United States v. Dat

UNITED STATES OF AMERICA, Plaintiff, v. DILANG D. DAT, Defendant.

No. 8:22CR147

United States District Court, D. Nebraska

January 12, 2023

FINDINGS AND RECOMMENDATION

MICHAEL D. NELSON, UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on defendant Dilang D. Dat's motion to dismiss, (Filing No. 75), for violation of his statutory and constitutional rights to a speedy trial. For the reasons set forth below, the undersigned magistrate judge will recommend that the motion be denied, without an evidentiary hearing.

BACKGROUND

On June 14, 2022, a federal grand jury returned a six count Indictment against Defendant and three co-defendants. (Filing No. 1). Count IV charges Defendant with being a felon in possession of a handgun on or about January 26, 2022, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Defendant's initial appearance and arraignment on the Indictment was held before the undersigned magistrate judge on August 9, 2022, and Defendant pled not guilty. (Filing No. 12). A detention hearing was held on the same date, and the undersigned magistrate judge found Defendant should remain detained pending trial. (Filing No. 15). Defendant was appointed counsel (Filing No. 13) and a progression order (Filing No. 14) was entered setting August 29, 2022, as the pretrial motion deadline.

On August 29, 2022, a co-defendant filed a motion to extend the pretrial motion deadline (Filing No. 36), and on August 30, 2022, Defendant filed an Unopposed Motion to Extend Time to File Pretrial Motions (Filing No. 37) asking for an extension of the pretrial motion deadline “for at least 45 days.” The Court granted both the motions on August 30, 2022, extended the pretrial motion deadline to October 13, 2022, and deemed the time between August 29, 2022, and October 13, 2022, as excludable time in any computation of time under the requirement of the Speedy Trial Act after finding the “ends of justice have been served by granting such motion and outweigh the interests of the public and the defendant in a speedy trial.” (Filing No. 38).

On October 11, 2022, Defendant filed a second Unopposed Motion to Extend Pretrial Motion Deadline (Filing No. 43) asking for an extension of the pretrial motion deadline “for at least 7 days to October 20, 2022.” The Court granted Defendant's motion on October 12, 2022 extended the pretrial motion deadline to November 14, 2022 and found the time between October 12, 2022, and November 14, 2022, shall be deemed excludable time in any computation of time under the requirement of the Speedy Trial Act after making an “ends of justice” finding. (Filing No. 45).

On November 11, 2022, Defendant filed a third Unopposed Motion to Extend Pretrial Motion Deadline (Filing No. 52) asking for an extension of the pretrial motion deadline to December 14, 2022. The Court granted Defendant's motion on November 14, 2022, extended the pretrial motion deadline to December 14, 2022, and found the time between November 14, 2022, and December 14, 2022, shall be deemed excludable time in any computation of time under the requirement of the Speedy Trial Act after making an “ends of justice” finding. (Filing No. 55).

On December 14, 2022, Defendant filed a motion to suppress (Filing No. 72) and the instant motion to dismiss (Filing No. 75). On December 21, 2022, the government filed its brief in response to the motion to suppress (Filing No. 97) and its brief in response to the instant motion to dismiss (Filing No. 95). After review of the motions and briefing, the Court determined an evidentiary hearing is not necessary for either motion, and thus the motions are now under advisement by the Court.

Defendant has moved to dismiss Count IV of the Indictment because his “protections under Nebraska's speedy trial statute Neb. Rev. Stat. Ann. § 29-1207, the Speedy Trial Act 18 U.S.C. § 3161, and his Sixth Amendment rights under the U.S. Constitution have been violated.” (Filing No. 75). Although the federal Indictment was filed on June 14, 2022, and Defendant was arraigned in federal court on August 9, 2022, Defendant maintains that the speedy trial clock actually started running on January 26, 2022, when he was arrested by the Omaha Police Department “for the state court equivalent” of the instant federal charge. (Filing No. 76). The factual conduct supporting both the state charge and the instant federal charge took place on or about January 26, 2022, when a firearm was found in Defendant's residence.

Defendant filed an Index of Evidence (Filing No. 77) containing the online docket for his state court charge of possession of a firearm by a prohibited person. Defendant was charged in state court on January 28, 2022, had an initial appearance in county court on January 31, 2022, and was released on bail.^[1] (Filing No. 77 at pp. 3-9). Because Defendant was under supervised release in this court for a prior conviction for robbery, a petition for his arrest for noncompliance with his conditions^[2] of supervised release was issued, and he was arrested on a federal arrest warrant on February 4, 2022. Defendant had his initial appearance on the supervised release revocation proceedings in this court on February 7, 2022, and a violation of supervised release hearing was set for March 31, 2022; this court ordered Defendant to be detained pending that hearing. See Filing Nos. 492-502 in Case No. 8:14CR409. On March 28, 2022, Defendant's motion to continue the violation of supervised release hearing was granted and the hearing continued to August 11, 2022, (Filing No. 507), then continued on motion to October 19, 2022, (Filing No. 518), then cancelled pending further order of the Court (Filing No. 527).

Defendant contends he has now been incarcerated for 10-months on the instant charge without trial, and that such delay violates his constitutional, and state and federal statutory speedy trial rights. (Filing No. 76 at pp. 1-2).

ANALYSIS

Defendant has moved to dismiss Count IV of the Indictment because his “protections under Nebraska's speedy trial statute Neb. Rev. Stat. Ann. § 29-1207, the Speedy Trial Act 18 U.S.C. § 3161, and his Sixth Amendment rights under the U.S. Constitution have been violated.” (Filing No. 75).

A. Statutory Speedy Trial Rights

Defendant asserts his right under the Nebraska Speedy Trial Act has been violated. However, the Nebraska Speedy Trial Act's provisions are inapplicable to the instant federal proceedings. The United States of America and the State of Nebraska are separate sovereigns capable of separately prosecuting the same criminal conduct. See, e.g., United States v. Winters, 491 F.3d 918, 920 (8th Cir. 2007) (finding subsequent federal prosecution for the same acts that gave rise to a prior prosecution by the State of Iowa was not barred “[b]ecause Iowa and the United States are separate sovereigns,” even though the defendant had previously successfully exercised his right to speedy trial under Iowa law); United States v. Leathers, 354 F.3d 955, 960 (8th Cir. 2004) (recognizing states and the United States are separate sovereigns in our federal system). The Nebraska Speedy Trial Act applies to prosecutions by the state of Nebraska, not prosecutions by the federal government, like the offense contained in Count IV of the Indictment against Defendant. Therefore, to the extent Defendant seeks to apply the Nebraska Speedy Trial Act to the pending federal charge against him, that argument is rejected.

In this federal prosecution, the Speedy Trial Act applies to the pending federal charge against Defendant. The Act provides that a federal indictment must be filed “within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges.” 18 U.S.C. § 3161(b). The Act further provides:

In any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such a charge is pending, whichever date last occurs.

18 U.S.C. § 3161(h)(1).

Time may be excluded from this calculation for specific periods of delay provided for in 18 U.S.C. § 3161(h). Time is excluded for “[a]ny period of delay resulting from other proceedings concerning the defendant,” including delay from pretrial motions, and delay attributable to any period “during which any proceeding concerning the defendant is actually under advisement by the court.” 18 U.S.C. § 3161(h)(1).

In addition, time is excluded for:

Any period of delay resulting from a continuance 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, if the judge granted such continuance on the basis of his findings 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). However, “[n]o such period of delay resulting from a continuance granted by the court in accordance with this paragraph shall be excludable under this subsection unless the court sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial.” 18 U.S.C. § 3161(h)(7)(A). The defendant has the burden of proof to support a motion to dismiss for violation of the Act “with the exception of the exclusion of time under 18 U.S.C. § 3161(h)(3) concerning the unavailability of the defendant or an essential witness.” ...