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United States v. Conteh

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

January 17, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
ROY CONTEH, VICTOR SASAY, a/k/a VICTOR SESAY and TAPSIRU DAINKEH, Defendants.

          ORDER

          JEFFREY L. VIKEN CHIEF JUDGE.

         INTRODUCTION

         Defendant Tapsiru Dainkeh filed a motion to dismiss the superseding indictment pursuant to the Speedy Trial Act, 18 U.S.C. § 3161 et seq. (Docket 201). Defendants Roy Conteh and Victor Sasay joined in Mr. Dainkeh's motion. (Dockets 205 & 206). For the reasons stated below, the defendants' motions to dismiss are denied.

         ANALYSIS

         A. Procedural History

         On August 18, 2015, a grand jury returned an indictment charging defendants with ten counts of aggravated identity theft in violation of 18 U.S.C. §§ 1028A(a)(1) and 2, and one count of possession of an unauthorized access device in violation of 18 U.S.C. §§ 1029(a)(3) and 2. (Docket 1). On March 22, 2016, a grand jury returned a superseding indictment charging defendants with one count of conspiracy to commit bank fraud in violation of 18 U.S.C. §§ 1344 and 1349; twelve counts of bank fraud in violation of 18 U.S.C. §§ 2 and 1344(2); ten counts of aggravated identity theft in violation of 18 U.S.C. §§ 1028A(a)(1) and (2); and nine counts of possession of unauthorized access device in violation of 18 U.S.C. §§ 2 and 1029(a)(1). (Docket 111). On November 22, 2017, defendants filed a motion to dismiss the superseding indictment pursuant to the Speedy Trial Act, 18 U.S.C. § 3161 et seq. (Dockets 201, 205 & 206).

         B. Speedy Trial Act

         The Speedy Trial Act (“the Act” or “STA”) provides, in part, “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 . . . .” 18 U.S.C. § 3161(c)(1). The Act “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).

         Excluded from this 70-day time requirement are a number of events and activities. See 18 U.S.C. § 3161(h). Subsection (h) provides, in pertinent part:

         The following periods of delay shall be excluded . . . in computing the time within which the trial of any such offense must commence:

(1) Any period of delay resulting from other proceedings concerning the defendant, including but not limited to-
. . .
(D) 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;
(E) delay resulting from any proceeding relating to . . . the removal of any defendant from another district under the Federal Rules of Criminal Procedure;
(F) delay resulting from transportation of any defendant from another district, . . . except that any time consumed in excess of ten days from the date an order of removal . . . and the defendant's arrival at the destination shall be presumed to be unreasonable;
. . .
(H) delay reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement by the court.

18 U.S.C. ยง 3161(h)(1). Other provisions within subsection (h) which exclude days from the speedy trial clock and are ...


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