United States v. Horse

• Docket Number: CR. 20-50035-01-JLV
• Decision Date: 07 January 2022
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. JOSEPH FLYING HORSE, Defendant.
• Court: U.S. District Court — District of South Dakota

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UNITED STATES OF AMERICA, Plaintiff, v. JOSEPH FLYING HORSE, Defendant.

No. CR. 20-50035-01-JLV

United States District Court, D. South Dakota, Western Division

January 7, 2022

ORDER

JEFFREY L. VIKEN, UNITED STATES DISTRICT JUDGE

TABLE OF CONTENTS

I. Introduction .................................................................................. 2

II. Analysis of the Speedy Trial Act ..................................................... 2

A. Facts ........................................................................ 5

B. Magistrate Judge's R&Rs, Orders, Defendant's Objections and Subsequent Motions ....................... 24

C. Resolution of the Speedy Trial Act Claims ................ 29

III. Sixth Amendment ....................................................................... 33

A. Length of Delay ........................................................ 34

B. Reasons for Delay .................................................... 34

C. Assertion of Speedy Trial Right ................................. 35

D. Prejudice .................................................................. 35

E. Resolution of the Sixth Amendment Claims .............. 37

IV. Defendant's Objections to Reports and Recommendations ............ 37

A. Objection to Document 258 ...................................... 38

B. Objection to Document 259 ...................................... 39

C. Objection to Document 261 .................................... 40

D. Objection to Document 264 ...................................... 40

E. Objection to Document 325 ...................................... 44

V. Defendant's Objections to Orders ................................................ 45

A. Objections to Document 262 .................................. 45

B. Objections to Document 263 .................................. 46

C. Objections to Document 265 .................................. 48

D. Objections to Document 266 .................................. 50

E. Objections to Document 269 .................................. 53

F. Objections to Document 326 .................................. 54

G. Objection to Document 328 .................................... 55

H. Objection to Document 329 .................................... 56

VI. Tenth Motion to Dismiss ............................................................ 57

VII. Order ........................................................................................... 58

I. INTRODUCTION

Defendant Joseph Flying Horse, appearing pro se, filed five objections to reports and recommendations and eight objections to orders of the magistrate judge. Defendant also filed a tenth motion to dismiss the indictment. For the reasons stated below, defendant's objections are overruled and the tenth motion to dismiss is denied.

II. ANALYSIS OF THE SPEEDY TRIAL ACT

The Speedy Trial Act, 18 U.S.C. § 3161, et seq., (“STA”) provides, in part, “the trial of a defendant charged in an . . . indictment . . . shall commence within seventy days from the filing date (and making public) of the . . . 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 . . . .” Id. § 3161(c)(1). Excluded from this time requirement are a No. of events and activities. See 18 U.S.C. § 3161(h). Subsection (h) provides, in pertinent part, the following:

The following periods of delay shall be excluded . . . in computing the time within which the trial of any such offense must commence:

(1) Any period of delay resulting from other proceedings concerning the defendant, including but not limited to . . . (C) delay resulting from any interlocutory appeal;

(D) 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; . . .

(H) delay reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement by the court.

Id. Other provisions within subsection (h) which exclude days from the speedy trial clock and are pertinent to this case provide as follows:

(6) A reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted.

(7)(A) Any period of delay resulting from a continuance granted by any judge on his own motion or at the request of the defendant or his counsel or at the request of the attorney for the Government, 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.

18 U.S.C. §§ 3161(h)(6) & (7)(A).

Subsection (c)(1) determines when the speedy trial clock begins and subsection (h) sets forth those events or activities which pause or toll the clock. See United States v. Leone, 823 F.2d 246, 249 (8th Cir. 1987) (“Section 3161(c)(1) . . . is unambiguous in stating that upon an initial indictment, the seventy-day clock begins to run upon the later of either (1) the . . . indictment, or (2) the defendant's appearance before a judicial officer of the court. Section 3161(h) of the Act sets out several periods of delay which shall be excluded from the running of the seventy-day period.”). Only those days not excludable under subsection (h) count against the defendant's STA right of trial within seventy days.

“[E]very motion filed by a defendant, whether or not it is frivolous and whether or not he is represented at the time of filing, tolls the speedy trial clock.” United States v. El-Alamin, 574 F.3d 915, 923 (8th Cir. 2009) (citing United States v. Williams, 557 F.3d 943, 952 (8th Cir. 2009)). “Periods of delay caused by pretrial motions, whether filed by the defendant . . . or the prosecution, are excluded from the calculation of this 70-day time frame.” United States v. Shepard, 462 F.3d 847, 863 (8th Cir. 2006). “Under subsection [D], ‘[a]ny pretrial motion . . . creates excludable time, even if it does not in fact delay trial.' ” United States v. Titlbach, 339 F.3d 692, 698 (8th Cir. 2003) (internal citation omitted). Finally, it must be remembered that “[t]he period of excludable delay resulting from the . . . motion includes both the date on which the motion was filed and the date on which the motion was decided.” United States v. Moses, 15 F.3d 774, 777 (8th Cir. 1994).

In a multi-defendant case, “[e]xclusions of time attributable to one defendant apply to all codefendants.” United States v. Mallett, 751 F.3d 907, 911 (8th Cir. 2014) (internal quotation marks omitted). Any motion by a codefendant stops the STA clock for all of the codefendants. Id.

The defendant has the burden to show his motion to dismiss pursuant to the STA should be granted. United States v. Adejumo, 772 F.3d 513, 521 (8th Cir. 2014). “If a defendant is not brought to trial within the time limit required by section 3161(c) as extended by [the excluded delays of] section 3161(h), the . . . indictment shall be dismissed on motion of the defendant.” United States v. Blankenship, 67 F.3d 673, 675 (8th Cir. 1995) (citing 18 U.S.C. § 3162(a)(2)).

A. FACTS

With this explanation the court begins its statement of the facts in Mr. Flying Horse's case for consideration of defendant's motion to dismiss under the Speedy Trial Act and the Sixth Amendment. (Docket 250). Specific applications of the STA will be provided where appropriate.

Mr. Flying Horse together with four codefendants were charged in a multi-count complaint on May 20, 2020. (Docket 1). Mr. Flying Horse was charged in count I with possession of a stolen firearm, a SIG Sauer Incorporated, model SIG516, 5.56 caliber, semi-automatic rifle, bearing serial No. 20G003975 and a SIG Sauer Incorporated, model Sig MCX, 5.56 caliber semi-automatic rifle bearing serial No. 63C029873 in violation of 18 U.S.C. §§ 922(j) and 924(a)(2) and in count III he was charged with possession of firearms, the same two firearms described in count I, while under indictment in violation of 18 U.S.C. §§ 922(n) and 924(a)(1)(D). Id. at p. 1.

On May 26, 2020, Mr. Flying Horse appeared before United States Magistrate Judge Daneta Wollmann for an initial appearance and detention hearing. (Docket 6). An Assistant Federal Public Defender for the Districts of South Dakota and North Dakota was appointed to represent Mr. Flying Horse. Id. The magistrate judge ordered Mr. Flying Horse detained pending a preliminary hearing. (Docket 7). On June 3, 2020, the magistrate judge considered the evidence presented during the preliminary hearing and entered a finding of probable cause. (Dockets 18 & 20).

On June 11, 2020, Mr. Flying Horse filed a pro se motion seeking new counsel. (Docket 25). The same day, a grand jury charged Mr. Flying Horse and his four codefendants in a multi-count indictment. (Docket 26). Mr. Flying Horse was indicted in count I and count V with the same two offenses charged in the complaint. Id. at pp. 1 & 3.

On June 17, 2020, the magistrate judge held an ex parte hearing on Mr. Flying Horse's motion for new counsel. (Docket 28). During the hearing, the defendant requested permission to proceed on a pro se basis as opposed to asking for a new attorney. Id. The magistrate judge conducted a Faretta^[1]hearing, concluded Mr. Flying Horse was qualified to proceed on a pro se basis and denied the earlier motion for new counsel.^[2] Id. The same day in a separate hearing with government counsel present, Mr. Flying Horse was arraigned on the indictment. (Docket 29). Mr. Flying Horse's speedy trial clock started on this date. Leone, 823 F.2d at 249.

Two days later on ...