The opinion of the court was delivered by: Chief Magistrate Judge Michael R. Merz
This case was set for trial on January 24, 2007. Prior to the commencement of trial, Defendant orally moved for dismissal on the ground his speedy trial rights have been violated by the delay in bringing this case to trial.
During the argument, Defendant's counsel mentioned the Ohio speedy trial statute, Ohio Revised Code § 2945.72. Although Defendant is charged in Count 2 with an assimilated offense under Ohio Revised Code § 4511.19(A)(1)(a), the Ohio statute is not applicable. Under the Assimilative Crimes Act, 18 U.S. C. § 13, only the elements and penalties are assimilated. United States v. Spivey, 781 F. Supp. 676 (D. Hawaii, 1991), aff'd, 980 F.2d 740 (9th Cir. 1992), citing, United States v. Roberts, 845 F.2d 226, 228 (9th Cir. 1988), citing United States v. Sain, 795 F.2d 888, 890 (10th Cir. 1986). On procedural questions such as speedy trial, federal procedural law governs. See Sibbach v. Wilson, 312 U.S. 1, 14, 61 S.Ct. 422, 85 L.Ed. 479 (1940).
Because of the penalties involved, the offense with which Defendant is charged is classified in federal law as a Class B misdemeanor, a petty offense. The federal Speedy Trial Act is not applicable to Class B and C misdemeanors or infractions per 18 U.S.C. § 3172(2).
The more difficult question presented by the motion is whether the delay violates Defendant's Sixth Amendment right to speedy trial. The Supreme Court has developed a four-part balancing test to use in determining whether a defendant's constitutional right to a speedy trial has been violated: (1) the length of the delay; (2) the reasons for the delay; (3) whether the defendant has asserted his right; and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530-32 (1972). Delay is presumptively prejudicial where the post-accusation delay approaches one year. Doggett v. United States, 505 U.S. 647 (1992).
The traffic stop which resulted in these charges occurred at Wright-Patterson Air Force Base on June 15, 2005. The Information was filed January 20, 2006 (Doc. No. 2). Summons was issued the same day, requiring an initial appearance March 22, 2006 (Doc. 3). At initial appearance, where Defendant was released on his own recognizance, counsel requested and was granted a pretrial conference for one week later, March 29, 2006 (Doc. No. 8). Pursuant to that conference, Defendant filed a Motion to Suppress on April 12, 2006, which included a request for an evidentiary hearing (Doc. No. 9). Because the Government's witness, the arresting officer, is an active duty Air Force member and he was deployed overseas, the Government requested and received a continuance of the hearing until his return just before September 20, 2006 (Doc. Nos. 12, 13). The Motion to Suppress was decided on September 25, 2006, within five days of its submission (Doc. No. 15), and the case was immediately set for trial. It was then continued for trial for three months on Defendant's Motion (Doc. Nos. 18, 19).
From initial contact to charging (6/15/05-1/20/06), the delay is entirely the responsibility of the Government. But the first question is whether the speedy trial right attaches at the time of initial contact. The Supreme Court has held "it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provisions of the Sixth Amendment." United States v. Marion, 404 U.S. 307 (1971). Here the Defendant was not arrested and held to answer at the time of initial contact. Instead, he was detained long enough to offer him a breath alcohol test and then released. Temporarily taking a person into custody for photographing, fingerprinting, etc., does not constitute arrest for this purpose if no complaint or formal charge is filed at the time. United States v. Sayers, 698 F.2d 1128 (11th Cir. 1983). An informal and warrantless arrest also does not suffice. United States v. Varella, 692 F.2d 1352 (11th Cir. 1982). Certainly the Court could not have proceeded to trial at any time during this six-month delay because it had no jurisdiction to do so. In sum, the time from initial contact until the Information was filed is not to be counted for Sixth Amendment speedy trial purposes.
The delay in time from April 28, 2006, until September 20, 2006, resulted from the unavailability of the Government's principal witness. In a sense, the Government is solely responsible for the unavailability, since the witness is a government employee who was placed outside subpoena range by his employer. Such a formalistic account would ignore the fact that the Armed Forces of the United States are actively engaged in military operations in two theaters outside the country and it is common knowledge that their resources for doing so are seriously strained. There is absolutely no suggestion that the witness was deployed to delay the trial. Under the circumstances, the delay occasioned by the witness' deployment is completely valid.
The last three months of delay was on Defendant's own Motion for Continuance (Doc. No. 17).
The Defendant argued there was prejudice from the delay. A witness who was with Defendant and could testify to the amount of alcohol he consumed within the relevant time period left Ohio for California in approximately June, 2006. However, Defendant apparently knows where the witness is and under Fed. R. Crim. P. 17(e), that witness could be subpoenaed from California. Defendant was unable to locate for trial another person who was an eyewitness to Defendant's driving just prior to his arrest. However, Defendant did not indicate what efforts had been made to secure that witness' attendance; the Court notes that subpoenas for trial witnesses were issued on Defendant's request a mere five days before trial. Furthermore, when the witness' whereabouts were known, she could have been deposed.
On balance the Court determines that Defendant has not been deprived of his constitutional right to a speedy trial. The motion to dismiss is denied. The Clerk will re-set this case for trial. January 25, 2007.
Michael R. Merz Chief United States Magistrate Judge
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