The opinion of the court was delivered by: William M. Skretny United States District Judge
Presently before this Court are Defendants Hugh Stevens' and Sandra Jacobi's Motions to Dismiss the Indictment based upon alleged violations of the Speedy Trial Act, 18 U.S.C. § 3161 et seq., and the Sixth Amendment to the United States Constitution. (Docket Nos. 253, 403,*fn1 and 415.) For the reasons discussed below, Defendants' Motions are both denied.
This Court assumes the parties' familiarity with the facts and record of proceedings in this case. Only those facts necessary to resolve the present motions are discussed below.
On September 14, 2004, a federal grand jury returned a eight-count Indictment, naming fourteen defendants. Among the defendants were Hugh Stevens and Sandra Jacobi. Also named were six individuals who were also subject to criminal prosecution in Canada ("Canadian co-defendants"), and two other individuals who were detained in California ("California co-defendants").
The Indictment charged Defendants with: (1) conspiracy to possess and distribute ephedrine, knowing and having reasonable cause to believe it would be used to unlawfully manufacture methamphetamine in violation of 21 U.S.C. § 841(c)(2); all in violation of 21 U.S.C. § 846; (2) conspiracy to manufacture 500 grams or more of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1), all in violation of 21 U.S.C. § 846; (3) unlawfully possessing and distributing ephedrine, knowing and having reasonable cause to believe it would be used to manufacture methamphetamine in violation of 21 U.S.C. § 841(c)(2) and 18 U.S.C. § 2 (counts 3, 4 and 5); and (4) continuing criminal enterprise in violation of 21 U.S.C. §§ 841(c)(2) and 846; all in violation of 21 U.S.C. § 848(a) (counts 6 and 7).
On September 15, 2004, Defendants Stevens and Jacobi appeared before the Honorable H. Kenneth Schroeder, Jr., United States Magistrate Judge, for arraignment. Both Defendants pled not guilty, and the Government moved for detention. At the detention hearings, Judge Schroeder granted the Government's motion as to Stevens, but denied it as to Jacobi, and instead released her on $200,000 bail fully secured. Stevens has since remained in detention.
On December 27, 2006, this Court severed Defendants Hugh Stevens, Sandra Jacobi, Louis Russo, Christopher Russo, Kenneth Arthur Mego, and Lynn Hess from the Canadian and California co-defendants. (Docket No. 140.*fn2 ) The Government filed a Superseding Indictment on April 3, 2007, adding two counts: (1) smuggling in violation of 18 U.S.C. §§ 545 and 2; and (2) conspiracy to import ephedrine into the United States in violation of 18 U.S.C. § 545; all in violation of 18 U.S.C. § 371.
On April 16, 2008, approximately one month before trial was scheduled to commence on May 28, 2008, Defendants Stevens and Jacobi orally moved to dismiss the Superseding Indictment on speedy trial grounds. (Docket No. 256.) Resolution of the motion was deferred without objection from Defendants pending completion of trial.
Trial as to Stevens and Jacobi began on September 11, 2008. On October 16, 2008, this Court granted a mistrial as to Stevens due to his counsel's heart attack during the trial. Trial continued as to Jacobi, and she was found guilty on three of four counts.
The Speedy Trial Act requires the government to bring criminal defendants to trial within 70 days of their first appearance before a judicial officer or the filing of an indictment, whichever is later. See 18 U.S.C. § 3161(c)(1); see also United States v. Oberoi, 295 F. Supp. 2d 286, 289 (W.D.N.Y. 2003) (Arcara, J.), aff'd, 547 F.3d 436 (2d Cir. 2008). In the event the defendant is not brought to trial within the 70 prescribed days, the indictment "shall be dismissed on motion of the defendant." 18 U.S.C. § 3162(a)(2).
The statute excludes certain periods of delay from the Speedy Trial clock. For instance, the 70-day period is tolled for the duration of any "delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or the other prompt disposition of, such motion." 18 U.S.C. §3161(h)(1)(D) (formerly (h)(1)(F)). Also excludable is "any period of delay . . . if the judge ... find[s] that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial." 18 U.S.C. § 3161(h)(7)(A) (formerly (h)(8)(A)). Under this exclusion, the judge must "set forth, in the record of the case, either orally or in writing, its reasons [for so finding]." Id.
In cases involving multiple defendants, all defendants are governed "by a single speedy trial clock and  delay attributable to any one defendant is charged against the single clock, thus making the delay applicable to all defendants." United States v. Vilar, 568 F. Supp. 2d 429, 444 (S.D.N.Y. 2008) (citing United States v. Pena, 793 F.2d 486, 489 (2d Cir. 1986)). When all defendants have not been apprehended and arraigned, the speedy trial clock does not begin to run as to any of the defendants unless and until the court severs the defendants that have appeared from those defendants who have not. See Pena, 793 F.2d at 488-89 (four defendants indicted, only two apprehended and arraigned, court held that clock had been tolled as to all defendants until court severed the two appearing defendants). "Of course, a defendant remains free to move for a severance at any time during a period in which [the] speedy trial clock has not begun to run because a co-defendant has not been apprehended." Id. at 489.
But the clock will not be tolled indefinitely. Under the Act, "a reasonable period of delay is allowed when a defendant has been joined for trial with co-defendants as to whom the time for trial has not run . . . ." United States v. Blash, 43 Fed. Appx 399, 401 (2d Cir. 2002) (citing 18 U.S.C. § 3161(h)(6) (formerly (h)(7))) (emphasis added).However, in order to invoke the reasonableness requirement of subsection (h)(6), the defendant must move for severance from the other defendants as to whom the clock has not run. See United States v. Cephas, 937 F.2d 816, 822 (2d Cir. 1991) ("the duty to inquire into whether a delay caused by a co-defendant is reasonable is triggered only when the defendant has sought severance from the particular defendant who is responsible for the delay at issue").
Lastly, although the Act contains no reference to superseding indictments, United States v. Roman, 822 F.2d 261, 263-64 (2d Cir. 1987), cert. denied, 484 U.S. 954, 108 S.Ct. 347, 98 L.Ed.2d 373 (1987), courts treat a superseding indictment as if the "indictment is dismissed at the government's request and a second indictment is later filed." United States v. Kelly, 45 F.3d 45, 48 (2d Cir. 1995). The United States Court of Appeals for the Second Circuit explained:
In such a case, the speedy trial clock for charges carried over from the original indictment stops on the date that the indictment is dismissed and does not begin to run again until after the defendant's first judicial appearance on the second indictment, at which time the clock resumes from the point at which it was stopped.
Kelly, 45 F.3d at 48 (citing cases).
Here, Defendants Stevens and Jacobi both argue that their speedy trial rights were violated. Although Defendants were not brought to trial until approximately four years after their arraignment on the original Indictment, Defendants do not challenge the entire four year period under the Act, but rather, Defendants challenge specific periods of time, which are discussed below.
Jacobi first argues that fifteen days were not excluded during the time frame beginning July 14, 2005, through August 30, 2005, and thus ran from the Speedy Trial clock. (Docket No. 403, ¶ 231.) Second, Jacobi argues that all of the time beginning December 28, 2005, through April ...