United States v. White

• Decision Date: 12 August 2021
• Docket Number: 1:20-cr-20416
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. DARIOUS D. WHITE, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

UNITED STATES OF AMERICA, Plaintiff, v. DARIOUS D. WHITE, Defendant.

No. 1:20-cr-20416

United States District Court, E.D. Michigan, Northern Division

August 12, 2021

OPINION AND ORDER DENYING DEFENDANT'S PRETRIAL MOTIONS AND SETTING A TRIAL DATE

THOMAS L. LUDINGTON, UNITED STATES DISTRICT JUDGE

On August 14, 2020, upon a complaint sworn before Magistrate Judge David Grand, an arrest warrant was issued for Defendant Darious D. White. ECF Nos. 1, 2. Attorney Jerome Sabbota was appointed to represent Defendant. ECF Nos. 4, 6. On September 9, 2020, Mr. Sabbota filed a motion to withdraw as counsel because “Mr. White advised Jerome Sabbota he was firing him, he no longer wished Mr. Sabbota to represent him and he will be suing him.” ECF No. 11. The motion was granted. ECF No. 13. Attorney Steve Jacobs was then appointed to represent Defendant. ECF No.15.

On September 9, 2020, Defendant was indicted by a grand jury on one count of possession of firearms and ammunition by a prohibited person; one count of possession, concealment and sale of stolen firearms; and one count of receipt of firearms and ammunition while under indictment. ECF No. 12. On December 21, 2020 and January 5, 2021, Mr. Jacobs filed a motion to suppress the Defendant's alleged confession and motion to quash a search warrant that yielded 18 stolen firearms. ECF Nos. 23, 24. Subsequently, this Court received a letter from Defendant expressing his frustration with Mr Jacobs' representation. Mr. Jacobs moved to withdraw shortly thereafter. ECF No. 31.

On March 10, 2021 and March 25, 2021, hearings were held via Zoom videoconferencing on the two defense motions filed by Mr. Jacobs (ECF Nos. 23, 24) and Mr. Jacobs' motion to withdraw as counsel (ECF No. 31). During the hearings Defendant indicated that he wished to withdraw the two motions filed by Mr. Jacobs and wanted Mr. Jacobs to withdraw as counsel. Mr. Jacobs' representation was subsequently terminated, and the two motions filed by Mr. Jacobs prior to his termination (ECF Nos. 23, 24) were withdrawn at Defendant's request. ECF No. 41. However, Mr. Jacobs was directed to remain in the case as standby counsel for Defendant. Id.

Subsequently Defendant filed four motions on his own behalf: a motion to dismiss, motion to suppress, motion for bill of particulars and motion for grand jury testimony. ECF Nos. 37, 38, 39, 40. The motion to suppress was later withdrawn at Defendant's request on May 5, 2021. On March 24, 2021, a superseding indictment was filed, adding one charge of theft of firearms from a licensed dealer (18 U.S.C. §§ 922(u) and 2). ECF No. 36.

The motion deadline was previously set for January 5, 2021. ECF No. 22. At the May 5, 2021 hearing, this Court extended the final motion cut-off to June 1, 2021. As of June 3, 2021, Defendant has filed an additional five motions: a motion to dismiss the complaint for lack of jurisdiction (ECF No. 54), a motion requesting a placement transfer (filed by Mr. Jacobs on Defendant's behalf) (ECF No. 58), a motion to dismiss the indictment for improper venue (ECF No. 59), a motion to dismiss for lack of specificity (ECF No. 60), and a motion to dismiss for multiple defects (ECF No. 61). Due to mail delays caused by the COVID-19 pandemic and the mailbox rule, Defendants motions filed by June 3, 2021, will be considered timely filed. Then, on June 17, 2021, Defendant, through Mr. Jacobs, filed a motion to re-instate his previously filed motion to suppress (ECF No. 62 seeking to re-instate ECF No. 23). The Government timely responded to all the motions, with the exception of the motion requesting transfer and the motion to reinstate. ECF Nos. 57, 63.

As such, nine motions remain pending: Motion to Dismiss Indictment for Violation of Speedy Trial Rights (ECF No. 37), Motion for Bill of Particulars (ECF No. 39), Motion for Grand Jury Testimony and Transcripts (ECF No. 40), Motion to Dismiss for Lack of Jurisdiction (ECF No. 54), Motion Requesting Placement Transfer (ECF No. 58), motions to dismiss the indictment for improper venue (ECF No. 59), for lack of specificity (ECF No. 60), for multiple defects (ECF No. 61), and Motion to Re-instate the Motion to Suppress (ECF No. 62). All motions will be denied.

I.

A.

In his motion to dismiss the indictment because of a violation of his speedy trial rights, Defendant argues that he “never waived, agreed to an adjournment or postponement of my constitutional right to a speedy trial [and] [n]o one can waive any of my constitutional rights with out my expressed consent, not a judge, not a U.S. Attorney and not my attorney.” ECF No. 37 at PageID.145-46 (sic throughout). He notes that the initial scheduling order provided for a December 15, 2020 trial date and that he “was never given a notice or informed that my trial date had changed [and] [t]he docket is silent as to why this case didn't proceed as scheduled.” Id. He contends that he “was prejudiced by not being taken to trial within 70 days of my indictment because it gave the government time to attempt to supersede my indictment and add the charge Of 18 U.S.C. (922 (u) theft from a Federal Firearm Licensee a charged that was previously submitted to the grand jury on September 9th, 2020 but which no indictment was returned.” Id. (sic throughout). He claims that he would not agree to waive his speedy trial rights because “there is no [sic] enough evidence to convict me on the charges that I was indicted on without the . . . Federal Firearm Licensee charge.” Id. He later supplemented his Motion (with court approval). Quoting Gonzales v. United States, 533 U.S. 242 (2008) and Klopfer v. North Carolina, 386 U.S. 213 (1967), he states that the right to a speedy trial is a fundamental right which can only be waived by the defendant. ECF No. 53 at PageID.220. He continues,

The law is clear Attorney Steve Jacobs could not waive my fundamental constitutional rights to have a speedy trial under the 6th Amendment only I can waive that and I did not wave [sic] it. . . . Because my right to speedy trial was violated by Attorney Steve Jacobs and because I was superseded and given more charges during the time Attorney Steve Jacobs filed the motion against my wishes, I suffered actual prejudice and this indictment should be dismissed with prejudice.

ECF No. 53 at PageID.221.

In response, the Government explained that it and Attorney Jacobs, on Defendant's behalf, submitted a stipulation and proposed order in November 2020 adjourning dates pursuant to 18 U.S.C. § 3161(h)(7)(A) because Mr. Jacobs requested additional time to file pretrial motions, Michigan law restricted movement and access to public facilities due to the COVID-19 pandemic, and Administrative Order 20-AO0021 indefinitely postponed in-court proceedings in the Eastern District of Michigan. ECF No. 42. The Stipulation and Order was entered on December 2, 2020. ECF No. 22. The Government explains that the Speedy Trial Act provides for an excludable delay when pretrial motions are filed and when the court determines that the ends of justice are served by a continuance. ECF No. 42 at PageID.171-72.

The Speedy Trial Act provides that certain periods of delay “shall be excluded in computing the time . . . within which the trial of any such offense must commence.” 18 U.S.C. § 3161 (h)(1). Specifically, the Act lists “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.” Id. at § 3161(h)(1)(D); United States v. Tinklenberg, 563 U.S. 647, 653-55 (2011) (“[W]hen read in context and in light of the statute's structure and purpose, we think it clear that Congress intended subparagraph (D) to apply automatically.”). Further, the statute provides, “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 relevant factors include:

Whether the failure to grant such a continuance in the proceeding would be likely to make a continuation of such proceeding impossible, or result in a miscarriage of justice, [w]hether the case is so unusual or so complex . . . that it is unreasonable to expect adequate preparation for pretrial proceedings or for the trial itself within the time limits . . . [and] [w]hether the failure to grant such a continuance in a case which, taken as a whole, is not so unusual or so complex to fall within clause (ii), would deny the defendant reasonable time to obtain counsel, would unreasonably deny the defendant or the Government continuity of counsel, or would deny counsel for the defendant or the attorney for the Government the reasonable time necessary for effective preparation, taking into account the exercise of due diligence.

Id. at § 3161(h)(7)(B).

At a motion hearing on May 5, 2021, Defendant stated, “It's my understanding that everything is tolled while we're dealing with these [pretrial] motions.” This Court responded in the affirmative, stating, “You're correct, at least in terms of the application of the speedy trial clock.” ECF No. 65 at PageID.319-20.

Further, jury trials in the Eastern District of Michigan have been suspended since March 2020 because of concerns for the safety of employees, jurors, attorneys, parties, and witnesses raised by the COVID-19 pandemic.

In December 2020, Defendant's counsel stipulated to an extension of the speedy trial clock due to the need for additional time to file pretrial motions and the ...