United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE
jury returned an indictment alleging defendant David John
Schwarting and a codefendant conspired to distribute
methamphetamine in violation of federal law. (Docket 1).
Since his indictment, defendant has submitted numerous
filings. He has six pending motions. (Dockets 96, 123, 216,
218, 224 & 229). In this order, the court resolves his
motion to suppress evidence and to dismiss the indictment on
statutory and constitutional speedy trial grounds. (Docket 96
suppression motion was referred to Magistrate Judge Daneta
Wollmann for a report and recommendation pursuant to 28
U.S.C. § 636(b)(1)(B) and the standing order dated June
11, 2007. Magistrate Judge Wollmann held a suppression
hearing and issued a report and recommendation. (Dockets 143
& 163). Defendant filed timely objections to the report
and recommendation. (Docket 174).
Motion to dismiss the indictment
Speedy Trial Act
Speedy Trial Act (“the Act”), 18 U.S.C.
§§ 3161-74, “requires that trial begin within
70 days after a defendant is charged or makes an initial
appearance unless the running of the time is stopped for
reasons set out in the statute.” United States v.
Lucas, 499 F.3d 769, 782 (8th Cir. 2007) (en banc). The
Act lists the periods of time excludable from the 70 days. 18
U.S.C. § 3161(h). One is the “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).
Another “statutorily approved reason[ ] 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.' ” United States v.
Adejumo, 772 F.3d 513, 521 (8th Cir. 2014) (quoting 18
U.S.C. § 3161(h)(7)(A)). This category of excludable
time can result from “a continuance granted by any
judge on his own motion or at the request of the defendant or
his counsel or at the request of the attorney for the
Government[.]” 18 U.S.C. § 3161(h)(7)(A).
“Once those days are excluded, however, ‘if the
total number of non-excludable days exceeds seventy, then the
district court must dismiss the indictment upon the
defendant's motion.' ” Adejumo, 772
F.3d at 521 (quoting United States v. Villarreal,
707 F.3d 942, 953 (8th Cir. 2013)). “It is the
defendant's burden to show the motion should be
argues the Act's 70-day requirement has been violated and
moves to dismiss the indictment on that ground. (Dockets 218
& 219 at pp. 1-2) (“speedy trial motion to
dismiss”). Based on defendant's calculation of the
excluded time under the Act, the 70-day period has been
exceeded by several hundred days. (Docket 219 at p. 2). The
government disagrees with defendant and contends only 46 of
the 70 days available under the Act have passed. (Docket 238
at p. 11). According to the government, 19 days elapsed
before the first period of excludable time-and with the rate
defendant moved or consented to continuances or filed various
other motions-only 27 more nonexcludable days passed until he
filed this motion to dismiss. Id.
jury indicted defendant and his codefendant John Lee Harold
on October 21, 2014, for conspiracy to distribute a
controlled substance in violation of 21 U.S.C. §§
846, 841(a)(1) & 841(b)(1)(B). (Docket 1). Defendant
appeared before Magistrate Judge John Simko on October 29,
2014. (Docket 20). Nineteen days after his appearance, on
November 17, 2014, defendant filed a motion for a
continuance. (Docket 28). Those 19 days are not excludable,
so as of November 17, 2014, 51 days remained from the 70 set
by the Act. The court granted defendant's motion for a
continuance and found “that the ends of justice served
by continuing this trial outweigh the best interests of the
public and the defendants in a speedy trial insofar as
defense counsel has made known to the court that additional
time is needed to locate witnesses, to complete the
investigation and to prepare for trial.” (Docket 29 at
p. 1). This is an “ends of justice” continuance
excluded from the Act's 70-day period. See 18
U.S.C. § 3161(h)(7)(A); Adejumo, 772 F.3d at
521. The order granting the continuance set January 6, 2015,
as the deadline for filing another motion for a continuance.
(Docket 29 at p. 2). It set the tentative jury trial date as
January 27, 2015, meaning if no more continuances were
granted and trial did not occur on that date, the speedy
trial clock would begin running and add to the 19
non-excluded days. Id.
December 15, 2015, codefendant Harold filed a motion seeking
a continuance. (Docket 32). The court granted the motion,
noted defendant did not file an objection to the continuance
and provided an ends of justice basis for its order. (Docket
33). Defendant need not file a motion for a continuance or
formally join Mr. Harold's motion, because
“[e]xclusions of time attributable to one defendant
apply to all codefendants.” United States v.
Mallett, 751 F.3d 907, 911 (8th Cir. 2014) (internal
quotation marks omitted).
to the deadline for submitting another continuance motion,
Mr. Harold filed a motion toward that end. (Docket 36). The
court granted the motion, indicated defendant filed no
objection and detailed an ends of justice foundation for the
continuance. (Docket 37). The same sequence of events- Mr.
Harold motions for a continuance before the deadlines,
defendant does not object and the court grants the
continuance based on the ends of justice- occurred 11 more
times. (Dockets 40, 47, 53, 56, 60, 62, 66, 69, 72, 74 &
82). The court entered the last order in that sequence on
July 13, 2016. (Docket 82). In the July 13, 2016, order the
court set the case for a jury trial beginning September 6,
2016. Id. at p. 2. Because the court granted
continuances a defendant requested and grounded its order in
the ends of justice, the time between November 17, 2014, and
the last-scheduled jury trial date, September 6, 2016, is
excluded from the Act's 70-day period. See 18
U.S.C. § 3161(h)(7)(A).
12, 2016, defendant filed two motions to suppress evidence,
along with extensive briefs and exhibits. (Dockets 78, 79, 80
& 81). The motions were not timely and defendant did not
show good cause under Federal Rule of Criminal Procedure
12(c)(3), so the court denied them. (Docket 83). Defendant
then filed a motion for a continuance-the court granted it
based on the ends of justice and set the jury trial for
October 4, 2016. (Docket 92). Before trial commenced,
defendant filed his now-pending motion to suppress. (Docket
noted earlier, defendant's suppression motion was
referred to the magistrate judge for a report and
recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and
the standing order dated June 11, 2007. Defendant also filed
a motion to compel on the same day as his suppression motion,
(Docket 94), and he submitted a motion to dismiss the
indictment based on “outrageous government
conduct[.]” (Docket 123 at p. 1) (“first motion
to dismiss”). The motion to compel was eventually
denied as moot and the first motion to dismiss is pending
before the magistrate judge. (Dockets 98 & 126). On
December 14, 2016, the magistrate judge held a hearing on
defendant's suppression motion. (Docket 143).
previously stated, a “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” is excluded under the Act. 18 U.S.C. §
3161(h)(1)(D). “If a district court holds a hearing on
a motion . . . the ‘hearing' clause controls and
the time between the filing and the hearing is thus
excludable.” United States v. Williams, 557
F.3d 943, 951 (8th Cir. 2009). “After the hearing is
over, the district court might require supplemental filings
from the parties in order to properly resolve the motion. The
time during which the district court is awaiting these
filings is excluded.” Id. at 952 (internal
citation omitted). “[I]f the court requires time to
consider the motion after all information is available, this
time is limited [for purposes of exclusion of time] ¶ 30
days under 18 U.S.C. § 3161(h)(1)(H).” United
States v. Herbst, 666 F.3d 504, 510 n.3 (8th Cir. 2012)
(internal quotation marks omitted).
January 17, 2017, the magistrate judge issued a report and
recommendation on defendant's suppression motion. (Docket
163). Defendant filed his objections on February 7, 2017.
(Docket 174). Based on the “hearing clause” in
the Act, the time between defendant's filing of his
suppression motion and his objections to the report and
recommendation is excluded from the 70-day requirement.
Williams, 557 F.3d at 951-52; see 18 U.S.C.
§ 3161(h)(1)(D). The “prompt disposition”
clause in the Act excludes 30 days following the date
defendant filed his objections. Herbst, 666 F.3d at
509-10, n.3; see 18 U.S.C. §§
3161(h)(1)(D) & (H).
contends the last segment of excludable time is the 30 days
after he submitted his objections. (Docket 219 at p. 2).
Under defendant's calculation, the speedy trial clock
began to run again on March 9, 2017. See 18 U.S.C.
§§ 3161(h)(1)(D) & (H). But that is an
incomplete picture of this case under the Speedy Trial Act.
calculation is wrong because he ignores a motion that pushes
the period of excluded time beyond March 9, 2017. It is his
first motion to dismiss based on outrageous government
conduct. (Docket 123). Defendant filed that motion on
November 7, 2016. Id. The government requested and
was granted several extensions before filing its response on
February 3, 2017. (Docket 173). Defendant requested more time
to file his reply, (Docket 177), and the magistrate judge
granted the request and permitted defendant to file his reply
two weeks after the transcript of a hearing on the motion was
filed. (Docket 177). On May 22, 2017, the transcript was
filed, so defendant was to submit his reply on June 5, 2017.
(Docket 194). Defendant did not file a reply. As of June 5,
2017, “all information [on the motion was] available,
” so the court could begin considering the first motion
to dismiss. See Herbst, 666 F.3d at 510 n.3. The
“prompt disposition” clause excludes 30 days
following that date, making July 5, 2017, the date at which
the excludable period is over and the speedy trial clock
starts running for the first time since November 17, 2014.
See id.; 18 U.S.C. §§ 3161(h)(1)(D) &
August 1, 2017, defendant filed two motions. One requests a
Franks hearing and the other is his speedy trial
motion to dismiss the court is resolving here. (Dockets 216
& 218). Between July 5, 2017, and August 1, 2017,
27 days elapsed. Those days are not excludable under the Act
and add to the previously counted 19 days. Because 46
non-excludable days have passed since defendant's initial
appearance, 24 days remain under the Speedy Trial Act's
court denies defendant's motion to dismiss the indictment
based on the Speedy Trial Act.
Amendment and Speedy Trial Act challenges for delay are
reviewed independently of one another.”
Williams, 557 F.3d at 948 (citation and internal
quotation marks omitted). “As to the separate Sixth
Amendment speedy trial claim, [the United States Court of
Appeals for the Eighth Circuit] stated that ‘[i]t would
be unusual to find the Sixth Amendment has been violated when
the Speedy Trial Act has not.' ” United States
v. Shepard, 462 F.3d 847, 864 (8th Cir. 2006) (quoting
United States v. Titlbach, 339 F.3d 692, 699 (8th
Cir. 2003)). A defendant's Sixth Amendment right to a
speedy trial “ ‘attaches at the time of arrest or
indictment, whichever comes first, and continues until the
trial commences.' ” United States v.
Erenas-Luna, 560 F.3d 772, 776 (8th Cir. 2009) (quoting
United States v. McGhee, 532 F.3d 733, 739 (8th Cir.
2008)). The Sixth Amendment does not specify a time limit in
which an accused must be brought to trial. See U.S.
Const. amend. VI.
of the “vague” nature of the Sixth Amendment
right, “any inquiry into a speedy trial claim
necessitates a functional analysis of the right in the
particular context of the case.” Barker v.
Wingo, 407 U.S. 514, 522 (1972). To assist courts in
evaluating speedy trial claims, the Barker Court
established a four-factor balancing test “in which the
conduct of both the prosecution and the defendant are
weighed.” Id. at 530. These factors are the
(1) length of the delay, (2) the reason for the delay, (3)
the defendant's assertion of his right to speedy trial,
and (4) the prejudice to the defendant. Id.
Length of delay
the “length of the delay is to some extent a triggering
mechanism, ” courts need not inquire into the remaining
factors “[u]ntil there is some delay which is
presumptively prejudicial[.]” Id. “To
trigger speedy trial analysis, the defendant must allege the
interval between accusation and trial has crossed a line
dividing ordinary from presumptively prejudicial
delay.” Mallett, 751 F.3d at 913 (internal
quotation marks omitted).
was indicted on October 21, 2014, and trial has yet to occur,
so the delay has been approximately three years. (Docket 1).
That is presumptively prejudicial. See Mallett, 751
F.3d at 913-14 (finding 17 months presumptively prejudicial);
United States v. Aldaco, 477 F.3d 1008, 1019 (8th
Cir. 2007) (finding three and one-half years presumptively
prejudicial). Consequently, the court must analyze the
remaining Barker factors.
Reason for delay
court must “consider the reasons for the delay and
evaluate whether the government or the criminal defendant is
more to blame.” Mallett, 751 F.3d at 914
(internal quotation marks omitted). Because this issue is
fact-intensive, a look at applicable Eighth Circuit cases is
helpful. In the Mallett case, the defendant was more
responsible for the delay:
By changing his plea, canceling his change of plea, and
moving for various continuances, Allen delayed trial for
twenty weeks. Approaching a trial date, Allen's motion to
dismiss delayed trial another eleven weeks. While the
government's first and second superseding indictments
delayed the trial date seven weeks and three weeks,
respectively, Allen exacerbated the delay stemming from the
first superseding indictment by requesting a continuance of
over eight additional ...