United States v. Hawker, Crim. No. 82-3.
| Decision Date | 05 August 1982 |
| Docket Number | Crim. No. 82-3. |
| Citation | 552 F. Supp. 117 |
| Parties | UNITED STATES of America v. Robert S. HAWKER. |
| Court | U.S. District Court — District of Massachusetts |
Dennis J. Kelly, U.S. Atty., Boston, Mass., for United States.
James B. Krasnoo, William A. Brown, Brown & Prince, Boston, Mass., for Robert S. Hawker.
On July 14, 1982, defendant moved to dismiss Count I, the only remaining count of the indictment in this case, on the ground that he has been deprived of his statutory right to a speedy trial, 18 U.S.C. § 3161 et seq., and his rights under Final Plan for Prompt Disposition of Criminal Justice within the District of Massachusetts, effective July 1, 1980 ("the Plan"; page citations are to the blue-covered edition). By amendment he seeks dismissal also under Fed.R.Crim.P. 48(b), in the exercise of discretion.
The chronology of developments in this case includes the following events:
The following orders for excludable delay have been entered. Those marked by a single asterisk are not challenged (except that defendant contends, with good reason, that any overlapping days should not be counted twice). Those marked by two asterisks are challenged. It is not clear whether others are or will be challenged. Defendant has not explicitly challenged the order entered 7/26/82 for excludable delay because of the continuance to allow defendant to seek new counsel; I understand this order to be unchallenged at least as to the period from 7/26/82 through 8/2/82 (when the order was entered, upon findings that the interests of justice in allowing defendant to seek new counsel outweigh the interests of the public and the defendant in a speedy trial), but defendant's written submission of 7/30/82 observes that this order was not entered on 7/23/82 and thus may be read as challenging the excludability of the period from 7/23/82 to 7/26/82.
2/3/82 * Magistrate Cohen 1/26-1/29 Filing date to hearing
1/30-2/1 Under advisement
3/5/82 * Magistrate Cohen 2/26-3/2 Filing date to hearing
4/12/82 ** Judge Nelson 3/30-4/5 Filing date to hearing
4/12/82 ** Judge Nelson 3/24-4/5 Filing date to hearing
4/21/82 ** Judge McNaught 1/26-3/12 Filing date to hearing
6/8/82 ** Judge Nelson 3/12-3/29 Exam or Hearing for
mental or physical capacity
3/30-4/18 No order previously entered
6/30/82 Judge Nelson 4/19-5/21 Trial on other charges
5/22-5/26 No order previously entered
5/27-6/2 Filing date to hearing
6/3-7/22 No order previously entered
7/26/82 Judge Keeton 7/23-8/2 Interest of justice
continuance
8/2/82 Judge Keeton 8/2-8/9 Interest of justice
continuance
The parties have argued many more issues than are dispositive of this motion, or even potentially dispositive. At the cost of extending the length of this memorandum, I have noted the arguments, and the issues to which they relate, even when determining that I need not decide those issues in view of rulings made here. To facilitate identification of the issues that I have concluded to be dispositive, and additional issues that might be dispositive either because my rulings may be challenged or because of later developments in this case, I first set forth in chronological order the effect of my rulings.
Period Reason(s) for Exclusion Determined Disputable: Determined
to be not now to be not
Excludable decided Excludable
1/7-1/25 19
1/26-2/26 Pre-trial motions on Count I filed and not yet 32
heard
2/27-3/8 Pre-trial motions filed 2/26, affecting both 10
counts, not yet heard
3/9-3/12 Motions under advisement 4
3/13-3/23 Election on counts not made until 3/19; 11
continuance at defendant's request due to
defendant's medical condition; motions pending
on Count II
3/24-4/4 Motion to dismiss Count II (filed 3/24), not yet 12
heard; continuance for time to prepare
3/26-4/1; motion for exculpatory evidence
3/30-3/31 and further order 4/9/82
4/5-4/6 Jury Selection 2
4/7-4/18 Continuance caused by blizzard; within 14 12
days following aborted trial; motion of 4/9 for
reconsideration of Magistrate's order regarding
exculpatory evidence pending, not yet
heard
4/19-5/21 Jury Selection through verdict 33
5/22-6/4 Period of 14 days following verdict; post-verdict 14
motions filed and not heard; motion of
counsel to withdraw filed 5/27, heard and
decided 6/2
6/5-7/13 Post-verdict motions not yet heard; sentencing 39
hearing on Count II not yet held
7/14-8/2 Motion to dismiss Count I filed 7/14, hearing 20
completed 7/30, under advisement to date of
this decision; continuance in interests of
justice to allow defendant to seek new counsel
7/23/82
8/2-8/3 Continuance in interests of justice 1
and beyond
___ __ __
Days calculated as of 8/3/82 151 39 19
Defendant contends that the total of nonoverlapping...
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...the thing." The "sense" of the Speedy Trial Act is to insure defendants a speedy trial. I agree with Judge Keeton in United States v. Hawker, 552 F.Supp. 117 (D.Mass.1982): If applied literally, Sec. 5(b)(1)(F) [of the Final Plan for Prompt Disposition of Criminal Justice within the Distric......
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