United States v. Alec Respects Nothing, 5:20-CR-50065-03-KES
| Decision Date | 05 August 2021 |
| Docket Number | 5:20-CR-50065-03-KES |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. ALEC RESPECTS NOTHING, Defendant. |
| Court | U.S. District Court — District of South Dakota |
ORDER DENYING DEFENDANT'S MOTION TO DISMISS INDICTMENT AND MOTION TO SEVER OR ALTERNATIVELY MOTION FOR PRETRIAL RELEASE
Defendant Alec Respects Nothing, moves pro se to dismiss the indictment in this matter, alleging he was deprived of his right to a speedy trial. Docket 112. The United States opposes the motion. Docket 133. Respects Nothing moves separately to sever his trial from his co-defendant's trial, or alternatively, for pretrial release. Docket 123. The United States opposes the motion. Docket 133. For the reasons stated below, the court denies each motion.
On August 20, 2020, Respects Nothing was arrested on an indictment that alleged he was part of a conspiracy to distribute a controlled substance in violation of 21 U.S.C §§ 846, 841(a)(1), 841(b)(1)(A). See Dockets 35, 23. Respects Nothing entered his initial appearance on the indictment on August 24, 2020. Docket 37. The court issued a scheduling and case management order as to Respects Nothing and his co-defendants, Melvin Brewer and Joshua Black Feather, on August 25, 2020. Docket 46. The order set a trial date of October 27, 2020. Id at 2.
Since the issuance of the August 25, 2020 scheduling and case management order, four motions for continuances, all made by co-defendant Brewer, have delayed the trial until its currently scheduled date of September 7, 2021. See Dockets 61, 71, 83, 113, 116. On June 3, 2021, Respects Nothing filed a pro se motion to dismiss the indictment. Docket 112. Respects Nothing argues in his motion that his right to a speedy trial under the Speedy Trial Act and the Sixth Amendment were violated. See id. On June 11, 2021, through his attorney, Respects Nothing filed a motion to sever his case from his codefendant's, or alternatively, for pretrial release based on alleged violations of the Speedy Trial Act and the Sixth Amendment. Docket 123.
The court independently analyzes Respects Nothing's right to a speedy trial under the Speedy Trial Act and the Sixth Amendment to the Constitution. See United States v Johnson, 990 F.3d 661, 666 (8th Cir. 2021) (quoting United States v. Williams, 557 F.3d 943, 948 (8th Cir. 2009)). Because Respects Nothing's motions are all predicated on violations of the Speedy Trial Act and the Sixth Amendment, the court's analysis of these potential violations applies to both motions.
“Under the Speedy Trial Act, a defendant must be brought to trial within 70 days of his indictment or first appearance, whichever is later.” United States v. Mallett, 751 F.3d 907, 910-11 (8th Cir. 2014) (quoting United States v. Suarez-Perez, 484 F.3d 537, 540 (8th Cir. 2007)); see also 18 U.S.C. § 3161(c)(1). When conducting a defendant's speedy trial calculation, certain days are excluded from the calculation. United States v. Aldaco, 477 F.3d 1008, 1016 (8th Cir. 2007); see also 18 U.S.C. § 3161(h). Section 3161(h)(7)(A) excludes a “delay resulting from a continuance granted by any judge . . . 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.” Further, “any time periods excluded from the speedy trial calculations for one defendant will be applicable to the other defendants.” United States v. Lightfoot, 483 F.3d 876, 886 (8th Cir. 2007); see also 18 U.S.C. § 3161(h)(6). “After these days are excluded, if the total number of non-excludable days exceeds seventy, then the district court must dismiss the indictment upon the defendant's motion.” Aldaco, 477 F.3d at 1016-17 (citations omitted). “The defendant has the burden of proof to support the motion, with the exception of the exclusion of time under 18 U.S.C. § 3161(h)(3) concerning the unavailability of the defendant or an essential witness.” Id. at 1017 (citing 18 U.S.C. § 3162(a)(2)).
Here, Respects Nothing entered his initial appearance on August 24, 2020. Docket 37. Twenty-two days later, on September 15, 2020, co-defendant Brewer filed a motion for continuance, which the court granted nine days later. Dockets 50, 60. Respects Nothing signed a notice of informed consent as to the continuance motion. Docket 53. The signed consent stated, “I understand that [Brewer's] Motion to Continue means that the delay requested is excluded from counting under the Speedy Trial Act, 18 U.S.C. § 3161, et seq.” Id.
Under normal circumstances, twenty-two of the seventy days for trial under the Speedy trial Act would have elapsed before the first toll of the Speedy Trial clock. But on August 28, 2020, Judge Jeffrey L. Viken entered Amended Standing Order 20-08 continuing criminal jury trials until October 2, 2020, in the District of South Dakota's Western Division, due to the COVID-19 pandemic. Judge Viken's standing order stated that “the ends of justice are best served by continuing criminal jury trials until October 2, 2020, and that decision outweighs the interest of the public and any defendant's right to a speedy trial.” D.S.D. Amended Standing Order 20-08 at 2. Further, “pursuant to the Third Amended Standing Order 20-03, [and] this Amended Standing Order 20-08 . . . the periods of delay resulting from these continuances are excluded under the Speedy Trial Act, 18 U.S.C. § 3161(h)(7)(A) for the period commencing August 24, 2020, to October 2, 2020.” Id. Thus, the court finds that Respects Nothing's Speedy Trial clock was tolled the same day as his initial appearance, until October 2, 2020.[1] See United States v. Pond, No. CR. 18-50106-JLV, 2020 WL 3446677, at *1 (D.S.D. June 24, 2020).
From September 15, 2020, when the first motion for continuance was filed, until the most recent order granting a motion for continuance and setting trial for September 7, 2021, the trial has been continued five times after codefendant Brewer moved for a continuance. See Dockets 60, 65, 72, 84, 116. The excludable time caused by properly joined co-defendants is applicable to Respects Nothing by operation of § 3161(h)(6). United States v. Alli, 2009 WL 3644834, at *2 (D. Minn. Oct. 30, 2009); see also United States v. Osborne, 343 Fed.Appx. 159, 161 (8th Cir. 2009).
The most recent motion for continuance made by co-defendant Brewer was objected to by Respects Nothing. See Docket 115. This was the first time that Respects Nothing objected to Brewer's motion for continuance. The court noted the objection but ruled “that the ends of justice served by continuing this trial outweigh the best interest of the public and the defendants in a speedy trial.” Docket 116 at 1. Thus, the continuance was appropriate under § 3161(h)(7)(A). See United States v. Herbst, 666 F.3d 504, 510 (8th Cir. 2012).
Respects Nothing has been in properly excluded time since his initial appearance. See Herbst, 666 F.3d at 510. Thus, seventy days remain after the next date set for trial, which is September 7, 2021, under the Speedy Trial Act, and the Act has not been violated.
The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial ....” U.S. Const. amend. VI. “The Sixth Amendment right ‘attaches at the time of arrest or indictment, whichever comes first, and continues until the trial commences.' ” Aldaco, 477 F.3d at 1019 (quoting United States v. Perez-Perez, 337 F.3d 990, 995 (8th Cir. 2003)). In the Eighth Circuit, “Sixth Amendment challenges are reviewed separately from the Speedy Trial Act.” Id. at 1018. “But . . . ‘[i]t would be unusual to find the Sixth Amendment has been violated when the Speedy Trial Act has not.' ” Id. at 1018-19 (quoting United States v. Titlbach, 339 F.3d 692, 699 (8th Cir. 2003)). “To trigger speedy trial analysis, the defendant must allege the interval between accusation and trial has crossed a line ‘dividing ordinary from “presumptively prejudicial” delay.' ” Id. at 1019 (quoting Doggett v. United States, 505 U.S. 647, 651-52 (1992)) (additional quotation omitted).
When analyzing whether a defendant's pretrial delay violates the Sixth Amendment, courts utilize a four-factor balancing test that looks at: (1) the delay's length; (2) the reason for the delay; (3) whether the defendant asserted his right to a speedy trial; and (4) whether the defendant suffered any prejudice. Barker v. Wingo, 407 U.S. 514, 530 (1972); see also Aldaco, 477 F.3d at 1019 (applying the Barker test).
For purposes of the first factor and analyzing Respects Nothing's motions, the court assumes that the approximately twelve-and-a-half-month delay between Respects Nothing's August 20, 2020 arrest and his scheduled trial date of September 7, 2021, is presumptively prejudicial. See United States v. Jeanetta, 533 F.3d 651, 656 (8th Cir. 2008) . Thus, because the delay between Respects Nothing's arrest and the scheduled trial date is presumptively prejudicial, the court will consider the other factors in the Barker analysis. See Barker, 407 U.S. at 530 ().
Under the second Barker factor, the reason for the delay courts assign different weights to different reasons. Id. at 531. In applying Barker, the Supreme Court has “asked, ‘whether the government or the criminal defendant is more to blame of th[e] delay.' ” Vermont v. Brillon, 556 U.S. 81, 90 (200...
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