U.S. v. Mahone, CR-03-93-B-W.

• Decision Date: 17 September 2004
• Docket Number: No. CR-03-93-B-W.,CR-03-93-B-W.
• Citation: 337 F.Supp.2d 187
• Parties: UNITED STATES of America v. Michael Anthony MAHONE
• Court: U.S. District Court — District of Maine

337 F.Supp.2d 187

UNITED STATES of America v. Michael Anthony MAHONE

No. CR-03-93-B-W.

United States District Court, D. Maine.

September 17, 2004.

Richard L. Hartley, Billings & Silverstein, Bangor, ME, for Michael Anthony Mahone (1), Defendants.

James L. McCarthy, Office of the U.S. Attorney, District of Maine, Bangor, ME, for USA, Plaintiff.

ORDER DENYING MOTION TO DISMISS UNDER THE SPEEDY TRIAL ACT

WOODCOCK, District Judge.

I. Introduction

On August 9, 2004, the Defendant, Michael Anthony Mahone, moved to dismiss the December 10, 2003 Indictment, claiming the provisions of the Speedy Trail Act (STA), 18 U.S.C. § 3161 et seq., have been violated.¹ This Court denies the Defendant's Motion to Dismiss, because when the periods excludable under 18 U.S.C. § 3161(h) are deducted, the seventy-day limit of 18 U.S.C. § 3161(c)(1) has not expired.

II. Statement of Facts

The critical dates in the Defendant's case are as follows:

1. December 15, 2003: Initial Appearance;

2. December 15, 2003: Government's Motion for Detention;

3. December 23, 2003: Order of Detention Pending Trial;

4. December 23, 2003: Government's Demand for Notice of Alibi;

5. January 6, 2004: Superseding Indictment;

6. January 14, 2004: Arraignment on Superseding Indictment;

7. January 15, 2004: Order Mooting Motion to Compel;

8. January 22, 2004: Defendant's Motion for Funds;

9. January 26, 2004: Defendant's Motion for Funds;

10. January 27, 2004: Trial List, setting Jury Selection for March 9, 2004;

11. February 25, 2004: Defendant's Motion to Compel Discovery;

12. February 25, 2004: Defendant's Motion to Continue Trial;

13. February 25, 2004: Order Granting Defendant's Motion to Continue Trial;

14. February 26, 2004: Trial List, setting Jury Selection for April 6, 2004;

15. February 27, 2004: Speedy Trial Order, excluding the time from March 9, 2004 to April 6, 2004;

16. April 1, 2004: Defendant's Motions in Limine;

17. April 1, 2004: Government's Motion to Continue Trial;

18. April 1, 2004: Order Granting Government's Motion to Continue Trial;

19. April 22, 2004: Government's Motion to Continue Time within which to Respond to Motions in Limine;

20. April 23, 2004: Order Granting Government's Motion to Continue Time within which to Respond to Motions in Limine, extending time from April 22, 2004 to April 23, 2004;

21. April 23, 2004: Government's Responses to Defendant's Motions in Limine filed;

22. May 4, 2004: Defendant's Reply To Government's Responses to Motions in Limine due;

23. May 6, 2004: Notice of Hearing on Motion in Limine scheduled for June 25, 2004;

24. May 11, 2004: Defendant's Motion to Withdraw Motion to Compel Discovery;

25. May 11, 2004: Order Granting Defendant's Motion to Withdraw Motion to Compel Discovery;

26. June 25, 2004: Hearing on Motions in Limine;

27. June 30, 2004: Defendant's Memorandum on Motions in Limine;

28. July 7, 2004: Government's Response to Third Motion in Limine;

29. July 9, 2004: Defendant's Reply Brief due 30. July 22, 2004: Trial List, setting Jury Selection for September 7, 2004;

31. July 28, 2004: Government's Motion for Protection from Trial from August 24, 2004 through September 13, 2004;

32. August 6, 2004: Order on Motions in Limine;

33. August 9, 2004: Defendant's Motion to Dismiss under the Speedy Trial Act;

34. August 11, 2004: Second Superseding Indictment;

35. August 18, 2004: Defendant's Response to Motion for Protection due;

36. August 20, 2004: Order Granting Government's Motion for Protection from Trial; and,

37. September 7, 2004: Jury Selection.

III. Discussion

A. Section 3161(c)(1): Seventy-Day Requirement

The Defendant's first argument is based on a straight mathematical calculation. He first appeared before a judicial officer following the December 10, 2003 Indictment on December 15, 2003. Noting the STA requires that his trial must begin within seventy days after the date of arraignment, the Defendant calculates that seventy days from December 15, 2003 is February 23, 2004. Because trial was not commenced by February 23, 2004, the Defendant contends count one as set forth in the December 10, 2003 Indictment must be dismissed. Further, because his jury was selected on September 7, 2004, the total lapse of time from arraignment to commencement of trial is 267 days.² The Defendant also contends this Court erred in granting the Government's Motion for Continuance on April 1, 2004 by failing to "provide its reasons for finding that the ends (of) justice outweighed the incarcerated defendant's interest in a speedy trial as required under 18 U.S.C. § 3161(h)(8)(A)." (Def.'s Mot. to Dismiss Under the Speedy Trial Act at ¶ 4 (Docket # 74)).

B. The Speedy Trial Act Analytic Framework

Time under the STA has "both quantitative and qualitative dimensions." United States v. Sepulveda, 15 F.3d 1161, 1193 (1st Cir.1993), cert. denied, 512 U.S. 1223, 114 S.Ct. 2714, 129 L.Ed.2d 840 (1994). A violation of the STA occurs "only if (i) a sufficient number of days elapse (the quantitative benchmark), and (ii) the days are non-excludable (the qualitative benchmark)." Id. To assess a STA motion, an inquiring court "must follow a two-step process. First, the court must do the basic mathematics and determine the aggregate time that has elapsed awaiting trial. Second, it must determine how many days should be excluded from that ultimate sum." United States v. Staula, 80 F.3d 596, 600 (1st Cir.1996), cert denied, 519 U.S. 857, 117 S.Ct. 156, 136 L.Ed.2d 101 (1996).

C. The Quantitative Dimension

This first step is a mathematical calculation. The time period from December 15, 2003, the arraignment date on count one, to September 7, 2004, the date the jury was selected, is 267 days. The time period from January 14, 2004, the arraignment date on count two, to September 7, 2004 is 237 days. This Court now turns to the second part of the analysis: the number of excludable days under § 3161(h).

D. The Qualitative Dimension: Section 3161(h) Exclusions

Section 3161(h)(1)(F) provides:

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

(1) Any period of delay resulting from other proceedings concerning the defendant, including but not limited to —

(F) 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....

1. Pre-Trial Detention Motion: December 16, 2003 through December 23, 2003: Eight Days.

The Government contends that the period from December 15, 2003 to December 23, 2003, should be excluded from the STA calculation, because on the day of the arraignment, it filed a Motion for Detention, and this Court ruled on the Motion on December 23, 2003. The First Circuit has ruled that "`any pretrial motion' easily encompasses pretrial motions relating to pretrial release or detention." United States v. Schiavo, No. 95-1437, 1996 WL 490008, at 7 (1st Cir. Aug.19, 1996); see also United States v. Noone, 913 F.2d 20, 27 (1st Cir.1990), cert. denied, 500 U.S. 906, 111 S.Ct. 1686, 114 L.Ed.2d 81 (1991). The date the Motion was filed, December 15, 2003, is the day of arraignment; therefore, it was not counted as part of the basic seventy-day period and was already excluded for that reason. Section 3161(c)(1); United States v. Jodoin, 672 F.2d 232, 237 n. 7 (1st Cir.1982). Accordingly, the eight-day period from December 16, 2003 through December 23, 2003 is excludable from the STA calculation.

2. Demand for Notice of Alibi: December 24, 2003³ through January 15, 2004: Twenty-Three Days.

The Government contends the period from December 23, 2003 through January 15, 2004 should be excluded from the STA clock, because the Demand for Notice of Alibi was treated as a motion and referred to the Magistrate Judge for resolution. Although the Demand itself was not styled as a motion, the clerk's office treated the filing as a motion: "Motion to Compel Notice of Alibi by USA as to MICHAEL ANTHONY MAHONE. Responses due by 1/13/2004."

The Defendant did not respond. On January 15, 2004, Magistrate Judge Kravchuk issued the following ruling:

ORDER mooting Motion to Compel as to MICHAEL ANTHONY MAHONE. For some reason, this pleading was treated as a motion and referred to me for decision. Pursuant to Rule 12.1 a demand for notice of alibi is self-executing and can result in the court excluding the testimony of undisclosed witness (Rule 12.1(e)). There is nothing presently before the court that requires any judicial ruling.

Rule 12.1 allows the government to request in writing that the defendant notify it of any intended alibi defense. Fed.R.Crim.P. 12.1(a)(1). The defendant has ten days within which to respond. Fed.R.Crim.P. 12.1(a)(2). If the defendant fails to respond, the potential sanction is set forth in Rule 12.1(e), which provides that the court may exclude the testimony of any undisclosed witness regarding the defendant's alibi. Fed.R.Crim.P. 12.1(e). As Magistrate Judge Kravchuk ruled, the provisions of Rule 12.1 are self-executing. Although the failure of either the Defendant or the Government to comply with the provisions of the Rule could precipitate a motion, the mere filing of a Rule 12.1 Demand for Notice of Alibi does not require a judicial response.

The Government, however, argues that the period during which the Court decided how to treat the Demand for Notice of Alibi should be excluded. See United States v. Rojo-Alvarez, 944 F.2d 959, 966 (1st Cir.1991). In Rojo-Alvarez, the First Circuit addressed a government motion the defense contended was not a proper § 3161(h)(1)(F) motion. The papers were, however, styled as a motion, and the First Circuit concluded that the court "is entitled to exclude at least the period of time during which it considers how to treat the filing." Id. The First Circuit noted that there "appears to be no evidence of pretextual filing on the part of...