The opinion of the court was delivered by: Jeffrey L. VIKEN United States District Judge
On March 15, 2011, defendant Jeffrey J. Grimes was indicted by a grand jury in the District of South Dakota with three counts of mailing threatening communications, in violation of 18 U.S.C. § 876(d); two counts of repeated telephone calls, in violation of 47 U.S.C. § 223(a)(1)(D); five counts of anonymous telephone harassment, in violation of 47 U.S.C. § 223(a)(1)(C); five counts of repeated harassing communication, in violation of 47 U.S.C. § 223(a)(I)(E); and two counts of stalking, in violation of 18 U.S.C. §§ 2261A(2), 2261(b)(5) & (6) and 2265A(a). (Docket 1). On June 15, 2011, the defendant filed a motion to dismiss the indictment with prejudice. (Docket 22). The basis for the motion is defendant's claim he was not brought to trial within seventy (70) days as required by 18 U.S.C. § 3161, the Speedy Trial Act ("STA"). Id. Following briefing, the court conducted a hearing and received evidence on defendant's STA motion on July 6, 2011. For the reasons below, defendant's motion is denied.
After the filing of the indictment, an arrest warrant was issued on March 16, 2011. (Docket 3). Mr. Grimes was arrested on March 21, 2011, by the Shenandoah County, Virginia, Sheriff's Office. Id. Mr. Grimes testified the arrest occurred in New Market, Virginia. He was then transferred by the United States Marshals Service ("USMS") to Harrisonburg, Virginia. On March 24, 2011, Mr. Grimes appeared before United States Magistrate Judge James G. Welsh for a Rule 5 - Initial Appearance.*fn1 (Docket 4-2).*fn2 At the initial appearance before Magistrate Judge Welsh, Mr. Grimes was provided with court-appointed counsel and advised of his statutory rights. (Exhibit 1). He was also advised of his rights to an identity hearing, a preliminary hearing, and a detention hearing before transfer could occur. Id. Mr. Grimes chose to waive both an identity hearing and a preliminary hearing. Id. He did not contest detention until his return to the District of South Dakota. Id. At the conclusion of the hearing, Magistrate Judge Welsh entered an order that Mr. Grimes be transferred to the Western Division of the District of South Dakota. (Docket 4-1). The commitment order further required that "[t]he [USMS] must transport the defendant, together with a copy of this order, to the charging district and deliver the defendant to the [USMS] for that district . . . . The marshal . . . in the charging district should immediately notify the United States attorney and the clerk of the court for that district of the defendant's arrival so that further proceedings may be promptly scheduled."
Mr. Grimes testified that on March 25, 2011, the USMS transported him through a number of jails and jurisdictions until he arrived at the Federal Transfer Center in Oklahoma City, Oklahoma, some time later. On April 6, 2011, Jane Kobal, USMS Supervisory Deputy for the Western Division of the District of South Dakota, was contacted by the Justice Prisoner Alien Transportation System ("JPATS") in Oklahoma City. The purpose of that call was to request that Deputy Marshal Kobal ask permission of Magistrate Judge Veronica L. Duffy for the Western Division of the District of South Dakota to permit the USMS to deliver Mr. Grimes on April 20, 2011.
Deputy Marshal Kobal submitted JPATS' request dated April 6, 2011, to Magistrate Judge Duffy. (Exhibit A). The application requested a "Rule 45(b) extension of time limits for transportation of [Mr. Grimes], as provided for in 18 U.S.C. § 3161(h)(1)(H)." Id. JPATS indicated Mr. Grimes was "presently awaiting transportation [to the District of South Dakota] and will arrive [there] on the next available airlift on 04/20/2011." Id. Deputy Marshal Kobal also represented to Magistrate Judge Duffy that if JPATS's request was "not approved [that arrangements would be made] for a special trip to pick [Mr. Grimes] up and deliver him to [the District of South Dakota] as soon as possible." Id. On April 7, 2011, Magistrate Judge Duffy approved the request. Id.
It appears Mr. Grimes arrived in Rapid City, South Dakota, on April 20, 2011, and an initial appearance was originally scheduled for that day. See CM/EFC 04/20/11 text entry. For reasons not known to the court, the initial appearance was rescheduled for the next day. Id. An initial appearance occurred before Magistrate Judge Duffy on April 21, 2011. (Docket 5). Following the hearing, Mr. Grimes was ordered detained. (Docket 7). A scheduling and case management order was entered the same day. (Docket 8). By this order, a jury trial was scheduled for June 28, 2011. Id.
On June 8, 2011, Mr. Grimes, pro se, filed an ex parte request that the court hold a hearing regarding a number of issues, including what the court initially perceived as a potential motion for change of counsel. (Docket 15). Based on Mr. Grimes' pro se motion, the court scheduled an ex parte hearing with Mr. Grimes and his counsel for June 14, 2011. On June 14, 2011, Mr. Grimes' attorney filed an ex parte motion for status hearing. (Docket 21). This motion reaffirmed Mr. Grimes' pro se complaints regarding his incarceration and "seek[ed] a change in his current representation status . . . ." Id. The ex parte hearing was rescheduled for June 17, 2011. See CM/ECF 06/14/2011 text entry.
On June 15, 2011, Mr. Grimes filed a motion to dismiss the indictment. (Docket 22). The motion requested dismissal with prejudice for violating the defendant's speedy trial rights. Id.
An ex parte hearing was conducted with Mr. Grimes and counsel on June 17, 2011. (Docket 24). The purpose of the hearing was to address Mr. Grimes' pro se letter and counsel's motion for a status hearing. During the hearing, Mr. Grimes clarified he was not seeking new counsel or the right to proceed pro se, but rather seeking an order setting a schedule by which the USMS and Pennington County Jail would be required to allow counsel access to Mr. Grimes for trial preparation. Id. A motion to permit confidential access by counsel, with proposed dates conforming to defense counsel's schedule, was filed on June 21, 2011. (Docket 26). An order granting the attorney-client access in the Pennington County Jail was filed on June 23, 2011. (Docket 27).
On July 6, 2011, a hearing was held on Mr. Grimes' STA motion to dismiss. (Docket 29). Mr. Grimes and Deputy Marshal Kobal testified to develop the evidence described above.
The Speedy Trial Act provides, in part, "the trial of a defendant charged in an . . . indictment . . . shall commence within seventy days from the filing date (and making public) of the . . . 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). Excluded from this time requirement are a number of events and activities. See 18 U.S.C. § 3161(h). Subsection (h) provides, in pertinent part, the following: The following periods of delay shall be excluded . . . in computing the time within which the trial of any such offense must commence:
(1) Any period of delay resulting from other proceedings concerning the defendant, including but not limited to--. . .
(D) delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion;
(E) delay resulting from any proceeding relating to . . . the removal of any defendant from another district under the ...