United States District Court, D. South Dakota, Northern Division
OPINION AND ORDER
CHARLES B. KORNMANN, United States District Judge.
was charged by indictment on January 21, 2016, with the
crimes of aggravated sexual abuse, kidnapping, assault with a
dangerous weapon, and assault resulting in serious bodily
injury. He entered an initial appearance on February 4, 2016.
The jury trial was initially scheduled for April 12, 2016. On
March 30, 2016, the government orally moved for a continuance
of the trial. The motion was granted, over the objection of
the defendant, on the basis that the interests of justice are
served by a continuance to allow the F.B.I, laboratory to
complete forensic testing of evidence. The trial was
continued to July 12, 2016. Thereafter, defendant filed a
motion to dismiss the indictment on the basis that the
defendant was not brought to trial within 70 days as required
by the Speedy Trial Act, 18 U.S.C. § 3161.
Speedy Trial Act.
Speedy Trial Act requires in this case that the defendant be
brought to trial within 70 days after his initial appearance.
18 U.S.C. § 3161(c)(1). Certain periods of delay are
excluded in computing the time within which the defendant
must be brought to trial. 18 U.S.C. § 3161(h).
Among the statutorily approved reasons for days to be
excluded from the speedy-trial calculation is an
"ends-of-justice" continuance: A trial may be
delayed if a district court finds the ends of justice so
require and "sets forth, in the record of the case,
either orally or in writing, its reasons for finding that the
ends of justice served by the granting of such continuance
outweigh the best interests of the public and the defendant
in a speedy trial." 18 U.S.C. § 3161(h)(7)(A).
United States v. Adejumo, 772 F.3d 513, 521 (8th
Cir. 2014). A defendant's consent is not required for the
court to make a finding that the ends of justice are served
by a continuance. United States v. Jones, 795 F.3d
791, 798 (8th Cir. 2015). The Speedy Trial Act prohibits an
ends of justice continuance solely "because of... lack
of diligent preparation ... on the part of the attorney for
the Government. § 3161(h)(7)(C)." United States
v. Villarreal, 707 F.3d 942, 953 (8th Cir. 2013).
"A defendant has the burden of proof to show that his
statutory right to a speedy trial has been violated."
United States v. Williams, 557 F.3d 943, 950 (8th
alleged offenses in this case occurred on December 9, 2015.
Over 60 pieces of evidence, including a wet mop that may have
been used to mop up blood from the floor, were collected on
December 9 and 10. The mop head had to be dried consistent
with F.B.I, protocol prior to shipping the evidence for
testing. On December 28, 2015, the evidence was sent to the
Minneapolis F.B.I, office. On January 4, 2016, the items
reached Minneapolis. They were mailed to the F.B.I.
Laboratory in Quantico, Virginia, on January 6, 2016.
to the prosecutor, the F.B.I. Laboratory conducts analysis of
evidence in a specific order so as not to lose any evidence.
Trace evidence is tested first and usually takes 30 days to
conduct. DNA evidence is next tested and usually takes 60
days to conduct. Testing for latent prints and shoe prints
are conducted after DNA testing. According to the prosecutor,
shoe print testing takes 180 days to conduct.
case was assigned to the Honorable Roberto Lange at the time
of the hearing on the motion to continue. Judge Lange held
that the government "has acted expeditiously in
collecting the evidence - and once the mop head was dried out
- sending it on to the FBI office and in turn to the
lab." Judge Lange concluded that "the ends of
justice are served by allowing the analysis of the evidence
to be completed ... a continuance of the trial by a period
of... 90 day[s]... would serve the public interest in
actually allowing analysis of the evidence to determine ...
if there is evidence of the defendant's guilt or evidence
that exculpates the defendant."
record in this case supports a finding that the delay in
testing was not "unreasonable or indicative of a lack of
diligence." See United States v. Villarreal,
707 F.3d at 954. I find that the period of delay caused by
the government's motion to continue is excluded from
computing the time within which the trial in this case must
commence and that the defendant's statutory right to a
more speedy trial was not violated.
Constitutional Right to a Speedy Trial.
Sixth Amendment to the United States Constitution guarantees
an accused the right to a speedy trial. The United States
Supreme Court has identified four factors the lower courts
should assess and balance in determining whether a particular
defendant has been deprived of his speedy trial right:
"Length of delay, the reason for the delay, the
defendant's assertion of his right, and ...