United States v. Shulick

• Decision Date: 14 November 2017
• Docket Number: CRIMINAL ACTION NO. 16–428
• Citation: 290 F.Supp.3d 332
• Parties: UNITED STATES of America v. David T. SHULICK
• Court: U.S. District Court — Eastern District of Pennsylvania

290 F.Supp.3d 332

UNITED STATES of America

v.David T. SHULICK

CRIMINAL ACTION NO. 16–428

United States District Court, E.D. Pennsylvania.

November 14, 2017

Michael T. Donovan, U.S. Attorney's Office Criminal Div, Philadelphia, PA, for United States of America.

MEMORANDUM

Bartle, J.

The defendant David T. Shulick has filed a motion to dismiss the indictment on the grounds that: (1) the Speedy Trial Act, 18 U.S.C. §§ 3161, et seq., will be violated; (2) his right to a speedy trial under the Sixth Amendment to the Constitution has been infringed; and (3) unnecessary delay has occurred in contravention of Rule 48(b) of the Federal Rules of Criminal Procedure.

Shulick was indicted on October 11, 2016. He was charged with: one count of conspiracy with Chaka Fattah, Jr., charged elsewhere, to embezzle from a program receiving federal funds ( 18 U.S.C. § 371 ); one count of embezzlement from a program of the School District of Philadelphia receiving federal funds ( 18 U.S.C. § 666(a)(1)(A) ); four counts of wire fraud ( 18 U.S.C. § 1343 ); one count of bank fraud ( 18 U.S.C. § 1344 ); one count of making a false statement to a bank ( 18 U.S.C. § 1014 ); and three counts of filing false tax returns ( 26 U.S.C. § 7206(1) ). Shulick is a practicing lawyer. According to the indictment, the charges largely center on his activities as the shareholder and CEO of the Delaware Valley High School Management Corporation ("DVHS") and a related company, which contracted with the School District of Philadelphia, among other districts, to provide alternative education for high school students with discipline or attendance issues.

Shulick made his initial appearance on October 13, 2016 and was released on bail. Six days later on October 19, the court held a telephone conference with counsel and entered an order that same day designating the case as complex under 18 U.S.C. § 3161(h)(7)(B)(ii). A trial date was set for May 8, 2017 based on defense counsel's representation as to how long it would take her to prepare for trial. On March 6, 2017, the court extended the trial date to September 19, 2017 on the motion of defense counsel who needed more time to prepare due to the Government's continuing production of voluminous discovery.

In mid–July, 2017, defense counsel notified the court that the Government in the previous two months had produced an additional 133,000 documents in discovery and that she required still more time to be ready for trial. She also told the court she was having difficulty in obtaining documents from a third party, the School District of Philadelphia. As a result, on July 13, 2017, the court pushed back the trial date to October 2, 2017 with the acquiescence of defense counsel. The following day, the court barred the Government (but not the defendant) from introducing or using at trial any documents the Government had not produced by June 1, 2017.

On August 23, 2017, the Government requested a meeting with the court and defense counsel. The court scheduled it for the same day in Chambers. At the meeting, the Assistant United States Attorney ("AUSA") advised the court and defense counsel¹ that the Government had just realized that it had not produced a significant amount of discovery and that it would now promptly do so. This revelation precipitated several motions on the part of the defendant. The next day, defense counsel filed a motion to compel discovery. The Government, as it promised, forwarded the extensive discovery. Based on the Government's prompt production and the lack of merit for production of the remaining requested discovery to which the Government objected, the court denied the defendant's motion to compel on September 28, 2017.

In the meantime, on September 27, 2017, defense counsel filed the pending motion to dismiss the indictment on the ground of undue delay as a result of what defense counsel characterizes as the Government's misconduct in withholding discovery long in its possession. The court adjourned the trial calendared to begin on October 2 and scheduled briefing as well as an October 17 hearing to permit the parties to present evidence relevant to the motion.

I

We first turn to defendant's argument that the indictment should be dismissed under the Speedy Trial Act, 18 U.S.C. §§ 3161, et seq.

The Speedy Trial Act requires that the trial of a defendant commence within seventy days after the filing and making public of the indictment or his initial appearance, whichever occurs later. See 18 U.S.C. § 3161(c)(1). Certain periods of delay, however, are excluded from the computation of the seventy-day period. Section 3161(h)(1)(D) provides for the automatic exclusion of any "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[.]" Other events are excludable only if the court grants the continuance either on its own motion or on the motion of the defendant or the Government. If the court grants such a delay, it must make "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." § 3161(h)(7)(A). The Act lists a number of factors, among others, to consider in determining whether to grant a continuance. See § 3161(h)(7)(B). Since the Speedy Trial Act is designed not only to protect defendants but also to vindicate the public interest, defendants may not opt out of the confines of the Act. Bloate v. United States, 559 U.S. 196, 211, 130 S.Ct. 1345, 176 L.Ed.2d 54 (2010).

Six of the seventy days of the Speedy Trial Act elapsed between October 13, 2016, when the defendant made his initial appearance, and October 19, when the court entered its order deferring the trial until May 8, 2017 on the ground of the complexity of the action and the need for extra time for defense counsel to prepare for trial. On February 23, 2017, defense counsel filed a motion to continue the trial because she estimated there to be between 2,000,000 and 3,000,000 pages of discovery to review and because it was not possible for her to do so and to interview witnesses and consult with expert accountants during the period allotted. Defense counsel stated that she needed at a minimum an extension of between six and eight months. The subsequent orders continuing the trial to September 19, 2017 and then to October 2, 2017 were both based on the reasonable requests of defense counsel for more time to be ready for trial and the written findings of the court to this effect.² Thus as of the filing of the defendant's motion to dismiss the indictment, no additional time beyond the six days had expired under the Speedy Trial Act.

As noted, the defendant filed the pending motion to dismiss on September 27, 2017. This motion automatically stopped the clock until the hearing on the motion concluded and the court promptly made its decision. See § 3161(h)(1)(D). A lengthy evidentiary hearing on the motion took place over five days: October 17, 18, 19, 20, and 26, 2017.

The defendant concedes that only six of the seventy days will have run up until his pending motion to dismiss is promptly decided. Since the court's ruling on the motion to dismiss is occurring today, the decision is prompt as it is being handed down within thirty days of October 26, the date the hearing ended. See § 3161(h)(1)(H) ; see also Henderson v. United States, 476 U.S. 321, 331, 106 S.Ct. 1871, 90 L.Ed.2d 299 (1986). As of now, no additional days under the Speedy Trial Act have elapsed.

Defendant merely argues, predicated on speculation, that the seventy days under the Act will eventually expire if the motion to dismiss is denied because the case cannot be ready for trial within the Act's remaining sixty-four days. However, even if the trial cannot begin on that timetable, the court is able to exclude additional time on defendant's or the Government's motion or the court's own motion if the court makes appropriate 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." See §§ 3161(h)(7)(A), (B).

The defendant counters that the court cannot exclude any more time because of § 3161(h)(7)(C) which provides:

No continuance under subparagraph (A) of this paragraph shall be granted because of ... lack of diligent preparation ... on the part of the attorney for the Government.

Defendant asserts that the sluggish discovery production by the Government constitutes "lack of diligent preparation ... on the part of the attorney for the Government." We disagree. The Government is not seeking more time to prepare for trial. It is defense counsel who contends that they do not have enough time to prepare.³ Their interpretation of § 3161(h)(7)(C) distorts its meaning and finds no support in any case cited to this court.

There are presently sixty-four days to go under the Speedy Trial Act before this case must be called for trial. The court within those sixty-four days is permitted under appropriate circumstances to exclude additional time. Defendant's motion to dismiss based what he perceives will be a future violation of the Speedy Trial Act is without merit.

II

We next consider the defendant's argument that his right to a speedy trial under the Constitution has been infringed. The Sixth Amendment guarantees in relevant part, "In all criminal prosecutions, the accused shall enjoy the right to a speedy ... trial[.]" U.S. Const. amend. VI. Compliance with the Speedy Trial Act, of course, does not bar a constitutional challenge based on the denial of a speedy trial. See 18 U.S.C. § 3173 ; see also In re Grand Jury Investigation, 600 F.2d 420, 427 n.26 (3d Cir. 1979).

Unlike other rights guaranteed under the Constitution, the right to a speedy trial exists not only for the benefit of the accused but also for the benefit of society in general which has an interest in having trials take place promptly. Barker v. Wingo, 407 U.S....