Opinion
No. CR 10-628-TUC-CKJ (GEE).
June 22, 2011
ORDER
On June 20, 2011, this Court heard argument regarding the Motion to Dismiss for Violation of the Right to a Speedy Trial (Doc. 87). The Court granted the motion in part and informed counsel that a formal order would follow.
I. Procedural Background
Jonathan Michael Thomas ("Thomas") was arrested on February 28, 2010. On March 24, 2010, Thomas was indicted on one count of Possession with Intent to Distribute Marijuana. At the April 8, 2010, arraignment, the matter was scheduled for trial on June 2, 2010.
On May 13, 2010, Thomas filed a motion to continue the trial date for thirty days because defense counsel was to commence a trial in another matter, which ended up lasting almost three weeks. On May 19, 2010, the Court granted the continuance and scheduled the matter for trial on July 7, 2010. The Court found that the ends of justice served by granting a continuance outweighed the best interests of the public and the defendant in a speedy trial because, for the reasons set forth in the motion, failure to grant the continuance was likely to result in a miscarriage of justice if Thomas was required to go to trial on the scheduled trial date. The Court also found excludable delay under 18 U.S.C. § 3161(h)(8) began on June 3, 2010, and ended on July 7, 2010.
Unless otherwise stated, the requested continuances set forth herein were made without objection from the opposing party.
On June 22, 2010, the government filed a motion to continue the trial date for thirty days because the prosecutor was scheduled to be out of the District from July 8 to July 12, 2010. On June 24, 2010, the Court granted the continuance and scheduled the matter for trial on August 10, 2010. The Court found that the ends of justice served by granting a continuance outweighed the best interests of the public and the defendant in a speedy trial because, for the reasons set forth in the motion, failure to grant the continuance was likely to result in a miscarriage of justice if Thomas was required to go to trial on the scheduled trial date. The Court also found excludable delay under 18 U.S.C. § 3161(h)(7) began on July 8, 2010, and ended on August 10, 2010.
On July 2, 2010, Thomas filed a Motion to Suppress. On July 7, 2010, the magistrate judge scheduled the motion for hearing on July 20, 2010.
On July 14, 2010, the government filed a motion to continue the trial date for sixty days because the government required additional time to respond to the Motion to Suppress and have the motion scheduled for an evidentiary hearing. On July 15, 2010, the Court granted the trial continuance and scheduled the matter for trial on October 13, 2010. The Court found that the ends of justice served by granting a continuance outweighed the best interests of the public and the defendant in a speedy trial because, for the reasons set forth in the motion, failure to grant the continuance was likely to result in a miscarriage of justice if the government was required to go to trial on the scheduled trial date. The Court also found excludable delay under 18 U.S.C. § 3161(h)(7) began on August 11, 2010, and ended on October 13, 2010.
On that same date, the government requested the hearing on the Motion to Suppress be continued because additional time was needed to gather the materials needed to respond and prepare for the evidentiary hearing. The magistrate judge granted the request and scheduled the evidentiary hearing for August 25, 2010.
An evidentiary hearing on the Motion to Suppress was held on August 25, 2010. The magistrate judge ordered the parties to file legal memoranda on or before August 30, 2010. The magistrate judge took the matter under advisement.
On September 20, 2010, the government filed a motion to continue the trial date for sixty days because the Motion to Suppress was pending. On that same date, the Court granted the trial continuance and scheduled the matter for trial on November 16, 2010. The Court found that the ends of justice served by granting a continuance outweighed the best interests of the public and the defendant in a speedy trial because, for the reasons set forth in the motion, failure to grant the continuance was likely to result in a miscarriage of justice if the government was required to go to trial on the scheduled trial date. The Court also found excludable delay under 18 U.S.C. § 3161(h)(7) began on October 14, 2010, and ended on November 16, 2010.
On October 18, 2010, Thomas filed a motion to continue the trial date for forty-five days because the ruling on the Motion to Suppress remained pending, additional time for objections to a Report and Recommendation may be needed, and because defense counsel was preparing for trial in two other matters. On October 19, 2010, the Court granted the continuance and scheduled the matter for trial on January 4, 2011. The Court found that the ends of justice served by granting a continuance outweighed the best interests of the public and the defendant in a speedy trial because, for the reasons set forth in the motion, failure to grant the continuance was likely to result in a miscarriage of justice if Thomas was required to go to trial on the scheduled trial date. The Court also found excludable delay under 18 U.S.C. § 3161(h)(7) began on November 17, 2010, and ended on January 4, 2011.
On December 21, 2010, Thomas filed a motion to continue the trial date for forty-five days because defense counsel had been advised that the prosecutor had a scheduling conflict, the defense was continuing investigation of this matter, and because defense counsel was working on a Petition for Rehearing in another matter. On December 30, 2010, the Court granted the continuance and scheduled the matter for trial on February 8, 2011. The Court found that the ends of justice served by granting a continuance outweighed the best interests of the public and the defendant in a speedy trial because, for the reasons set forth in the motion, failure to grant the continuance was likely to result in a miscarriage of justice if Thomas was required to go to trial on the scheduled trial date. The Court also found excludable delay under 18 U.S.C. § 3161(h)(7) began on January 5, 2011, and ended on February 8, 2011.
On January 31, 2011, the government filed a motion to continue the trial date for sixty days because the Motion to Suppress ruling was pending. On February 7, 2011, the Court granted the trial continuance and scheduled the matter for trial on April 12, 2011. The Court found that the ends of justice served by granting a continuance outweighed the best interests of the public and the defendant in a speedy trial because, for the reasons set forth in the motion, failure to grant the continuance was likely to result in a miscarriage of justice if the government was required to go to trial on the scheduled trial date. The Court also found excludable delay under 18 U.S.C. § 3161(h)(7) began on February 9, 2011, and ended on April 12, 2011.
On February 22, 2011, the magistrate judge issued a Report and Recommendation in which denial of the Motion to Suppress was recommended. On February 25, 2011, Thomas filed an Objection to the Report and Recommendation. On March 11, 2011, the government requested an extension of time to respond to the Objection. The request indicated that a new prosecutor was substituted in this case because prior counsel no longer worked for the government and current counsel was scheduled to be on vacation from March 14, 2001, until March 18, 2011. On March 18, 2011, the Court granted the extension. On March 28, 2011, the government requested an extension of time to respond to the Objection. The request again pointed out that the prosecutor had recently been assigned the case, the prosecutor had been on vacation, and that the prosecutor had spent a significant amount of time preparing for trial in four other matters. On March 31, 2011, the Court granted the request. The response was filed on April 1, 2011.
Also on March 28, 2011, the government filed a motion to continue the trial date for at least thirty-five days because the new prosecutor needed additional time to review the case, meet with witnesses, and file pre-trial motions and because the prosecutor was scheduled to be in trial on another matter on April 12, 2011. On March 29, 2011, the Court granted the trial continuance and scheduled the matter for trial on June 21, 2011. The Court found that the ends of justice served by granting a continuance outweighed the best interests of the public and the defendant in a speedy trial because, for the reasons set forth in the motion, failure to grant the continuance was likely to result in a miscarriage of justice if the government was required to go to trial on the scheduled trial date. The Court also found excludable delay under 18 U.S.C. § 3161(h)(7) began on April 13, 2011, and ended on June 21, 2011.
On April 13, 2011, the magistrate judge ordered the disclosure of any expert witness(es) by the government and any pre-trial motions to be filed on or before May 13, 2011. The magistrate judge also ordered any objections to expert witnesses be filed on or before May 23, 2011.
On April 28, 2011, this Court issued an Order adopting the Report and Recommendation and denying the Motion to Suppress.
On May 12, 2011, the government filed two Notices of Expert Testimony and a Notice of Confessions, Admissions, and Statements.
Also on May 12, 211, the government filed a Motion in Limine to Compel Defendant's Proffer of Duress Theory or, in the Alternative, to Preclude Defendant from Presenting Duress Theory at Trial.
On May 13, 2011, Thomas filed a Motion in Limine to Preclude Evidence of Prior Misdemeanor Conviction, a Motion in Limine to Preclude Statements of the Defendant not Previously Disclosed, a Motion in Limine to Preclude Evidence of the Value of the Contraband, and a Motion/Amended Motion to Suppress Statement.
On May 18, 2011, Thomas filed a Motion to Exclude [Expert] Testimony of Agent Patrick Dawson.
On May 18, 2011, a Superceding Indictment was issued against Thomas alleging one count of Conspiracy to Possess with Intent to Distribute Marijuana and one count of Possession with Intent to Distribute Marijuana.
On May 23, 2011, Thomas filed a Motion to Dismiss the Superceding Indictment and a Motion for Production of the Grand Jury Transcript.
On May 31, 2011, the government requested a seven day extension of time to respond to the defense motions and requested a continuance of the motions hearing. See Doc. 75. The government asserted the prosecutor had been preparing for June trials in two other matters, the prosecutor had a family emergency which required out-of-state travel, and that the prosecutor could not secure the availability of necessary witnesses for the May 31, 2011, hearing. Thomas objected to these requests.
On May 31, 2011, the government filed a motion to continue the trial date for thirty-five days because the prosecutor was scheduled to be in trial in two other matters in June, the prosecutor had a family emergency which required out-of-state travel, and, because of those reasons, the prosecutor had been unable to respond to pending motions. Thomas objected to this request. Also on May 31, 2011, the government filed an amended motion to continue the trial date for twenty-one days. In addition to the reasons set forth in the original request for continuance, the government asserted that the magistrate judge, who was to hear the pending motions, was unavailable to hear the pending motions from June 6, 2011, through June 10, 2011 and from June 13, 2011, through June 17, 2011. Thomas objected to this request.
The motion indicates the magistrate judge has AM/PM duty during one week and is out of town for the other week.
On June 2, 2011, this Court scheduled the Motion to Continue Trial and Plea Deadline for hearing on June 3, 2011. On June 3, 2011, this Court scheduled the pending motions to be heard on June 20, 2011, by the district court judge and directed counsel to file memoranda regarding speedy trial rights on or before June 10, 2011.
On June 10, 2011, the government filed another amended motion to continue the trial date until either June 28, 2011, July 5, 2011, or July 12, 2011. In addition to the reasons set forth in the original request for continuance, the government asserted that the chemist is scheduled to attend two other trials on June 21, 2011, and the case agent is not available on June 21, 2011. Thomas objected to this request.
Also on June 10, 2011, the government filed a notice asserting that any trial date up to and until June 28, 2011, complies with the Speedy Trial Act. Further, the government asserts that, if the pending Motion to Continue the Trial and Plea Deadline is granted, additional time would be excludable.
Also on June 10, 2011, Thomas filed a Motion to Dismiss for Violation of the Right to a Speedy Trial and Summary of Speedy Trial Calculation.
On June 14, 2001, Thomas filed a Motion in Limine to Exclude Testimony Concerning Mr. Thomas' Wife.
On June 15, 2001, the government filed a Motion in Limine to Preclude Evidence and Testimony Concerning the Defendant's Performance of Cultural Ceremonies, a Motion in Limine to Preclude Evidence and Testimony Concerning the Defendant's Military Record, and a Motion in Limine to Preclude the Testimony of Darlene Felix. On June 16, 2011, an Amended Motion in Limine to Preclude Evidence and Testimony Concerning the Defendant's Military Record was filed.
On June 16, 2001, the government filed a Withdrawal of the Motion to Continue Trial.
Also on June 16, 2011, the government filed a Motion in Limine to Preclude Evidence and Testimony Concerning the Defendant's Family Photographs and a Motion in Limine Regarding Witnesses Revoking.
On June 19, 2011, the government filed a Motion in Limine to Preclude the Testimony of Kevin Carlos and a Motion in Limine Regarding 404(b) Evidence.
II. Speedy Trial Act
"The Speedy Trial Act of 1974 establishes specific time limits for completing the key stages of a federal criminal prosecution." Speedy Trial, 90 Geo.L.J. 1454, 1462-63 (2002); see also 18 U.S.C. §§ 3161- 3174. "The purpose of the Act is to protect defendants' constitutional right to speedy indictment and trial, and to serve the public interest in bringing prompt criminal proceedings." 90 Geo.L.J. at 1462-63, n. 1193. The right to a speedy trial is different from other constitutional rights "because there is a societal interest in providing a speedy trial which exists separate from, and at times in opposition to, the interests of the accused." 9 Fed.Proc., L.Ed. § 22:1247. A "defendant bears the burden of proving a violation of the Act, but the government has the burden of producing evidence concerning an exclusion of time under § 3161(h)(3). 90 Geo.L.J. at 1474, n. 1218. A defendant may not waive the application of the Act be either consent or waiver. Zedner v. United States, 547 U.S. 489, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006).
The Speedy Trial Act provides:
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.18 U.S.C. § 3161(c)(1). "When the defendant is arrested prior to indictment, and makes an initial appearance before a magistrate who orders him held to answer the charges in the district court, the seventy-day pretrial period runs from the date of his indictment." United States v. Haiges, 688 F.2d 1273, 1274 (9th Cir. 1982).
III. Possession with Intent to Distribute Marijuana A. Speedy Trial Calculation through February 15, 2011
In this case, the 70 day time period began to run on March 24, 2010, the date the indictment was filed and made public. The trial date was originally scheduled for June 2, 2010. Excludable time resulted from Thomas' filing of a motion to continue on May 13, 2010, until the Court ruled on the motion on May 19, 2010. See United States v. Daychild, 357 F.3d 1082, 1095 (9th Cir. 2004) ("For purposes of calculating time under the Speedy Trial Act, it does not matter what type of pretrial motion is filed to invoke the exclusion of § 3161(h)(1)(F), because the language of the statutory exclusion for delay, from the filing of the motion until its prompt disposition, is unqualified as to the type of motion."); 9A Fed.Proc., L.Ed. § 22:1319; United States v. Hills, 618 F.3d 619, 627-28 (7th Cir. 2010). As of the date of the first trial date of June 2, 2010, therefore, 63 non-excludable days had passed. United States v. Medina, 524 F.3d 974, 985 (9th Cir. 2008) (date motion is filed is excludable).
Thomas acknowledges that his filing of the May 13, 2010, motion to continue trial resulted in excludable time until the July 7, 2010, trial date.
Moreover, Thomas filed a Motion to Suppress on July 2, 2010. "[T]he period from the date the motion was filed to the conclusion of the hearing" is excludable time. Medina, 524 F.3d at 979; see also United States v. Bloate, ___ U.S. ___, 130 S.Ct. 1345, 1352, 176 L.Ed.2d 54 (2010). The evidentiary hearing on the Motion to Suppress was held on August 25, 2010. Further, the magistrate judge directed the parties to file memoranda by August 30, 2010, and did not receive a transcript of the proceeding until September 3, 2010. The Court finds the time from the filing of the motion on July 2, 2010, until October 3, 2010, 30 days after the date of the filing of the transcript, September 3, 2010, is excludable. 18 U.S.C. § 3161(h)(1)(H); Henderson v. United States, 476 U.S. 321, 330, 106 S.Ct. 1871, 1876, 90 L.Ed.2d 299 (1986) ("The provisions of the Act are designed to exclude all time that is consumed in placing the trial court in a position to dispose of a motion. District courts often find it impossible to resolve motions on which hearings have been held until the parties have submitted posthearing briefs or additional factual materials, especially where the motion presents complicated issues. . . . We therefore hold that subsection (F) excludes time after a hearing has been held where a district court awaits additional filings from the parties that are needed for proper disposition of the motion."), citations omitted; see also 9A Fed.Proc., L.Ed. § 22:1319 (" 18 U.S.C.A. § 3161(h)(1)(F) excludes the time after a hearing has been held on a pretrial motion where the district court awaits additional filings of posthearing briefs and other materials from the parties that are needed for the proper disposition of the motion. This is the case because 18 U.S.C.A. § 3161(h)(1)(F) must be read in conjunction with 18 U.S.C.A. § 3161(h)(1)(J) which allows an exclusion of up to 30 days while a district court has a motion under advisement — which means 30 days from the time the court receives all the papers it reasonably expects."), footnotes and citations omitted; United States v. Dirden, 38 F.3d 1131 (10th Cir. 1994) (30 day under advisement period did not begin to run until date magistrate judge received transcript of hearing on suppression motion).
Although some courts have found additional time to be excludable for resolution of under advisement issues, unusual circumstances to warrant such a conclusion are not present in this case. See e.g., United States v. Cheek, 3 F.3d 1057 (7th Cir. 1993), cert. denied, 510 U.S. 1112, 114 S.Ct. 1055, 127 L.Ed.2d 376 (1994) (50 days to rule on 24 pretrial motions was reasonable); United States v. Anello, 765 F.2d 253, 257 (1st Cir.) ("As a practical matter, it may be impossible for a court to decide 10 or 100 motions, all within the same thirty-day period."), cert. denied, 474 U.S. 996, 106 S.Ct. 411, 88 L.Ed.2d 361 (1985).
The setting of the October 13, 2010, trial date resulted from the July 14, 2010, motion to continue filed by the government. The Court found that the ends of justice served by granting a continuance outweighed the best interests of the public and the defendant in a speedy trial because the government required additional time to respond to the Motion to Suppress and have the motion scheduled for an evidentiary hearing. The Court further found that failure to grant the continuance was likely to result in a miscarriage of justice if the government was required to go to trial on the scheduled trial date and that found excludable delay under 18 U.S.C. § 3161(h)(7) began on August 11, 2010, and ended on October 13, 2010. In light of the pending Motion to Suppress and the need to adequately prepare and present the issue to the magistrate judge, the Court confirms its previous findings regarding this motion to continue.
In other words, as of the October 13, 2010, trial date, 63 days of non-excludable time had passed.
On September 20, 2010, the government filed a motion to continue the trial date for sixty days because the Motion to Suppress was pending. On that same date, the Court granted the trial continuance and scheduled the matter for trial on November 16, 2010. The Court found that the ends of justice served by granting a continuance outweighed the best interests of the public and the defendant in a speedy trial because, for the reasons set forth in the motion, failure to grant the continuance was likely to result in a miscarriage of justice if the government was required to go to trial on the scheduled trial date. The Court also found excludable delay under 18 U.S.C. § 3161(h)(7) began on October 14, 2010, and ended on November 16, 2010. Although the October 13, 2010, trial date was after the 30 day "deadline" for the issuance of the Report and Recommendation from the magistrate judge, the Court confirms its previous findings as to this motion to continue. Denial of the motion to continue — i.e., expecting the parties to proceed to trial within ten days of an anticipated ruling, which may have resulted in the suppression of evidence — would not have promoted the ends of justice and would likely have resulted in a miscarriage of justice.
On October 18, 2010, Thomas filed a motion to continue the trial date for forty-five days because the ruling on the Motion to Suppress remained pending, additional time for objections to a Report and Recommendation may be needed, and because defense counsel was preparing for trial in two other matters. On October 19, 2010, the Court granted the continuance and scheduled the matter for trial on January 4, 2011. The Court found that the ends of justice served by granting a continuance outweighed the best interests of the public and the defendant in a speedy trial because, for the reasons set forth in the motion, failure to grant the continuance was likely to result in a miscarriage of justice if Thomas was required to go to trial on the scheduled trial date. The Court also found excludable delay under 18 U.S.C. § 3161(h)(7) began on November 17, 2010, and ended on January 4, 2011.
Although Thomas' motion did not advise the Court that the magistrate judge's pending ruling was beyond the 30 day limit set forth in 18 U.S.C. § 3161(h)(1)(H), the Court considers that fact in determining whether it should confirm its prior ruling. Thomas' stated reason that the ruling remained pending does not provide a basis for excludable time because the magistrate judge's ruling was not timely. Moreover, while a possible anticipated need to file an objection may present a basis for concluding that a failure to grant a continuance may result in a miscarriage of justice, in this case, because the ruling was untimely, the Court finds it is not a basis for excludable time. However, the motion to continue also indicated that a continuance was needed because defense counsel was preparing for two other trials. Thomas' Motion to Dismiss for Violation of the Right to a Speedy Trial indicates that he concedes that the delay resulting from this continuance is excludable. See e.g., 18 U.S.C. § 3161(h)(7)(b)(iv) (consideration of whether reasonable time is "necessary for effective preparation, taking into account the exercise of due diligence"); see also United States v. Nance, 666 F.2d 353, 358 (9th Cir. 1983) (unavailability of defense counsel valid reason for ends of justice continuance). The Court confirms its previous finding that excludable delay under 18 U.S.C. § 3161(h)(7) began on November 17, 2010, and ended on January 4, 2011.
The Court takes judicial notice of the fact that one of the named cases proceeded to trial on the scheduled date and the other case resulted in a change of plea.
On December 21, 2010, Thomas filed a motion to continue the trial date for forty-five days because defense counsel had been advised that the prosecutor had a scheduling conflict, the defense was continuing investigation of this matter, and because defense counsel was working on a Petition for Rehearing in another matter. On December 30, 2010, the Court granted the continuance and scheduled the matter for trial on February 8, 2011. The Court found that the ends of justice served by granting a continuance outweighed the best interests of the public and the defendant in a speedy trial because, for the reasons set forth in the motion, failure to grant the continuance was likely to result in a miscarriage of justice if Thomas was required to go to trial on the scheduled trial date. The Court also found excludable delay under 18 U.S.C. § 3161(h)(7) began on January 5, 2011, and ended on February 8, 2011. Thomas' Motion to Dismiss for Violation of the Right to a Speedy Trial indicates that he concedes that the delay resulting from this continuance is excludable. See e.g., 18 U.S.C. § 3161(h)(7)(b)(iv) (consideration of whether reasonable time is "necessary for effective preparation, taking into account the exercise of due diligence"). The Court confirms its previous finding that excludable delay under 18 U.S.C. § 3161(h)(7) began on January 5, 2011, and ended on February 8, 2011.
Because of the Motion to Suppress, the pending under advisement ruling, and the motions to continue the trial dates, as of February 8, 2011, 63 days of non-excludable time had passed.
On January 31, 2011, the government filed a motion to continue the trial date for sixty days because the Motion to Suppress ruling was pending. Although the government's motion did not specifically advise the Court that the magistrate judge's pending ruling was beyond the 30 day limit set forth in 18 U.S.C. § 3161(h)(1)(H), the motion did advise the Court of the date the matter was taken under advisement. Nonetheless, on February 7, 2011, the Court granted the trial continuance and scheduled the matter for trial on April 12, 2011. In light of the fact that the issue remained pending before the magistrate judge beyond the 30 day statutory limit, the Court finds that its determination that the ends of justice served by granting a continuance outweighed the best interests of the public and the defendant in a speedy trial because failure to grant the continuance was likely to result in a miscarriage of justice if the government was required to go to trial on the scheduled trial date was in error. Accordingly, the Court's determination that excludable delay under 18 U.S.C. § 3161(h)(7) began on February 9, 2011, and ended on April 12, 2011, was also in error.
The speedy trial clock began to run again on February 9, 2011, and the 70 day period in which Thomas was required to be brought to trial ended on February 15, 2011.
B. Speedy Trial Calculation After February 15, 2011
On February 22, 2011, the magistrate judge issued a Report and Recommendation in which denial of the Motion to Suppress was recommended. As of that date, 76 non-excludable days had passed. Although the remaining time/continuances are not relevant to determine if Thomas has been brought to trial within the time period provided by the Speedy Trial Act, the length of delay is appropriate in determining if dismissal with or without prejudice is appropriate. Further review, therefore, is appropriate.
The Report and Recommendation was issued on February 22, 2011. On February 25, 2011, Thomas filed an Objection to the Report and Recommendation. While the Ninth Circuit has not addressed the issue, other circuit courts disagree on how excludable time is computed following the issuance of a Report and Recommendation. See e.g., United States v. Long, 900 F.2d 1270, 1274-75 (8th Cir. 1990) ("[t]he issuance of the report and recommendation [begins] a new excludable period"); United States v. Andress, 943 F.2d 622, 626 (6th Cir. 1991) ("[A] new period of excludable delay under subsection (F) begins immediately upon the filing of the magistrate's report and recommendation. That period of excludable delay lasts only until the parties file objections or the ten days allowed for filing objections elapse. At that point-when the district court has before it all the materials it is due to receive-a new period of excludable delay begins; viz., thirty days under subsection (J) within which a motion may be kept under advisement."); United States v. Thomas, 788 F.2d 1250, 1257 (7th Cir. 1986) (amended op.) ("So . . . the clock started, just as it would have done if the judge rather than the magistrate had written the opinion. The difference is that the magistrate's recommendation was not final, which set the stage for a further exclusion if [the defendant] objected."); United States v. Robinson, 767 F.2d 765, 769 (11th Cir. 1985) (stating, without explanation, that after a magistrate issued a report and recommendation on October 5, 1982, "[s]ix nonexcludable days elapsed between October 6, 1982 and October 12, 1982, when [the defendant] filed objections to the magistrate's recommendation").
As pointed out in Long, a report and recommendation is not a final disposition of a motion; rather, it is a document that "is automatically filed with the district court, which in turn is required to make a de novo determination on the issues to which a party objects." Long, 900 F.2d at 1275 n. 3 (citing 28 U.S.C. § 636(b)(1)). Even if the parties do not file objections, the motion itself is decided only after the district court rules. This, in conjunction with the case law indicating that an under advisement time period should not begin until the court has all material before it, seems to indicate that excluding time waiting for an objection is appropriate. Therefore, excludable time began again on February 22, 2011, continued through the filing of the objection and the response time.
Thomas, however, appears to assert that excludable time should not be found for the time allowing for a response. However, as previously discussed, the under advisement period does not begin to run until the court has all materials from the parties that are needed for proper disposition of the pending issues. See Henderson, 476 U.S. at 330. Because a non-objecting party has a right to respond to objections to a Report and Recommendation, see generally Fed.R.Civ.P. 72(b)(2), this Court's under advisement 30 day period began to run on April 1, 2011, when the government's response was filed. Excludable time continued until April 28, 2011, when this Court issued its Order adopting the Report and Recommendation.
The extensions of time to respond to the Report and Recommendation do not warrant a finding of non-excludable time. See e.g., 22A C.J.S. CrimLaw § 844, citing Henderson (although criminal trial may not be delayed indefinitely by deferring hearing on pretrial motions, generally, the time between filing of motion and/or submission of additional filings is excludable whether delay is reasonable or not); 9A Fed.Proc., L.Ed. § 22:1319 ("the provisions of the Speedy Trial Act are designed to exclude all time that is consumed in placing the trial court in a position to dispose of a pretrial motion"); Henderson, 476 U.S. at 321.
On March 28, 2011, the government filed a motion to continue the April 12, 2011, trial date for at least thirty-five days because the new prosecutor needed additional time to review the case, meet with witnesses, and file pre-trial motions and because the prosecutor was scheduled to be in trial on another matter on April 12, 2011. On March 29, 2011, the Court granted the trial continuance and scheduled the matter for trial on June 21, 2011. The Court found that the ends of justice served by granting a continuance outweighed the best interests of the public and the defendant in a speedy trial because, for the reasons set forth in the motion, failure to grant the continuance was likely to result in a miscarriage of justice if the government was required to go to trial on the scheduled trial date. The Court also found excludable delay under 18 U.S.C. § 3161(h)(7) began on April 13, 2011, and ended on June 21, 2011. Thomas asserts that the ends of justice did not warrant this extension and, therefore, the delay is not excludable.
As pointed out by Thomas, where a continuance is granted because "the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial[,]" 18 U.S.C. § 3161(h)(7)(A), a court is to consider statutory factors. 18 U.S.C. § 3161(h)(7)(B). The Court considers whether the "failure to grant such a continuance in the proceedings would be likely to make continuation of such proceedings impossible, or result in a miscarriage of justice." 18 U.S.C. § 3161(h)(7)(B)(i). In this case, the former prosecutor was no longer available to try this case because she was no longer employed by United States Attorney's Office in Tucson. Whether the current prosecutor or a different prosecutor was assigned to the case, a miscarriage of justice would have resulted had the government been required to proceed to trial on the scheduled trial date. The Court also considers that this case is not so unusual or complex that it is "unreasonable to expect adequate preparation for pretrial proceedings or for the trial itself withing the time limits established by this section." 18 U.S.C. § 3161(h)(7)(B)(i).
The Court must also consider whether "failure to grant such a continuance . . . would deny . . . the attorney for the Government the reasonable time necessary for effective preparation, taking into account the exercise of due diligence." 18 U.S.C. § 3161(h)(7)(B)(iv). Thomas asserts that, if due diligence is taken into account, considering the prosecutor was assigned this case on March 1, 2011, an extension from April 12, 2011, to June 21, 2011, was not necessary for the government. The Court finds that an extension of 35 days, considering the due diligence of the prosecutor, was required by the ends of justice. Moreover, in light of the repeated requests for continuances, the magistrate judge scheduled this matter for a status conference to confirm that the next scheduled trial date was a firm trial date, to ensure that the parties were filing all motions, and to ascertain if there would be any further delay needed before this matter proceeded to trial. The Court's extended continuance (i.e., the 70 day continuance) was needed to ensure that further delays did not occur which would have been likely to "result in a miscarriage of justice." 18 U.S.C. § 3161(h)(7)(B)(I). The Court confirms it previous ruling, therefore, that the ends of justice served by granting a continuance outweighed the best interests of the public and the defendant in a speedy trial because failure to grant the continuance was likely to result in a miscarriage of justice. Excludable time, therefore, occurs through June 21, 2011.
The Court notes that the government requested a continuance of 35 days to May 17, 2011. The Court granted the request and continued the trial to June 21, 2011.
Furthermore, on May 12, 2011, the government filed a Motion in Limine to Compel Defendant's Proffer of Duress Theory or, in the Alternative, to Preclude Defendant from Presenting Duress Theory at Trial. While this motion (and other pretrial motions filed by the parties) remain pending, delay is excludable. Medina, 524 F.3d at 979; Bloate, 130 S.Ct. at 1352. In other words, even if the April 12, 2011, trial date should have only been continued for 35 days, the time from May 12, 2011, would nonetheless be excludable because of the pending motions.
Therefore, as of June 20, 2011, time continues to be excludable because of the pending motions. However, 76 days of non-excludable time have passed. Dismissal is, therefore, appropriate.
C. Dismissal With or Without Prejudice
The Court must, therefore, determine whether dismissal with or without prejudice is appropriate. In determining whether the count of possession with intent to distribute marijuana should be dismissed with or without prejudice, this Court:
shall consider, among others, each of the following factors: 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 this chapter and on the administration of justice.18 U.S.C. § 3162(a). Contrary to Thomas' assertion, the Court finds the offenses herein are serious. See e.g., United States v. Taylor, 487 U.S. 326, 338, 108 S.Ct. 2413, 2420, 101 L.Ed.2d 297 (1988) (controlled substance offenses are serious offenses); United States v. Biggs, 419 F.Supp.2d 1277 (D.Mont. 2006) (although charged offenses of conspiracy to possess with intent to distribute marijuana, possession with intent to distribute marijuana, and distribution of less than 50 kilograms of marijuana were serious, pretrial delay amounting to 582 days, more than eight times the limit, was presumptively prejudicial, and defendants complied with conditions of pretrial release during exceptionally lengthy pretrial supervision period).
The facts leading to the dismissal include a delay caused by the court by the late issuance of the Report and Recommendation. However, the Court also considers that, in requesting multiple trial continuances while the ruling from the magistrate judge was pending, neither counsel advised this Court that the magistrate judge's ruling was beyond, or that a continuance would result in the case being set for trial beyond, the time set forth in 18 U.S.C. § 3161(h)(1)(H). The Court also considers that, until the May 31, 2011, objections by defense counsel, neither counsel had objected to any requested continuances. Indeed, counsel for Thomas did not raise any speedy trial concerns until more than three months after the Report and Recommendation was issued and more than nine months after the magistrate judge held the evidentiary hearing on the Motion to Suppress. The Court also considers that, as of June 21, 2011, the charges will have been pending against Thomas for 454 days. However, the Court also considers that Thomas is out-of-custody.
As to the impact of a reprosecution on the administration of this chapter and on the administration of justice, the Speedy Trial Act serves to protect both the interests of a defendant and the interests of the public. Zedner v. United States, 547 U.S. (2006). The Ninth Circuit has stated that the Speedy Trial Act's more severe sanction is appropriate where the courts and prosecutors have failed to recognize long-standing precedent. United States v. Clymer, 25 F.3d 824 (9th Cir. 1994). Here, the Court failed to recognize the facts of this case did not warrant the extended delay in continuing this matter while the Report and Recommendation was pending and failed to adequately consider whether the government's March 28, 2011, motion to continue warranted a 70 day continuance. See Coe v. Thurman, 922 F.2d 528, 531 (9th Cir. 1990) ("failures of court-appointed counsel and delays by the court are attributable to the state").
However, the Court also considers that the excess non-excludable time is merely six days. In light of these factors, the Court finds dismissal of the Possession with Intent to Distribute Marijuana charge without prejudice to be appropriate.
IV. Conspiracy to Possess with Intent to Distribute Marijuana
On May 18, 2011, a Superseding Indictment issued against Thomas. In addition to charging Thomas with Possession with Intent to Distribute Marijuana, the Superseding Indictment also charges Thomas with Conspiracy to Possess with Intent to Distribute.
Generally, the speedy trial clock is not restarted when a superseding indictment is filed. See United States v. Daychild, 357 F.3d 1082, 1091 n. 10 (9th Cir. 2004). However, when a superseding indictment adds new charges that are not required to be joined under double jeopardy principles, other circuits have determined that two speedy trial clocks exist: the original clock for the initial charge(s), and a new clock for the new charges. United States v. Young, 528 F.3d 1294, 1295-98 (11th Cir. 2008) (in a case with a superseding indictment, the count that was in the original indictment was dismissed for a violation of the Speedy Trial Act, while counts added by superseding indictment were not); United States v. Jones, 601 F.3d 1247, 1254-58 (11th Cir. 2010) (same); United States v. Alford, 142 F.3d 825, 828-29 (5th Cir. 1998) (same); United States v. Kelly, 45 F.3d 45, 48 (2nd Cir. 1995) (same).
Although the Ninth Circuit has not addressed this issue, the Ninth Circuit has stated that the 70 day speedy trial period is not to be "restarted upon the filing of a superseding indictment when the superseding indictment charges the same offenses as the original indictment." United States v. Karsseboom, 881 F.2d 604, 606 (9th Cir. 1989), emphasis added. In this case, the superseding indictment does not charge solely the same offense as the original indictment. Further, the Court considers that jeopardy would not bar a successive prosecution in this case:
The Double Jeopardy Clause does not bar the government from indicting an individual on a conspiracy count after conviction or reversal on appeal of a conviction of the substantive offense, where the conspiracy charge was not contained in the original indictment.
8A Fed.Proc.L.Ed. § 22:355, citing United States v. Bayer, 331 U.S. 532, 67 S.Ct. 1394, 91 L.Ed. 1654 (1947); see also United States v. Arlt, 252 F.3d 1032 (9th Cir. 2001) ("With respect to conspiracy charges, for example, the [Supreme] Court has held that the Clause is not violated by punishing a defendant separately for conspiracy to import marijuana and conspiracy to distribute marijuana, even though the defendant participated in only one conspiracy, the purpose of which was to import and distribute marijuana.").
The Court finds, therefore, that the filing of the superseding indictment initiated a second speedy trial clock for the conspiracy charge. Dismissal of that charge for a violation of the Speedy Trial Act is not appropriate.
Moreover, Thomas's argument regarding 18 U.S.C. § 3161(d)(1) does not change this conclusion. As Thomas acknowledges, the provision applies when an indictment is dismissed by defense motion — here the superseding indictment replaces the original indictment and one charge (possession) will be dismissed, but the balance of the indictment (conspiracy) may proceed. Indeed, as Thomas states, "`the filing of a superceding indictment does not resent (sic) the speedy-trial clock for offenses charged, or required to be joined with those charges, in the original indictment.' United States v. Young, 528 F.3d 1294 (11th Cir. 2008) (citing to cases from the 2nd, 3rd, 5th, 7th, 8th, and 9th Circuits)." Motion, pp. 8-9. Because the conspiracy charge is not required to be joined with the possession charge, Arlt, Thomas's argument must fail.
Accordingly, IT IS ORDERED:
1. The Motion to Dismiss for Violation of the Right to a Speedy Trial (Doc. 87) is GRANTED IN PART AND DENIED IN PART.
2. Court II of the Superseding Indictment (alleging Possession with Intent to Distribute Marijuana) is DISMISSED WITHOUT PREJUDICE.
DATED this 21st day of June, 2011.