United States District Court, S.D. Ohio
OPINION AND ORDER
A. SARGUS, JR. DISTRICT JUDGE.
matter is before the Court on the Defendant's Motion to
Dismiss for Lack of Speedy Trial (ECF No. 61), and the
Government's First Motion to Continue Trial and to Reset
Time to Respond to Pretrial Motions for the trial currently
scheduled for June 12, 2017 (ECF No. 69).
Defendant filed his Motion to Dismiss for Lack of Speedy
Trial on May 30, 2017 (ECF No. 61), and the Government filed
a Memorandum Contra Defendant's Motion to Dismiss for
Lack of Speedy Trial on June 1, 2017(ECF No. 71); thus the
issue is now ripe for decision. Defendant asserts that his
"rights under the Sixth Amendment of the Constitution,
and the Speedy Trial Act of 1974 have already been
violated." (Def. Mot., ECF No. 61, at p.4).
Sixth Amendment Speedy Trial Rights
proper remedy for a violation of a defendant's
constitutional speedy-trial rights is dismissal of the
indictment with prejudice." United States v.
Young, 657 F.3d 408, 413 (6th Cir. 2011). The Supreme
Court has set forth four factors for evaluating a Sixth
Amendment speedy-trial claim: (1) length of delay, (2) reason
for the delay, (3) the defendant's assertions of his
right, and (4) prejudice to the defendant. Barker v.
Wingo, 407 U.S. 514, 530 (1972). "None of the
factors is 'a necessary or a sufficient condition to the
finding of a deprivation of the right of speedy trial, '
but the factors are related and 'must be considered with
such other circumstances as may be relevant' in 'a
difficult and sensitive balancing process."'
Young, 657 F.3d at 414, quoting Barker, 407
U.S. at 530.
Length of Delay
Sixth Circuit has held that a court need only consider the
other three Barker factors if there has been an
"uncommonly long" delay. Id. The Sixth
Circuit has held that a delay of more than one year is
"presumptively prejudicial and triggers application of
the remaining three factors." Id. The length of
time from Defendant's initial court appearance, July 30,
2015 (ECF No. 5), to the present date in June, 2017, is just
short of two years. Defendant has therefore suffered
"presumptively prejudicial" delay.
Reason for the Delay
second Barker factor is the reason for the delay. In
this case, Defendant's trial was originally scheduled for
September 14, 2015, well within the 70 day provision of the
Speedy Trial Act. However, on August 17, 2015, the Defendant
moved the Court for a continuance of the trial date. (Def
Mot. to Continue Trial Date, ECF No. 11.) Thus, 18
non-excludable days passed from the date of initial
appearance to the date of Defendant's motion to continue
the trial date. (July 30 through August 17, 2015). The Court
granted Defendant's motion in the interests of justice,
and ordered a new trial date of December 7, 2015 (Order, ECF
No. 12.) Defendant waived his trial right for the period of
the continuance (Order, ECF No. 12, ¶8), and thus the
speedy trial clock was stopped from the date of his motion
for continuance of trial date through the new trial date
(August 17 through December 7, 2015). See, e.g., United
States v. Sobh, 571 F.3d 600, 604 (6th Cir. 2009).
this time, on November 16, 2015, Defendant filed a motion to
dismiss the case, claiming violations of double jeopardy and
due process under the Constitution. (Def. Mot. to Dismiss,
ECF No. 13.) On November 20, 2015, the Court set a hearing on
Defendant's motion for December 9, 2015, granted the
Government until December 2, 2015 to respond to
Defendant's motion to dismiss, and reset the jury trial
from December 7, 2015, to January 11, 2016 (Notice, ECF No.
18). The Defendant did not object to the resetting of trial.
The time from the second scheduled trial date to third trial
date (December 7, 2015 through January 11, 2016) is excluded
from the speedy trial clock. The Court heard oral argument on
Defendant's motion to dismiss on December 9, 2015. (ECF
No. 24.) The Court denied the motion to dismiss on January 4,
2016. (Order, ECF No. 27.) On that date, the Court held a
telephone status conference with the parties, and defense
counsel advised the Court that he would seek an immediate
appeal of the Court's Order denying the defendant's
motion to dismiss on double jeopardy grounds (ECF No. 27).
See Abney v. United States, 431 U.S. 651, 661 (1977)
(interlocutory appeal lies from denial of a motion to dismiss
on double jeopardy grounds). Accordingly, the Court vacated
the trial date (Order, ECF No. 28) without objection by
Defendant. On January 15, 2016, Defendant filed a notice of
interlocutory appeal to the Sixth Circuit (ECF No. 32). There
are no non-excludable days during this period.
January 15, 2016, this Court lost jurisdiction during
Defendant's interlocutory appeals. The period of these
interlocutory appeals to the Sixth Circuit, and then a writ
of certiorari to the Supreme Court of the United States
(January 15, 2016 through April 28, 2017), is excluded from
the speedy trial clock. This Court regained jurisdiction on
April 28, 2017 (ECF No. 46). See 18 U.S.C. §
3161(h)(1)(C)(2008 ed.); United States v. Pete, 525
F.3d 844, 850 (9th Cir. 2008) ("Until a party files a
certiorari petition or the time to do so expires, a party is
entitled to seek review by the Supreme Court of the adverse
appellate decision. Therefore, even though certiorari
petitions are not explicitly included in §
3161(h)(1)(E), a certiorari petition following an
interlocutory appeal is encompassed in §
3161(h)(1)(E)'s broad language as a 'delay resulting
from an [\ interlocutory appeal."')
(citations omitted). Defendant filed a pretrial motion on May
1, 2017, after the Court regained jurisdiction on April 28,
2017, which added three nonexcludable days. Thus, all of the
time since Defendant's initial appearance, with the
exception of 21 days, has been at the Defendant's
bequest. "When a party makes motions, it cannot use the
delay caused by those motions as a basis for a speedy-trial
claim." Young, 657 F.3d at 415, citing
United States v. Loud Hawk, 474 U.S. 302, 316-17
(1986) ('"Having sought the aid of the judicial
process and realizing the deliberateness that a court employs
in reaching a decision the defendants are not now able to
criticize the very process which they so frequently called
upon.'")(citations omitted). Because the length of
delay is attributable to Defendant, he has not satisfied the
second Barker factor.
Defendant's assertion of the right to Speedy Trial
third Barker factor is whether the Defendant has
asserted his right to speedy trial. Inasmuch as Defendant
sought a trial continuance and concurred in a third resetting
of trial to permit him to pursue his motion to dismiss, and
inasmuch as Defendant sought interlocutory appeals through
April 28, 2017, the period from August 17, 2015 through April
28, 2017 is not counted. As noted above, this Court did not
have jurisdiction during the pendency of Defendant's
appeals. On May 1, 2017, the Defendant filed a letter
requesting to travel abroad through May 10, 2017, and Motion
to Request Hybrid Representation. (ECF No. 41.) In the motion
Defendant represented he was ready to proceed to trial. And
again, at the hearing this Court held on May 18, 2017,
Defendant requested his speedy trial rights. The Court
granted Defendant's motion to permit him to represent
himself pro se with stand-by counsel (Order, ECF No.
48) and Defendant began filing pretrial motions on that date.
The Court scheduled trial to begin on June 12, 2017, and
ordered that "all motions of any kind, by the defendant
or by the government, shall be filed on or before May 30,
2017." (Order, ECF No. 52.) The period between this
Court's regaining of jurisdiction through the filing of
Defendant's first pretrial motion (April 28, 2017 through
May 1, 2017) adds three days to the speedy trial calculation.
The speedy trial clock is ...