The opinion of the court was delivered by: Richard Conway Casey, United States District Judge
The Court presumes familiarity with the factual background of this case. David Arthur Buie ("Defendant"), moves the Court to dismiss the indictment against him on the grounds that he has been deprived of his right to a speedy trial. For the following reasons, Defendant's motion is DENIED.
The Speedy Trial Act (the "Act") provides, in pertinent part, that trial on a criminal charge "shall commence within seventy days from the filing (and making public) of the information or indictment" or from the date of the defendant's initial appearance before the court. 18 U.S.C. § 3161(c)(1). "[B]ut the Act recognizes that criminal cases vary widely and that there are valid reasons for greater delay in particular cases." Zedner v. United States, 126 S.Ct. 1976, 1893 (2006). Accordingly, in § 3161(h), Congress has enumerated several "periods of delay" that are excluded from the speedy-trial clock, including: (1) the time period from the filing of a motion through the conclusion of a hearing on or other prompt disposition of the motion, see 18 U.S.C. § 3161(h)(1)(F); and (2) delay (not to exceed 30 days) reasonably attributable to any period during which a proceeding concerning a defendant is actually under advisement by the Court, see id. § 3161(h)(1)(J).
In addition, the Act's most flexible period of exclusion stops the speedy-trial clock for "[a]ny period of delay resulting from a continuance granted by the judge" where the judge finds that "the ends of justice served by taking such action outweigh the best interests of the public and the defendant in a speedy trial." § 3161(h)(8)(A). Any such finding "must be made, if only in the judge's mind, before granting the continuance," and "must be put on the record by the time a district court rules on a defendant's motion to dismiss" pursuant to the Speedy Trial Act. Zedner, 126 S.Ct. at 1989 (quoting § 3161(h)(8)(B)(iv)).*fn1 "Among the [non-exclusive list of] factors that a district court must consider in deciding whether to grant an ends-of-justice continuance are a defendant's need for 'reasonable time to obtain counsel,' 'continuity of counsel,' and 'effective preparation' of counsel."*fn2 Id. (quoting § 3161(h)(8)(A)). Further, an exclusion of time in the interests of justice may be 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." 18 U.S.C. § 3161(h)(8)(A). Thus, "[t]he [Speedy Trial] Act does not require the consent of the defendant or his counsel." United States v. Asubonteng, 895 F.2d 424, 427 (7th Cir. 1990).
A defendant seeking to dismiss his indictment on the basis that he was not brought to trial within the time limit required by the Speedy Trial Act § 3161(c) as extended by § 3161(h) may move for dismissal pursuant to § 3162(a)(2). 18 U.S.C. § 3162(a)(2). "The defendant shall have the burden of proof of supporting such motion but the Government shall have the burden of going forward with the evidence in connection with any exclusion of time under subparagraph 3161(h)(3)." Id.; see also Zedner, 126 S.Ct. at 1984.
II. PROCEDURAL HISTORY & EXCLUSIONS OF TIME
A. Explanation of Exclusions
Pursuant to the Speedy Trial Act, the speedy-trial clock in this case began to run on June 23, 2005, when the grand jury returned the indictment against Defendant. Since that time, the Court has granted a number of exclusions under the Act. As detailed below, many of these excluded periods were granted pursuant to 18 U.S.C. § 3161(h)(8) because the Court found that the ends of justice served by a continuance outweighed the best interests of the public and Defendant in a speedy trial. Each time the Court granted a § 3161(h)(8) continuance and exclusion of time from the speedy-trial clock, it considered the factors, among others, which are enumerated in 18 U.S.C. § 3161(h)(8)(B).
The Court also granted some exclusions of time based on the mandatory exclusions of § 3161(h)(1)(F) and § 3161(h)(1)(J).
B. The Speedy-Trial Clock and Exclusion Periods
On June 24, 2005, the Court received a letter from the Government notifying it of the indictment and requesting an exclusion of time under the Speedy Trial Act until the initial pretrial conference set for June 28, 2005. (Gov't Opp'n to Mot. to Dismiss Ex. A.) The Court granted the Government's application on June 24, 2005 pursuant to § 3161(h)(8)(A), having found that the exclusion served the ends of justice and outweighed Defendant's and the public's interest in a speedy trial because the delay would permit the Government time to begin gathering discovery, would permit defense counsel time to review the indictment with his client, and would permit both parties to consider the possibility of a disposition before trial. (Gov't Opp'n to Mot. to Dismiss Ex. A.) At this point, only one day of non-excludable time had passed (June 23, 2005 -- June 24, 2005). On June 28, 2005, the Court held an initial pretrial conference at which it arraigned
Defendant. At the conference, the Government agreed to produce discovery by July 12, 2005, and the Court scheduled the next pretrial conference for August 5, 2005. With the consent of the defense, the Court excluded time until August 5, 2005 pursuant to § 3161(h)(8)(A), having found that the exclusion served the ends of justice and outweighed the best interests of the public and Defendant in a speedy trial because the delay would permit the Government time to produce discovery and defense counsel time to review the discovery with Defendant.
On August 2, 2005, the Court received a letter from Martin J. Siegal, Esq., Defendant's first appointed counsel, requesting that the August 5, 2005 conference be adjourned because of counsel's travel schedule. (Gov't Opp'n to Mot. to Dismiss Ex. B.) The Court granted this request and excluded time until August 10, 2005 pursuant to § 3161(h)(8)(A), having found that the exclusion served the ends of justice and outweighed the best interests of the public and Defendant in a speedy trial because, inter alia, failure to grant such a continuance would deny Defendant continuity of counsel and would deny counsel ...