U.S. v. Beals, Civil Action No. 3:09–cr–96 (DCB)(LRA).

• Citation: 755 F.Supp.2d 757
• Decision Date: 08 November 2010
• Docket Number: Civil Action No. 3:09–cr–96 (DCB)(LRA).
• Parties: UNITED STATES of Americav.Derrick Lamon BEALS.
• Court: U.S. District Court — Southern District of Mississippi

755 F.Supp.2d 757

UNITED STATES of America

v.Derrick Lamon BEALS.

Civil Action No. 3:09–cr–96 (DCB)(LRA).

United States District Court, S.D. Mississippi, Jackson Division.

Nov. 8, 2010.

Erin O'Leary Chalk, U.S. Attorney's Office, Jackson, MS, for Plaintiff.Thomas W. Powell, Thomas W. Powell, Attorney, Ridgeland, MS, for Defendant.

MEMORANDUM OPINION AND ORDER

DAVID BRAMLETTE, District Judge.

This cause is before the Court on the defendant Derrick Lamon Beals' Motion to Dismiss the Indictment (docket entry 62) and Supplemental Motion to Dismiss the Indictment (docket entry 64), and on the United States of America (“the Government”)'s Motion for Continuance (docket entry 59). Having carefully considered the motions and responses, the memoranda and the applicable law, and being fully advised in the premises, the Court finds as follows:

The defendant moves to dismiss the indictment against him, alleging a violation of the Speedy Trial Act which provides, in relevant part:

In any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or 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). In this case, the defendant's initial appearance on November 10, 2009, triggered the speedy trial clock. Thus, November 11, 2009 was the first day which counted toward the seventy day time limit. See United States v. Hernandez–Amparan, 600 F.Supp.2d 839, 841 n. 1 (W.D.Tex.2009) (Rule 45 of the Federal Rules of Criminal Procedure excludes from computation the date that begins a period greater than ten days, and excludes the last day of the period if that day is a weekend or holiday).

The defendant's trial was initially set for January 4, 2010. On December 28, 2009, the defendant filed a motion for continuance, stating as his grounds:

1. That counsel for Defendant needs additional time to prepare for trial or execute a Memorandum of Understanding.

2. That the Defendant waives his right to a speedy trial.

3. That the public interest and the Defendant's right to a speedy trial are outweighed in this matter.

Motion for Continuance, 12/28/09. On January 6, 2010, Beals filed another motion for continuance, stating:

1. That Counsel for Defendant and Government have attempted to reach a plea agreement but further time is needed in this matter.

2. That if a plea agreement is not reached, counsel is requesting time to adequately prepare for trial.

3. That defendant DERRICK LAMON BEALS waives his right to a speedy trial and public trial.

4. That the public interest in this matter is not harmed by continuance.

Motion for Continuance, 1/6/10.

Under the Speedy Trial Act, “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 from the time computation. 18 U.S.C. § 3161(h)(1)(D). In addition, “delay reasonably attributed to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement by the court” is excluded. 18 U.S.C. § 3161(h)(1)(H). The Supreme Court's interpretation of the interplay between these two subsections is set forth in Henderson v. United States, 476 U.S. 321, 106 S.Ct. 1871, 90 L.Ed.2d 299 (1986).

The Fifth Circuit, in United States v. Johnson, 29 F.3d 940 (5th Cir.1994), summarized Henderson's ruling as follows. First, if a motion requires a hearing, subsection D excludes the time between the filing of the motion and the hearing on the motion. In addition, the court is allowed time after the hearing to assemble all papers reasonably necessary to dispose of the motion, including the submission of post-hearing briefs. Johnson, 29 F.3d at 942–43. Once the court has received all submissions from counsel, the motion is “under advisement” for purposes of § 3161(h)(1)(H), and the court has thirty excludable days in which to rule before the speedy trial clock begins to run. Id. at 943.

If the motion does not require a hearing, subsection D excludes the time between the filing of the motion and a “prompt disposition” of the motion. A “prompt disposition” means thirty days from the time a motion is actually “under advisement” for purposes of subsection H. Id. “[U]ntil the court has before it all papers necessary to rule, the court cannot be said to have taken the matter under advisement.” Id. at 944. The Fifth Circuit has held that “a motion should be considered under advisement for Speedy Trial Act purposes on the day that the last paper concerning the motion at issue was filed with the court.” Id.

In this case, the original motion was filed on December 28, 2009, and the second motion was filed on January 6, 2010. There was no response filed by the Government to either motion; instead an Agreed Order was filed by the parties. Therefore, the last papers concerning the two motions were the motions themselves. The speedy trial clock was tolled beginning with December 28, 2009, until and including January 20, 2010, the date the Agreed Order granting the continuance was filed, which was well within thirty days from December 28, 2009 and January 6, 2010. See United States v. Kington, 875 F.2d 1091, 1107 (5th Cir.1989) (“all days between and including the commencement and termination of the [motion] are excluded from the seventy-day count”).

The Agreed Order continued the trial until March 9, 2010, and stated:

Having duly considered the factors articulated in Title 18, Section 3161(h)(1)(B)(i) to determine the appropriateness of a continuance, the Court finds that, pursuant to Title 18, Section 3161(h)(8)(A) of the United States Code, the ends of justice outweigh the best interests of the public and the defendant in a speedy trial in this cause and are best served by granting the requested continuance.

Agreed Order, 1/20/10. The Speedy Trial Act provides, in § 3161(h), that certain “periods of delay shall be excluded in computing the time within which ... the trial ... must commence,” including:

[a]ny 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 or at the request of the attorney for the Government, 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. No such period of delay resulting from a continuance granted by the court in accordance with this paragraph shall be excludable under this subsection unless the court 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.

18 U.S.C. § 3161(h)(8)(A).

The Supreme Court has held that the “best practice ... is for a district court to put its findings on the record at or near the time when it grants the continuance.” Zedner v. United States, 547 U.S. 489, 507 n. 7, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006). However, “[a]lthough the Act is clear that the findings must be made, if only in the judge's mind, before the granting of the continuance ... the Act is ambiguous on precisely when those findings must be ‘se[t] forth, in the record of the case.’ ” Id. at 506–507, 126 S.Ct. 1976 (quoting 18 U.S.C. § 3161(h)(8)(A)). “[A]t the very least the Act implies that those findings must be put on the record by the time a district court rules on a defendant's motion to dismiss under § 3162(a)(2).” Zedner, 547 U.S. at 507, 126 S.Ct. 1976.

In this case, the defendant's motions of December 28, 2009, and January 6, 2010, specifically requested a continuance so that his counsel could be fully prepared for trial, and could attempt to reach a plea agreement with the Government. Furthermore, the defendant declared that these reasons outweighed his and the public's interest in a speedy trial, and “waived” his right to a speedy trial.

The Court notes at the outset that the defendant may not waive his right to a speedy trial. United States v. Kington, 875 F.2d 1091, 1107 (5th Cir.1989); United States v. Willis, 958 F.2d 60, 62 (5th Cir.1992) (“In Kington, we joined all other circuits which have addressed the question in recognizing that the provisions of the Speedy Trial Act are not waivable by the defendant.”). Nevertheless, a voluntary waiver by the defendant may still be effective “if the judge considered the defined factors and concluded the ends of justice are served by an acceptance of the defendant's waiver.” United States v. Saltzman, 984 F.2d 1087, 1091 (10th Cir.) (citation omitted), cert. denied, 508 U.S. 964, 113 S.Ct. 2940, 124 L.Ed.2d 689 (1993), quoted in United States v. Blackwell, 12 F.3d 44, 47 (5th Cir.1994). Moreover, where the court finds that the delay in a defendant's trial is excludable under one of the exceptions to the Speedy Trial Act, the court “need not address whether the defendant waived his speedy trial act rights indefinitely.” United States v. Miles, 290 F.3d 1341, 1349 n. 7 (11th Cir.2002). See also McElhaney v. United States, 2009 WL 54256 *19 (N.D.Tex. Jan. 8, 2009) (“Because a waiver is not necessary to exclude time under § 3161(h)(8)(A), see Zedner [547 U.S. at 500–01, 126 S.Ct. 1976]; United States v. Storey, 927 F.Supp. 414, 415–16 (D.Kan.1996), the purported waiver had no impact on the speedy trial calculations.”).

Section 3161(h)(8)(A) provides that a continuance can only be “granted ... on the basis of [the court's] findings.” The Supreme Court has likewise held that explicit findings must be made “if only in the judge's mind, before granting the continuance.” Zedner,...