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United States v. Espinosa

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

October 31, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
MARCUS ENRIQUE ESPINOSA, SAMMY CISNEROS and BRENDA LEE OTWELL, Defendants.

          ORDER

          JEFFREY L. VIKEN, CHIEF JUDGE

         Defendants Sammy Cisneros and Marcus Enrique Espinosa filed motions to dismiss the indictment. (Dockets 127 & 147). Both Cisneros and Espinosa claim violations of their statutory and constitutional speedy trial rights. (Dockets 128 & 148). Cisneros filed a motion to suppress evidence. (Docket 85). Espinosa filed a motion to join Cisneros' suppression motion, which the court granted. (Docket 98). The court resolves each motion in turn.

         ANALYSIS

         I. Motions 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). “The [e]xclusion of pre trial motion delay is automatic, and the time during which a motion is pending is excludable even if the pendency of the motion is not the cause of the delay.” United States v. Williams, 557 F.3d 943, 952 (8th Cir. 2009) (internal quotation marks and citation omitted).

         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.

         Cisneros and Espinosa argue the Act's 70-day requirement has been violated and move to dismiss the indictment on that ground. (Dockets 128 & 148). Based on their calculations of the excluded time under the Act, the 70-day period has been exceeded by several hundred days. (Dockets 128 & 148). The government agrees that the Act has been violated. (Dockets 139 & 150).

         (1) Exclusions based on defendants

         A grand jury indicted Sammy Cisneros, Marcus Enrique Espinosa and Brenda Lee Otwell on January 21, 2015. (Docket 1). The indictment alleged all defendants violated federal law by conspiring to distribute methamphetamine. Id. The indictment charged Espinosa with possession of a firearm by a prohibited person and Cisneros with possession of an unregistered firearm. Id. Espinosa appeared before Magistrate Judge Veronica Duffy on February 17, 2015. (Docket 16). Cisneros appeared before Magistrate Judge John Simko on February 26, 2015. (Docket 29). On March 4, 2015, 15 days after Espinosa's appearance and six days after Cisneros' appearance, Espinosa filed a motion for a continuance. (Docket 40). As the court describes below, that excludable period of time-based purely on defendants' motions-lasted from March 4, 2015, until August 13, 2016.

         The court granted Espinosa's motion for a continuance and found “the ends of justice served by continuing [the] trial outweigh the best interests of the public and the defendants in a speedy trial insofar as counsel for Mr. Espinosa has made known to the court that additional time is needed to review discovery.” (Docket 42 at p. 1). The court noted “[n]o objection was filed by the government or co-defendants.” Id. 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. Cisneros need not file a motion for a continuance or formally join Espinosa'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). The order granting the continuance set July 21, 2015, as the tentative trial date, meaning if no more continuances were granted and trial did not occur on that date, the speedy trial clock would begin running and adding to the non-excluded days. (Docket 42 at p. 2).

         On May 29, 2015, Espinosa filed a continuance motion. (Docket 44). Cisneros and Otwell objected. (Dockets 45 & 46). Cisneros' objection stated he did not agree to the continuance but planned on filing a suppression motion, “which will likely toll the speedy trial clock[.]” (Docket 46 at p. 1). On June 8, 2015, Cisneros filed a motion for discovery. (Docket 47). The court granted Espinosa's motion for a continuance on Jun 16, 2015, highlighting Cisneros' intention to file a suppression motion and his pending discovery motion.[1] (Docket 49 at p. 1). The court determined “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 counsel for Mr. Espinosa has made known to the court that additional time is needed to review discovery.” Id.; see 18 U.S.C. § 3161(h)(7)(A). The jury trial date was tentatively set for October 13, 2015. (Docket 49 at p. 2).

         Cisneros filed a motion for a continuance on September 1, 2015. (Docket 56). The court granted Cisneros' continuance motion on September 9, 2015. (Docket 60). In the order, the court provided an ends of justice basis for moving the trial Dated: “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 counsel for Mr. Cisneros has made known to the court that additional time is needed to complete the investigation and to prepare for trial.” Id. at p. 1; see 18 U.S.C. § 3161(h)(7)(A). The court tentatively set the jury trial for November 10, 2015. (Docket 60 at p. 2).

         Espinosa filed a continuance motion on October 23, 2015. (Docket 66). Neither of the other defendants objected and the court granted the motion based on an “ends of justice” finding. (Docket 67); see 18 U.S.C. § 3161(h)(7)(A). January 12, 2016, was set as the tentative jury trial date. (Docket 67 at p. 2).

         On December 21, 2015, Espinosa filed a motion requesting the court extend the deadline for filing a suppression motion until January 15, 2016. (Dockets 71 & 72). Because the new deadline Espinosa requested went beyond the jury trial date, the court construed the filing as a continuance motion and granted it based on the “ends of justice.” (Docket 74); see 18 U.S.C. § 3161(h)(7)(A). The court extended the motion deadline to January 26, 2016, and the jury trial date to March 8, 2016. (Docket 74 at pp. 1-2). Neither Otwell nor Cisneros objected to Espinosa's motion.

         On January 26, 2016, Cisneros filed a motion requesting until February 10, 2016, to submit his suppression motion and a general extension on the case's other dates. (Docket 76). Neither Espinosa nor Otwell objected and the court based its order granting the motion on the “ends of justice.” (Docket 83); see 18 U.S.C. § 3161(h)(7)(A). The court set the new suppression motion deadline for February 9, 2016, and the tentative trial date as March 2, 2016. (Docket 83 at pp. 1-2).

         Cisneros filed his pending suppression motion on February 9, 2016. (Docket 85). The court granted Espinosa's motion for joinder on Cisneros' suppression motion. (Docket 98). The 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 March 9, 2015. On May 16, 2016, the magistrate judge conducted a hearing on the suppression motion. (Docket 100). The final supplemental brief following the hearing was filed by Espinosa on July 14, 2016. (Docket 113).

         As previously noted, 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.” Williams, 557 F.3d at 951. “[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). Because the magistrate judge held a hearing on the suppression motion, the time between the filing and the hearing is excluded. See Williams, 557 F.3d at 951. “The time during which the district court is awaiting [post-hearing] filings is excluded.” Id. at 952 (internal citation omitted). The Act then excludes 30 days following the last supplemental brief. See Herbst, 666 F.3d at 510. Consequently, the excludable period-based on defendants' continuance motions and the suppression motion pursued by Cisneros and Espinosa-starting on March 4, 2015, ended on August 13, 2016, 30 days after the submission of the final supplemental brief following the suppression motion hearing. This amounts to the exclusion of 528 days.

         Before Cisneros filed his motion to dismiss the indictment, three other motions caused the exclusion of time under the Act. On August 31, 2016, Cisneros filed a furlough motion, which the court denied the next day. (Dockets 115 & 116). That motion excludes one day. On December 29, 2016, Otwell filed a motion for reconsideration of pre-trial release, and the court denied the motion eight days later, so those days are excluded. (Dockets 117 & 121). Otwell filed an ex parte motion on February 1, 2017, and the motion was denied after pending for two excludable days. (Dockets 123 & 126). These motions combine for 11 excludable days.

         On May 12, 2017, Cisneros filed his motion to dismiss the indictment based on violations of his statutory and constitutional speedy trial rights. (Docket 127). The government responded to Cisneros' motion to dismiss on June 12, 2017. (Docket 139). Cisneros' did not file a reply, but it was due on June 16, 2017. The period between the filing of Cisneros' motion to dismiss, May 12, 2017, and 30 days after his reply brief was due, July 16, 2017, is excluded under the Act. Consequently, 65 days are excluded.

         Espinosa filed an ex parte motion for a new attorney on September 8, 2017. (Docket 141). The court granted his motion on September 18, 2017, so those 10 days are excluded.

         On October 16, 2017, Espinosa filed his motion to dismiss the indictment alleging his statutory and constitutional speedy trial rights were violated. (Docket 147). The excludable period of time starting when Espinosa filed his motion to dismiss ends on the date of this order because it resolves the motion. This order is entered on October 31, 2017, so the 15 days between October 16, 2017, and today are excluded.

         Based on the calculation of exclusions caused by defendants, 629 days are excludable under the Act: 528 days from the first continuance motion through the final brief on the suppression motion; 11 days from various motions after suppression motion briefing; 65 days from Cisneros' motion to dismiss; 10 days from Espinosa's recent motion for a new attorney; and 15 days from Espinosa's motion to dismiss.

         (2) Exclusions based on the court

         After finding 629 days excludable based on the defendants' filings, the court must now determine what number of the remaining days are excluded under the Act.

         As explained above, a “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.' ” Adejumo, 772 F.3d at 521 (quoting 18 U.S.C. § 3161(h)(7)(A)). An exclusion based on the “ends of justice” can be done by the court sua sponte. United States v. Shellef, 756 F.Supp.2d 280, 288-89 (E.D.N.Y. 2011), aff'd, 718 F.3d 94 (2d Cir. 2013) (“[T]he time under the Act can [be] excluded by the Court sua sponte or at the request of a party if a continuance serves the ‘ends of justice.' ”); see United States v. Engstrom, 7 F.3d 1423, 1426 (9th Cir. 1993), as amended (Nov. 23, 1993) (“The district court may exclude from the 70-day calculation delay caused by a continuance ordered by the judge sua sponte or upon motion of either party” based on the ends of justice subsection of the Act).

         An “ends of justice” continuance can also be open-ended. United States v. Wilson, 216 F.Supp.3d 566, 580 (E.D. Pa. 2016) (“The [‘ends of justice'] continuance can be open-ended, rather than for a specific period of time, but it must be [ ] granted prior to the days being excluded.”); see United States v. Twitty, 107 F.3d 1482, 1489 (11th Cir. 1997) (“An open-ended continuance may be granted to serve the ends of justice.”); see also United ...


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