Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Gallardo

United States District Court, D. South Dakota, Western Division

August 2, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
FRANK GALLARDO, Defendant.

          ORDER

          JEFFREY L. VIKEN CHIEF JUDGE.

         INTRODUCTION

         Defendant Frank Gallardo filed a motion to dismiss the indictment under the Speedy Trial Act, 18 U.S.C. § 3161. (Docket 51). The government opposes the defendant’s motion. (Docket 53). For the reasons stated below, the motion is denied.

         ANALYSIS

         On May 19, 2015, Mr. Gallardo was charged by a two-count indictment with abusive sexual contact with the alleged minor victim, A.B., an Indian child who had not attained 12 years of age. (Docket 4). An arrest warrant was issued the following day. (Docket 9). On October 16, 2015, Mr. Gallardo was arrested in the District of Montana. (Docket 12). Mr. Gallardo made his initial appearance in the District of South Dakota before United States Magistrate Judge Daneta Wollmann on November 20, 2015. (Docket 17). A scheduling and case management order was issued the same day, setting the trial of this case on January 26, 2016. (Docket 19 at p. 2). On December 11, 2015, Mr. Gallardo filed an unopposed motion requesting a two-month continuance of the trial date. (Docket 21). That same day Mr. Gallardo filed a waiver of his speedy trial rights under 18 U.S.C. § 3161 consistent with the motion for continuance. (Docket 22). An order granting the defendant’s motion and setting a new trial date of March 22, 2016, was entered. (Docket 23).

         On February 22, 2016, the defendant filed a motion to file a pleading under seal with an attached motion to compel discovery (“motion to compel”). (Dockets 29 & 29-1). On February 26, Mr. Gallardo filed a second motion to file a pleading under seal with an attached motion to admit Fed. R. Evid. 412 evidence (“Rule 412 motion”). (Dockets 30 & 30-1). Defendant’s motions to file pleadings under seal were granted. (Dockets 32 & 33). On March 2, 2016, defendant’s motion to compel and Rule 412 motion were filed. (Dockets 34 & 36). Briefing on both motions was completed on March 21, 2016.

         On June 7, 2016, Mr. Gallardo filed a motion to dismiss the indictment on the basis of § 3161 (“speedy trial motion”). (Docket 51). The government opposed the speedy trial motion. (Docket 53).

         On July 15, 2016, the court filed an order denying as moot the motion to compel and reserving resolution of the Rule 412 motion pending a hearing in advance of trial. (Docket 55). Addressing the Rule 412 motion, the court found that “the prior sexual abuse of A.B. by Mr. Thunder Hawk may be admissible . . . [but] the court cannot resolve admissibility or the method by which the potential evidence may be presented to the jury without first conducting the hearing required by Rule 412(c).” Id. at pp. 6-7.

         “The 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 November 20, 2015, the date upon which Mr. Gallardo appeared before Magistrate Judge Wollmann. (Docket 17).

         The 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). Each motion suspends the speedy trial clock. Id.

         Mr. Gallardo submits the indictment should be dismissed since “the time elapsed since arraignment exceeds the limits prescribed in 18 U.S.C. §[§] 3161(c) and (g).” (Docket 51 at p. 1). He argues both of his motions became ripe for resolution on March 21, 2016, and since the motions had not been resolved by June 7, 2016, the 50 days remaining on the speedy trial clock had expired and the indictment must be dismissed.[1] (Docket 52 at p. 3). Mr. Gallardo asserts because only 30 days can be excluded from the speedy trial clock calculation for the time “during which any proceeding concerning the defendant is actually under advisement by the court” and because 80 days had elapsed by the time of his speedy trial motion, the indictment must be dismissed. Id. (emphasis in original) (referencing United States v. Dezeler, 81 F.3d 86, 88-89 (8th Cir. 1996)). Finally, Mr. Gallardo argues “[s]ince this Court did not schedule a hearing within the 50 countable days remaining under the Speedy Trial Act, excluding the 30 days allowed under § 3161(h)(1)(H), this Court can not now set a hearing on Defendant[’]s[] motions without running afoul of the law and violating the Speedy Trial Act.” (Docket 54 at p. 3).

         Defendant’s reliance on § 3161(h)(1)(H) is misplaced. The only time subsection H comes into play is if the defendant’s motion does not require a hearing. It is plain by the language of Rule 412 that unless the defendant’s motion is denied, a hearing is mandatory as part of the court’s resolution of how the other acts evidence will be presented to the jury. Rule 412 states:

         The court may admit the following evidence in a criminal case:

(A) evidence of specific instances of a victim’s sexual behavior, if offered to prove that someone other than the defendant was the source of semen, ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.