United States v. Sullivan, CR. NO. 17-00104 JMS-KJM
| Decision Date | 19 December 2019 |
| Docket Number | CR. NO. 17-00104 JMS-KJM |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. LEIHINAHINA SULLIVAN, Defendant. |
| Court | U.S. District Court — District of Hawaii |
Defendant Leihinahina Sullivan ("Defendant") moves to dismiss all charges against her based on alleged violation of the Speedy Trial Act ("STA"), 18 U.S.C. § 3161, et seq. ECF No. 255 (the "Motion"). For the reasons discussed below, the Motion is GRANTED in part and DENIED in part. There is no STA violation as to counts 29, 47, 48, and 59 of the Second Superseding Indictment (which are reasserted as counts 28, 46, 47, and 58 in the Third Superseding Indictment) and counts 21, 23, 24, 26, 59, and 60 of the Third Superseding Indictment. That is, there is no STA violation as to counts 21, 23, 24, 26, 28, 46, 47, 58, 59, and 60 of the Third Superseding Indictment (which includes counts that were newly-asserted in the Second Superseding Indictment and reasserted in the Third Superseding Indictment, and counts that were newly-asserted in the Third Superseding Indictment). The Government concedes that the STA is violated as to all other counts and they are DISMISSED without prejudice.
Defendant first appeared for arraignment and plea to the Original Indictment on February 24, 2017, at which time trial was set for April 25, 2017. ECF No. 8. The parties then stipulated to continue trial and to toll time under the STA from April 25, 2017 through December 12, 2017. ECF Nos. 17, 19, 25.
A First Superseding Indictment was returned by the grand jury on November 8, 2017. ECF No. 27. At the November 13, 2017 arraignment and plea, Defendant's then-counsel William Harrison, the Assistant United States Attorney ("AUSA"), and the magistrate judge engaged in the following discussion regarding resetting the trial date:
Tr. at 3:2-12, ECF No. 450 at PageID #4790. The magistrate judge then set trial for March 28, 2018. See id. at 3:13-14, ECF No. 450 at PageID #4790. Neither the parties nor the court discussed tolling time under the STA, and no order (written or oral) tolled time under the STA from December 12, 2017 through March 28, 2018.
Then, on February 28, 2018, the parties stipulated to continue trial and toll time under the STA from March 28, 2018 through August 21, 2018. ECF No. 93.
On March 28, 2018, a Second Superseding Indictment was returned by the grand jury. ECF No. 95. During the April 5, 2018 arraignment and plea, Defendant's counsel again asked for a new trial date, stating his belief that Defendant was entitled to an additional thirty days.1 The magistrate judge agreed and set trial for September 25, 2018:
Tr. at 2:14-3:18, ECF No. 451 at PageID #4808-09. Again, neither the parties nor the court discussed tolling time under the STA, and no order (written or oral) tolled time under the STA from August 21, 2018 through September 25, 2018.
During an August 21, 2018 status conference, the court again continued trial, tolled time under the STA from September 25, 2018 through April 30, 2019, and directed the Government to prepare a stipulation, which was filed on February 7, 2019. ECF Nos. 137, 159. Pursuant to a sixth stipulation (entered February 7, 2019) and two court orders (issued May 2, 2019 and June 21, 2019), trial was again continued, and time was again tolled under the STA from April 30, 2019 to January 22, 2020. ECF Nos. 160, 167, 181. On July 25, 2019, a Third Superseding Indictment was returned by the grand jury. ECF No. 188. And following the July 29, 2019 arraignment and plea, trial remains set for January 22, 2020. See ECF No. 197.
Defendant filed the instant Motion on September 30, 2019. ECF No. 255. The Government filed its Opposition on November 1, 2019. ECF No. 291. On November 8, 2019, this court issued an order identifying "December 12, 2017 to March 28, 2018" and "August 21, 2018 to September 25, 2018" as "periods of time for which the parties did not request, and the court did not make, findings pursuant to [18 U.S.C.] § 3161(h)(7) tolling time for purposes of the STA" anddirecting the parties to submit supplemental briefing. ECF No. 313. Defendant filed supplemental briefs on November 19, 25, and 27, and December 2, 3, and 6, 2019, addressing the Government's Opposition and/or in response to the court's November 8 order. ECF Nos. 344, 365, 374-75, 395, 399, 427. The Government filed a supplemental brief on November 29, 2019. ECF No. 386. A hearing was held on December 17, 2019.
At issue is whether the periods of time from December 12, 2017 to March 28, 2018 and August 21, 2018 to September 25, 2018, or any portions thereof, are excludable under the STA.2 Concluding that portions of those times are not excludable and that the STA was violated, the court then addresses whichcounts must be dismissed and whether dismissal should be with or without prejudice.
Under the STA, a criminal trial must commence "within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court is which such charge is pending, whichever date last occurs." 18 U.S.C. § 3161(c)(1). Time may be tolled under the STA, thereby allowing continuances of the trial date, for various reasons including when the court "find[s] that the ends of justice served by [granting a continuance] . . . outweigh the best interest of the public and the defendant in a speedy trial." 18 U.S.C. § 3161(h)(7)(A). Time is not excludable under § 3161(h)(7)(A), however, "unless the court sets forth, in the record of the case, either orally or in writing, its reasons for [an] ends of justice []." Id.; see Zedner v. United States, 547 U.S. 489, 507 (2006) ().
The STA sets forth factors a court must consider in determining whether to grant a § 3161(h)(7)(A) "ends of justice" continuance. See id. § 3161(h)(7)(B)(i)-(iv). And because the STA requires a court to weigh consideration of the public's interest in a speedy trial, neither a defendant's waiverof the STA nor agreement by the parties alone is sufficient to support an "ends of justice" finding. See Zedner, 547 U.S. at 500-01.
In addition, time is automatically tolled from speedy trial calculation pursuant to § 3161(h)(1)(D), for 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," and § 3161(h)(1)(H), for "any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement by the court." See United States v. Sutter, 340 F.3d 1022, 1027 (9th Cir. 2003) (), opinion amended on denial of reh'g, 348 F.3d 789 (9th Cir. 2003); see also Henderson v. United States, 476 U.S. 321, 329-32 (1986) ().
During the November 13, 2017 arraignment and plea, Defendant's counsel represented to the court that the parties anticipated substantial discovery and agreed to continue trial to the week of March 26, 2018. The AUSA confirmed her agreement to a trial continuance and without further comment, themagistrate judge set a new trial date of March 28, 2018. ECF No. 450 at PageID #4790.
The Ninth Circuit has held that although a court need not "recite specific statutory language to satisfy § 3161(h)(7)(A) . . . its reasoning [must be] sufficient to justify excluding the continuance from the [STA's] seventy-day limit." United States v. McCarns, 900 F.3d 1141, 1145 (9th Cir. 2018). A court's "ends of justice" finding is sufficient where the record shows that the court considered the requisite § 3161(h)(7)(B) factors and continued trial based on applicable factors. See id. (citation omitted).
Here, the record does not include findings by the magistrate judge that "the ends of justice served by granting the continuance" from December...
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