US v. Kington, CR 1-85-001-R.
| Decision Date | 09 June 1989 |
| Docket Number | No. CR 1-85-001-R.,CR 1-85-001-R. |
| Citation | 715 F. Supp. 781 |
| Parties | The UNITED STATES of America v. James L. KINGTON, and Don Earney. |
| Court | U.S. District Court — Northern District of Texas |
COPYRIGHT MATERIAL OMITTED
Mike Worley, Asst. U.S. Atty., Dallas, Tex., for plaintiff.
Ben L. Krage, Kasmir and Krage, Dallas, Tex., for Kington.
Jack Bryant, Abilene, Tex., for Earney.
AMENDED MEMORANDUM OPINION
This criminal case has already made two appearances before the Fifth Circuit.1 It will now make a third trip, because this opinion addresses an issue of first impression in this Circuit: the consequences of a defendant's waiver of rights under the Speedy Trial Act.2
Here, both defendants, James Kington and Don Earney, filed waivers of the Speedy Trial Act. However, they now argue that these "purported" waivers were "inoperative" — because a defendant cannot waive the requirements of the Act — and, therefore, they claim that their convictions must be set aside.
This opinion concludes that there were no violations of the Speedy Trial Act in this case. Specifically, it holds:
Consequently, the defendants' motions to dismiss the indictment and set aside their convictions will be denied.
This opinion will first outline the procedural background concerning the defendants' Speedy Trial Act claims; it will then summarize the applicable law; and, it will conclude with a discussion of the reasons why there were no violations of the Act in this case.
There are five distinct periods that must be considered in connection with the issues raised by the defendants under the Speedy Trial Act. These are the facts concerning each period.
On February 19, 1985, a 52-count indictment was returned in the Abilene Division of this District; it charged the defendants Don Earney and James Kington, the former President and Vice-President of Abilene National Bank,5 with embezzling and misapplying bank funds,6 with making false entries on bank records,7 and with causing the bank to fail to file currency transaction reports.8 In addition, Kington was charged with making a false declaration on an income tax return.9 The defendants' first appearance before a magistrate was on the day following the indictment, February 20, 1985.
On March 5, 1985, the defendants were formally arraigned before Judge Halbert O. Woodward. At this time, both defendants orally waived their rights under the Speedy Trial Act, and the case was set for trial on August 5, 1985. Written waivers of the Act were filed by Earney on March 11 and by Kington on March 15, 1985. On July 23, 1985, Judge Woodward entered an agreed order resetting the trial for October 21, 1985.10
On October 21, 1985, the first trial began. After voir dire, the jury was selected and sworn. Then Judge Woodward excused the jury and, from October 21 through October 23, he heard arguments and evidence on various motions, including the defendants' Motion to Suppress almost all of the government's exhibits — bank records that had been subpoenaed by the grand jury, but delivered only "to the FBI and IRS agents, not to the grand jury."11 Judge Woodward granted this motion to suppress on October 23 — on the grounds that the grand jury should have received the actual bank records, not "mere summaries" from the government agents — and he then discharged the jury. On November 15, 1985, Judge Woodward entered the suppression order and a Memorandum Opinion explaining his decision.
At no time before the first trial began did the defendants retract their waivers of the Speedy Trial Act. And, neither defendant moved for dismissal prior to trial because of violations of the Act. 18 U.S.C. § 3162(a)(2).
On November 22, 1985, the government filed its notice of appeal from the suppression order. On October 3, 1986, the Fifth Circuit issued its opinion reversing Judge Woodward's decision, and remanding the case for trial. Kington I, 801 F.2d 733. Petitions for rehearing were denied on November 12, 1986. The Fifth Circuit mandate was issued on November 24, and was received and filed by the District Clerk on December 2, 1986.
After an unsuccessful motion to stay the Fifth Circuit mandate, the defendants filed a petition for writ of certiorari in the Supreme Court on January 9, 1987. Certiorari was denied on April 20, 1987.
By agreement with Judge Woodward, the case was transferred to this Court on December 17, 1986, some three weeks after the Fifth Circuit mandate had issued in Kington I. The case was immediately set for trial on March 2, 1987.
The defendants objected to this trial date. On February 3, 1987, they filed a "Motion for Stay or Continuance of Proceedings." This motion was based upon their "good faith, well-founded belief that the Supreme Court is likely to grant the Writ of Certiorari" filed in Kington I on January 9, 1987. In addition, the motion stated:
The defendants have heretofore waived their rights to a speedy trial and will upon the consideration of this Motion by the Court further waive their rights to a speedy trial.
Over the objection of the government, this Court granted the defendant's motion for continuance and, on February 9, reset the case for trial on June 1, 1987.
On February 3, 1987, the defendants also filed various other motions12 — including a motion to dismiss on double jeopardy grounds. After certiorari was denied in Kington I (April 20, 1987), this Court entered an opinion denying the double jeopardy motion. On May 8, 1987, the defendants filed their notice of interlocutory appeal — so the case was not tried, as scheduled, on June 1, 1987.
At no time during this period did the defendants retract their waivers of the Speedy Trial Act; in fact, if they had done so, this Court would have promptly tried the case. Moreover, neither defendant filed a motion for dismissal of the case because of alleged violations of the Speedy Trial Act—even though all pretrial motions had to be filed by April 10, 1987.13 See 18 U.S.C. § 3162(a)(2).
The interlocutory appeal in Kington II lasted from May 8, 1987 until January of 1988. On January 6, 1988, the Fifth Circuit issued its opinion affirming the denial of the defendant's double jeopardy motion, and — once again — remanded the case for a new trial. Kington II, 835 F.2d 106. On January 29, 1988, the mandate of the Fifth Circuit was issued; and, on February 1, it was received and filed with the District Clerk.
On February 4, 1988, before a new trial date had been set, the government filed a "Motion to Extend Time for Trial." This motion contended that the defendants' interlocutory appeal in Kington II had made it impractical to retry the case within 70 days of the "November 1985 mistrial" which resulted when Judge Woodward had sustained the defendants' motion to suppress at the first trial. The government, accordingly, requested this Court to extend the period for retrial to 180 days under 18 U.S.C. § 3161(e).
On February 9, 1988, Earney objected to the government's motion to extend time — stating, for the first time, that he "does not waive any rights" under the Speedy Trial Act. On February 16, 1988, Kington also objected to the government's motion; he requested a trial "at this Court's earliest convenience" — and, also for the first time, raised Speedy Trial Act objections:
Defendant Kington believes that his speedy trial rights have already been violated by the government and would object to any further extensions of time for the government to try this case.
Kington's February 16, 1988 response by Kington also indicated that there was still a pending motion for acquittal which had been filed on February 3, 1987, but which had not been ruled on by this Court; it states:
The government asserts that on May 1, 1987, the Court denied the defendants' motion for acquittal. This is not the case at all. The Court denied the defendants' motion to dismiss the indictment on double jeopardy grounds. Untreated and unreached and still pending is the defendants' motion for acquittal resulting from the Court's discharge of the jury in October, 1985 to assist the government in appealing the Court's then adverse ruling. While the Court of Appeals has held that with respect to double jeopardy arising as the result of a second trial the defendants had waived their rights to claim double jeopardy, unmentioned is whether or not the defendant are entitled to be acquitted as a result of the Court's prior dismissal of the jury in this case. (Emphasis added).
Without expressly ruling on the government's "Motion to Extend Time for Trial" (see note 39), by order dated February 19, 1988, this Court set the case for trial on April 5, 1988. This trial date certainly met the requirements of the Speedy Trial Act because it was within 70 days from the issuance of the mandate in Kington II. Nevertheless, on March 11, 1988 — after one trial and two Fifth Circuit appeals — the defendants, for the very first time, moved to dismiss this case because of alleged violations of the Speedy Trial Act which took place before the Kington II appeal.
On Monday, April 4, 1988, this Court held hearings, heard arguments and made rulings on all pending motions, including other motions which had been filed by the defendants on ...
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US v. Tummolo, 92-6078-Cr-Moore.
...the time limit." 18 U.S.C. § 3162(a)(2); see, e.g., United States v. Connor, 926 F.2d 81, 83-84 (1st Cir.1991); United States v. Kington, 715 F.Supp. 781, 786 (N.D.Tex.1988). Accordingly, the indictment in this case should be II. The IADA provides that dismissal may be with or without preju......