The opinion of the court was delivered by: Honorable Richard J. Arcara Chief Judge United States District Court
On July 17, 2001, a multi-count indictment was filed against defendant Aaron Pike and several others alleging violations of the drug trafficking laws. The indictment alleged that Pike and others were engaged in a large-scale marijuana distribution conspiracy, in violation of 21 U.S.C. § 846. The indictment also charged Pike and others with engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848.
Extensive pretrial proceedings followed and the indictment was superseded on two occasions. During the pretrial proceedings, Pike invoked his right to proceed pro se. On December 19, 2005, shortly before trial was scheduled to commence,*fn1 Pike filed a pro se motion to dismiss the case alleging a violation of the Speedy Trial Act of 1974, 18 U.S.C. § § 3161-3174. The Court ordered the government to respond to the motion and deferred ruling upon the motion until after trial. In the meantime, trial commenced on January 17, 2006 and concluded on March 15, 2006 with the jury finding Pike guilty of engaging in a continuing criminal enterprise and a marijuana drug conspiracy.
For the reasons stated herein, the Court finds that, although there were extensive pretrial delays in this case, the vast majority of time was properly excluded under the Speedy Trial Act and the non-excludable delays did not exceed seventy days. Therefore, Pike's motion to dismiss is denied.
The Speedy Trial 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. See 18 U.S.C. § 3161(c)(1). The Act also 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, 1978 (2006). Accordingly, Congress has enumerated several "periods of delay" that are excluded from the speedy trial clock. See 18 U.S.C. § 3161(h). For example, the statute excludes: (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 thirty 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 any 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." See id. § 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. Among the non-exclusive list of factors that a district court must consider in deciding whether to grant an ends-of-justice continuance are the complexity of the case due to the number of defendants, the nature of the prosecution or the existence of novel issues, a defendant's need for reasonable time to obtain counsel, continuity of counsel, and effective preparation of counsel. See 18 U.S.C. § 3161(h)(8)(B). 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." See id. § 3161(h)(8)(A). Thus, the 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.), cert. denied, 494 U.S. 1089 (1990). Nor may a defendant waive application of the Act. Zedner, 126 S.Ct. at 1984.
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 may move for dismissal pursuant to § 3162(a)(2). That motion must be made before trial or entry of a plea of guilty. See 18 U.S.C. § 3162(a)(2). "The defendant shall have the burden of proof 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.
As noted, Pike filed his motion to dismiss alleging a speedy trial violation on December 22, 2005. He argues that more than seventy days have elapsed between the filing of the indictment against him on July 17, 2001, and the trial that commenced on January 17, 2006. Pike appears to recognize that much of the time was properly excluded from the Speedy Trial Act. However, he argues that certain periods of time were not properly excluded, and that those improper exclusions exceeded seventy days. Because Pike does not challenge all of the exclusions, the Court will address only those exclusions with which Pike takes issue.
A. Period from March 8, 2002 to December 5, 2002
Pike filed a pretrial motion on March 8, 2002. See Dkt. No. 131. To the extent that any time under the Speedy Trial Act had elapsed prior to that date (Pike does not allege that any had), the filing of that motion automatically stopped the running of the speedy trial clock pursuant to 18 U.S.C. § 3161(h)(1)(F). See 18 U.S.C. § 3161(h)(1)(F) (automatically excluding any 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); see also Henderson v. United States 476 U.S. 321, 326 (1986). Thereafter, several of Pike's co-defendants also filed pretrial motions. See, e.g., Dkt. No. 133 (motion by Gregory Pattison); Dkt. No. 137 (motion by Richard C. Alicea); Dkt. No. 141 (motion by John Pacheco, Jr.); Dkt. No. 145 (motion by Jose Melendez); Dkt. No. 146 (motion by Rafael Montanez, Jr.); Dkt. No. 148 (motion by Matthew Harrison); Dkt. No. 140 (motion by Jason Pike); Dkt. No. 154 (motion by Christopher Lobe); Dkt. No. 155 (motion by Oswaldo Rodriguez).
On May 20, 2002, Magistrate Judge Schroeder, to whom the case had been referred, held a hearing on the various motions of Pike and his co-defendants and took the matter under advisement. The thirty-day period following that hearing (May 20, 2002 to June 20, 2002) was excluded pursuant to 18 U.S.C. § 3161(h)(1)(J). See 18 U.S.C. § 3161(h)(1)(J) (excluding from the speedy trial clock "delay reasonably attributed to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement by the court.").
Ordinarily, the speedy trial clock would have resumed on June 20, 2002, when the thirty-day advisement period expired. However, on June 4, 2002, the government moved to revoke co-defendant Christopher Lobe's pretrial release. See Dkt. No. 172. The filing of that motion stopped the speedy trial clock as to all of the defendants, including Pike, because pursuant to § 3161(h)(7) of the Act, cases involving multiple defendants are governed by a single speedy trial clock, and any excludable delay attributable to any one defendant is charged against ...