United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE.
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.
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).
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.
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).
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.
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).
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.
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. (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).
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:
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, ...