The opinion of the court was delivered by: Jeffrey L. VIKEN United States District Judge
ORDER DENYING DEFENDANT'S MOTION TO DISMISS
On August 17, 2010, the government filed an indictment against defendant Leo Villarreal, charging him with one count of aggravated sexual abuse, one count of aggravated sexual abuse of a minor, and one count of sexual abuse. (Docket 1). On April 11, 2011, Mr. Villarreal filed a motion to dismiss the indictment for an alleged violation of his statutory right to a speedy trial. (Docket 32). The government resisted the motion in its entirety. (Docket 44). The court held an evidentiary hearing on May 4, 2011, and received supplemental briefing thereafter. (Dockets 49 & 50). Mr. Villarreal's motion is ripe for resolution.
FACTS AND PROCEDURAL HISTORY
The court limits its recitation to facts necessary to resolve the pending motion. The court adduces the following facts from the docket in this case, of which the court takes judicial notice, and the evidence received at the evidentiary hearing.*fn1 This evidence consisted of five exhibits and testimony from Special Agent Charlie Blackburn of the Federal Bureau of Investigation ("FBI"), State Criminalist Jenny Fosness of the State of South Dakota DCI*fn2 Forensic Laboratory ("SDFL"), and former Assistant United States Attorney Carolyn Olson.
Ms. Olson was the prosecutor originally assigned to this case from the early investigatory stages until approximately mid-March of 2011. (HT 88:24-25; 89:1-18). Agent Blackburn's involvement in the case began on or about March 15, 2010,*fn3 shortly after the FBI learned of allegations of sexual assault made against Mr. Villarreal. (HT 13:25; 14:1-3). Agent Blackburn's primary role during the investigation was to interview witnesses and collect evidence. (HT 14:3-5). There are two alleged victims in this case, L.L.H., a juvenile, and Marissa Two Lance. (Docket 1).
On March 18, 2010, Agent Blackburn traveled to the Pine Ridge Indian Reservation in South Dakota to collect evidence from the residence where the assault allegedly took place and to speak with the alleged victims. (HT 15:1-17; Exhibit 101 at ¶ 3). Agent Blackburn collected a bed sheet that was on the alleged victims' bed at the time of the alleged assault. (HT 18:24-25; Exhibit 101 at ¶ 4). Sometime later, Agent Blackburn received the underwear of L.L.H. from a tribal law enforcement officer. (HT 18:10-25; 19:1-6; Exhibit 101 at ¶ 4). Agent Blackburn examined the bed sheet and underwear using an alternate light source and several areas fluoresced, indicating the possible presence of bodily fluids. (Exhibit 101 at ¶ 4).
On June 16, 2010, Agent Blackburn obtained a search warrant from Magistrate Judge Veronica L. Duffy for the collection of two saliva samples from Mr. Villarreal. (Exhibit 101). Agent Blackburn collected the saliva samples from Mr. Villarreal on June 21, 2010, by means of buccal swabs. (HT 20:11-13).
On August 17, 2010, the government indicted Mr. Villarreal. (Docket 1). Law enforcement arrested Mr. Villarreal on August 23, 2010. On August 24, 2010, Mr. Villarreal appeared before Judge Duffy for an initial appearance, arraignment, and detention hearing. (Docket 4). At the consolidated hearing, Mr. Villarreal entered a plea of not guilty; Judge Duffy appointed Mr. Colbath to represent Mr. Villarreal; and Judge Duffy entered an order detaining Mr. Villarreal, finding him both a flight risk and a danger to others or the community. (Dockets 4, 5, & 6). Also on August 24, 2010, this court entered its standing order setting the trial for November 2, 2010. (Docket 10).
On October 4, 2010, Agent Blackburn personally delivered five pieces of evidence to SDFL in Pierre, South Dakota.*fn4 (HT 19:13-25; 66:4-6). The evidence consisted of the bed sheet, the underwear, a buccal swab from Marissa Two Lance, a buccal swab from L.L.H., and a buccal swab from Mr. Villarreal.*fn5 (HT 20:3-6).
When delivering the evidence to SDFL, Agent Blackburn instructed staff to conduct DNA*fn6 testing. (HT 20:21-25; 21:1-12). Agent Blackburn also requested a comparative analysis of the alleged victims' DNA and Mr. Villarreal's DNA if biological material was found.*fn7 (HT 31:5-14). Agent Blackburn informed staff of the November 2, 2010, trial date because it was his understanding SDFL "will kind of adjust their schedule of examinations to try to put the ones that have trial dates coming up toward the top of the list." (HT 21:22-25; 22:1-11). SDFL would prioritize its testing if aware of a pending court date or other deadline. (HT 65:22-25; 66:1-3).
Either on October 4, 2010, or the following day, Ms. Olson called SDFL
for an estimate of when testing would be completed.*fn8
(HT 91:1-25; 92:1-3; 95:9-19; 103:1-15). Ms. Olson informed
Mr. Colbath of her intention to file a motion to continue the trial
and asked Mr. Colbath for his position.*fn9 (HT
On October 5, 2010, Ms. Olson moved for a continuance of the trial. (Docket 15). In the motion, Ms. Olson indicated staff from SDFL informed her that DNA analysis would not be completed until the second week of December 2010. Id. at p. 2. Ms. Olson stated SDFL needed to test L.L.H.'s underwear and the bed sheet for the presence of DNA and to conduct the comparative analysis. Id. at pp. 1-2. Ms. Olson requested a 60-day continuance "so that both parties can receive the DNA results, have time to analyze the results, secure additional testing if needed, and engage in meaningful plea negotiations." Id. at p. 2. In the motion, Ms. Olson indicated she discussed the status of the DNA testing with Mr. Colbath and Mr. Villarreal did not object to a 60-day continuance. Id.
On October 7, 2010, the court granted the motion for a continuance and set the trial for December 28, 2010. (Docket 16). The court found the ends of justice served by continuing the trial outweighed the best interests of the public and Mr. Villarreal in a speedy trial. Id. at p. 1. The court found the delay excludable for speedy trial purposes under 18 U.S.C. § 3161(h)(7)(A). Id. at p. 2. Mr. Villarreal filed a waiver of speedy trial on October 12, 2010. (Docket 17).
On November 29, 2010, Ms. Olson moved for a second continuance of the trial. (Docket 18). In the motion, Ms. Olson indicated SDFL analyzed the underwear and bed sheet for the presence of DNA, but still needed to complete the comparative analysis.*fn10 Id. at p. 1. Ms. Olson indicated SDFL staff informed her the DNA analysis would not be completed until February 15, 2011.*fn11 Id. at pp. 1-2. Ms. Olson requested a 90-day continuance "so that both parties can receive the DNA results, have time to analyze the results, secure additional testing, if needed, and engage in meaningful plea negotiations." Id. at p. 2. In the motion, Ms. Olson indicated she discussed the status of the DNA testing with Mr. Colbath and Mr. Villarreal did not object to a 90-day continuance. Id.
On December 1, 2010, Mr. Villarreal filed a waiver of speedy trial. (Docket 19). On December 3, 2010, the court granted the motion for a continuance and set the trial for March 22, 2011. (Docket 20). The court found the ends of justice served by continuing the trial outweighed the best interests of the public and Mr. Villarreal in a speedy trial. Id. at p. 1. The court found the delay excludable for speedy trial purposes under 18 U.S.C. § 3161(h)(7)(A). Id. at p. 2.
On January 28, 2011, Agent Blackburn received an e-mail on his Blackberry from SDFL indicating a report was available for viewing.*fn12 (HT 25:3-7). Due to technical difficulties, Agent Blackburn requested SDFL fax the report to him, rather than downloading the report from the SDFL web page as was the normal procedure. (HT 25:7-12). SDFL faxed the report on January 28, 2011.*fn13 (HT 24:13-15; 26:13-14; Exhibit 102 at p. 1). Serologist Jerome Remm prepared the report, which was dated January 28, 2011. (Exhibit 102 at p. 1). Mr. Remm detected the presence of semen on the bed sheet, but did not detect the presence of semen on L.L.H.'s underwear. Id. Mr. Remm did not detect amylase activity consistent with saliva on the underwear or the bed sheet. Id.
Either on January 28, 2011, or shortly thereafter, Agent Blackburn informed Ms. Olson of his receipt of the report. (HT 28:16-25; 29:1-3).
Because of Agent Blackburn's initial request for a comparative analysis if biological material was found, SDFL conducted a comparative analysis without further instruction. (HT 30:15-20; 50:22-25; 51:1-12). Ms. Fosness conducted the comparative analysis in this case. (HT 65:14-15).
After learning of and viewing Mr. Remm's report, Ms. Olson informed
Mr. Colbath of the results and her intention to disclose jointly the
report and Ms. Fosness' report once it was completed.*fn14
(HT 106:5-11). Ms. Olson also recalled speaking with Ms.
Fosness the first or second week of February 2011. (HT 96:19-21;
97:11-25; 98:1-2; 101:4-21). Ms. Olson asked for an estimate of when
the comparative analysis would be completed.*fn15 (HT
97:3-5). Ms. Olson was concerned because she previously represented to
the court the comparative analysis would be completed by February 15,
2011, and because the plea deadline was March 8, 2011. (HT 96:21-25;
97:6-11). Ms. Olson testified Ms. Fosness gave an estimate of four to