The opinion of the court was delivered by: Honorable Richard J. Arcara Chief Judge United States District Court
Currently before the Court are motions by defendant Ann Cain to:
(1) dismiss the indictment on speedy trial grounds; (2) for judgment of acquittal pursuant to Rule 29; and (3) for a new trial pursuant to Rule 33.
On September 6, 2005, a four-count indictment was returned against Ann Cain, her husband, David Cain, Sr., and Cheryl Wagner. As relevant here, the indictment charged Ann Cain with one count of knowingly attempting to corruptly persuade Larry Kropp with the intent to influence his grand jury testimony, in violation of 18 U.S.C. § 1512(b)(1) and (b)(2)(D) (Count 1), and one count of knowingly attempting to corruptly persuade Sean Cooper with the intent to hinder, delay or prevent communication of information to law enforcement officials concerning the commission or possible commission of federal crimes, in violation of 18 U.S.C. § 1512(b)(3) (Count 3). Ann Cain was not charged in Counts 2 or 4.
The case was referred to Magistrate Judge H. Kenneth Schroeder, Jr., for pretrial proceedings. On December 2, 2005, David Cain, Sr., filed a motion for discovery, dismissal of the indictment and for severance. On December 5, 2005, Ann Cain moved for severance and for a bill of particulars. Magistrate Judge Schroeder held a hearing on the motions on February 21, 2006. On July 7, 2006, Judge Schroeder issued orders denying the motions in their entirety.
On September 5, 2006, Ann Cain filed a motion to dismiss the indictment on speedy trial grounds. The government filed its response on September 6, 2006.*fn1 Trial of this matter commenced on September 11, 2006. On September 14, 2006, the jury acquitted Ann Cain of Count 1, and found her guilty of Count 3.
On November 16, 2006, Ann Cain filed a motion for judgment of acquittal pursuant to Rule 29, and a motion for a new trial pursuant to Rule 33. The government filed its response on November 30, 2006 and the Court deemed the motion submitted without argument.
The Speedy Trial Act mandates that trial on a criminal charge "shall commence within seventy days from the filing date (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, 1983 (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 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 excludes "[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 interest 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 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. See 18 U.S.C. § 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." See 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.), cert.denied, 494 U.S. 1089 (1990). Nor may a defendant waive application of the Act, Zedner, 126 S.Ct. at 1984, because "the public has at least as great an interest as the defendant in an expeditious criminal trial." United States v. Barnes, 159 F.3d 4, 13 (1st Cir. 1998).
A defendant seeking to dismiss an indictment on the basis that he was not brought to trial within the time limit required by the Speedy Trial Act has "the burden of proof of supporting such motion but the Government [has] the burden of going forward with the evidence in connection with any exclusion of time [based upon the ...