United States v. Suggs

          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 ...