The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court is its own sua sponte motion regarding speedy trial in light of Zedner v. United States, 547 U.S. ___, 126 S.Ct. 1976 (2006) (Docket No. 12).
On September 30, 2005, a criminal Complaint was filed against defendant for possession of marijuana (Docket No. 1). Defendant made an initial appearance on that same date, had counsel present but had not yet fully retained counsel, and conditions of release were imposed (Docket No. 2); see also 18 U.S.C. § 3161(h)(8)(B)(iv) (can exclude time due to continuity of counsel issues). On October 7, 2005, a status conference was held in which defense counsel indicated that he was fully retained (Docket No. 4). For Speedy Trial Act purposes, October 7, 2005, is the starting date for the thirty days for the government to indict this case, see 18 U.S.C. § 3161(b). Absent an exclusion, that period ended on November 6, 2005.
At a status conference on November 3, 2005, counsel indicated that he was awaiting discovery and the Court excluded time under 18 U.S.C. § 3161(h)(8) under the ends-of-justice (Docket entry of Nov. 3, 2005). A status conference and preliminary hearing was scheduled for December 15, 2005, but not held, with a representation that plea discussions were under way (Docket No. 6). A preliminary hearing was set for February 2, 2006, but not held; with counsel representing plea negotiations were ongoing, and time excluded under § 3161(h)(8) (Docket No. 7). The preliminary hearing was held again on March 9, 2006, again with representations that a plea offer was tendered by the government, time excluded again under § 3161(h)(8) and a further return date for the preliminary hearing (Docket No. 8). At the preliminary hearing scheduled for April 25, 2006, it was reported that defendant had health problems that prevented his participation in plea negotiations; time again was excluded as in prior sessions and a new date set (Docket No. 10), cf. 18 U.S.C. § 3161(h)(1)(A) (recognizing delay due to examination determining defendant's physical capacity), (3)(A) (unavailability of defendant), (4) (delay from defendant physically unable to stand trial). The preliminary hearing scheduled for May 24, 2006, was not held but parties represented that a plea would be ready within two weeks; time again was excluded and the hearing was adjourned again (Docket No. 11).
On June 14, 2006, after the Supreme Court decided Zedner, a pretrial conference was held. There, this Court sua sponte raised the issue the import of Zedner on speedy trial problems in this case and requested that the government file an affidavit on the time periods excluded in this case (including discussion, under seal, of the consideration for a plea) by June 21, 2006, and gave defendant three days thereafter to respond to that filing (Docket No. 12). To date, the government has not filed an affidavit in this case. As of the Court's motion, time was excluded from June 14, 2006, for preparing submittals on the motion, see 18 U.S.C. § 3161(h)(1)(F), (J); United States v. Rodriguez, 824 F. Supp. 657, 660 (W.D. Tex. 1993) (Guirola, Mag. J.) (court issues show cause order why case should not be dismissed on speedy trial grounds), adopted, 824 F. Supp. 657 (W.D. Tex. 1993) (Bunton, D.J.).
The Speedy Trial Act, 18 U.S.C. §§ 3161, et seq. (or the "Act"), sets forth the statutory time limits for a criminal case to be prosecuted from arrest to trial. The Second Circuit in United States v. Gaskin, 364 F.3d 438, 455 (2d Cir. 2004), reasoned that the aim of the Act was to have the charges actually pending against a defendant be promptly prosecuted, see United States v. Hillegas, 578 F.2d 453, 456 n.3 (2d Cir. 1978). As the Gaskin court noted, the Complaint is a public pronouncement by the government that it has probable cause to believe that a defendant has committed the offenses charged therein, 364 F.3d at 455. Thus, under the Act, the government has thirty days from the arrest or service of the summons on a criminal Complaint to indict or file an information, 18 U.S.C. § 3161(b); see Fed. R. Cr. P. 3, 4(a), or risk dismissal of the Complaint. If a defendant is not indicted or charged in an information within that time the Complaint "shall be dismissed or otherwise dropped," 18 U.S.C. § 3162(a)(1), with the court determining whether that dismissal is with or without prejudice, id.*fn1
The act contains several express exclusions from the time to calculate its deadlines to indictment or to trial. Some of the most common exclusions include motions and their deliberation, 18 U.S.C. § 3161(h)(1)(F), (J) (30 days for matters under advisement by the Court); defendant's mental or physical capacity, 18 U.S.C. § 3161(h)(1)(A), (4), (5); plea agreements pending Court consideration, 18 U.S.C. § 3161(h)(1)(I); issues surrounding the continuity of defense counsel and the ability of defense counsel reasonably to prepare for trial, 18 U.S.C. § 3161(h)(8)(B)(iv); cf. id. § 3161(h)(8)(C) (counsel must engage in due diligence in preparing for trial). One additional exclusion is the "ends-of-justice" exclusion of 18 U.S.C. § 3161(h)(8), which "permits the exclusion of time for continuances required in the interest of justice," Comm. on the Admin. of the Criminal Law, Jud. Conf., Guidelines to the Administration of the Speedy Trial Act of 1974, As Amended, 106 F.R.D. 271, 299 (1984). This exclusion was the focus of the Supreme Court's recent analysis in Zedner, 126 S.Ct. 1976 (2006). As summarized by the committee of the Judicial Conference, "for time to be excluded under paragraph (h)(8), the judge must find that 'the ends of justice served' by granting the continuance 'outweigh the best interest of the public and the defendant in a speedy trial' and must set forth the reasons for the finding in the record." 106 F.R.D. at 299 (quoting 18 U.S.C. § 3161(h)(8)(A)). Congress has not expressly included time for pre-indictment "voluntary" discovery or for conducting plea negotiations and Court docket congestion is not a recognized excuse for compliance with the Act, 18 U.S.C. § 3161(h)(8)(C). Sanctions may be imposed, however, if counsel seek an exclusion without justification or based upon false information, see 18 U.S.C. § 3162(b)(2)-(4).
II. Zedner v. United States
Zedner v. United States, 126 S.Ct. 1976 (2006), involved an indictment that was not tried within the seventy days called for under the Act, see 18 U.S.C. §§ 3161(c)(1), 3162(a)(2), due to a waiver of speedy trial "for all time" that defendant executed. The Zedner Court rejected such an open-ended waiver as infringing upon the public's interest in conducting a speedy trial, 126 S.Ct. at 1985-86, denying that the defendant could prospectively waive speedy trial, id. at 1986-87, or that defendant was estopped from claiming speedy trial rights, id. at 1987-88. The Court concluded by rejecting harmless error arguments to excuse the time, id. at 1988-89. Although arising from an indictment, Zedner broadly construed the entire Speedy Trial Act and applied it to criminal Complaints as well as indictments or informations. See, e.g., Gaskin, supra, 364 F.3d 438 (dismissal of indictment filed beyond 30 days of complaint); United States v. Ullah, No. 04CR30(A)(F), 2005 U.S. Dist. LEXIS 12419, at *47-56, *48, Report & Rec. (W.D.N.Y. Mar. 17, 2005) (Foschio, Mag. J.) (citing Gaskin, dismissing complaint); United States v. Cortinas, 785 F. Supp. 357, 359, 360 (E.D.N.Y. 1992) (analysis of possible exclusions of time between entry of complaint and indictment, dismissing complaint without prejudice). Zedner held that the District Court under the Act has to make a record of findings that "the ends of justice served by granting the continuance outweigh the public's and defendant's interest in a speedy trial. This provision gives the district court discretion--within limits and subject to specific procedures--to accommodate limited delays for case-specific needs." Id. at 1984. The Zedner Court noted the ambiguity in the Act as to when that record needs to be made and that the best practice is to make the findings at the time the continuance is granted, id. at 1989, 1989 n.7.
In this case, the Complaint was filed on September 30, 2005 (Docket No. 1), when defendant made his initial appearance (Docket No. 2), with defendant not fully represented at that proceeding. Hence, the Act's speedy trial clock began to run at the next status conference on October 7, 2005, when defense counsel indicated that he was fully retained, avoiding a continuity of counsel issues, see 18 U.S.C. § 3161(h)(8)(B)(iv). Thirty days ran from October 7, 2005, without exclusion, to November 6, 2005. Meanwhile, the parties made various appearances, representing that plea negotiations were under way and sought continuances, which were routinely granted (e.g., Docket Nos. 4, 6, 7, 8, 10, text entry of Nov. 3, 2005). The only other basis stated for a continuance was voluntary discovery. A review of the docket by the Court, however, does not indicate a continuance sought for a reason stated in the statute or one stated on the record as required by Zedner. The problem here is the failure to create a sufficient record called for by the act, as emphasized by Zedner. The government was given the opportunity ...