United States v. Brown
| Decision Date | 10 August 2009 |
| Docket Number | Criminal No. 2008–55. |
| Citation | 52 V.I. 706 |
| Parties | UNITED STATES of America, Plaintiff, v. Wendie Michel BROWN, Defendant. |
| Court | U.S. District Court — Virgin Islands |
OPINION TEXT STARTS HERE
Major R. Coleman, AUSA, Jason T. Cohen, AUSA, St. Thomas, U.S.V.I ., for plaintiff.
Ronald E. Russell, Esq., St. Croix, U.S.V.I., for defendant.
Before the Court is the motion of the defendant, Wendie Michel Brown, to dismiss the indictment. For the reasons discussed below, the Court will deny the motion.
On November 6, 2008, Brown was charged with nineteen counts of wire fraud in violation of 18 U.S.C. § 1343.1 A warrant for her arrest issued on November 7, 2008. Brown appeared for an advice-of-rights hearing before a magistrate judge on November 18, 2008. She was arraigned on November 20, 2008. A discovery schedule was adopted and the trial was set for January 5, 2009.
On December 4, 2008, Brown filed a motion to continue motion practice deadlines and the trial date, asserting a need for more time to review the government's discovery. On December 10, 2008, she filed a signed speedy trial extension form, asking the Court to extend the period within which this matter must be tried until March 2009.2
On January 6, 2009, the magistrate judge denied as moot Brown's December 4, 2009, motion to continue. On January 12, 2009, in light of Brown's December 10, 2008, filing, the Court extended the time to try this matter until March 9, 2009.
On February 10, 2009, Brown filed another speedy trial extension form, asking the Court to extend the period within which this matter must be tried until June 2009.3
On February 11, 2009, the magistrate judge conferred with the parties, acknowledged that Brown had asked the Court to extend the time to try this matter, and rescheduled the trial for June 2009. Neither the magistrate judge nor the Court ruled on that request.
On May 8, 2009, Brown filed another speedy trial extension form, asking the Court to extend the period within which this matter must be tried until June 15, 2009.4 Neither the magistrate judge nor the Court ruled on that request.
On June 3, 2009, Brown filed a motion to continue the trial until September 2009, asserting a need to review evidence that she claimed could aid her defense. On June 4, 2009, a new attorney filed a notice of appearance on behalf of Brown. On June 8, 2009, before the Court ruled on the June 3, 2009, motion to continue, Brown, through her newly-noticed attorney, filed another motion to continue the trial, asserting a need to review discovery. Attached to that motion to continue was another speedy trial extension form, in which Brown asked the Court to extend the period within which this matter must be tried until September 30, 2009.5
On June 10, 2009, the Court continued the trial date until August 24, 2009 and denied as moot Brown's two motions to continue. The Court did not rule on Brown's June 8, 2009, extension request. On July 17, 2009, the Court sua sponte rescheduled the trial for August 10, 2009.
On July 15, 2009, Brown moved to dismiss this matter on speedy trial grounds. The government opposes the motion. The Court heard argument on the motion on August 3, 2009.6 At the conclusion of the hearing, the Court invited the parties to submit supplemental briefs. Both parties have availed themselves of that opportunity.7
Brown argues that both the Speedy Trial Act, 18 U.S.C. §§ 3161 et seq., and her Sixth Amendment speedy trial rights have been violated.
The Speedy Trial Act requires that trial commence within seventy days of a defendant's initial appearance or of the filing and making public of the indictment, if later. 18 U.S.C. § 3161(c). Delay resulting from any pretrial motion, from the date of the filing of the motion through the date of the prompt disposition of the motion, is excluded from the computation of Speedy Trial Act time. 18 U.S.C. § 3161(h)(1)(F). Any pretrial motion, including a motion for extension of time, is a pretrial motion within the meaning of Section 3161(h)(1)(F) and creates excludible time, even if it does not in fact delay the trial. See United States v. Novak, 715 F.2d 810, 813 (3d Cir.1983). The Speedy Trial act also allows district courts to grant continuances on finding that “the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial.” 18 U.S.C. § 3161(h)(8)(A); see also United States v. Adedoyin, 369 F.3d 337, 341 (3d Cir.2004). Under the Act, courts must justify their continuances by an oral or written statement setting forth on the record their reasons for granting them. Id.; see also United States v. Lattany, 982 F.2d 866, 877 (3d Cir.1992). The discretion of courts “is not unfettered, however.” United States v. Watts, Crim. No.2004–153, 2005 U.S. Dist. LEXIS 22505, at *7, 2005 WL 2429833 (D.V.I. Sept. 30, 2005). The Act lists factors that courts must consider in granting such a continuance. See, e.g., United States v. Rivera, 863 F.2d 293, 295 (3d Cir.1988) ().
In this matter, Brown was indicted on November 6, 2008. A warrant for her arrest issued on November 7, 2008. On November 18, 2008, Brown appeared for an advice-of-rights hearing before a magistrate judge. A bond hearing was held on November 19, 2008. Brown was arraigned on November 20, 2008. From November 21, 2008, seven non-excludible days passed until November 28, 2009, when the government moved to unseal the indictment. That motion was resolved on December 1, 2008. Two non-excludible days passed from December 2, 2008 until December 4, 2008, when Brown moved for a continuance. On December 10, 2008, Brown filed an application to extend the time within which to try this matter up until March 5, 2009. The motion to continue remained pending until January 6, 2009, when the magistrate judge denied it as moot. The Court granted the application for a speedy trial extension on January 12, 2009, finding that the ends of justice required extending the time to try this matter until March 9, 2009. Thus, from January 6, 2009 until January 12, 2009, five more excludible days elapsed.
On February 10, 2009, Brown filed another application for a speedy trial extension. Asserting a need for more time to review discovery and consult experts, Brown “move[d] this Court to extend the period of time within which this matter must be tried, up to and including June 9, 2009.” (Def.'s Application and Checklist for Speedy Trial Extension 1, Feb. 10, 2009.)
On February 11, 2009, the magistrate judge conferred with the parties and rescheduled the trial for June 15, 2009. The magistrate judge did not rule on Brown's application to extend the period of time within which to try this matter, and the Court did not thereafter rule on the application.
18 U.S.C. § 3161(h)(1)(D) requires the 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.” United States v. Johnson, 29 F.3d 940, 943 (5th Cir.1994) (internal citation and footnote omitted).
In this matter, because the Court did not rule on Brown's request for an exclusion of time, the Court will exclude only thirty days following the filing of the request.8 Thirty days after February 10, 2009 fell on March 12, 2009. Therefore, the speedy trial clock began to run again on March 13, 2009. Twelve non-excludible days elapsed until March 25, 2009, when the Court held a hearing. From March 26, 2009 until April 6, 2009, twelve more non-excludible days passed. On April 7, 2009, the Court held another hearing. From April 8, 2009 until May 7, 2009, thirty non-excludible days passed.
On May 8, 2009, Brown filed another application for a speedy trial extension, in which she “move[d] this Court to extend the period of time within which this matter must be tried, up to and including June 15, 2009.” (Def.'s Application and Checklist for Speedy Trial Extension 1, May 8, 2009.) Brown again asserted a need for more time to review discovery and to prepare for trial.
On May 13, 2009, the magistrate judge met with the parties and stated that the trial would remain scheduled for June 15, 2009. The magistrate judge did not rule on Brown's May 8, 2009, request for an exclusion of time. The Court did not thereafter rule on the request. As with Brown's February 10, 2009, exclusion request, the Court will exclude thirty days following the filing of the May 8, 2009, request.
Thirty days after May 8, 2009 fell on June 7, 2009. On June 8, 2009, the government filed a motion in limine to preclude the introduction of certain evidence at trial.9 The speedy trial clock stopped on that date and has not since been restarted, as the Court has not ruled on the motion.10See United States v. Jackson, 544 F.3d 1176, 1186 n. 15 (11th Cir.2008) (), cert. denied,––– U.S. ––––, 129 S.Ct. 1925, 173 L.Ed.2d 1072 (2009); United States v. Jernigan, 341 F.3d 1273, 1286 (11th Cir.2003) (...
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