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United States v. Faulkner

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

February 11, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
DANA FAULKNER, a/k/a “Diablo, ” Defendant.

          ORDER

          JEFFREY L. VIKEN CHIEF JUDGE

         INTRODUCTION

         Defendant Dana Faulkner was arraigned on a federal criminal complaint on September 5, 2017. (Docket 7). On September 12, a grand jury indicted defendant on charges of conspiring to distribute methamphetamine, heroin and cocaine, use of a firearm in furtherance of a drug trafficking crime, and possession of a firearm by a prohibited person. (Docket 21). Now pending before the court is defendant's motion to dismiss the indictment. (Docket 90). Defendant alleges he has not been brought to trial within the time permitted by the Speedy Trial Act, 18 U.S.C. § 3161 et seq., and that pretrial delay has violated his Sixth Amendment right to a speedy trial. Id. at pp. 2-3. The government resists defendant's motion. (Docket 96). On January 23, 2019, a grand jury issued a superseding indictment against defendant. (Docket 98). The superseding indictment adds two counts of obstructing justice to the five counts brought in the first indictment. Id. For the reasons given below, the court denies defendant's motion.

         ANALYSIS

         I. Speedy Trial Act

         Defendant argues the 70 days of speedy trial time allotted for his case have elapsed without trial. (Docket 90 at p. 2). Defendant contends 30 days of his speedy trial clock elapsed between his initial appearance on the indictment, held on September 13, 2017, and his first motion for a continuance, filed on October 13, 2017 by his first attorney. Id. at pp. 1-2. Defendant now asserts he did not agree to the continuance. Id. at p. 1. He argues the speedy trial clock began to run again on October 18, 2017, when the court granted his motion for a continuance, and continued for 79 days to January 5, 2018, when his first counsel filed a motion to extend the deadline to file a suppression motion. Id. at pp. 1-2. Defendant finally contends the clock ran again for 21 days between January 10, the date the court granted his motion to file an untimely suppression motion, and January 31, when he filed his suppression motion. Id. at p. 2. In defendant's view, his 70 days of speedy trial time elapsed in late 2017.

         The government offers a different calculation concluding 33 days of speedy trial time are remaining. (Docket 96 at p. 3). In the government's view, only 37 days have elapsed-the time between defendant's pre-indictment initial appearance on the criminal complaint on September 5, 2017, and defendant's first motion for a continuance on October 13, 2017. Id. The government argues the clock has not restarted because the court continued defendant's trial date until January 30, 2018, and defendant filed his suppression motion on January 31. Id. The entire time from defendant filing his suppression motion until the present is excludible, in the government's view.

         The court disagrees with both parties' calculations but concludes, like the government, that defendant's speedy trial time has not elapsed. Following its recitation of the legal standards relevant to defendant's Speedy Trial Act argument, the court will set forth the procedural history of this case and then perform its speedy trial calculation. The procedural history given below is abbreviated to address matters of concern in calculating defendant's speedy trial time. The case's full procedural history is set out in Exhibit A, a chart the court developed for its calculation.

         A. Legal standards

         The Speedy Trial Act states “a defendant must be brought to trial within 70 days of his indictment or arraignment, whichever is later.” United States v. Williams, 557 F.3d 943, 950 (8th Cir. 2009). “That 70 day period can be interrupted because certain periods of delay are excluded by the Act from the running of the clock.” Id. “A defendant has the burden of proof to show that his statutory right to a speedy trial has been violated.” Id. “When a violation of the time limits of the Act is shown to have occurred, dismissal is mandatory on motion of the defendant.” United States v. Koory, 20 F.3d 844, 846 (8th Cir. 1994).

         As relevant to this case,

[t]he clock is stopped by “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, ” and by “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.

Williams, 557 F.3d at 950 (quoting 18 U.S.C. §§ 3161(h)(1)(F), (J), recodified at §§ 3161(h)(1)(D), (H)) (emphasis removed).

For motions that require a hearing, subsection [(D)] excludes any period of delay caused by any pretrial motion, from the filing of the motion through the conclusion of the hearing . . . whether that hearing was prompt or not. . . . 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. Once the submissions have been received, “prompt disposition” of the motion is required in order to exclude time, and [§ 3161(h)(1)(H)] excludes a maximum of 30 days from the point a motion is actually taken under advisement. Thus, section [3161(h)(1)(D)] and section [3161(h)(1)(H)] dovetail; the former ends when the latter begins. . . . A motion is actually under advisement when the court receives all the papers it reasonably expects.

Id. at 952 (internal quotations and citations omitted) (statutory references modified to account for recodification).

         “Any period of delay resulting from a continuance granted by any judge on his own motion or at the request of the defendant or his counsel” tolls the speedy trial clock “if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial.” 18 U.S.C. § 3161(h)(7)(A).

[T]he plain language of section 3161(h)(7)(A) “does not require a defendant's consent to the continuance ‘if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest ...

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