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United States v. Schwarting

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

October 16, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
DAVID JOHN SCHWARTING, Defendant.

          ORDER

          JEFFREY L. VIKEN CHIEF JUDGE

         INTRODUCTION

         A grand 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 & 218).

         Defendant's 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).

         ANALYSIS

         I. Motion to dismiss the indictment

         a. Speedy Trial Act

         The 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 granted.” Id.

         Defendant 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.

         A grand 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).[1] (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.

         On 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).

         Prior 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).

         On July 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 96).

         As 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).

         As 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).

         On 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).[2]

         Defendant 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.

         Defendant's 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) & (H).

         On August 1, 2017, defendant filed two motions. One requests a Franks[3] hearing and the other is his speedy trial motion to dismiss the court is resolving here. (Dockets 216 & 218).[4] 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 70-day requirement.

         The court denies defendant's motion to dismiss the indictment based on the Speedy Trial Act.

         b. Sixth Amendment

         “Sixth 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.

         Because 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.

         (1) Length of delay

         Because 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).

         Defendant 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.

         (2) Reason for delay

         The 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 ...

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