U.S. v. Gates, Criminal No. 08-42-P-H-01.

• Citation: 650 F.Supp.2d 81
• Decision Date: 13 August 2009
• Docket Number: Criminal No. 08-42-P-H-01.
• Parties: UNITED STATES of America, v. Frederick GATES, Defendant.
• Court: U.S. District Court — District of Maine

650 F.Supp.2d 81

UNITED STATES of America, v. Frederick GATES, Defendant.

Criminal No. 08-42-P-H-01.

United States District Court, D. Maine.

August 13, 2009.

Daniel J. Perry, U.S. Attorney's Office, District of Maine, Portland, ME, for United States of America.

Michael Whipple, The Hallett Law Firm, Portland, ME, for Defendant.

DECISION AND ORDER ON DEFENDANT'S MOTION TO DISMISS

D. BROCK HORNBY, District Judge.

The defendant Frederick Gates has moved to dismiss the charges against him, charging violations of the Speedy Trial Act, 18 U.S.C. § 3161 et seq., and his Sixth Amendment right to a speedy trial. I conclude that Gates has not established a violation of either the statute or the Constitution because he is accountable for the delays in question. I therefore DENY the motion.

BACKGROUND

Frederick Gates was arrested and made his initial appearance before a federal magistrate judge on February 1, 2008. He was arraigned on March 4, 2008, on a two-count indictment charging drug offenses. On March 24, 2008, Gates's lawyer moved for an extension of time to file pre-trial motions. Unopposed Mot. for Extension of Time to File Pretrial Mots. (Docket Item 42). Gates's lawyer filed a separate document stating that Gates "waive[d] his right to a speedy trial, for the motion for an extension of time to April 4, 2008." Speedy Trial Waiver (Docket Item 45). In a second motion on April 4, 2008, defense counsel again moved to extend the deadline to file pre-trial motions. Unopposed Mot. for Extension of Time to File Pretrial Mots. (Docket Item 50). The lawyer stated in this motion that "Gates, through counsel, hereby waives his right to a speedy trial until April 11, 2008." Id. The court granted both these motions, finding in each instance that "the ends of justice served by the requested extension of time outweigh the best interest of the public and the Defendant in a speedy trial." Speedy Trial Order (Docket Item 46); Speedy Trial Order (Docket Item 51). Accordingly, the time period between March 24, 2008, and April 11, 2008, was excluded from calculations under the Speedy Trial Act. See id.

On February 12, 2009, when the court resolved a pending motion to suppress,¹ Gates's lawyer moved to continue trial, stating in the motion that Gates "waiv[ed] his right to speedy trial." Def.'s Mot. to Continue Trial (Docket Item 135). The court granted the motion, again finding that "the ends of justice served by the requested extension of time outweigh the best interest of the public and the defendant in a speedy trial." Speedy Trial Order (Docket Item 137). Accordingly, the time period between March 2, 2009, and April 6, 2009, was excluded from calculations under the Speedy Trial Act. See id.

Gates, represented by a new lawyer, now challenges these three extensions on the basis that Gates did not know of his previous lawyer's motions and thus did not consent to the motions or to a waiver of his right to a speedy trial. Mot. to Dismiss (Docket Item 208). Gates contends that a total of seventy-four days were improperly excluded from calculation under the Speedy Trial Act. Id. at 4.² Gates also argues that the amount of time that has elapsed since his arrest over a year ago violates his constitutional right to a speedy trial. Id. at 5.

Analysis

(1) Speedy Trial Act

The Speedy Trial Act provides:

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). However, "[t]he following periods of delay shall be excluded ... in computing the time within which the trial of any such offense must commence:" 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 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.

Id. § 3161(h)(7)(A). In Gates's case, with respect to each of the motions at issue, the Magistrate Judge expressly found that "the ends of justice served by the requested extension of time outweigh the best interest of the public and the defendant in a speedy trial." Gates does not take issue with these required findings under the Speedy Trial Act.

Gates concedes that "the Speedy Trial Act does not expressly require that waivers of speedy trial be voluntary, knowing and intelligent, or even that the defendant expressly consent to the exclusion of time periods from the speedy trial clock." Mot. to Dismiss at 2-3. Nonetheless, he argues that "because Gates did not consent to ... his attorney's ... requests for additional time to file pre-trial motions and certainly did not waive his rights pursuant to the Speedy Trial Act with respect to ... the motions," the time elapsed in connection with those motions is properly includable in calculations under the Speedy Trial Act. Id. at 3-4. Likewise, because "Gates was not consulted about the motion to continue, did not consent to the motion to continue, and did not waive his rights under the Speedy Trial Act," Gates contends that the time elapsed in connection with the motion to continue should also be included. Id. at 4. Gates cites no authority supporting his position. See id. at 3-4.

The great weight of authority is contrary to Gates's position. In United States v. Lewis, 39 Fed.Appx. 337 (7th Cir.2002), for example, the defendant presented Gates's same argument: that because he did not personally agree to his lawyer's motion for a continuance, the Speedy Trial Act clock was not tolled. The Seventh Circuit flatly rejected the argument, noting that "in `our system of representative litigation, ... [a] party is deemed bound by the acts of his lawyer-agent.'" Id. at 339 (quoting Link v. Wabash R.R. Co., 370 U.S. 626, 634, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962)). The court held that "scheduling matters" such as extensions and continuances are generally controlled by counsel, and that the right to speedy trial is not a basic right as to which a defendant must be personally involved and effect an informed waiver. Id. at 339-40; see also Gonzalez v. United States, 553 U.S. 242, 128 S.Ct. 1765, 1770, 170 L.Ed.2d 616 (2008) ("[A] scheduling matter ... is a tactical decision that is well suited for the attorney's own decision."). Rather, the defendant's lawyer, in waiving the speedy trial right, "necessarily spoke for [the defendant]." Lewis, 39 Fed.Appx. at 340. Other circuits addressing this issue also have uniformly rejected Gates's position. See, e.g., United States v. Bryant, 1998 WL 39393, at *3-4 (4th Cir. Feb. 2, 1998) (holding, where the defendant "did not agree to the continuance[,] only his defense counsel agreed to it," that to include the otherwise tolled time period would "be permitting [a] sort of sandbagging, i.e., permitting a defendant to use the services of his counsel when it suited him, but disavowing his counsel's advice when that advice did not suit the defendant's purposes"); United States v. Fields, 39 F.3d 439, 443 (3d Cir.1994) (describing the defendant's argument as "disturbing[,] because he would have [the court] order the dismissal of his indictment based on continuances that his own attorney sought").

The Supreme Court, analyzing a similar provision of the Interstate Agreement on Detainers,³ noted:

[W]hen [agreement to a specified delay in trial] is under consideration, only counsel is in a position to assess the benefit or detriment of the delay to the defendant's case. Likewise, only counsel is in a position to assess whether the defendant would even be prepared to proceed any earlier. Requiring express assent from the defendant himself for such routine and often repetitive scheduling determinations would consume time to no apparent purpose.

New York v. Hill, 528 U.S. 110, 115, 120 S.Ct. 659, 145 L.Ed.2d 560 (2000). Relying on Hill, Judge Woodcock of this District recently concluded that a waiver of speedy trial rights is a "tactical decision" for which defense counsel need not obtain the defendant's consent. United States v. Troy, 564 F.Supp.2d 42, 46-47 (D.Me. 2008); see also Dist. Attorney's Office for the Third Judicial Dist. v. Osborne, ___ U.S. ___, 129 S.Ct. 2308, 2330, 174 L.Ed.2d 38 (2009) ("[I]t is a well-accepted principle that, except in a few carefully defined circumstances, a criminal defendant is bound by his attorney's tactical decisions unless the attorney provided constitutionally ineffective assistance."); Gonzalez, 128 S.Ct. at 1770 ("Giving the attorney control of trial management matters is a practical necessity.... In most instances the attorney will have a better understanding of the procedural choices than the client; or at least the law should so assume."); Taylor v. Illinois, 484 U.S. 400, 417-418, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988) ("Although there are basic rights that the attorney cannot waive without the fully informed and publicly acknowledged consent of the client, the lawyer has—and must have—full authority to manage the conduct of the trial."). Judge Woodcock noted that the Speedy Trial Act, like the statute at issue in Hill, "expressly provides that the motion to continue may be at the request of the defendant or his counsel." Troy, 564 F.Supp.2d at 46-47 (internal quotation omitted). Thus, the Speedy Trial Act contemplates that such a scheduling question may be left solely to the lawyer. Id. at 46; see also United States v. Tulu, 535 F.Supp.2d 492, 499 (D.N.J.2008) ("The plain text of the statute states that a continuance can be requested by `the defendant or his counse...