Opinion
Criminal No. 2008-45.
March 3, 2009
Everard E. Potter, AUSA, St. Thomas, U.S.V.I., For the plaintiffs. Jesse A. Gessin, AFPD, St. Thomas, U.S.V.I., For the defendant.
ORDER
Before the Court is the motion of the defendant, Glen Lewis a/k/a Glenndon Lewis ("Lewis"), to dismiss the indictment.
I. FACTUAL AND PROCEDURAL BACKGROUND
Lewis was charged in September 2008 in a two-count indictment. Count One charges Lewis with possession of a firearm within 1,000 feet of a school zone, in violation of 18 U.S.C. § 922(q)(2)(A) . Count Two charges Lewis with unauthorized possession of a firearm, in violation of V.I. CODE ANN. tit. 14 § 2253(a).
Section 922(q)(2)(A) provides:
It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone.18 U.S.C. § 922(q)(2)(A).
Section 2253(a) provides:
Whoever, unless otherwise authorized by law, has, possesses, bears, transports or carries either, actually or constructively, openly or concealed any firearm, . . . loaded or unloaded, may be arrested without a warrant[.]
V.I. CODE ANN. tit. 14 § 2253(a).
On December 24, 2008, the Court held a status conference with the parties in light of the impending December 29, 2009, trial date. The government advised the Court that Lewis had potentially tested positive for tuberculosis but that more tests needed to be conducted to confirm the diagnosis. The government moved for a continuance until it could obtain further information regarding Lewis's condition. Lewis objected to the motion. The Court found that the ends of justice would be served by granting the government's motion. In the Court's view, the health and safety of Court personnel and counsel outweighed Lewis's interest in a speedy trial. The Court noted that "[h]ailing a defendant who may be carrying a serious and contagious disease into court would be irresponsible." (Order, Dec. 24, 2009.) The Court continued the trial without date and ordered the government to file an update on Lewis's condition no later than February 16, 2009.
On February 5, 2009, the government filed an informative motion, stating that Lewis had received a tuberculosis clearance on or about January 16, 2009.
On February 18, 2009, the Court held a status conference with the parties and rescheduled Lewis's trial for March 9, 2009.
Lewis seeks dismissal of the indictment on speedy trial grounds. The government opposes the motion.
II. DISCUSSION
The Speedy Trial Act requires that trial commence within seventy days of a defendant's initial appearance or of the filing and making public of the indictment, if later. See 18 U.S.C. § 3161(c). Delay resulting from any pretrial motion, from the date of the filing of the motion through the date of the prompt disposition of the motion, is excluded from the computation of Speedy Trial Act time. See 18 U.S.C. § 3161(h)(1)(F). Any pretrial motion, including a motion for extension of time, is a pretrial motion within the meaning of Section 3161(h)(1)(F) and creates excludible time, even if it does not in fact delay trial. See United States v. Novak, 715 F.2d 810, 813 (3d Cir. 1983).
The Speedy Trial act also allows district courts to grant continuances on finding that "the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial." See 18 U.S.C. § 3161(h)(8)(A); see also United States v. Adedoyin, 369 F.3d 337, 341 (3d Cir. 2004). Under the statute, courts must justify their continuances by an oral or written statement setting forth on the record their reasons for granting them. Id.; see also United States v. Lattany, 982 F.2d 866, 877 (3d Cir. 1992). The discretion of courts "is not unfettered, however." United States v. Watts, Crim. No. 2004-153, 2005 U.S. Dist. LEXIS 22505, at *7 (D.V.I. Sept. 30, 2005). The statute lists factors that courts must consider in granting such a continuance. See, e.g., United States v. Rivera, 863 F.2d 293, 295 (3d Cir. 1988) (holding that under the totality of the circumstances, the Speedy Trial Act's requirements were met when the district court articulated on the record one of the factors listed in the statute as the reason to exclude time, such as a continuance to allow new counsel to adequately prepare for trial).
III. ANALYSIS
The speedy trial clock in this matter began on September 18, 2008, the day after Lewis made his first appearance before a judicial officer. Hearings in this matter were held on September 24, 2008 and again on October 3, 2008. Both of those days are excluded from the speedy trial count.On October 14, 2008, Lewis filed a motion to dismiss the indictment on Second Amendment grounds. The Court denied that motion on December 24, 2008. The time from the filing of the motion to the Court's ruling on the motion is also excluded.
On October 14, 2008, Lewis also moved to suppress evidence. That motion was denied on December 10, 2008.
As noted earlier, on December 24, 2008, the Court found that the ends of justice required a continuance of the trial without date because of Lewis's potential illness. On February 5, 2009, the government advised the Court that Lewis had tested negative for tuberculosis. Thus, the time from December 24, 2008 through February 5, 2009 is excluded.
The Court held another a status conference with the parties on February 18, 2009. That day is also excludible.
Finally, Lewis filed his motion to dismiss on speedy trial grounds on February 20, 2009. The time from the filing of that motion until this ruling is also excluded.
As of the date of this ruling, thirty-eight days have elapsed for speedy trial purposes. Significantly, that number falls well below the statutory threshold.
Lewis argues that the Court should not exclude the period from December 30, 2008 through February 17, 2009. It is unclear, in the first instance, why Lewis chooses December 30 as the start date for the Court's ends-of-justice finding. The Court entered its ends-of-justice ruling on December 24, 2009. That date is the start date for the excluded period.
Lewis also argues that the Court should not exclude any time based on its ends-of-justice finding. He contends that "[t]he government put forward no evidence to back its assertion [about Lewis's potential illness] and to this date has not submitted any such evidence." (Def.'s Mot. to Dismiss for Speedy Trial Violation 3.) He further contends that "the government has not disclosed to the Court why it took so long for the government to produce . . . information [about his diagnosis] when presumably prisoners are routinely tested during the intake process." ( Id.)
Lewis offers the Court no authority whatever for the proposition that the government is required to provide evidence that Lewis had initially tested positive for tuberculosis and was scheduled to undergo further testing. The government's counsel, like any other attorney appearing in this Court, is an officer of the Court and at all times is expected to be truthful and candid. Lewis's apparent suggestion that the government did not exhibit those qualities is unsupported and irrelevant to a speedy trial inquiry.
IV. CONCLUSION
For the reasons discussed above, it is herebyORDERED that Lewis's motion to dismiss the indictment is DENIED.