U.S. v. Maxwell, CR. 01-10446-MLW.
| Citation | 247 F.Supp.2d 10 |
| Decision Date | 24 December 2002 |
| Docket Number | No. CR. 01-10446-MLW.,CR. 01-10446-MLW. |
| Parties | UNITED STATES of America v. Peggy L. MAXWELL |
| Court | U.S. District Court — District of Massachusetts |
Bernard Grossberg, Boston, MA, Barry S. Pollack, Donnelly, Conroy & Gelharr, LLC, Boston, MA, for Eduardo G. Mcintosh.
Barry S. Pollack, Donnelly, Conroy & Gelharr, LLC, Boston, MA, for Peggy L. Maxwell.
Owen S. Walker, Federal Defender's Office, Boston, MA, for Calvin Deason.
Adam J. Bookbinder, United States Attorney's Office, Boston, MA, for U.S.
On December 6, 2001, the grand jury returned a sealed indictment charging Peggy Maxwell, Eduardo Mcintosh and Calvin DeAson with conspiracy and several counts of mail and wire fraud. Almost eleven months later, on November 4, 2002, Maxwell filed a motion to dismiss the indictment for a violation of the Speedy Trial Act, 18 U.S.C. § 3161 et seq. (the "STA"). The STA provides for a seventy-day period in which trial is to commence that begins at the later of one of three events. See 18 U.S.C. § 3161(c)(1). Certain periods of delay are excluded from the seventy-day period. See id. § 3161(h). After receiving briefing on Maxwell's motion from both Maxwell and the government, the court heard oral argument on December 11, 2002. For the reasons described below, the court concludes that all of the time through the present is excluded from the seventy-day period. Therefore, Maxwell's Motion to Dismiss is being denied.
Maxwell and Mcintosh were arraigned on January 4, 2002, but did not enter not guilty pleas until January 14, 2002. On March 5, 2002, Maxwell filed a motion to sever her trial from that of the other two defendants. DeAson was arraigned on March 6, 2002. The Magistrate Judge issued a final status report as to Maxwell on March 7, 2002. She did not issue a final status report as to Mcintosh and DeAson until October 1, 2002. The same day, I issued a notice that I would hold a change of plea hearing for Mcintosh and a scheduling conference for the other two defendants on November 1, 2002. Usually, I do not schedule proceedings in a criminal case until the Magistrate Judge issues a final status report for every defendant who has made an initial appearance. This practice generally serves the efficient administration of justice. I do, however, depart from this practice in appropriate cases, particularly if a request that I take some action is directed to me.
The November 1, 2002 scheduling conference was held in conjunction with scheduling conferences for two other cases, United States v. John J. Meada III, No. 02-CR-10038-MLW and United States v. Stephen Tingas and Penny Tofte, No. 02-CR-10121-MLW. In all three cases, I had determined that hearings were required for one or more pending motions. By bringing counsel for all three cases in at one time, I had hoped to adopt schedules for motion hearings and, ultimately, trials that were feasible for counsel as well as for me.
During the November 1, 2002 status conference, I indicated that my Courtroom Deputy and the Magistrate Judge both agreed that there were seventy days remaining for trial under the STA.1 I inquired of counsel for Maxwell as to whether she was asserting that an STA violation had occurred because some of the filings indicated that there might be a dispute as to whether certain periods of time were excludable for STA purposes. Counsel for Maxwell stated that he believed that the seventy-day period had expired as to Maxwell. I, therefore, ordered Maxwell to file a motion to dismiss and supporting memorandum.
At the status conference, I stated that a hearing was necessary to decide Maxwell's motion to sever. Later that day, Maxwell withdrew that motion. McIntosh had plead guilty on November 1, 2002 and, therefore, one of the bases for the motion to sever had become moot. This evolution of events is one example of the value of my usual practice of addressing issues raised by co-defendants in tandem, when it is legally permitted to do so, because the disposition of one issue often affects the merits of others.
Also on November 1, 2002, the government and DeAson filed a motion to continue a hearing that I had scheduled for November 6, 2002. On November 4, 2002, several additional motions were filed. DeAson filed a motion to continue the trial date. DeAson and the government filed a joint motion to continue the trial date. Maxwell filed a motion to dismiss under the STA.
The seventy-day period in which trial must commence under the STA begins on "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). For Maxwell, the period began on January 5, 2002; for DeAson, the period began on March 7, 2002. See United States v. Barnes, 159 F.3d 4, 10 (1st Cir.1998) (). The period between January 5, 2002 and March 7, 2002 is excludable as to Maxwell because her co-defendant DeAson had not yet been arraigned. See United States v Barnes, 251 F.3d 251, 258-59 (1st Cir.2001) (); United States v. Calle, 120 F.3d 43, 46 (5th Cir. 1997) ().
The period from March 5, 2002 until November 1, 2002 is excludable under 18 U.S.C. § 3161(h)(1)(F) as Maxwell's Motion to Sever was pending during this period. This section provides for exclusion of "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."
Maxwell argues that "[t]olling of the speedy trial calculation for a hearing on a motion (beyond the 30-day advisement period) should not commence until the `Court decides whether to hold a hearing.'" Def.'s Memo, at 6 (quoting United States v. Briscoe, 839 F.Supp. 31, 34 n. 4 (D.D.C. 1993)). Maxwell notes that: (1) she did not request oral argument on her motion to sever; and (2) on September 19, 2002 the Magistrate Judge endorsed an Order drafted by Maxwell's counsel stating "that no determination had been made [by the Magistrate Judge] that a hearing on the motion to sever was reasonably necessary." Def.'s Memo, at 6. Maxwell also cites United States v. Johnson, 29 F.3d 940, 945 (5th Cir.1994) for the proposition that if a hearing is contemplated, but no hearing is held, at most 30 days are excludable under the SAT.
The government argues that "no other court, within that district or elsewhere, has ever cited [United States v. Briscoe ], let alone the relevant language in footnote 4." Govt's Opp. at 6. Citing several cases, the government points out that "[t]he First Circuit has never held that a District Court cannot exclude more than 30 days unless the Court has already scheduled the motion hearing." Id. at 7.
In her reply, Maxwell argues that I retroactively determined that a hearing was necessary. Def.'s Reply at 3. Maxwell distinguishes two First Circuit cases in which the defendant requested a hearing and notes the First Circuit's warning in United States v. Staula, 80 F.3d 596, 602 n. 3 (1St. Cir.1996) that "we will not permit either the district court or the prosecution to jerry-build a `hearing' in order to thwart the concinnous operation of the Speedy Trial Act."
Maxwell's argument that a period is excludable under 18 U.S.C. § 3161(h)(1)(F) only after a court has scheduled a hearing is incorrect. Maxwell's proposed interpretation of the statute would effectively require that the court make an on the record determination that a hearing is necessary. When Congress enacted the portion of the SAT. dealing with excludable time, it specifically required an on the record finding for continuances in 18 U.S.C. § 3161(h)(8)(A). No similar requirement exists for determinations related to hearings in 18 U.S.C. § 3161(h)(1)(F). Consequently, such a requirement should not be read into the statute. See United States v. Grosz, 76 F.3d 1318, 1325 (5th Cir.1996) (); cf. Henderson v. United States, 476 U.S. 321, 326-27, 106 S.Ct. 1871, 90 L.Ed.2d 299 (1986) (). The language of the footnote in Briscoe does not compel a contrary conclusion. In addition to adding to the text of the statute, the rule advocated by Maxwell would contradict the intent of Congress to make subsection (F) an extremely broad provision. See Henderson, 476 U.S. at 327-28, 106 S.Ct. 1871 ().
I recognize that a court is not entitled to schedule an unnecessary hearing in order to avoid a finding that the SAT has been violated. See Staula, 80 F.3d at 602 n. 3; Grosz, 76 F.3d at 1325 n. 7. This has not, however, occurred in the instant case. Following my usual practice in multi-defendant cases, I did not decide any pending motions until the Magistrate Judge had completed her work concerning all of the defendants before her. Maxwell had not requested any variance from this practice or an expedited ruling on her Motion to Sever.
Once the Magistrate Judge issued a final status...
To continue reading
Request your trial
-
U.S. v. Maxwell, 03-2042.
...in a speedy trial." On December 24, 2002, the district court denied the motion, finding no STA violation. United States v. Maxwell, 247 F. Supp.2d 10, 15 (D.Mass.2002) ("Maxwell I"). The court first held that Maxwell's STA clock began running on January 5, 2002, the day after her arraignmen......