United States v. Feeterman

DECISION & ORDER

LAWRENCE J. VILARDO UNITED STATES DISTRICT JUDGE

The defendant, Zachary Feeterman, has twice moved to dismiss the charges against him based on alleged violations of his right to a speedy trial. He first raised the issue in a motion filed on May 17, 2021, before United States Magistrate Judge H. Kenneth Schroeder, Jr., arguing largely that his rights were violated by pre-indictment delay. See Docket Item 35 at 52-54. Then, after Judge Schroeder recommended to this Court that the motion be denied, Docket Item 79, Feeterman objected to that recommendation, also arguing that subsequent post-indictment delay exacerbated the speedy trial violations, see Docket Items 88 and 101.

Those objections, as well as what this Court deems to be a renewed motion to dismiss based on both pre-indictment and post-indictment delay, are now before this Court. Although Feeterman's motion raises significant issues and is a close call, it is denied.

BACKGROUND

Feeterman was indicted for receiving child pornography after a prior conviction related to sexual misconduct (18 U.S.C. § 2252A(a)(2)(A) and 2252A(b)(1)) and for

possessing child pornography involving a prepubescent minor after a prior conviction related to sexual misconduct (18 U.S.C. § 2252A(a)(5)(B) and 2252A(b)(2)). Docket Item 25. On May 17, 2021, he filed omnibus pretrial discovery motions; motions to suppress his statements and evidence seized pursuant to a warrantless search and a search with a warrant; and a motion to dismiss based on speedy trial violations. Docket Item 35. The government responded on May 28, 2021, Docket Item 37, and Feeterman replied on June 3, 2021, Docket Item 38.

On June 4, 2021, Judge Schroeder, to whom this case had been referred, heard oral argument and scheduled an evidentiary hearing on Feeterman's motions to suppress. See Docket Item 39; Docket minute entry June 4, 2021. Following the evidentiary hearing-which spanned three days-and the filing of post-hearing memoranda, Judge Schroeder issued his Report, Recommendation and Order on July 7, 2022, recommending that Feeterman's motions to suppress, Docket Item 35, be denied.^[1]Docket Item 69.

That Report, Recommendation and Order did not address Feeterman's motion to dismiss the indictment based on speedy trial violations. See id. On November 2, 2022, Judge Schroeder issued a separate Report, Recommendation and Order on that motion

(the “RR&O”), Docket Item 79-the one at issue here. Feeterman then objected to the RR&O, Docket Item 88; the government responded, Docket Item 91; and this Court heard oral argument on January 3, 2023, Docket Item 94.

Because Feeterman raised issues at oral argument that had not been addressed in the papers, further submissions relating to his objections were filed on January 23 and 26, 2023, Docket Items 101 and 102, and further oral argument was held on February 16, 2023, Docket Item 106. Following oral argument, Feeterman was given permission to file a supplemental memorandum of law, and he filed that submission on February 27, 2023, Docket Item 110; on March 6, 2023, the government responded, Docket Item 111, and the issue became ripe for decision.

LEGAL PRINCIPLES

A district court may accept, reject, or modify the findings or recommendation of a magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Crim. P. 59(b)(3). The court must review de novo those portions of a magistrate judge's recommendation to which a party objects. 28 U.S.C. § 636(b)(1); Fed. R. Crim. P. 59(b)(3).

This Court has carefully and thoroughly reviewed the RR&O, the objections, the response, the supplemental submissions, and the materials submitted to Judge Schroeder. Based on that de novo review and for the reasons that follow, this Court accepts Judge Schroeder's recommendation and denies the motion to dismiss the indictment. And this Court likewise denies what it deems to be Feeterman's renewed motion to dismiss based on post-indictment delay, an issue that was not before Judge Schroeder.

FACTS

I. CRIMINAL COMPLAINT

On October 10, 2019, Feeterman was charged in a criminal complaint with possessing child pornography after a prior conviction related to sexual misconduct (18 U.S.C. § 2252A(a)(5)(B) and 2252A(b)(2)). Docket Item 1. He made his initial appearance before Judge Schroeder on October 11, 2019, and the government moved for detention. Docket minute entry October 11, 2019. After Feeterman's attempt to retain counsel was unsuccessful, he asked that counsel be assigned, and Judge Schroeder scheduled an attorney appointment hearing and a detention hearing for October 16, 2019. Docket minute entry October 15, 2019. On October 16, 2019, an Assistant Federal Public Defender was assigned to represent Feeterman, Docket Item 44 at 6-7, and Judge Schroeder granted the government's motion for detention, id. at 23.

Following the detention hearing, Feeterman was reluctant to waive a preliminary hearing, in part because of Judge Schroeder's practice not to use Federal Rule of Criminal Procedure 48(b) to schedule a dismissal date for the criminal complaint and thereby extend the government's time to indict. Id. at 23-25. Feeterman was concerned about preserving the possibility of a plea to a crime with a 10-year mandatory minimum, rather than having to plead to one with a 15-year mandatory minimum as might be required if the government were forced to seek an indictment.^[2]

Id. In other words, Feeterman did not want to force the government's hand because of the lapse of time. So at Feeterman's request, Judge Schroeder agreed to treat Feeterman's case as exceptional. Id. at 25.

Judge Schroeder therefore scheduled a Rule 48(b) dismissal date extending the government's deadline to indict as well as the deadline to conduct a preliminary hearing under Rule 5.1, and he excluded time under the Speedy Trial Act. See Docket Minute entry October 16, 2019. That would give Feeterman and his counsel an opportunity to negotiate a possible resolution before the case was presented to a grand jury. See Docket Item 44 at 25. In granting Feeterman's request, Judge Schroeder stated,

Well, I'm certainly understanding of your position, and I'm agreeable to addressing the issues in an orderly but also compassionate way. I'm willing to treat this case as an exceptional case, and I'm willing to invoke the provisions of Rule 48(b) of the Federal Rules of Criminal Procedure. But I also want to make clear to both sides that when I do establish the time period, absent meritorious reasons, I'm not going to give extensions. And so it's going to be necessary for the parties to move diligently in trying to resolve this.

Id. at 25-26. So Judge Schroeder departed from his then-standard practice and set a Rule 48(b) deadline of February 28, 2020; Feeterman, in turn, consented to the exclusion of time under the Speedy Trial Act and waived his right to a preliminary hearing under Rule 5.1. Id. at 29-32. A written speedy trial order excluding time was filed on October 17, 2019. Docket Item 4.

II. RULE 48(b) DEADLINE EXTENSIONS

Feeterman's counsel then filed eight motions to adjourn the Rule 48(b) dismissal date. Docket Items 7, 9, 13, 15, 17, 19, 21, and 23. In each motion, Feeterman's counsel explained the status of the case and agreed that the Speedy Trial Act time should be excluded, or words to that effect. Id. Despite his admonition at the detention hearing that he would not grant extensions, Judge Schroeder granted each of the eight motions by text order, each one setting a new Rule 48(b) dismissal date, stating that time under the Speedy Trial Act was excluded, and citing Rule 5.1 of the Federal Rules of Criminal Procedure and the Speedy Trial Act itself. Docket Items 8, 11, 14, 16, 18, 20, 22, and 24. None of those orders explicitly stated the reason why time was excluded, however.

After this Court recently observed at oral argument that the series of exclusion orders might not comply with Speedy Trial Act requirements, Docket Item 112 at 6-9, Judge Schroeder granted the government's request to amend his text orders. Each of Judge Schroeder's text orders, including the 2023 modifications, now reads:

02/25/2020	8	TEXT ORDER granting 7 Motion to Adjourn Rule 48(b) Dismissal as to Zachary Feeterman (1). The Criminal Complaint shall be dismissed without prejudice pursuant to Rule 48(b) of the Fed. R. Crim. P. effective 4/30/2020. The time from 2/28/2020 to 4/30/2020 is excluded for purposes of the Speedy Trial Act and Rule 5.1 of the Fed. R. Crim. P. pursuant to Title 18 U.S.C. Sections 3161(h)(7)(A) and (h)(7)(B)(iv). SO ORDERED. Issued by the Hon. H. Kenneth Schroeder Jr. on 2/25/2020. (LMG)[1:19-mj-00180-HKS] This Text Order is hereby amended nunc pro tunc as follows: The Motion is granted for the reasons stated therein. Modified on 2/16/2023 to add additional language (LMG). (Entered: 02/25/2020)
04/27/2020	11	TEXT ORDER granting 9 Motion to Adjourn Rule 48(b) Dismissal as to Zachary Feeterman (1). The Criminal Complaint shall be dismissed without prejudice pursuant to Rule 48(b) of the Fed. R. Crim. P. effective 6/30/2020. The time from 4/30/2020 to 6/30/2020 is excluded for purposes of the Speedy Trial Act and Rule 5.1 of the Fed. R. Crim. P. pursuant to

Title 18 U.S.C. Sections 3161(h)(7)(A) and (h)(7)(B)(iv). SO ORDERED. Issued by the Hon. Hon. H. Kenneth Schroeder Jr. on 4/27/2020. (LMG)[1:19-mj-00180-HKS] This Text Order is hereby amended nunc pro tunc as follows: The Motion is granted for the reasons stated therein. Modified on 2/16/2023 to add additional language (LMG). (Entered: 04/27/2020)
06/25/2020	14	TEXT ORDER granting 13 Motion to Adjourn Rule 48(b) Dismissal...