United States v. Smith, No. 2:19-cr-00213-JAM

494 F.Supp.3d 772

UNITED STATES of America, Plaintiff,

v.Reginald SMITH, Defendant.

No. 2:19-cr-00213-JAM

United States District Court, E.D. California.

Signed October 14, 2020

Vincenza Rabenn, Govt, United States Attorney's Office, Sacramento, CA, for Plaintiff.

Noa Oren, Benjamin David Galloway, Office Of The Federal Defender, Sacramento, CA, for Defendant.

ORDER DENYING DEFENDANT'S MOTION TO DISMISS

JOHN A. MENDEZ, UNITED STATES DISTRICT JUDGE

Defendant Reginald Smith moves to dismiss the indictment for violation of the Speedy Trial Act ("STA") by post-indictment delay. Mot. to Dismiss ("Mot."), ECF No. 43. The Government has responded in opposition, Opp'n, ECF No. 50, to which Smith has replied, Reply, ECF No. 52. After consideration of the parties’ briefing on the motion and relevant legal authority, the Court DENIES Smith's Motion to Dismiss.

I. BACKGROUND

On December 5, 2019, a grand jury indicted Smith, charging him with one count of Possession with Intent to Distribute Methamphetamine, 21 U.S.C. § 841(a)(1), (b)(1)(B), and one count of Possession of a Firearm in Furtherance of a Drug Trafficking Crime, 21 U.S.C. § 853(a). See ECF No. 1. Two weeks later, Smith made an initial appearance before the magistrate judge. He entered a not guilty plea, demanded a jury trial, and was taken into custody. Dec. 19, 2019 Mins., ECF No. 4. Pretrial services then issued a bail report. The report highlighted Smith's history of substance abuse and violent crime. It ultimately concluded that, at the time, there was no condition, or combination of conditions, that could be fashioned to reasonably assure Smith's appearance at future court proceedings or the safety of the community. On December 23, the magistrate judge held a detention hearing. Based on Pretrial Services’ recommendation, she issued an order of detention pending trial. ECF No. 7. Smith remains in custody.

During the period Smith has been in custody, time has been excluded under the STA for several different reasons. Smith agreed to exclusions of time for defense preparation, pursuant to 18 U.S.C. § 3161(h)(7) (also known as "Local Code T4"), from December 19, 2019 to April 14, 2020. See ECF Nos. 4, 10, 11. In March, the Eastern District of California began issuing general orders, restricting the Court's operations, to help minimize the spread of COVID-19. See Information Re: COVID-19 and Court Operations, Restrictions, and Closures, http://www.caed.uscourts.gov/caednew/index.cfm/news/covid-19-courthouse-closure-and-court-hearing-information/. Keeping in compliance with these orders, on March 23, 2020, the Court continued Smith's April 14, 2020, status conference to June 16, 2020. See ECF No. 12.

On May 1, 2020, the Government moved to exclude time from April 14, 2020, to June 16, 2020, under the STA's "ends of justice" exclusion. See ECF No. 13; see also 18 U.S.C. § 3161(h)(7)(A). The Court granted in part and denied in part the Government's motion. See Order, ECF No. 18. The Court could not retroactively exclude time under the ends-of-justice exclusion, so time was not excluded from April 15, 2020, to April 30, 2020.¹ However, the Court excluded time between May 1, 2020, and May 19, 2020—the day the Order was issued—pursuant to 18 U.S.C. § 3161(h)(1)(D). And the Court prospectively excluded time under the ends-of-justice exclusion from the date of its Order until Smith's June 16, 2020, status conference.

On May 26, 2020, Smith filed a motion to suppress. See ECF No. 19. This tolled Smith's speedy trial clock from May 26, 2020, until July 27, 2020, the date the Court decided the motion, pursuant to 18 U.S.C. § 3161(h)(1)(D). Then on July 27, 2020, the Government filed another motion to exclude time under the ends-of-justice exclusion. See ECF No. 37. And on August 25, 2020, Smith filed the instant motion to dismiss and another motion to suppress. See ECF Nos. 43, 44. The Court decided Smith's second motion to suppress on September 18, 2020, see ECF No. 54; and granted the Government's motion to exclude time between August 20, 2020, to September 22, 2020, pursuant to § 3161(h)(1)(D), as motions were pending, see ECF No. 55. The time between September 22, 2020, and the date of this Order is also excludable under § 3161(h)(1)(D).

II. OPINION

A. Speedy Trial Act

1. Legal Standard

Congress enacted the STA, in part, to codify the strong public interest in speedy justice. United States v. Pollock, 726 F.2d 1456, 1459–60 (9th Cir. 1984). But it was also born out of Congress's "concern[ ] about a number of problems ... that vex an individual who is forced to await trial for long periods of time." Id. (citing H.R. Rep. No. 1508, 93rd Cong. 2d Sess., reprinted in [1974] U.S. Code Cong. & Ad.News 7401, 7408). These problems include: "disruption of family life, loss of employment, anxiety, suspicion, and public obloquy." Id. To address these correspondent concerns, the STA sets strict time limits on the two phases of prosecution: the time period between arrest/service of summons and an indictment ("Phase 1"), and the time period between arraignment and trial ("Phase 2"). Absent an exclusion of time, Phase 1 cannot exceed 30 days and Phase 2 cannot exceed 70 days. 18 U.S.C. § 3161(b), (c). If a defendant is not brought to trial within these time limits, "the information or indictment shall be dismissed on motion for the defendant." 18 U.S.C. § 3162(a)(2).

Section 3161(h) sets forth permissible grounds for excluding time under the STA. One of these grounds is now commonly referred to as an ends-of-justice exclusion. Provided by subsection (h)(7), this exclusion permits defendant, defense counsel, and the government's counsel to seek an ends-of-justice continuance. 18 U.S.C. § 3161(h)(7)(A). A court may also grant an ends-of-justice continuance on its own motion. Id. Regardless of who seeks the continuance, a court must satisfy itself of each of § 3161(h)(7) ’s requirements before granting the motion.

Regarding its duration, an ends-of-justice exclusion must be "specifically limited in time." United States v. Ramirez-Cortez, 213 F.3d 1149, 1154 (9th Cir. 2000). Although § 3161(h)(7) permits district courts to exclude "any period of delay," the Ninth Circuit has underscored that this temporal flexibility does not permit an ends-of-justice continuance to be indefinite. United States v. Jordan, 915 F.2d 563, 565 (9th Cir. 1990) ; Pollock, 726 F.2d at 1461. Moreover, an ends-of-justice continuance must be "justified [on the record] with reference to the facts as of the time the delay is ordered." Ramirez-Cortez, 213 F.3d at 1154 (emphasis in original) (internal quotation marks omitted). After independently considering factors listed in § 3161(h)(7)(B), "among others," a court must determine whether "the ends of justice served [by granting a continuance" outweigh "the best interest of the public and the defendant in the speedy trial." 18 U.S.C. § 3161(h)(7)(A).

The STA "imposes strict specificity requirements" on these findings. United States v. Lloyd, 125 F.3d 1263, 1268 (9th Cir. 1997). "[T]he ‘ends of justice’ exclusion ... may not be invoked in such a way as to circumvent the time limitations set forth in the [STA]." United States v. Clymer, 25 F.3d 824, 829 (9th Cir. 1994). The ends-of-justice provision "is not a general exclusion for every delay, and any continuance granted under it must be based on specific underlying factual circumstances." United States v. Martin, 742 F.2d 512, 514 (9th Cir. 1984). Courts are not entitled "to rely on the unverified claims" of the party seeking a continuance. Id. at 1270. Nor may they conclude that one of the § 3161(h)(7)(B) factors justifies a continuance without tethering that conclusion to case-specific considerations. United States v. Perez-Reveles, 715 F.2d 1348, 1352 (9th Cir. 1983) ("although the complexity of the case is a permissible factor ... the mere conclusion that the case is complex is insufficient.").

A court must set forth these findings on the record, either orally or in writing. 18 U.S.C. § 3161(h)(7)(A) ; see also Zedner v. United States, 547 U.S. 489, 509, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006) ; Ramirez-Cortez, 213 F.3d at 1153. A court need not issue its specific findings "at the precise moment it grants a[n ends-of-justice] continuance." United States v. Bryant, 726 F.2d 510, 511 (9th Cir. 1984). That said, § 3161(h)(7) ’s analysis is a forward-looking inquiry. "A court may not, ‘subsequent to the grant of a continuance, undertake for the first time to consider the factors and provide the findings required by [ § 3161(h)(7)(A) ].’ " Jordan, 915 F.2d at 566 (quoting United States v. Frey, 735 F.2d 350, 352 (9th Cir. 1984) ); see also Frey, 735 F.2d at 352 (holding that a district court may not make nunc pro tunc ends-of-justice findings to accommodate an "unwitting violation of the [STA].").

2. STA Violation

As a preliminary matter, a statutory violation of the STA has not yet occurred in this case. The STA mandates dismissal of the indictment upon defendant's motion if the seventy-day limitations period is exceeded. 18 U.S.C. § 3162(a)(2). Not counted toward the limitations period is any time rightfully excluded under § 3161(h). Id. In making this determination, the Court must first ascertain when the seventy-day clock began running. United States v. Wirsing, 867 F.2d 1227, 1229 (9th Cir. 1989). Smith's indictment was returned on December 5, 2019. As described above, it is clear that given the amount of time properly excluded since Smith was indicted and made his initial appearance, seventy days of non-excludable time have not passed as of the date of this Order.

Accordingly, Smith's statutory rights under the STA have not yet been violated. See Wirsing, 867 F.2d at 1231 (the Ninth Circuit held that, accounting for excludable days, the district court properly denied defendants’ motions to dismiss as the limitations period had not been exceeded).

3. Ends-of-Justice

Although there is time remaining on Smith's speedy...