United States v. Murphy
| Decision Date | 09 April 2020 |
| Docket Number | Case No. 6:19-cr-00530-AA |
| Parties | UNITED STATES OF AMERICA, v. THOMAS ROBERT MURPHY, Defendant. |
| Court | U.S. District Court — District of Oregon |
This matter comes before the Court on defendant Thomas Robert Murphy's Motion to Dismiss (doc. 57). Defendant requests dismissal of the indictment in this case for various reasons including violations of the Speedy Trial Act, 18 U.S.C. § 3161. For the reasons set forth below, defendant's motion is DENIED.
The Speedy Trial Act ("STA") provides that any information or indictment charging an individual with a crime shall be filed within thirty days from the date on which such individual was arrested. 18 U.S.C. § 3161(b). The STA contains a number of exclusions during which time is not calculated for the purposes of this requirement, several of which are relevant here. First, delay resulting from any proceeding, including examinations, to determine the defendant's mental competency shall be excluded. 18 U.S.C. § 3161(h)(1)(A). Second, any period of delay resulting from the unavailability of the defendant due to mental incompetency shall be excluded. 18 U.S.C. § 3161(h)(4). Finally, time is excluded when a court—on its own or by request of either party—finds "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)(7)(A) ().
No exclusion may be granted because of "general congestion of the court's calendar, or lack of diligent preparation or failure to obtain available witnesses on the part of the attorney for the Government." 18 U.S.C. § 3161(h)(7)(C). If a defendant is not indicted within thirty days of the complaint being filed—after tallying the exclusions provided in § 3161(h)—the charges in such complaint must be "dismissed or otherwise dropped." 18 U.S.C. § 3162(a)(1). A court may dismiss the case with or without prejudice. 18 U.S.C. § 3162(a)(2).
Defendant is charged with threatening the President of the United States, in violation of 18 U.S.C. § 871, and making interstate threats, in violation of 18 U.S.C. § 875(c).
As outlined in the indictment, on January 10, 2018, defendant posted on his Twitter account, @thenotepadalien, Klein Aff. at 2. On the same day, defendant postedfrom his Google+ account, Id. Three days later, defendant posted again on Twitter: Id.1
On or about February 9, 2018, law enforcement officers contacted defendant at his residence in Springfield, Oregon. The interaction ended when defendant requested the agents leave and contact him by email. On February 15, 2018, defendant was charged by complaint (doc. 1) with making threats against the President and use of interstate communications to communicate a threat. Defendant was arrested on February 16, 2018 pursuant to a valid arrest warrant (doc. 5) and was ordered detained by Magistrate Judge Thomas Coffin. (doc. 6)
At a preliminary examination hearing on February 23, 2018, the government moved for a competency evaluation. (doc. 10) Magistrate Judge Jolie Russo granted the motion and on February 26, 2018, ordered defendant examined for competency and for insanity at the time of the offense. (doc. 13) At the February 23 hearing, defendant's attorney waived the preliminary hearing and ninety days under the STA to allow defendant to be evaluated and returned. 2/23/18 Tr. at 4.
On March 21, 2018, defendant arrived at the Federal Detention Center in SeaTac, Washington for a psychological examination. On May 18, 2018, Dr. Ryan Nybo reported his opinion to the Court that defendant was incompetent to stand trial because of schizophrenic delusions. At a status conference on May 23, 2018, theparties waived forty-five days under the STA (doc. 16) On June 27, 2018, a competency hearing was set for July 17, 2018. (doc. 17) Following the competency hearing, Magistrate Judge Russo issued a written order finding defendant incompetent and directing him to the custody of the Attorney General for restoration proceedings. (docs. 18-19)
At a November 19, 2018 status conference, the parties reported that a bed had not yet become available at any Federal Medical Center ("FMC") for competency restoration. Also at the hearing, defense counsel waived an additional 120 days under the STA. (doc. 22) During a January 9, 2019 status conference, the government provided notice that defendant would be transported to FMC Springfield on March 7, 2019. (doc. 24); 1/9/19 Tr. at 3, 6. The Court ordered an additional 120 days excluded under the STA for restoration of competency starting March 7, 2019. Id.; 1/9/19 Tr. at 9, 10. On January 15, 2019, Federal Public Defender ("FPD") Susan Russell was substituted as defense counsel in place of FPD Mark Weintraub.
On March 21, 2019, defendant arrived at FMC Springfield. On March 27, 2019, Magistrate Judge Coffin excluded another 120 days under the STA. (doc. 31); 3/27/19 Tr. at 4. On July 17, 2019 defense counsel waived another thirty days to allow for completion of competency proceedings and filing of examinations. (doc. 33) 7/17/19 Tr. at 5. On August 19, 2019, FPD Susan Russell withdrew from the case and Criminal Justice Act ("CJA") Panel attorney Kristen Winemiller was appointed. (doc. 37). At an August 21, 2019 status conference, defense counsel waived an additionalsixty days under the STA which Magistrate Judge Mustafa Kasubhai ordered excluded. (doc. 38); 8/21/19 Tr. at 5.
On October 16, 2019, Magistrate Judge Kasubhai found defendant competent to stand trial based on his competency evaluation and the representation of counsel. (doc. 40); 10/16/19 Tr. at 4. Defense counsel waived and the court ordered forty-five days excluded under STA. Id. at 5. On November 20, 2019, a status conference was held before Magistrate Judge Kashubai. (doc. 41) A portion of the hearing was held ex parte, during which the court granted defense counsel's motion to withdraw. 11/20/19 Tr. at 20. Defendant also refused to waive any additional time under the STA. Id. On the following day, November 21, 2019, defendant was indicted by a federal grand jury. (doc. 42)
On December 3, 2019 CJA Panel attorney Matthew Schindler was appointed as counsel for defendant. (doc. 48) On December 4, defendant was arraigned on the present charges and entered a plea of not guilty. (doc. 49). On December 18, defendant was ordered released from custody with conditions pending trial. (doc. 53) On January 8, 2020, Magistrate Judge Kasubhai ordered another sixty days excluded in the interest of justice and defendant's jury trial was set for May 5, 2020 before Judge Ann Aiken. (doc. 54) On February 8, 2020 defendant filed a motion to proceed pro se in this matter.2 (Doc. 55) The next day, defendant filed the present motion to dismiss for violations of the STA. (doc. 57).
Defendant argues that his indictment should be dismissed for violations of the STA, ineffective assistance of counsel, and deficiencies in the indictment. The Court will address each argument in turn.
Defendant contends that the periods of delay between his initial arrest and his ultimate indictment violate the thirty-day time limit under the STA. Specifically, defendant challenges the series of delays between the date he was found incompetent and the date his competency was restored.3
The thirty-day statutory period under 18 U.S.C. § 3161(b) for indictment in this case started on February 16, 2018 when defendant was arrested. Seven days later, on February 23, 2018, defendant was ordered to undergo a competency evaluation pursuant to 18 U.S.C. § 4241(b). (doc. 10) Thus, from February 23 until July 17, 2018 defendant's competency was being determined, and, accordingly, thistime was automatically excluded under the STA pursuant to § 3161(h)(1)(A).4 On July 17, 2018, defendant was found incompetent to stand trial and was remanded to the custody of the attorney general for competency restoration.
Defendant argues that delays in transport after his July 17, 2018 hearing until March 21, 2019, when he arrived at FMC Springfield for treatment, violate § 3161(h)(1)(F) of the STA. Section 3161(h)(1)(F) excludes "delay resulting from transportation . . . to or from places of examination or hospitalization," but also states that "any time in excess of ten days from the date of . . . an order directing such transportation, and the defendant's arrival at the destination shall be presumed unreasonable." Defendant argues that this provision means that when a defendant waits more than ten days for transportation there would be a violation of the STA. However, recent Ninth Circuit case law precludes defendant's argument. See United States v. Romero, 833 F.3d 1151, 1154 (9th Cir. 2016).
In Romero, the Ninth Circuit examined the interplay between the STA transportation provision cited by defendant and § 3161(h)(4) which provides that "[a]ny period of delay from the fact that the defendant is mentally incompetent" is excludable under the STA. United States v. Romero, 833 F.3d 1153-55. The defendant there, as here, argued that a three-month delay in transportation forcompetency restoration was violative of § 3161(h)(1)(F). Id. at 1154. However, the Ninth Circuit ruled that the entire period at issue was automatically excluded under § 3161(h)(4). Id. at 1155. The panel found that "the Speedy Trial Act unambiguously requires the exclusion of all time during which a defendant is incompetent to stand trial." Id. Any "other delays that may or may not occur during a period of incompetence are irrelevant to the Speedy Trial Act calculation; they cannot...
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