United States v. Holmes

UNITED STATES OF AMERICA, Plaintiff, v. GARRY HOLMES, Defendant.

Case No. 1:20-cr-58-2

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

May 18, 2021

Judge Susan J. Dlott

ORDER DENYING DEFENDANT'S MOTION TO DISMISS FOR WANT OF A SPEEDY TRIAL

This matter is before the Court on Defendant Garry Holmes' Motion to Dismiss for Want of a Speedy Trial (Doc. 51). The United States opposes Defendant's motion (Doc. 66).

A grand jury indicted Holmes and his co-defendant, Eric Lang, on charges of carjacking, in violation of 18 U.S.C. §§ 2119 and 2119(2) (Count One), and using a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c) (Count Two). The grand jury also charged Holmes with possession of a firearm by a prohibited person, in violation of 18 U.S.C. § 922(g)(1) (Count Three). Because any delay in this matter was caused exclusively by Defendants, Holmes' motion will be DENIED.

I. BACKGROUND

Holmes and Lang are charged with using a firearm to carjack W.R. on January 10, 2020. They allegedly stole his 2008 Mercedes Benz C300 and shot him several times, including in the head. In addition, the grand jury charged that Holmes, a convicted felon, knowingly possessed a Smith and Wesson .40 caliber firearm and ammunition.

The timeline of this case is as follows:

• June 4, 2020 - Defendants indicted. (Doc. 1.)

• June 10, 2020 - Magistrate Judge determined that Defendant Holmes was already incarcerated on unrelated charges at the Correctional Reception Center in Orient, Ohio, and she issued a Writ of Habeas Corpus ad Prosequendum for him to be transported to the Potter Stewart United States Courthouse for initial appearance in this matter. (Doc. 11.)

• June 29, 2020 - Defendant Holmes' initial appearance rescheduled to July 2, 2020 via videoconference. (Doc. 22.)

• July 2, 2020 - Defendant Holmes made his initial appearance in this matter. He was deemed ineligible for release "due to pending matters in another case, to wit, the defendant is serving a sentence from another case." (Doc. 26.)

• The speedy trial clock began to run, pursuant to 18 U.S.C. § 3161.

• July 10, 2020 - Scheduling Order issued setting jury trial for September 8, 2020. (Doc. 27.)

• August 12, 2020 - Defendant Eric Lang moved to continue motion deadline and trial. (Doc. 28.)

• August 16, 2020 - Defendant Holmes moved to continue all deadlines and extend the trial date because "discovery in this case is extensive" and Defendants contended "that more time is needed to ascertain if there will be motions filed on Mr. Holmes's behalf." (Doc. 29 at PageID 55.)

• August 18, 2020 - Court granted Defendants' motions to continue. Trial date reset for November 2, 2020. Ends of Justice Order issued excluding from the speedy trial calculation August 12, 2020 through November 2, 2020, pursuant to 18 U.S.C. § 3161(h)(7)(B)(i) and (iv). (Doc. 30.)• 41 days of Defendants' speedy trial time have elapsed.

• October 5, 2020 - Defendant Holmes developed "irreconcilable differences" with his attorney and "expressed his agreement" that he be appointed new counsel. (Doc. 31 at PageID 59.)

• October 7, 2020 - Court granted Holmes' attorney's motion to withdraw. (Doc. 32.)

• October 13, 2020 - New counsel appointed to represent Holmes. (Doc. 34.)

• October 14, 2020 - Court conducted a status conference at which "Counsel for both Defendants requested additional time to review discovery and either negotiate a plea agreement or prepare for trial." (Doc. 35 at PageID 64.) The Court granted the Defendants' motions, scheduled a status conference for November 12, 2020, and excluded from the speedy trial calculation October 14, 2020 through November 12, 2020, pursuant to 18 U.S.C. § 3161(h)(7)(B)(i) and (iv).

• Defendants' speedy trial calculation remains at 41 days.

• November 12, 2020 - Court conducted a status conference at which counsel for both Defendants made oral motions to continue. (Doc. 38.) The Court granted the Defendants' motions, scheduled a status conference for December 14, 2020, and excluded from the speedy trial calculation November 12, 2020 through December 14, 2020, pursuant to 18 U.S.C. § 3161(h)(7)(B)(i) and (iv) and United States v. White, 920 F.3d 1109 (6th Cir. 2019). (Doc. 38.)

• Defendants' speedy trial calculation remains at 41 days.

• December 14, 2020 - Court conducted a status conference at which counsel for both Defendants made oral motions to continue. (Doc. 39.) The Court granted the Defendants' motions, scheduled a status conference for January 26, 2021, and excluded from the speedy trial calculation December 14, 2020 through January 26, 2021, pursuant to 18 U.S.C. § 3161(h)(7)(B)(i) and (iv) and United States v. White, 920 F.3d 1109 (6th Cir. 2019). (Doc. 39.)

• Defendants' speedy trial calculation remains at 41 days.

• January 26, 2021 - Court conducted a status conference at which counsel for Holmes moved for additional time to review discovery with his client and either negotiate a plea agreement or prepare for trial. (Doc. 44.) The Court granted the motion, scheduled a status conference for March 31, 2021, and excluded from the speedy trial calculation January 26, 2021 through March 31, 2021, pursuant to 18 U.S.C. § 3161(h)(7)(B)(i) and (iv) and United States v. White, 920 F.3d 1109 (6th Cir. 2019). (Doc. 44.)

• Defendants' speedy trial calculation remains at 41 days.

• March 31, 2021 - Court conducted a status conference at which counsel for both Defendants made oral motions to extend the motion deadline and to continue the trial. Previously, all counsel indicated this case likely would be resolved via plea agreement, but the Court was informed for the first time that extra-judicial resolution was no longer likely. (Doc. 45.) The Court granted Defendants' motions, set a new motion deadline of April 30, 2021, scheduled trial for June 7, 2021, and excluded from the speedy trial calculation March 31, 2021 through June 7, 2021, pursuant to 18 U.S.C. § 3161(h)(7)(B)(i) and (iv). (Doc. 45.)

• Defendants' speedy trial calculation remains at 41 days.

• April 11, 2021 - Defendant Holmes filed three motions to dismiss the indictment (Docs. 46, 47, 48) and a motion for early production of Jencks material (Doc. 49). The filing of these motions automatically tolls the speedy trial clock pursuant to 18 U.S.C. § 3161(h)(1)(D).

• April 15, 2021 - Defendant Holmes filed a Motion to Suppress Identification (Doc. 50). The filing of this motion automatically tolls the speedy trial clock pursuant to 18 U.S.C. § 3161(h)(1)(D).

• April 16, 2021 - Defendant Holmes filed the instant Motion to Dismiss on Speedy Trial (Doc. 51). The filing of this motion automatically tolls the speedy trial clock pursuant to 18 U.S.C. § 3161(h)(1)(D).

• April 18, 2021 - Defendant Holmes filed a Second Motion to Dismiss Count Two of the Indictment (Doc. 52). The filing of this motion automatically tolls the speedy trial clock pursuant to 18 U.S.C. § 3161(h)(1)(D).

• April 18, 2021 - Defendant Holmes filed a Motion to Suppress (Doc. 53). As the issues raised in this motion require an evidentiary hearing, the filing of this motion automatically tolls the speedy trial clock "through the conclusion of the hearing" and to the reasonable period after the hearing "not to exceed thirty days, during which [the] proceeding concerning the defendant is actually under advisement by the court" pursuant to 18 U.S.C. § 3161(h)(1)(D) and (H).

• April 25, 2021 - Defendant Holmes filed a Motion in Limine (Doc. 56). The filing of this motion automatically tolls the speedy trial clock pursuant to 18 U.S.C. § 3161(h)(1)(D).

• May 5, 2021 - The Court conducted a status conference with counsel to determine the first available date for the evidentiary hearing necessitated by Holmes' Motion to Suppress (Doc. 53) and Co-Defendant Eric Lang's Motion to Suppress Pretrial Identification (Doc. 58). The Court scheduled the evidentiary hearing for the first available date, June 1, 2021. However, because the case cannot proceed to trial until after the evidentiary hearing necessitated by Defendants' motions, the Court had no choice but to continue the final pretrial conference and trial setting until June 10, 2021 and July 26, 2021. (Doc. 64.) Accordingly, the Court excluded from the speedy trial calculation April 18, 2021 through July 26, 2021, pursuant to 18 U.S.C. § 3161(h)(7)(B)(i) and (iv). (Doc. 45.)

• Defendants' speedy trial calculation remains at 41 days.

• May 17, 2021 - Holmes' attorney advised the Court that he was unavailable for the newly selected July 26, 2021 trial date. The Court immediately arranged a telephone conference with all counsel, vacated the trial in another case, and scheduled this case for trial on June 23, 2021. The Court will conduct the final pretrial conference immediately following the June 1, 2021 suppression hearing.

• Defendants' speedy trial calculation remains at 41 days.

Holmes moves to dismiss all charges against him on the basis that he "was deprived of his right to a speedy trial pursuant to the Sixth Amendment of the United States Constitution and pursuant to the Speedy Trial Act." (Doc. 51 at PageID 146.) "Although the passage of the [Speedy Trial] Act was in part an attempt by Congress to quantify the sixth amendment right to a speedy trial, the legislation does not purport to be coextensive with that amendment." United States v. Howard, 218 F.3d 556, 563 (6th Cir. 2000) (quoting United States v. Gonzalez, 671F.2d 441, 443 (11th Cir. 1982)); see also 18 U.S.C. § 3173 ("No provision of this chapter shall be interpreted as a bar to any claim of denial of speedy trial as required by amendment VI of the Constitution."). Thus, the Court will address Holmes' Speedy Trial Act claim and his Sixth Amendment claim separately.

II. SPEEDY TRIAL ACT, 18 U.S.C. § 3161

The Speedy Trial Act mandates that "trial commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial...