United States v. Smith, No. 2:19-cr-00213

• Decision Date: 19 May 2020
• Docket Number: No. 2:19-cr-00213
• Parties: UNITED STATES of America, Plaintiff, v. Reginald SMITH, Defendant.
• Court: U.S. District Court — Eastern District of California

460 F.Supp.3d 981

UNITED STATES of America, Plaintiff,

v.Reginald SMITH, Defendant.

No. 2:19-cr-00213

United States District Court, E.D. California.

Signed May 19, 2020

Vincenza Rabenn, Govt, United States Attorney's Office, Sacramento, CA, for Plaintiff.

Noa Oren, Benjamin David Galloway, Office of the Federal Public Defender, Sacramento, CA, for Defendant.

ORDER GRANTING IN PART AND DENYING IN PART THE GOVERNMENT'S MOTION TO EXCLUDE TIME UNDER THE SPEEDY TRIAL ACT

JOHN A. MENDEZ, UNITED STATES DISTRICT JUDGE

The Court previously scheduled a status conference in this case for April 14, 2020. ECF No. 11. But in March, the Eastern District of California began issuing general orders, restricting the Court's operations, to help minimize COVID-19's spread. See Information Re: COVID-19 and Court Operations, Restrictions, and Closures, EASTERN DISTRICT OF CALIFORNIA, http://www.caed.uscourts.gov/caednew/index.cfm/news/covid-19-courthouse-closure-and-court-hearing-information/. Keeping in compliance with these orders, the Court continued the status conference to June 16, 2020. ECF No. 12. The government now moves to exclude time from April 14, 2020 to June 16, 2020 under the Speedy Trial Act's ("STA") "ends of justice" exclusion. Mot. to Exclude Time ("Mot."), ECF No. 13. Smith opposes this motion, and asserts his right to a speedy trial under both the Sixth Amendment and the STA.¹

For the reasons discussed below, the Court grants in part and denies in part the government's motion. The Court cannot retroactively exclude time under the ends-of-justice exclusion. The government's motion to exclude time between April 19, 2020 and April 30, 2020 is therefore denied. The time between May 1, 2020 and the date of this order, however, is excludable under a separate provision of the STA: 18 U.S.C. § 3161(h)(1)(D). Moreover, the Court confirms the June 16, 2020 status conference and excludes time between now and June 16, 2020 under section 3161(h)(7)(A).

I. BACKGROUND

On December 5, 2019, a grand jury indicted Reginald Smith, charging him with one count of Possession with Intent to Distribute Methamphetamine, 21 U.S.C. § 841(a)(1), (b)(1)(B) and one count of Possession of a Firearm in Furtherance of a Drug Trafficking Crime, 21 U.S.C. § 853(a). Two weeks later, Smith made an initial appearance before the magistrate judge. He entered a not guilty plea, demanded a jury trial, and was taken into custody. Dec. 19, 2019 Mins., ECF No. 4. Pretrial services then issued a bail report. The report highlighted Smith's history of substance abuse and violent crime. It ultimately concluded that, at the time, there was no condition, or combination of conditions, that could be fashioned to reasonably assure Smith's appearance at future court proceedings or the safety of the community. On December 23, the magistrate judge held a detention hearing. Based on Pretrial Services’ recommendation, she issued an order of detention pending trial. ECF No. 9. Smith remains in custody.

On February 4, 2020 this Court held a status conference. After hearing from both parties, the Court scheduled another status conference for March 17, 2020, and excluded time between the two hearing dates without objection from either party. ECF No. 10. At the March 17 hearing, the Court again heard from both parties, scheduled the next status conference, and granted an exclusion from March 17 to April 14, 2020 without objection. ECF No. 11.

II. OPINION

Congress enacted the STA, in part, to codify the strong public interest in speedy justice. United States v. Pollock, 726 F.2d 1456, 1459-60 (9th Cir. 1984). But it was also born out of Congress's "concern[ ] about a number of problems ... that vex an individual who is forced to await trial for long periods of time." Id. (citing H.R.Rep. No. 1508, 93rd Cong. 2d Sess., reprinted in [1974] U.S.Code Cong. & Ad.News 7401, 7408). These problems include: "disruption of family life, loss of employment, anxiety, suspicion, and public obloquy." Id.

To address these correspondent concerns, the STA sets strict time limits on the two phases of prosecution: the time period between arrest/service of summons and an indictment ("Phase 1"), and the time period between arraignment and trial ("Phase 2"). Absent an exclusion of time, Phase 1 cannot exceed 30 days and Phase 2 cannot exceed 70 days. 18 U.S.C. § 3161(b), (c). Section 3161(h) sets forth permissible grounds for excluding time under the STA. One of these grounds is now commonly referred to as an "ends of justice" exclusion. Provided by subsection (h)(7), this exclusion allows courts to exclude time for:

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)(7)(A).

The spread of COVID-19 and the resulting court closures has made Section 3161(h)(7) the exclusion of choice in recent months. Perhaps rightfully so. District courts, to little objection, have often invoked this catch-all provision in the wake of unforeseeable, emergency circumstances. See, e.g., Furlow v. United States, 644 F.2d 764, 768 (9th Cir. 1981) (upholding a district court's use of an ends-of-justice continuance to exclude a month-long delay following the eruption of Mt. St. Helens); United States v. Scott, 245 Fed. App'x 391, 394 (5th Cir. 2007) (upholding a district court's use of an ends-of-justice continuance following Hurricane Katrina); United States v. Sánchez-Senda, No. 2:17-cr-00529, 2018 WL 1737615, at *1 (D. P.R. 2018) (excluding time under Section 3161(h)(7) following Hurricane María); United States v. García-Báez, No. 16-cr-00691, 2019 WL 2553621, at *1 (D. P.R. 2019) (same); United States v. Correa, 182 F. Supp. 2d 326, 329 (S.D.N.Y. 2001) (excluding time under Section 3161(h)(7) following the 9/11 terrorist attacks).

Almost every court faced with the question of whether general COVID-19 considerations justify an ends-of-justice continuance and exclusion of time has arrived at the same answer: yes. Many districts now simply resort to 2-page form orders invoking Section 3161(h)(7). See, e.g., U.S. v. Rosales-Corria, No. 4:20-cr-00046-DN-PK, 2020 WL 2476169 (D. Utah May 13, 2020) ; U.S. v. Morrissey, No. 2:19-cr-00190, 2020 WL 2082929 (D. Maine April 30, 2020) ; U.S. v. Garza-Guzman, No. 3:20-mj-00905-MSB, 2020 WL 1433359 (S.D. Cal. March 20, 2020). And most others, in one way or another, have wholly abandoned the type of balancing Section 3161(h)(7) requires. See, e.g., U.S. v. Craig, No. 2:18-cr-00105, 2020 WL 2094101 (E.D. Tenn. April 30, 2020) ; U.S. v. Howard, No. 19-cr-00071-JLR, 2020 WL 1433758 (W.D. Wash. March 24, 2020) ; U.S. v. Musquiz, No. 4:18-cr-03116, 2020 WL 1284941 (D. Neb. March 16, 2020). Only one court has denied the Government's request for an ends-of-justice continuance. Elms v. United States, No. 3:20-cv-00253-MMD-CLB, 457 F.Supp.3d 897 (D. Nev. April 30, 2020).

Although arriving at a different result, this Court agrees with the principle set forth in Elms that courts must conduct far more deliberate inquiries into whether an ends-of-justice continuance is justified by the circumstances surrounding a particular case.

A. Legal Standard

The STA permits defendant, defense counsel, and the government's counsel to seek an ends-of-justice continuance. 18 U.S.C. § 3161(h)(7)(A). A court may also grant an ends-of-justice continuance on its own motion. Id. Regardless of who seeks the continuance, a court must satisfy itself of each of section 3161(h)(7) ’s requirements before granting the motion. As a preliminary matter, "an ends of justice exclusion must be "specifically limited in time." United States v. Ramirez-Cortez, 213 F.3d 1149, 1154 (9th Cir. 2000). Although section 3161(h)(7) permits district courts to exclude "any period of delay," the Ninth Circuit has underscored that this temporal flexibility does not permit an ends-of-justice continuance to be indefinite. U.S. v. Jordan, 915 F.2d 563, 565 (9th Cir. 1990) ; U.S. v. Pollock, 726 F.2d 1456, 1461 (9th Cir. 1984).

Moreover, an ends-of-justice continuance must be "justified [on the record] with reference to the facts as of the time the delay is ordered." United States v. Ramirez-Cortez, 213 F.3d 1149, 1154 (9th Cir. 2000) (emphasis in original) (internal quotations omitted). After independently considering factors listed in section 3161(h)(7)(B), "among others," a judge must determine whether "the ends of justice served [by granting a continuance" outweigh "the best interest of the public and the defendant in the speedy trial." 18 U.S.C. § 3161(h)(7)(A).

The STA "imposes strict specificity requirements" on these findings. United States v. Lloyd, 125 F.3d 1263, 1268 (9th Cir. 1997). "[T]he ‘ends of justice’ exclusion ... may not be invoked in such a way as to circumvent the time limitations set forth in the [Speedy Trial] Act." U.S. v. Clymer, 25 F.3d 824, 829 (9th Cir. 1994). The ends-of-justice provision "is not a general exclusion for every delay, and any continuance granted under it must be based on specific underlying factual circumstances." U.S. v. Martin, 742 F.2d 512, 514 (9th Cir. 1984). Judges are not entitled "to rely on the unverified claims" of the party seeking a continuance. Id. at 1270. Nor may they conclude that one of the Section 3161(h)(7)(B) factors justify a continuance without tethering that conclusion to case-specific considerations. U.S. v. Perez-Reveles, 715 F.2d 1348, 1352 (9th Cir. 1983) ("Although the complexity of the case is a permissible factor ... the mere conclusion that the case is complex is insufficient.").

A judge must set forth these findings on the record, either orally or in writing. 18 U.S.C. § 3161(h)(7)(A). See also Zedner v. United States, 547...