United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE
Robert Massat filed a motion to dismiss the indictment under
the Speedy Trial Act, 18 U.S.C. § 3161. (Docket 60). The
government opposes defendant’s motion. (Docket 62). For
the reasons stated below, the motion is denied.
21, 2015, Mr. Massat was indicted for the offense of
conspiracy to distribute a controlled substance in violation
of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A).
(Docket 1). An arrest warrant was issued on October 15, 2015.
(Docket 6). On October 20, 2015, Mr. Massat was arrested and
made his initial appearance before United States Magistrate
Judge Daneta Wollmann. (Docket 7). Attorney Frank Driscoll
was appointed to represent Mr. Massat. (Docket 11). A
scheduling and case management order was issued the next day,
setting the trial of this case on December 29, 2015. (Docket
12 at p. 2).
November 2, 2015, Attorney Ellery Grey filed a notice of
appearance on behalf of the defendant. (Docket 14). On
November 19, 2015, Attorney Driscoll filed a motion to
withdraw. (Docket 15). An order granting Mr. Driscoll’s
motion to withdraw was entered the next day. (Docket 16). On
November 30, 2015, Mr. Massat filed a motion for
reconsideration of pretrial release. (Docket 19). On December
2, 2015, Magistrate Judge Wollmann held a hearing on the
motion for reconsideration. (Docket 23). That same day,
Magistrate Judge Wollmann orally denied the motion for
reconsideration and a text order was entered on December 4,
2015, denying the motion. (Dockets 23 & 25).
December 2, 2015, Mr. Massat filed an unopposed motion
requesting a 60-day continuance of the trial date. (Docket 20
at p. 2). That same day Mr. Massat filed a waiver of his
speedy trial rights under 18 U.S.C. § 3161 and his
attorney filed an affidavit in support of the motion for
continuance. (Dockets 21 & 22). On December 4, 2015, an
order granting the defendant’s motion and setting a new
trial date of February 23, 2016, was entered. (Docket 27).
December 10, 2015, Attorney Matthew Kinney filed a notice of
substitution of counsel on behalf of the defendant. (Docket
29). On January 5, 2016, Attorney Jamy Patterson filed a
notice of appearance on behalf of the defendant. (Docket 31).
On January 7, 2016, Attorney Kinney filed a motion to
withdraw as counsel. (Docket 32). Mr. Kinney’s motion
was granted on January 11, 2016. (Docket 33).
January 19, 2016, Mr. Massat filed a second unopposed motion
for continuance requesting a three-month continuance of the
trial date and a waiver of his speedy trial rights under
§ 3161. (Dockets 34 & 35). The next day, the court
entered an order granting the continuance and setting a new
trial date of May 17, 2016. (Docket 37).
March 15, 2016, Mr. Massat filed a motion to dismiss the
indictment on the basis of double jeopardy (“double
jeopardy motion”) and a motion to compel the government
to disclose grand jury transcripts (“motion to
compel”). (Dockets 38 & 40). Briefing on both
motions was completed on April 5, 2016. (Docket 46). The
trial date and other deadlines were canceled pending
resolution of defendant’s motions. (Docket 47).
April 14, 2016, Mr. Massat filed a motion for furlough.
(Docket 48). Magistrate Judge Wollmann held a hearing on the
furlough motion on May 13, 2016, and entered an order
granting the motion. (Dockets 55 & 57). Four days later,
on May 17, 2016, Mr. Massat filed a motion seeking
modifications to the conditions of his furlough and on the
same day Magistrate Judge Wollmann entered an order granting
those modifications. (Dockets 58 & 59).
21, 2016, Mr. Massat filed a motion to dismiss the indictment
on the basis of § 3161 (“speedy trial
motion”). (Docket 60). The government opposed the
motion. (Docket 62). The speedy trial motion became ripe for
resolution on July 6, 2016. (Docket 63). On July 15, 2016,
the court denied the defendant’s motion to compel and
his double jeopardy motion. (Docket 64).
Speedy Trial Act . . . commands that a defendant be tried
within 70 days of the latest of either the filing of an
indictment . . . or the first appearance before a judge or
magistrate.” Henderson v. United States, 476
U.S. 321, 322 (1986). See 18 U.S.C. §
3161(c)(1) (“In any case in which a plea of not guilty
is entered, 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.”). The date starting the
speedy trial clock in this case is October 20, 2015, the date
of Mr. Massat’s initial appearance and arraignment
before Magistrate Judge Wollmann. (Docket 7).
Speedy Trial Act describes periods of delay that “shall
be excluded in computing the time within which . . . the
trial of any such offense must commence[.]” 18 U.S.C.
§ 3161(h). One such period of excludable delay is
“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[.]” 18
U.S.C. § 3161(h)(1)(D). “[E]very motion . . .
tolls the speedy trial clock.” United States v.
Williams, 557 F.3d 943, 952 (8th Cir. 2009). “A
defendant has the burden of proof to show that his statutory
right to a speedy trial has been violated. . . . To meet that
burden the ...