an "other proceeding" that is automatically excluded under the STA. Neither party mentions this split in their motions or oral argument. In the Seventh Circuit, the time period the district court allows for the preparation and filing of motions is excludable under the Speedy Trial Act. See United States v. Barnes, 909 F.2d 1059, 1064-65 (7th Cir. 1990). Conversely, the Sixth Circuit in United States v. Moran, 998 F.2d 1368, 1370-71 (6th Cir. 1993) held that the period allowed by the district court for preparation of pretrial motions was not excludable. In Moran, Judge Boyce Martin rejected the logic of the Seventh Circuit and expressly held that the STA does "not provide that a period allowed by the district court for preparation of pretrial motions is to be excluded from the seventy-day computations." Id. Here, the government cites the case United States v. Crawford, 982 F.2d 199 (6th Cir. 1993) for the proposition that the time for the filing of pretrial motions is excluded under the STA. Indeed, in Crawford, the Sixth Circuit held that 15 days given to defense counsel for preparation of pretrial motions was excludable as an "other proceeding" under 18 U.S.C. § 3161 (h)(1).Id. at 203. Yet, Crawford was decided in January 1993 and Moran was decided in July 1993. While Moran does not even mention Crawford in its analysis because it was decided later, it appears to be the binding precedent in this jurisdiction.
Nonetheless, following Moran and not Crawford, there will not be a problem under the STA. Between September 4, 2001 and November 15, 2001 — if we do not exclude the days for the preparation of pretrial motions (from October 5th to the 24th)— only 69 days have passed. (Again, the Court does not count September 17th (the date of the hearing) nor October 3, 2001 (the date of the status conference).)
The government argues for a variety of reasons that the time from November 15, 2001 until the date of the trial (now set for December 2002) are excluded. The government is correct. On November 15, 2001, co-defendant Isaacs filed a motion to suppress evidence, and a hearing was initially set for April 9, 2001. On November 28, 2001, co-defendant Bruce Levon filed a motion for joinder in Isaacs' motion to suppress. Continuances were granted on February 12, 2002, March 18, 2002, April 16, 2002, May 6, 2002, and May 20, 2002 to allow for the parties to consider alternative dispositions of the case and to discuss cooperation by one or more of the defendants. According to the government, these continuances were granted in large part because of difficulties in communication between Defendant Todd Levon and his then attorney, Robert Slameka, culminating in this Court granting on July 1, 2002, Mr. Slameka's motion to withdraw as counsel. This Court also entered an order of excludable delay stating that the time for Todd Levon to obtain new counsel and for the counsel to prepare would be excluded.
It also should be pointed out that on December 4, 2001, this Court entered an excludable delay order pursuant to 18 U.S.C. § 3161 (h)(8) for the time between November 28, 2001 and February 5, 2002. While not much turns on this because there are other reasons to exclude this time, it is mentioned for a complete record.
On May 22, 2002, a superseding indictment was entered containing an additional charge against Defendant Todd Levon for felon in possession of a firearm. Arraignment occurred on October 15, 2002 (after the filing of the government's response in this matter).
On June 11, 2002, co-defendants Isaacs and Bruce Levon pled guilty pursuant to Rule 11 plea agreements. These plea agreements are currently under advisement awaiting the scheduled sentencing hearing.
Appearance for Todd Levon's present counsel did not occur until September 5, 2002, where, according to the government, he requested a continuance until September 20, 2002. The government maintains that it was not until the September 20, 2002 scheduling conference that Todd Levon informed the Court that he would not plea and requested a continuance to prepare for trial. Defendant does not state in his motion when he rejected the government's plea offer and did not provide an answer at the hearing. Defendant admits in his motion that a final period of excludable delay was put on the record to exclude the time period from September 20, 2002 to the start of the trial in December 2002 to allow him and his new counsel to prepare for trial. Furthermore, at the hearing, defense counsel acknowledged that the time from September 5, 2002 until the trial in December 2002 is properly excluded under the STA. In sum, Defendant does not argue that anytime after September 5, 2002 should be counted against the government, but instead argues that more than seventy days have elapsed from September 4, 2001 (when he was arraigned) until September 5, 2002.
There are many reasons why all the time from November 15, 2001 should be excluded under the STA. First and foremost, as explained supra, where multiple defendants are charged in an indictment and no motion for severance has been granted, only one speedy trial clock governs the action. Therefore, when co-defendant filed his motion to suppress on November 15, 2001, this tolled the clock for Defendant Todd Levon, even though he was not a party to this motion. If the motion requires a hearing (which this one did), the entire time from the filing of the motion through the date of the hearing is excludable. 18 U.S.C. § 3161 (h)(1)(F). of course, there never was a hearing on co-defendants' motion to suppress because the co-defendants pled guilty on June 11, 2002. However, because plea negotiations also toll the clock, and because the Court has not yet formally accepted co-defendants' pleas (they have not been sentenced), the clock is currently being tolled, and certainly tolled up until September 5, 2002, where Defendant concedes the clock has stopped.
Defendant argues in his motion that he did not agree to the Court's December 4, 2001 stipulation about excludable delay or join in his fellow co-defendants' pretrial motions. This is irrelevant under the STA analysis because he never made a motion to sever. Therefore, we use one clock for all defendants. Furthermore, Defendant erroneously argues that the clock should stop on December 28, 2001 — the last day that responsive pleadings were filed pertaining to the pretrial motions. This also is irrelevant as there was a hearing associated with the motion to suppress. As explained supra, all the time from the filing of a motion to a hearing are excluded. Furthermore, supplemental pleadings continued coming until February 2002.
The Sixth Circuit case Culpepper, supra, is instructive. It held that the speedy trial clock, which had been tolled for disposition of related case involving a codefendant, was not reactivated by the codefendant's tender of plea agreement. Rather, the speedy trial clock was tolled until the court accepted the codefendant's tendered plea, and was further abated while court considered and disposed of defendant's various pretrial motions. Here, where the Court has not accepted the co-defendants' plea agreements, the clock continues to be tolled.
Additionally, the government argues that the plea offers were extended on January 22, 2002 and that Defendant Todd Levon did not inform the Court until September 20, 2002 that he was rejecting the offer. As explained supra, plea negotiations toll the STA clock. Thus, besides the plea status of his co-defendants, Defendant Todd Levon's own plea negotiations is another reason that the time from January 22, 2002 until September 20, 2002 should be tolled.
The government also notes that on May 22, 2002 a superseding indictment containing an additional charge against Defendant was entered. While the government argues that he has not been arraigned, he was arraigned on October 15, 2002 after the government's brief was filed. Pursuant to 18 U.S.C. § 3161 (h)(6), the time from the filing of a superseding indictment to a defendant's subsequent rearraignment on the superseding indictment is excludable. See. e.g., United States v. Van Someren, 118 F.3d 1214, 1219 (8th Cir. 1997) (involving a superseding indictment similar to the original indictment). Therefore, from May 22, 2002 until October 15, 2002 (which is after September 5, 2002 where Defendant has conceded the clock has stopped ticking) is excluded for this additional reason.
Thus, because of pretrial motions requiring hearings, the superseding indictment, plea negotiations for himself and his co-defendants, and requested continuances for trial preparation, etc., all the time from November 15, 2001 until the trial set for December 2002 are excluded. Thus, at most, 69 days have elapsed. While this is close, it is within the 70 days set by the statute.
ORDER
It is hereby ORDERED that Defendant's motion for dismissal is DENIED and the government's motion for excludable delay is GRANTED.