United States v. Green

• Decision Date: 09 July 2020
• Docket Number: No. 3:19-CR-233,3:19-CR-233
• Citation: 471 F.Supp.3d 577
• Parties: UNITED STATES of America v. Lance GREEN
• Court: U.S. District Court — Middle District of Pennsylvania

471 F.Supp.3d 577

UNITED STATES of America

v.Lance GREEN

No. 3:19-CR-233

United States District Court, M.D. Pennsylvania.

Filed July 9, 2020

Jenny P. Roberts, U.S. Attorney's Office, Scranton, PA, for United States of America.

MEMORANDUM OPINION

Robert D. Mariani, United States District Judge

I. INTRODUCTION

The Motion of Defendant, Lance Green, to Dismiss for Violation of the Speedy Trial Act and the United States Constitution (Doc. 34) is pending before the Court. With the Motion, Defendant argues that more than seventy non-excludable days have elapsed since his Indictment in violation of the Speedy Trial Act, 18 U.S.C. § 3161. (Doc. 34 ¶ 5.) He also argues that the period of delay runs afoul of his right to a speedy trial afforded by the Sixth Amendment of the United States Constitution. (Doc. 34 ¶ 4.) For the reasons discussed below, the Court concludes that more than seventy non-excludable days passed in violation of the Speedy Trial Act, the charges against Defendant are properly dismissed without prejudice, and Defendant's Sixth Amendment right to a speedy trial has not been violated.

II. BACKGROUND

The relevant background of this case begins with Defendant's arrest on October 5, 2017, by the Kingston Municipal Police Department which led to Pennsylvania state law charges and to his Indictment on January 23, 2018, by a federal grand jury for Prohibited Person in Possession of a Firearm, 18 U.S.C. § 922(g), and Possession of a Firearm with an Obliterated Serial Number, 18 U.S.C. § 922(k), under docket number 3:18-CR-21.¹ (Doc. 37 at 6.) Defendant was arraigned on these charges before Magistrate Judge Joseph F. Saporito on February 13, 2018, and pled not guilty to the charges in the Indictment. (3:18-CR-21 Doc. 20.) Magistrate Judge Saporito appointed CJA Attorney Gino Bartolai, Esquire, to represent Defendant (Doc. 19) and ordered Defendant detained pending trial (Doc. 21).

Also on February 13, 2018, District Judge A. Richard Caputo scheduled the matter for trial on April 23, 2018, and set March 13, 2018, as the deadline for filing pretrial motions and briefs. (Doc. 22.) On March 15, 2018, Judge Caputo granted Defendant's motion for an extension of time to file pretrial motions, extending the deadline to April 12, 2018. (Docs. 24, 25.) On April 12, 2018, Judge Caputo granted Defendant's second motion for an extension of time to file pretrial motions, extending the deadline to May 14, 2018. (Docs. 26, 27.) On May 14, 2018, Judge Caputo granted Defendant's third motion for an extension of time to file pretrial motions, extending the deadline to June 13, 2018. (Docs. 28, 29.) No pretrial motions were filed prior to that deadline.

On September 26, 2018, Defendant filed a Motion for Leave to File Motion to Suppress Evidence Obtained as Result of Illegal Arrest Nunc Pro Tunc (Doc. 35) and on the same day filed the Motion to Suppress Evidence Obtained as a Result of Illegal Arrest (Doc. 36). Judge Caputo granted the Motion for Leave to File Motion to Suppress Evidence Obtained as Result of Illegal Arrest Nunc Pro Tunc (Doc. 35) on October 1, 2018. (Doc. 39.) By Memorandum and Order of November 28, 2018, Judge Caputo denied the motion to suppress. (Docs. 41, 42.)

On November 29, 2018, he set the matter for trial to commence on December 17, 2018. (Doc. 44.) On December 6, 2018, Defendant filed an unopposed motion to continue trial which Judge Caputo granted on December 13, 2018. (Docs. 45, 46.) By Order of December 13, 2018, Judge Caputo set the trial for April 30, 2019. (Doc. 46.)

Attorney Bartolai filed a Motion for New Counsel on January 20, 2019, and Judge Caputo appointed Enid Harris, Esquire, on January 29, 2019. (Docs. 47, 51.) On February 21, 2019, Attorney Harris filed the Motion to Withdraw as Counsel Due to Conflict of Interest which Judge Caputo granted by Order of February 27, 2019. (Docs. 55, 57.) On March 6, 2019, Joseph O'Brien, Esquire, was appointed to represent Defendant. (Doc. 58.)

On April 18, 2019, Defendant filed a motion to continue the trial. (Doc. 59.) Judge Caputo granted the motion and set the trial for June 3, 2019. (Doc. 60.)

On May 13, 2019, Defendant filed the Motion to Continue Trial and for Leave to File Motion to Dismiss for a Violation of the Speedy Trial Act which Judge Caputo granted by Order of May 14, 2019. (Docs. 61, 62). On June 3, 2019, Defendant filed a motion for extension of time to file his motion to dismiss which Judge Caputo granted on June 5, 2019, setting June 10, 2019, as the deadline for filing the motion. (Docs. 63, 64.) Defendant filed the motion and supporting brief on June 10, 2019, and the Government filed its brief in opposition on June 21, 2019. (Docs. 65-67.) Defendant filed a motion for an extension of time to file a reply which was granted, and Defendant filed his reply brief on July 15, 2019. (Docs. 68-70.) By Memorandum of July 19, 2019, Judge Caputo agreed that more than seventy non-excludable days elapsed from June 13, 2018, until September 26, 2018, in violation of the Speedy Trial Act, 18 U.S.C. 3161(c)(1). (Doc. 71 at 4.) He noted that the Government conceded that one hundred and thirty-three non-excludable days ran between Defendant's initial appearance and the filing of Defendant's Motion to Suppress on September 26, 2018. (Id. at 4 (citing Doc. 67 at 5).) Judge Caputo then considered the statutory factors set out in 18 U.S.C. § 3161(c)(1) relevant to the determination of whether the Indictment should be dismissed with or without prejudice and concluded that the factors weighed in favor of dismissal without prejudice. (Id. ) Therefore, by Order of July 19, 2019, Judge Caputo granted the Motion to Dismiss the Indictment pursuant to the Speedy Trial Act and dismissed the Indictment without prejudice. (Doc. 72.)

On the same day as the dismissal of Indictment in 3:18-CR-21, the Government filed a criminal complaint and charged Defendant with the same two offenses set out in the Indictment (3:19-MJ-57 Doc. 1). A grand jury indicted Defendant on July 30, 2019, and Defendant had his initial appearance before Magistrate Judge Karoline Mehalchick on July 31, 2019, where he entered a plea of not guilty and was appointed CJA attorney Joseph O'Brien, Esquire. (Docs. 12, 16.) On motion of the Government attorney, Magistrate Judge Mehalchick ordered Defendant detained pending trial. (Doc. 18.)

On August 1, 2019, Judge Caputo issued a scheduling Order directing all pretrial motions to be filed by August 20, 2019, and setting jury selection and trial for October 7, 2019. (Doc. 19.) On September 27, Defendant filed a motion to amend the scheduling Order and requested an extension of time until October 21, 2019, to file pretrial motions. (Doc. 20.) On October 2, 2019, Judge Caputo granted Defendant's request and indicated that a trial date would be set after the expiration of the motion deadline. (Doc. 21.) On October 21, 2019, Defendant filed the Motion to Suppress Evidence as a Result of Unconstitutional Search and Seizure and supporting brief. (Docs. 22, 23.) The government filed its response in opposition on October 29, 2019. (Doc. 24.) On December 2, 2019, Judge Caputo issued a Memorandum Order denying Defendant's motion. (Doc. 25.)

On December 4, 2019, the Government filed the Motion to Set Trial Date in which it indicated that "[t]he Speedy Trial time expires on December 13, 2019" and requested the Court to schedule a trial immediately. (Doc. 26 ¶¶ 7, 8.) On December 18, 2019, at the request of the government, Judge Caputo held a conference call with counsel for the Government and counsel for Defendant regarding the Government's Motion to Set Trial Date (Doc. 26). (Doc. 37 at 8.) On the same day, the case was reassigned to the undersigned for all further proceedings by verbal order.

On December 19, 2019, both parties participated in a conference call with this Court. Defense counsel indicated that he would be filing a motion to dismiss based upon a Speedy Trial Act violation by the end of the year. Government counsel reports that she contacted Defendant's counsel on January 3, 2020, because no motion had been filed and he indicated that his client no longer wanted a motion to dismiss filed. (Doc. 37 at 8.) Government counsel also reports that she again spoke with Defendant's counsel on January 6, 2020, and he again stated Defendant did not want the motion filed. (Id. at 9.) On the same day, Government counsel notified the Court that no motions would be filed. (Id. )

The Court issued an Order on January 6, 2020, setting the case for trial on January 22, 2020. (Doc. 30.) The Court stated the following as to the calculation of time for Speedy Trial Act purposes:

Without ruling for Speedy Trial purposes on the period of time between December 4, 2019, when the Government filed its motion to set a trial date, and December 18, 2019, when this case was re-assigned to the undersigned, the time between December 19, 2019, the date of the Court's conference call with counsel, and the date of this Order shall be excluded from speedy trial calculation pursuant to 18 U.S.C. § 3161(h)(7) as the Court's continuance in setting a trial date was based on a finding that the ends of justice were served by delaying the scheduling of trial, and those interests outweigh the best interest of the public and the defendant in a speedy trial. Such time was necessary for the parties to confer as to how to best proceed in this action, including conferring and performing adequate research as to whether there was any violation of the Speedy Trial Act, as well as to allow Defendant's counsel sufficient time to confer with his client and determine how Mr. Green wanted to proceed in this matter and how to best represent Mr. Green's interests. Further, the time between the date of this Order and the date of trial shall also be excluded from speedy trial calculation pursuant to 18 U.S.C. § 3161(h) such as to allow counsel the reasonable time necessary for effective preparation, taking into account the

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