United States v. Pair

515 F.Supp.3d 400

UNITED STATES of America

v.Quotez T. PAIR, Defendant.

Criminal Action No. 3:20cr3

United States District Court, E.D. Virginia, Richmond Division.

Signed January 27, 2021

Olivia L. Norman, Peter S. Duffey, United States Attorney's Office, Richmond, VA, for United States of America.

Miriam Airington-Fisher, Airington Law, Ann Marie Reardon, Ann M. Reardon PLC, Gerald Thomas Zerkin, Attorney at Law, Jennifer Alexandra Quezada Castillo, Airington Stone & Rockecharlie PLLC, Richmond, VA, Mary Katherine Martin, Mary K. Martin, Atty-at-Law, Hopewell, VA, for Defendant.

Robert E. Payne, Senior United States District Judge

This matter is before the Court on DEFENDANT'S MOTION TO DISMISS INDICTMENTS FOR VIOLATIONS OF DEFENDANT'S SPEEDY TRIAL (ECF No. 39) (the "MOTION"). Having considered Pair's undated letter received October 5, 2020 (ECF No. 37), DEFENDANT'S OBJECTION TO TRIAL CONTINUANCE (ECF No. 44), the supporting, opposing, and reply memoranda, the arguments of counsel, and the supplemental briefing, and for the reasons stated below, DEFENDANT'S MOTION TO DISMISS INDICTMENTS FOR VIOLATIONS OF DEFENDANT'S SPEEDY TRIAL (ECF No. 39) will be denied as to the alleged violation of the Speedy Trial Act. In Pair's undated letter received October 5, 2020 (ECF No. 37), DEFENDANT'S REPLY TO GOVERNMENT'S MOTION IN OPPOSITION TO DISMISS INDICTMENT (ECF No. 41), DEFENDANT'S SUPPLEMENTAL BRIEF ON MOTION TO DISMISS INDICTMENTS FOR VIOLATIONS OF DEFENDANT'S RIGHT TO A SPEEDY TRIAL (ECF No. 66), and DEFENDANT'S RESPONSE TO GOVERNMENT'S SUPPLEMENTAL BRIEF IN OPPOSITION OF MOTION TO DISMISS FOR VIOLATIONS OF DEFENDANT'S SPEEDY TRIAL RIGHT (ECF No. 76), Pair asserts that his Sixth Amendment right to a speedy trial has been denied. That issue will be addressed in another Memorandum Opinion.

BACKGROUND

Unforeseeable and unfortunate circumstances have kept defendant Quotez T. Pair awaiting trial for more than a year. Pair was indicted on January 21, 2020 on two counts of distributing fentanyl.¹ ECF No. 1. He was arrested on January 30 and made his initial appearance the next day. ECF Nos. 5 & 6. On February 5, he was arraigned and ordered detained. ECF Nos. 9 & 10.

Pair's trial was originally scheduled for April 6. Then the COVID-19 pandemic struck. Citing the pandemic and the declared state of emergency in Virginia, Chief Judge Mark Davis issued a General Order on March 13 continuing all jury trials scheduled in the Eastern District of Virginia from March 16 to April 17 and excluding those days from speedy trial calculations. General Order 2020-02 at 3, No. 2:20mc7, ECF No. 2. In four further General Orders, the Court extended these continuances and the exclusion of time from speedy trial calculations through September 13.² See General Order 2020-07 at 7, No. 2:20mc7, ECF No. 7 (issued March 24 and addressing the period from April 18 through May 1); General Order 2020-12 at 6-7, No. 2:20mc7, ECF No. 12 (issued April 15 and addressing the period from May 2 through June 10); General Order 2020-16 at 15 n.10, No. 2:20mc7, ECF No. 16 (issued May 26 and addressing the period from June 11 through July 6); General Order 2020-19 at 22, No. 2:20mc7, ECF No. 20 (issued June 30 and addressing the period from July 7 through September 13).

In light of General Orders 2020-02, 2020-06, and 2020-07, the Government filed a motion for continuance on March 31, asking the Court to recalculate Pair's speedy trial date as May 27 and reschedule his trial within that period. ECF No. 11. On April 6, the Court granted the Government's motion. ECF No. 12. Having considered the General Orders and the "evolving public health crisis" facing Virginia, the Court issued an order extending Pair's speedy trial date to May 27 and canceling the April 6 trial. Id.

While jury trials were continued in the District, the only pretrial motions filed involved Pair's representation. The Court received a letter motion from Pair on April 22 requesting new counsel, complaining that no motions had been filed on his behalf, and asserting that his rights were being violated. ECF No. 13. This letter motion was followed the next day by his counsel's motion to withdraw. ECF No. 14.

On April 29, the Court granted both motions and ordered the clerk to appoint new counsel. ECF No. 15. Pair's new counsel filed a motion to withdraw less than a month later, citing the risk of meeting in-person with Pair during the pandemic. ECF No. 16. The Court granted this motion and ordered the clerk to appoint new counsel. ECF No. 17.

On August 21, the Court received a second letter motion from Pair requesting new counsel, complaining that his counsel had failed to file motions on his behalf, asserting that the Assistant United States Attorney was threatening extra charges if he did not agree to a plea deal, and arguing that his indictment was defective. ECF No. 20. The Court received a similar letter motion on August 24. ECF No. 22. The Court heard both motions on September 3 and denied both the following day. ECF Nos. 27 & 28.

When the District resumed jury trials in September, Pair's trial, rescheduled for September 30, was to be the second held in the Richmond Division since the beginning of the pandemic. See ECF No. 19 (rescheduling trial). But on September 18, Pair's counsel moved for a continuance. ECF No. 31. She informed the Court that, in order to avoid permanent disability, she required urgent surgery that had been scheduled on the day jury selection was to take place - September 29.³

The Court acted as quickly as possible to resolve this motion. After conferring with the parties in a series of conference calls on September 21, the Court heard the motion on September 22. After ascertaining from Pair that he preferred to proceed with new counsel rather than to wait for his then-current counsel to recover from surgery, Tr. 2:21-22, 3:14-20, ECF No. 55, the Court granted the motion, continuing Pair's trial "until further order of the Court after new counsel is appointed" and directing the clerk to appoint new counsel. ECF No. 34. New counsel was appointed later that day, and after conferring with the parties on September 24, the Court issued an order continuing Pair's trial until December 7 to allow new counsel time for adequate preparation. ECF No. 36.

Shortly thereafter, on October 5, the Court received a letter from Pair complaining that his right to a speedy trial was being violated. ECF No. 37. The Court ordered counsel to discuss the letter with Pair and to file any appropriate motions. ECF No. 38. Counsel filed the MOTION on October 21. ECF No. 39.

Since Pair filed the MOTION, the pandemic has once again necessitated the continuance of jury trials in the District. Citing the rise in COVID-19 cases in the District, the Court issued General Order 2020-22 on November 16, which continued all jury trials in the District and excluded the period from November 16 through January 19, 2021 from speedy trial calculations. General Order 2020-22 at 3-8. The Court provided Pair the opportunity to object to General Order 2020-22 before hearing the MOTION. ECF No. 43.⁴ Pair filed his objection on November 23. ECF No. 44.

On December 9, the Court held an evidentiary hearing on the MOTION. ECF No. 64. At the hearing, the Court ordered supplemental briefing and set Pair's trial for the earliest possible date for jury trials in the District - January 19. ECF No. 65.

However, the rates of COVID-19 cases and hospitalizations in the District continued to rise through December and into January. See General Order 2021-01 at 3-5. On January 8, 2021 the Court issued the latest General Order, which continued all jury trials in the District and excluded the period from January 19, 2021 through February 28, 2021 from speedy trial calculations. General Order 2020-21. After conferring with the parties on the next business day and having considered General Orders 2021-01's findings, the Court issued an order continuing Pair's trial until March 8, 2021.⁵ ECF No. 77.

The supplemental briefing on the MOTION concluded on January 11, and the MOTION is now ripe for decision.

DISCUSSION

I. Legal Framework

The Speedy Trial Act requires federal criminal trials to begin "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 officer of the court in which such charge is pending, whichever date last occurs." 18 U.S.C. § 3161(c)(1). However, the Act recognizes that, under some circumstances "there are valid reasons for greater delay." Zedner v. United States, 547 U.S. 489, 497, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006). When there is a valid reason for delay, the Act excludes that delay from the speedy trial calculation. Id. Two valid reasons for delay are relevant the speedy trial calculation in this case.

First, § 3161(h)(1) excludes "[a]ny period of delay resulting from other proceedings concerning the defendant." "Other proceedings concerning the defendant" include: (1) the day of the defendant's arraignment, when it occurs after his or her initial appearance, 18 U.S.C. § 3161(h)(1) ; (2) "any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion," as well as any period after the hearing while the court awaits post-hearing submissions from the parties, id. § 3161(h)(1)(D) ; and (3) an additional period "not to exceed thirty days" after post-hearing submissions come in while the court decides the motion, id. § 3161(h)(1)(H). See United States v. Stoudenmire, 74 F.3d 60, 63 & n.3 (4th Cir. 1996).

Second, § 3161(h)(7)(A) excludes what are commonly called "ends-of-justice" continuances:

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

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