United States District Court, D. Colorado
ORDER DENYING MOTION TO DISMISS ON SPEEDY TRIAL
GROUNDS
William J. Martinez United States District Judge
A jury
convicted Defendant Perry Wayne Suggs, Jr.
(“Suggs”), of one count of being a felon in
possession of a firearm and ammunition in violation of 18
U.S.C. § 922(g)(1). (ECF No. 136.) Currently before the
Court is Suggs's Amended Motion to Dismiss for Violation
of Speedy Trial Rights (ECF No. 123), which Suggs filed in
the middle of his first trial day. For the reasons explained
below, this motion will be denied.
I.
BACKGROUND
In
February 2018, the Government charged Suggs with one count of
being a felon in possession of a firearm. (ECF No. 1
(indictment); see also ECF No. 24 (superseding
indictment).) The Court set a trial date of May 7, 2018 (ECF
No. 22), but Suggs requested five months' worth of
continuances and then filed a suppression motion (ECF Nos.
35, 51, 54). The Court resolved the suppression motion on
March 11, 2019 (ECF No. 89), and set his trial to begin on
March 25, 2019 (ECF No. 90).
On
March 19, 2019, Suggs filed a document stating, among other
things, that he would “be filing a motion to dismiss
for violation of his speedy trial rights . . . prior to
trial.” (ECF No. 109 ¶ 7.) At the Final Trial
Preparation Conference the next day, the Court informed
Suggs's counsel that the trial would go forward
regardless, and the Court would decide the speedy trial issue
after trial, assuming a conviction.
On the
morning of the first day of trial (March 25), not long before
courtroom proceedings began, Suggs filed a Motion to Dismiss
for Violation of Speedy Trial Rights. (ECF No. 120.) About an
hour later, the Court struck that motion for exceeding the
undersigned's page limits, with leave to refile. (ECF No.
122.) Suggs filed his amended motion (the motion currently
under consideration) later that same day. (ECF No. 123.)
II.
ANALYSIS
Suggs
argues that his rights have been violated under both the
Speedy Trial Act, 18 U.S.C. §§ 3161-74 (the
“Act”), and the Sixth Amendment's speedy
trial guarantee. The Court will discuss each possibility in
turn.
A.
Speedy Trial Act
Criminal
trials must “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 officer of the court in which such charge
is pending, whichever date last occurs.” 18 U.S.C.
§ 3161(c)(1). “If a defendant is not brought to
trial within [seventy days, after accounting for tolling],
the information or indictment shall be dismissed on motion of
the defendant.” Id. § 3162(a)(2).
1.
Speedy Trial Calculation
Here,
Suggs's initial appearance (which was later than the
filing of the indictment) was on February 27, 2018. (ECF No.
6.) His trial began on March 25, 2019, at 9:18 AM, when
voir dire began. (See ECF No. 125 at
2.)[1]
Thus, 391 calendar days elapsed between the initial
appearance and the beginning of trial.[2] At least 321 of
those days must be tolled or Suggs did not go to trial within
70 Speedy Trial days.
Tolling
took place in this case under three circumstances authorized
by the Act:
• “delay resulting from any pretrial motion, from
the filing of the motion through the conclusion of the
hearing on, or other prompt disposition of, such motion,
” id. § 3161(h)(1)(D);[3]
• “delay reasonably attributable to any period,
not to exceed thirty days, during which any proceeding
concerning the defendant is actually under advisement by the
court, ” id. § 3161(h)(1)(H); and
• “[a]ny 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,
” id. § 3161(h)(7)(A), commonly known as
an “ends-of-justice continuance” or “EOJ
continuance.” The question before the Court is whether
the events falling under these exceptions amounted to at
least 321 days of tolling.
The
chart below shows that tolling events, and the periods for
which they tolled the Act, were often overlapping. They
combine into four blocks of tolling that the Court has
labeled A, B, C, and D:
-
|
TOLLING EVENTS
|
NUMBER OF DAYS TOLLED
|
A
|
2/28/18: Suggs's Unopposed
Motion to Continue Arraignment, Detention Hearing
and Discovery Hearing (ECF No. 9), through
3/1/18: order granting motion (ECF
No. 11), plus, that same day, Suggs's
counsel's Motion to Withdraw as Counsel of
Record (ECF No. 13), through
3/2/18: order granting that motion
(ECF No. 16)
|
3
|
B
|
4/30/18: Suggs's Unopposed
Motion to Continue Trial [by] 60 Days
(ECF No. 35), through
5/1/18: order granting that motion
as a 60-day EOJ continuance
(ECF No. 37), plus, that same day,
commencement of the 60-day
exclusion, originally to conclude on 6/30/17,
but extended by
6/12/18: Suggs's Unopposed
Motion to Vacate All Current
Deadlines and Dates and to Exclude 90 Days from the
Speedy
Trial Act (ECF No. 51), granted that same
day as a 90-day EOJ
continuance beginning on July 1, 2018,
plus
7/1/18: commencement of 90-day
exclusion, originally to conclude
on September 29, 2018, but effectively extended
by
9/7/18: Suggs's Motion to
Suppress (ECF No. 54), through
2/25/18: Suggs's Motion to
Suppress taken under advisement (see
ECF No. 77), through
3/11/19: order denying that motion
(ECF No. 89), plus, that same
day, Government's Unopposed Motion to Extend
the Deadline for
Filing Motions in Limine and to File Jury
Instructions with Other
Pretrial Deliverables (ECF No. 92),
through
3/12/19: order granting that
motion (ECF No. 93), plus, that same
day, Government's Unopposed Motion to Extend
the Trial Duration
by One Day (ECF No. 94), granted that same
day (ECF No. 95)
|
317
|
C
|
3/15/19: Government's Motion
in Limine (ECF No. 97), through
3/19/19: order granting that
motion in part and denying it in part (ECF No. 112)
|
5
|
D
|
3/25/19 [8:05 AM]: Suggs's
original Motion to Dismiss for Violation of Speedy
Trial Rights (ECF No. 120), stricken that same
day for failing to comply with the
undersigned's practice standards regarding
length of motions (ECF No. 122)
|
1
|
|
TOTAL EXCLUDED
|
326
|
Because
tolling amounted to 326 days, Suggs was brought to trial
within 65 Speedy Trial days, less than the 70-day maximum.
2.
Whether “Any Pretrial Motion” Has
Exceptions
Suggs
argues, however, that some of the motions listed in the above
chart should not count as “pretrial motion[s]”
for purposes of 18 U.S.C. § 3161(h)(1)(D).
a.
“Ministerial” Motions
Suggs
labels his Unopposed Motion to Continue Arraignment,
Detention Hearing and Discovery Hearing (ECF No. 9) as
“purely ministerial” and therefore “not the
type of ‘pretrial motions' that the [Speedy Trial
Act] contemplates.” (ECF No. 123 at 4.) That motion
accounted for one of the three excludable days in block A,
above. Suggs claims that the Government's Unopposed
Motion to Extend the Deadline for Filing Motions in
Limine and to File Jury Instructions with Other Pretrial
Deliverables (ECF No. 92) is likewise ministerial and so
should not count. (ECF No. 123 at 6.) That motion accounted
for one day of tolling in block B (3/12/19).[4] Finally, Suggs
puts the Government's Unopposed Motion to Extend the
Trial Duration by One Day (ECF No. 94) into the
“ministerial” category. (Id.) Assuming
the separate motion filed the day before should not have
counted, that motion added one day of tolling in block B
(3/12/19).[5]
Suggs
has two arguments why these motions should not toll the
Speedy Trial clock. His first argument (ECF No. 123 at 5) has
three premises: one, the Court's Order Setting Trial Date
and Related Deadlines established an April 3, 2018 deadline
for “pretrial motions” (ECF No. 22 ¶ A);
two, after this deadline passed, the Government filed motions
such as its Motion to Contact Chambers to Reset Final
Pretrial Conference (ECF No. 83) and its Motion to Extend the
Deadline for Filing Motions in Limine (ECF No. 93);
and three, the Court did not dismiss or strike these motions
as untimely. Therefore, Suggs says, these motions must not
have been “pretrial motions, ” but were, instead,
“ministerial scheduling motions.” “By the
same token, ” he continues, those sorts of motions
should not fall within the Speedy Trial Act's “any
pretrial motion” exception.
But
this Court's treatment of the phrase “pretrial
motion” for purposes of a scheduling order has no
necessary effect on-indeed no influence at all-on the meaning
of “any pretrial motion” under 18 U.S.C. §
3161(h)(1)(D). The undersigned's criminal scheduling
orders are not interpretations of Act, nor some sort of
post hoc legislative history. Accordingly, the Court
rejects the notion that “ministerial scheduling
motions” are not “pretrial motions” for
Speedy Trial purposes.
Suggs's
second argument (ECF No. 123 at 5-6) is that the Fourth
Circuit, in a case mentioned-but not endorsed-by the Tenth
Circuit, has frowned upon counting “merely
ministerial” motions for Speedy Trial tolling purposes.
See United States v. Vogl, 374 F.3d 976, 985 n.10
(10th Cir. 2004) (quoting United States v. Parker,
30 F.3d 542, 549 (4th Cir. 1994)). The Court declines to
follow the Fourth Circuit's lead. The Fourth
Circuit's approach would mean that district courts cannot
trust that a motion- something requiring the Court's
ruling-is actually a “pretrial motion” for Speedy
Trial purposes. This is contrary to the Tenth Circuit's
holding that “the exclusions in § 3161(h) are
automatic.” United States v. Young, 45 F.3d
1405, 1411 n.6 (10th Cir. 1995); see also United States
v. Loughrin, 710 F.3d 1111, 1120 (10th Cir. 2013)
(“[A] motion under § 3161(h)(1)(D) need not cause
‘actual delay' in order to exclude the period after
its filing, and before its disposition . . . . The focus of
the subsection is whether the court's intervention is
required or whether a hearing must be held.”); 5 Wayne
R. LaFave et al., Criminal Procedure §
18.3(b) n.29 (“Because Congress said ‘any,'
there is no authority for excluding some pretrial motions on
the basis that they do not require a significant amount of
thought or attention by the court.” (certain internal
quotation marks omitted)). Were the Tenth Circuit to adopt
Suggs's approach, the potential for significant confusion
on the part of the district courts and parties would be
substantial. Also, such a drastic change in the manner in
which “pretrial motions” are considered under the
Act would, in the Court's view, dramatically increase the
likelihood of inconsistent application of the Act's
tolling provisions by the courts in this
circuit.[6]These are reasons enough for this Court to
decline to follow the Fourth Circuit down the path it appears
to be taking in Parker.
b.
Evidentiary Notices Styled as Motions
Some
courts have held that giving notice of intent to use
evidence, even if captioned as a motion of some sort, is not
a pretrial motion for purposes of § 3161(h)(1)(D).
See, e.g., United States v. Van Smith, 530
F.3d 967 971 (D.C. Cir. 2008); United States v.
Mentz, 840 F.2d 315, 329 (6th Cir. 1988). On this basis,
Suggs attacks the Government's Motion in Limine
(ECF No. 97), which led to five excludable days in block C,
as nothing more than an evidentiary notice masquerading as a
motion-likely because the Government knew it needed to pad
the Speedy Trial clock. (ECF No. 123 at 6-8.) The Court need
not decide whether the Tenth Circuit would ...