United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE
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.
Speedy Trial Act
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.
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.
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
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).
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
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 ...