United States v. Johnson
| Docket Number | 4:22-CR-40071-01-KES |
| Decision Date | 11 August 2022 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. SHAVETTA GEORGETTA JOHNSON, Defendant. |
| Court | U.S. District Court — District of South Dakota |
ORDER DENYING MOTION TO DISMISS
Defendant Shavetta Georgetta Johnson, moves to dismiss the indictment on the grounds that her statutory and constitutional speedy trial rights have been violated. 2022 Docket 16.[1] The government opposes the motion. 2022 Docket 20. For the following reasons, the court denies Johnson's motion to dismiss.
On October 6, 2020, Johnson was indicted on one count of conspiracy to distribute a controlled substance and one count of distribution of a controlled substance resulting in death or serious bodily injury. Docket 1. Johnson had her initial appearance before Magistrate Judge Veronica Duffy on October 23, 2020. Docket 9. Amanda Kippley, an Assistant Federal Public Defender, noted her appearance on behalf of Johnson. Docket 10. On October 26, 2020, the court entered a scheduling order that set Johnson's trial for December 29, 2020. Docket 16. Also on October 26, Kippley moved to withdraw as Johnson's counsel, and the next day, Magistrate Judge Duffy granted the motion and appointed Brett Waltner to represent Johnson. Dockets 15, 17. On November 17, 2020 Waltner moved to withdraw as Johnson's counsel, and that same day, Magistrate Judge Duffy granted the motion and appointed Nicole Griese to represent Johnson. Dockets 23, 24.
On December 10, 2020, Johnson moved for a 60-day continuance stating that “[d]iscovery production is ongoing and additional time is required to properly review and investigate discovery with [Johnson] before defense counsel can competently advise [Johnson] if a plea agreement or trial is in [Johnson]'s best interest.”[2] Docket 29. The court granted this motion the same day, resetting trial for March 2, 2021, finding that “the ends of justice served by continuing this trial outweigh[ed] the best interests of the public and [Johnson] in a speedy trial” for the reasons defense counsel offered in the motion.[3] Docket 30. On February 11, 2021, Johnson moved for another 60-day continuance for the same reasons stated in her first motion, and the court granted this motion the next day, resetting trial for May 4, 2021. Dockets 33, 35. On March 23, 2021, Johnson moved for a third 60-day continuance on the same grounds, and the court granted this motion the same day, resetting trial for July 6, 2021. Dockets 36, 38.
On June 21, 2021, Johnson moved for a 30-day continuance, for the same reasons stated in the first three motions. Docket 42. The court granted this motion the same day and reset trial for August 9, 2021. Docket 43. On June 25, 2021, the court entered an amended order granting the continuance, moving the trial date back one day, to August 10, 2021. Docket 44. On July 14, 2021, Johnson moved for a 90-day continuance on the same grounds as the previous motions, and the next day, the court granted the continuance and reset trial for November 9, 2021. Dockets 46, 47.
On October 21, 2021, Johnson filed a motion for continuance on the same grounds as the previous motions and asked for a “firm trial date” for either December 2021 or January 2022. Docket 49. The court granted this motion and reset trial for December 14, 2021. Docket 50. But then on November 30, 2021, Johnson asked for another continuance on the same grounds, this time asking for a “firm trial date” in February 2022. Docket 51.
The court granted the continuance and reset trial for March 1, 2022. Docket 53.
On February 4, 2021, Johnson requested another 90-day continuance, stating that the government provided the defense with “an expert report on January 28, 2022 [for] a witness [it] intend[ed] to call [at] trial on March 1, 2022[,]” and that the defense “would like an opportunity to hire an independent defense expert to review the report, the medical records, and opine on the issue in [Johnson]'s defense.” Docket 58. The court granted the continuance the same day, and it reset trial for May 31, 2022. Docket 59.
On May 26, 2022, Johnson pleaded guilty to Count 1 of the indictment at a change of plea hearing held just prior to the pretrial conference for the remaining count. Docket 80. At the pretrial conference, the government orally moved to amend the indictment because the date of offense in the indictment was incorrect. See Docket 82 at 1-2. The court orally denied this motion because it believed only the grand jury could amend an indictment regarding a material matter such as the date of when the offense occurred. See id. Later that day, the government moved to dismiss Count 2 without prejudice. Docket 81. Johnson objected, arguing that to protect Johnson's right to a speedy trial, the matter should either proceed to trial as scheduled, or the court should grant the motion to dismiss Count 2 with prejudice. Docket 82 at 5. The court granted the government's motion and Count 2 of the Indictment was dismissed without prejudice. Docket 83.
On July 6, 2022, the government filed a new indictment against Johnson, charging distribution of a controlled substance resulting in death or serious bodily injury, just as in Count 2 in the 2020 indictment, except this identifies the correct date of the offense. See 2022 Docket 1. On July 11, 2022, Johnson had her initial appearance for this indictment before Magistrate Judge Duffy. 2022 Docket 6. Also on July 11, 2022, the court entered a scheduling order setting trial for July 26, 2011. 2022 Docket 12. Johnson objected to this trial date because it was within 30 days from her initial appearance, and Johnson had not waived this time under 18 U.S.C. 3161(c)(2). 2022 Docket 13. The court then entered an amended scheduling order resetting the trial for August 30, 2022. 2022 Docket 14. Johnson now moves to dismiss the indictment with prejudice for violating her speedy trial rights under the Speedy Trial Act and the Sixth Amendment to the Constitution. 2022 Docket 16.
The court independently analyzes Johnson'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)).
Under the Speedy Trial Act, a trial must “begin within 70 days of the filing of an information or indictment or the defendant's initial appearance[,]” whichever is later. Zedner v. United States, 547 U.S. 489, 497 (2006) (citing 18 U.S.C. § 3161(c)(i)). A Speedy Trial clock triggered by an initial appearance begins to run the day after the initial appearance. See United States v. Yerkes, 345 F.3d 558, 561 (8th Cir. 2003). But “the Act recognizes that criminal cases vary widely and that there are valid reasons for greater delay in particular cases.” Zedner, 504 U.S. at 497. Section 3161(h)(1)(D) excludes the “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” from calculating time under the Speedy Trial Act. Section 3161(h)(7) permits a district court to grant a continuance and exclude the delay in calculating time under the Speedy Trial Act if the court makes findings on the record that “the ends of justice served by granting the continuance outweigh the public's and defendant's interests in a speedy trial.” Id. at 498-99. “The court must make the findings, ‘if only in the judge's mind, before granting the continuance.' ” Johnson, 990 F.3d at 668 (citing Zedner, 547 U.S. at 506). The day a motion is filed and the day the court disposes of the motion are both excluded from the Speedy Trial calculation. See United States v. Long, 900 F.2d 1270, 1276 (8th Cir. 1990) ( ).
“[W]here an indictment is dismissed on the government's motion and a defendant is later reindicted, the seventy-day period continues to run from the first indictment.” United States v. Leone, 823 F.2d 246, 248 (8th Cir. 1987). “[T]he dismissal of the first indictment temporarily stops the running of the ‘speedy trial clock[,]' ” and the clock restarts when the defendant is reindicted or when the she makes an initial appearance on the new indictment, whichever is later. Id.
Here Johnson made her initial appearance in the 2020 case on October 23, 2020, starting the Speedy Trial clock the next day, on October 24, 2020. Docket 9; see Yerkes, 345 F.3d at 561. Two days[4] of non-excludable time elapsed before her counsel moved to withdraw on October 26, 2020, stopping the clock. Docket 15. On October 27, 2020, this motion was granted, new counsel was appointed, and the Speedy Trial clock started again on October 28, 2020. Docket 17; see Long, 900 F.2d at 1276. Another 20 non-excludable days[5] elapsed before this attorney also moved to withdraw, on November 17, 2020. Docket 23. This motion was granted, and a new attorney was appointed the same day, so the clock started again on November 18, 2021. Docket 24. Another 22 non-excludable days[6] elapsed before Johnson's first motion to continue, which stopped the clock again. Docket 29. Thus, before the first motion for a 60-day continuance was filed on December 10, 2020, 44 days had elapsed that counted against Johnson's Speedy Trial time.[7] Johnson argues that the clock started running again on February 11, 2021, because that was 60 days after her first motion to continue. See 2022 Docket 16 at 7. But her...
To continue reading
Request your trial