Summary
In Noble, however, the court found that a speedy trial violation had occurred where the district court failed to schedule a hearing or take any other action on pending motions for two lengthy periods of time without any justification.
Summary of this case from United States v. GaltneyOpinion
Criminal No. 1:17-05
12-21-2020
UNITED STATES of America v. Robert Earl NOBLE, Defendant.
Marshall J. Piccinini, U.S. Attorney's Office, Erie, PA, for United States of America.
Marshall J. Piccinini, U.S. Attorney's Office, Erie, PA, for United States of America.
OPINION AND ORDER
Stephanie L. Haines, United States District Judge
I. Introduction
On February 14, 2017, Defendant Robert Earl Noble ("Defendant") was indicted by a federal grand jury in Erie, Pennsylvania, and charged with one count of possession with intent to distribute twenty-eight (28) grams or more of crack cocaine on or about December 1, 2016. (ECF No. 1). As described more fully herein, since proceeding pro se , Defendant has filed a multitude of duplicative motions and filings. On May 27, 2020, this case was reassigned from the Honorable David S. Cercone to this member of the Court. Upon review of the pending motions, including Defendant's Motion to Dismiss Based on Unnecessary Delay (ECF No. 70) and the Response of the Government thereto (ECF No. 76), the Court ordered the Government to file a position statement to account for the amount of days that have elapsed in this case relative to the Speedy Trial Act and for Defendant to thereafter file a response. The Court has reviewed the Government's Statement of Position (ECF No. 130) and Defendant's Response to Government's Statement of Position (ECF No. 133). For the reasons set forth below, the Court will DISMISS the Indictment in this matter because of the violation of the Speedy Trial Act and this dismissal shall be WITH PREJUDICE.
II. Procedural History
Defendant had his initial appearance on February 22, 2017 and was advised he had fourteen days to file his pretrial motions (ECF No. 17). On March 7, 2017, Defendant filed a motion for an extension of time to file pretrial motions (ECF No. 20) and requested the period from March 7, 2017 through April 24, 2017 be excluded under the Speedy Trial Act in the interests of justice, which was granted by the Court (ECF No. 21). From April 24, 2017 to October 23, 2017, Defendant filed five more motions (ECF Nos. 22, 24, 26, 28, and 30) seeking extensions of time to file pretrial motions and requesting Speedy Trial Act exclusions for those corresponding periods of time in the interests of justice, which were granted by the Court (ECF Nos. 23, 25, 27, 29, and 31).
On October 23, 2017, Defendant filed a Motion to Compel Discovery (ECF No. 32) and the Government filed a timely response (ECF No. 41). That motion sought to discover the dates, times, and places of two alleged controlled buys of illegal drugs that allegedly formed the basis for the search warrant whose execution led to Defendant's arrest. The Court issued an Opinion and Order on this motion on September 20, 2018 (ECF Nos. 67 and 68) that denied the motion.
On October 26, 2017, Defendant filed a Motion for a Detention Hearing (ECF No. 35), and a hearing was held on November 7, 2017, wherein the Court ordered Defendant be detained pending trial (ECF No. 38). On November 20, 2017, Defendant filed a Motion to Dismiss Counsel and Proceed Pro Se (ECF No. 42), a Motion for Leave to Proceed In Forma Pauperis (ECF No. 43), a Motion for Update/Status of Case (ECF No. 44), a Motion to Compel Counsel to Withdraw (ECF No. 45), and a Motion to Determine Counsel (ECF No. 46). After the Court conducted a hearing, the Court issued an order on January 18, 2018, resolving these motions and permitting Defendant to proceed pro se (ECF No. 50).
After being granted permission to proceed pro se , Defendant filed numerous pretrial motions in this case. Though styled differently, the motions assert similar arguments and are particularly duplicative as to the relief requested from the Court. On January 17, 2018, Defendant filed a Motion to Disclose Exculpatory Evidence (ECF No. 51) and a Motion to Suppress (ECF No. 53). On March 2, 2018, the Government filed responses (ECF Nos. 63 and 64), which were followed thereafter on March 16, 2018, by a sur-reply from Defendant (ECF No. 65).
On June 2, 2018, Defendant filed a motion seeking to dismiss with prejudice the Indictment in his case based upon alleged prosecutorial misconduct (ECF No. 66). The Government did not file a timely response to this motion. Defendant's motion filed at ECF No. 66 has not been ruled on by the Court.
On July 10, 2020, the Government sought leave of court to respond to Defendant's June 2, 2018 motion to dismiss (ECF No. 122), which the Court granted (ECF No. 123). Thereafter, the Government, more than twenty-five (25) months after Defendant's motion was filed, then filed a response to Defendant's ECF No. 66 motion to dismiss on July 20, 2020 (ECF No. 126).
On October 5, 2018, Defendant filed two motions (ECF Nos. 70 and 71). In his first motion, entitled "Motion to Dismiss Indictment for Unnecessary Delay," Defendant asserts the delay in his case is a violation of the Sixth Amendment, as he has been held for nineteen (19) months (at that time) in federal detention. He further argues he has been prejudiced by this delay through harm to his relationships, livelihood, and his chance of getting evidence and witnesses for his defense. The Government filed a timely response to Defendant's Motion to Dismiss and asserts there has not been a speedy trial clock violation, nor a violation of Defendant's Sixth Amendment rights (ECF No. 76). Citing United States v. Tinklenberg , 563 U.S. 647, 656, 131 S.Ct. 2007, 179 L.Ed.2d 1080 (2011), the Government contends that only fourteen (14) Speedy Trial Act days have elapsed, and that the remainder of the time is excludable due to pending motions and continuances granted by then-presiding Judge Cercone in the interests of justice. Defendant's motion filed at ECF No. 70 has not been ruled on by the Court.
In his second motion of October 5, 2018, Defendant filed a Motion for Reconsideration of the Opinion and Order at ECF Nos. 67 and 68 (ECF No. 71). The Government responded to this motion on October 31, 2018 (ECF No. 77). On October 29, 2018, Defendant filed three "Amendments" (ECF Nos. 73, 74, and 75) to his pending Motion for Reconsideration (ECF No. 71), Motion to Dismiss (ECF No. 70), and Motion to Suppress Evidence/Request for Franks Hearing (ECF No. 53). The Government did not file a response to the "Amendments" filed by Defendant at ECF Nos. 73, 74, and 75. Additionally, on November 19, 2018, Defendant filed a Motion to Exclude Evidence (ECF No. 79) to which the Government did not file a response.
A suppression hearing was held before Judge Cercone on January 28, 2019. The Government introduced testimony and evidence in support of its position. This hearing was continued until March 4, 2019, in order to permit Defendant to present additional evidence. Defendant filed a supplemental brief on February 4, 2019 (ECF No. 83). During the hearing on March 4, 2019, the Court ruled Defendant's request to suppress his confession was denied, and the Court also denied Defendant's request for a Franks Hearing. Defendant filed a Motion to Reconsider on March 22, 2019 (ECF No. 89), to which the Government responded on April 12, 2019 (ECF No. 98), and Defendant replied on April 19, 2019 (ECF No. 98). Defendant's motion filed at ECF No. 89 has not been ruled on by the Court.
From March 4, 2019 to May 28, 2019, Defendant filed a series of motions (ECF Nos. 85, 89, 93, 94, and 95), to which the Government filed responses (ECF Nos. 88, 97, and 101). Among these motions is Defendant's Motion to Dismiss (ECF No. 93) to which the Government responded on May 6, 2019 (ECF 101). Defendant then filed a sur-reply (ECF No. 102) on May 28, 2019. Defendant's motions filed at ECF Nos. 85, 89, 93, and 95 have not been ruled on by the Court. On September 30, 2019, Defendant filed a Motion for Discovery (ECF No. 105) and the Government was granted until November 12, 2019 to file a response, which it did on November 12, 2019 (ECF No. 107). Defendant then filed a sur-reply on December 3, 2019 (ECF No. 108). Defendant's motion filed at ECF No. 105 has not been ruled on by the Court.
On March 13, 2020, Chief Judge Mark R. Hornak issued an Administrative Order at 2:20-mc-394-MRH, and subsequently issued orders amending and updating that order on April 16, 2020, May 29, 2020, August 27, 2020, and October 30, 2020, in response to the COVID-19 pandemic. These administrative orders have designated the time period from March 13, 2020 through February 8, 2021 as "excluded time" under the Speedy Trial Act. During this "excludable" time period, on April 1, 2020, Defendant filed a Motion to Review Detention Order (ECF No. 109), to which the Government filed a response on April 16, 2020 (ECF No. 111).
On May 27, 2020, this case was reassigned from the Honorable David S. Cercone to the undersigned member of the Court (ECF No. 115). Following the reassignment, the Court reviewed the docket in this matter, including the numerous pending motions filed by Defendant. Thereafter, the Court held a status conference, via Zoom video teleconference, on June 12, 2020. During this status conference, Defendant identified motions he filed that he believed the Government failed to respond to, and the Court asked the Government to review the docket and then file a motion seeking leave to file a response to any such outstanding motions (ECF No. 117). The Court specifically referenced a recently filed and pending detention motion that appeared to request Defendant's release based on the recent COVID-19 pandemic (ECF No. 109). Additionally, the Court noted that, in its review of the docket, the Government never responded to and the Court never scheduled a hearing on Defendant's Motion for Review of Detention Order, filed by Defendant on January 17, 2018 (ECF No. 52). The Court indicated to the parties it would schedule a hearing on Defendant's two outstanding detention motions (ECF Nos. 52 and 109) as soon as possible.
On June 18, 2020, the Court held a hearing on both of Defendant's pending detention motions. At the hearing, Defendant stated his motion for review of his detention at ECF No. 109 was not related to any conditions caused by the COVID-19 pandemic, but, was based on other arguments in his motions at ECF Nos. 52 and 109. Following the hearing, on June 26, 2020, the Court issued a Memorandum and Order denying the two motions for review of detention order and ordered Defendant to remain detained pending trial (ECF No. 121). Defendant filed a motion for reconsideration on this decision (ECF No. 124), and the Government filed a response thereto (ECF No. 128). The Court denied reconsideration of its decision (ECF No. 132).
On July 23, 2020, the Court ordered that, upon review of Defendant's pending motions, specifically, Defendant's Motion to Dismiss filed at ECF No. 70, and notwithstanding the response of the Government filed at ECF No. 76, the Government was to file a Statement of Position relative to 18 U.S.C. § 3161, et seq. and 18 U.S.C. § 3162(a)(2) to detail the excludable time periods under the Speedy Trial Act from the commencement of the case through the present, with cited authority for each proposed excluded time period by August 6, 2020 (ECF No. 127). Defendant was to file a Response to the Government's Statement of Position by August 20, 2020. The Government filed its position statement (ECF No. 130) and Defendant filed a response (ECF No. 133).
In its position statement, the Government contends that no Speedy Trial Act violation has occurred as only thirteen (13) non-excludable days have elapsed. Alternatively, the Government asserts that, if there has been a Speedy Trial Act violation, Defendant has not been prejudiced and the dismissal of the Indictment should be without prejudice. In his response, Defendant reiterates the allegations contained in his Motion to Dismiss filed at ECF No. 70, including that there has been a Speedy Trial Act violation in his case, and that he has suffered prejudice due to the amount of time his case has been pending before the Court.
In general, Defendant's numerous and various filings allege a myriad of disjointed conspiratorial allegations of prosecutorial misconduct, including allegations the Government tampered with and/or altered the evidence in this case, which the Court notes are wholly unsupported by the record. However, while his fragmented allegations of evidence tampering are without merit, Defendant has clearly and specifically asserted that a Speedy Trial Act violation has occurred in his case. After reviewing the Government's position statement on this issue, and Defendant's response thereto, the Court will review the non-excludable days that have elapsed in this case.
Defendant also asserts a violation of his Sixth Amendment rights on essentially the same basis. However, as the Speedy Trial Act violation is dispositive of the case, the Court need not reach a determination on the Sixth Amendment issue.
III. Legal Analysis
A. Calculation of Non-Excludable Days
The Speedy Trial Act requires that a criminal defendant go to trial "within seventy days of the filing date ... 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 the time limit established by Section 3161(c), as extended by 18 U.S.C. § 3161(h), the information or indictment shall be dismissed upon motion of the defendant. 18 U.S.C. § 3162(a)(2). The defendant bears the burden of proof of supporting such motion. Id. "On a defendant's motion to dismiss an indictment for Speedy Trial Act violations, the district court must identify and tally the days included on the speedy trial clock and count toward the seventy-day limit. Zedner v. United States , 547 U.S. 489, 507, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006). When calculating delays under the Speedy Trial Act, the district court excludes from the count days on which triggering events occur. See United States v. Lattany , 982 F.2d 866, 871-72 (3d Cir. 1992). Weekend days and holidays are included in the Speedy Trial count. See United States v. Tinklenberg , 563 U.S. 647, 661, 131 S.Ct. 2007, 179 L.Ed.2d 1080 (2011). Under the Speedy Trial Act, however, certain "periods of delay shall be excluded ... in computing the time within which the trial of any such offense must commence." 18 U.S.C. § 3161(h). Relevant here, the Speedy Trial Act excludes:
Any period of delay resulting from other proceedings concerning the defendant, including ...
...
(D) 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;
...
(H) 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 ...
See 18 U.S.C. §§ 3161(h)(1)(D) and (H).
Subsections (D) and (H) are the two operative provisions for calculating the non-excludable time in this case. Section 3161(h)(1)(D) excludes "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," and 3161(h)(1)(H) excludes "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." 18 U.S.C. §§ 3161(h)(1)(D) and (H) (emphasis added). Reading these two provisions together, when a pretrial motion is filed, time is excluded under subsection (D) from the filing of the motion through responses to the conclusion of any hearing on that motion, at which time, subsection (H) is triggered and up to thirty (30) days are excluded while the motion is under advisement by the court. If there is not a hearing, then the motion is "under advisement" per subsection (H) as soon as the responses/replies are filed and the motion is then ripe for resolution. United States v. Greer , 527 F.App'x 225, 230 (3d Cir. 2013), vacated on other grounds , 572 U.S. 1056, 134 S.Ct. 1875, 188 L.Ed.2d 905 (2014) ; United States v. Felton , 811 F.2d 190, 196-197 (3d Cir. 1987).
In this case, Defendant had his initial appearance on February 22, 2017, and filed his first motion for extension of time on March 7, 2017, wherein he sought an extension of time to file pretrial motions and to exclude the period from March 7, 2017 through April 24, 2017 from being calculated under the Speedy Trial Act in the interests of justice (ECF No. 20). This motion was granted by the Court (ECF No. 21). Thereafter, from April 24, 2017 to October 23, 2017, Defendant filed, and the Court granted, five motions seeking extensions of time to file pretrial motions and exclude the corresponding periods of time in the interests of justice. During this time period, the Court agrees with the Government's position that thirteen (13) non-excludable days elapsed.
The time period from October 23, 2017 to January 17, 2018 is excludable under Section 3161(h)(1)(D) due to Defendant's pretrial motions filed at ECF Nos. 32, 35 and 42-46, the responses thereto, and the November 7, 2017 and January 17, 2018 hearings. Thereafter, during the time period from January 17, 2018 through March 4, 2019, Defendant filed several pretrial motions arguing, inter alia , that certain evidence against him should be suppressed and requesting a Franks hearing. The Government filed timely responses to these motions and the Court conducted two days of a hearing on those issues on January 28, 2019 and March 4, 2019. The Government argues that under Henderson v. United States , 476 U.S. 321 329-30, 106 S.Ct. 1871, 90 L.Ed.2d 299 (1986), the days that elapsed during this time period are excludable and the Court agrees, as discussed in detail, infra.
Though no written opinion was issued, many of the issues raised in Defendant's pending motions were ruled on from the bench at the hearings on these suppression issues, including the denial of a Franks hearing and the denial of Defendant's various requests to suppress evidence.
The time period from March 4, 2019 to May 28, 2019 is also excludable because of the motions and filings at ECF Nos. 85, 89, 93, 94, and 95. The last filing in this period was Defendant's sur-reply at ECF No. 102, which was filed on May 28, 2019. The time from May 28, 2019 to June 27, 2019 is also excludable under Section 3161(h)(1)(H) as the "under advisement" period. However, the time from June 28, 2019 to September 29, 2019 exceeds permissible parameters for these motions to be "under advisement," and due to the absence of any intervening excludable event or tolling order, ninety-four (94) non-excludable days elapsed in direct contravention of the Speedy Trial Act.
The time from September 30, 2019 to December 3, 2019 is excludable under Section 3161(h)(1)(D) with the filing of Defendant's Motion to Compel Discovery (ECF 105), the response thereto (ECF No. 107), and Defendant's sur-reply (ECF 108). Likewise, the time from December 3, 2019 to January 2, 2020 is excludable under Section 3161(h)(1)(H) as "under advisement by the court." However, the time from January 3, 2020 to March 12, 2020 (the day before the entry of Chief Judge Hornak's Administrative Order of March 13, 2020), exceeds the time period for these motions to be "under advisement," and due to the absence of any intervening excludable event or tolling order, sixty-nine (69) non-excludable days elapsed in direct contravention of the Speedy Trial Act.
As a result of the successive administrative orders entered by Chief Judge Hornak, which exclude all Speedy Trial Act time from March 13, 2020 until February 8, 2021 in accordance with Section 3161(h)(7)(A), no additional non-excludable days have elapsed in this case. However, even excluding all the time connected to motions, responses, replies, hearings, and "under advisement" periods, the processing of this case results in one hundred and seventy-six (176) non-excludable days under the Speedy Trial Act, which is more than one hundred (100) days beyond the time permitted under 18 U.S.C. § 3161(c)(1).
B. Application of Henderson v. United States , 476 U.S. 321 (1986).
The United States Supreme Court held in Henderson that "[W]hen a pretrial motion requires a hearing[,] [3161(h)(1)] subsection (F)[now (D)] on its face excludes the entire period between the filing of the motion and the conclusion of the hearing ... whether or not [the] delay in holding that hearing is ‘reasonably necessary.’ " Henderson v. United States , 476 U.S. 321, 330-331, 106 S.Ct. 1871, 90 L.Ed.2d 299 (1986). In Henderson , defendant was convicted of charges arising out of the manufacture, possession, and distribution of controlled substances. Id. at 322, 106 S.Ct. 1871. The Speedy Trial Act's seventy-day period commenced on September 3, 1980, however, overlapping filings by defendants and the government kept a suppression motion pending from its filing on November 3, 1980, through a hearing on that motion on March 25, 1981. Id. at 323-324, 106 S.Ct. 1871. The court deferred decision on the motion pending receipt of post-hearing submissions from the parties, the last of which was filed on December 15, 1981. The district court finally denied the motion to suppress on January 19, 1982. Id. at 324, 106 S.Ct. 1871.
In Henderson , from January 25, 1982 to May 10, 1982, both parties filed additional motions before the district court: on January 25, 1982 the government moved to set the case for trial, and on March 23, 1982 defendants moved to reconsider the motion to suppress. Id . On February 3, 1982, the court held a hearing on the government's motion and granted a continuance through April 21, 1982, to allow defense counsel time to file a motion for reconsideration of the order denying the suppression motion. Id. After a hearing on May 10, 1982, the court denied defendants’ motion to reconsider the motion to suppress and set a trial date of September 13, 1982. Id. The court also entered an order excluding, for purposes of the Speedy Trial Act, the time from May 10, 1982 to September 13, 1982 based on a provision of the Act that allows such exclusion by the Court to satisfy the "ends of justice." Id . On July 23, 1982, the defendant filed a motion to dismiss for violation of the Speedy Trial Act. Id. at 325, 106 S.Ct. 1871. The district judge held a hearing almost two months later, on September 8, 1982, and denied the motion from the bench on that date. Id. Thirty days later, the judge filed a memorandum and order outlining his reasons for denying the motion. Id. At that time, the judge also entered an order excluding the time from October 8, 1982 to November 1, 1982, again based on the "interests of justice." Id. Trial commenced on November 1, 1982. Id.
The Henderson Defendants appealed their convictions, arguing, inter alia , the district court could exclude from its Speedy Trial Act computation only delays "reasonably necessary," a position that was supported by rulings from several other circuits across the country. Id. The Ninth Circuit affirmed the district court and held that the Speedy Trial Act "excludes delays resulting from pretrial motions without qualification." Id. The Supreme Court granted certiorari to resolve the dispute between the circuits. Id.
In its review of the case, the Supreme Court held there were only sixty-nine (69) non-excludable days of delay, and therefore the Act was not violated. Id. at 333, 106 S.Ct. 1871. The Court reasoned that the Speedy Trial Act's exclusion from the seventy-day period for delay is not limited to what is a necessary or reasonable delay, rather the clock stops automatically during all pretrial motions and while the court is awaiting additional filings from parties that are "needed for prompt disposition of the motion." Id. at 321, 106 S.Ct. 1871.
In the case at issue, the time period from January 17, 2018 to May 28, 2019 is very similar to the circumstances in Henderson . During this time period, Defendant Noble filed multiple pretrial motions, the Court held two days of a hearing on the issues raised in those motions, and multiple pretrial and post-hearing motions were then filed, responded to, and even replied to in some instances. While a review of the docket suggests there were non-excludable days during this time period, the Government argues that under a Henderson analysis, the days that elapsed during this timeframe are excludable, and the Court agrees.
In its position statement, the Government also argues the time period from June 28, 2019 to September 29, 2019, and the time period from January 3, 2020 to March 12, 2020, are also excludable under a Henderson analysis, asserting two different theories. However, the circumstances in these two timeframes are readily distinguishable from the circumstances in Henderson , and the Court finds both time periods, in their entireties, are non-excludable days that are violative of the Speedy Trial Act.
1. Motion for Review of Detention Order filed at ECF No. 52
The Government first contends that the Court allowing Defendant to be heard on his Motion for Review of Detention Order (ECF No. 52), which was filed on January 17, 2018, excludes the entire time from that filing date to the June 26, 2020 hearing, a period in excess of twenty-nine (29) months. Other than a reference to Henderson , the Government cites no authority in support of this position. Moreover, it is of great significance and consequence that, for more than two years, the Government failed to respond to Defendant's Motion for Review of Detention Order at ECF No. 52, and the Court failed to take any action on this motion.
In scheduling a hearing on Defendant's Motion for Review of Detention Order, filed at ECF No. 109, the Court realized a hearing had never been held on the first detention motion Defendant had filed in 2018 (ECF No. 52). The Court's attempt to remedy this oversight by allowing Defendant to at last be heard on the motion he filed in 2018 at ECF No. 52, and finally ruling on that motion, should not act to trigger Henderson and deprive Defendant of the protections of the Speedy Trial Act. To hold otherwise suggests Defendant would be better served by the Court continuing to ignore the pending motion. The over two-year period of oversight and neglect by the Government and the Court on the detention motion filed at ECF No. 52 readily distinguishes this case from the active litigation and corresponding attentiveness of the district court in Henderson .
2. Future Hearings
The Government's second argument contends that the possible occurrence of future hearings on Defendant's pending motions acts to toll the Speedy Trial Act under Henderson . In Henderson , the Supreme Court explains that exclusions are permitted "of up to 30 days while the district court has a motion ‘under advisement.’ " The Court goes on to define "under advisement" as "30 days from the time the court receives all of the papers it reasonably expects." Henderson , 476 U.S. at 328-29, 106 S.Ct. 1871. The Senate Committee on the Judiciary explained that "[I]f motions are so simple or routine that they do not require a hearing, a necessary advisement time should be considerably less than 30 days." Id. at 329, 106 S.Ct. 1871. Therefore, after the thirty-day excludable time period ends, the speedy trial clock should no longer be tolled and should begin again, regardless on whether the court has issued a ruling. The Third Circuit has adopted the thirty-day limitation for a motion to be "under advisement" when no hearing is held in calculating non-excludable days. United States v. Greer , 527 F.App'x 225, 230 (3d Cir. 2013), vacated on other grounds , 572 U.S. 1056, 134 S.Ct. 1875, 188 L.Ed.2d 905 (2014) (finding only thirty days properly excludable as a result of defendant's Jencks request where no hearing was held); United States v. Felton , 811 F.2d 190, 196-197 (3d Cir. 1987) (finding a thirty-day limit applies to "under advisement" period).
The United States Court of Appeals for the Fifth Circuit followed Henderson's interpretation of "under advisement" in finding a violation of the Speedy Trial Act. United States v. Johnson , 29 F.3d 940 (5th Cir. 1994). In Johnson , the defendant, who was already on parole for a prior offense, was formally indicted on July 1, 1992, on several drug counts. Id. at 941. The trial did not occur until 473 days later. Id. at 942. Two months before trial, defendant moved to dismiss his indictment based upon the Speedy Trial Act. The Fifth Circuit held that the Speedy Trial Act was violated and dismissed the indictment without prejudice, allowing the case to be retried. Id. at 941. The Fifth Circuit followed the Henderson definition that "[o]nce the court has received all submissions from counsel," the motion is considered "under advisement," and recognized that Subsection J [now H] applies where a motion does not require a hearing. Id. at 943. This subsection, with no hearing scheduled, allows exclusionary time for a "prompt disposition" of the motion. Id. "The point at which time will no longer be excluded is determined by Subsection J [now H], which permits an exclusion of thirty days from the time a motion is actually ‘under advisement.’ " Id. The Fifth Circuit reasoned that a motion should be considered under advisement for Speedy Trial Act purposes on the day that the "last paper concerning the motion at issue was filed with the court" and used the thirty-day limitation to calculate the non-excludable time in four motions where no hearing was held, even when requested. Id. at 944-45. See also United States v. Ortiz , 23 F.3d 21, 28 n.6 (1st Cir. 1994) ("Although the record is not entirely clear on this point, the district court, which never ruled on [defendant's] motions, apparently treated them as motions which did not require a hearing, and which therefore only toll the 70-day period for 30 days.").
The Government argues the possibility the Court may schedule a hearing on a pending motion at some point in the future acts to indefinitely toll the Speedy Trial Act. This is not what Henderson holds and the Court will not apply Henderson in this fashion. Moreover, adopting the Government's argument is simply not practicable. Under the theory and application of Henderson espoused by the Government, it would be very difficult for both a defendant and the Government to calculate non-excludable time, in effect pausing the clock pending whether a court will hold a hearing on a motion. If the court does not hold a hearing on a pending motion and proceeds to trial, this would then result in a retroactive violation that could only be determined once trial commences. If the court eventually does hold a hearing, the entire time would be excluded, effectively ignoring the Act's mandates of "prompt disposition" and the thirty-day advisement period.
The Government specifically contends there are pending motions to dismiss (ECF Nos. 66 and 93) filed by Defendant that raise allegations "likely to require the scheduling of a hearing to permit the Defendant the opportunity to substantiate his claims," and the prospect of future hearings continues to toll the speedy trial clock. Not only is this argument an unsupported extension of Henderson , but it also is contrary to the litigation posture of the Government in this case. Most notably, the Government never requested a hearing on any of the motions/filings it now contends are likely to require a hearing. Specific to the motion to dismiss filed by Defendant on June 21, 2018 at ECF No. 66, the Government failed to file a timely response to this motion. After seeking leave of court, which was granted, the Government eventually filed a response to this motion to dismiss over two years later on July 20, 2020 (ECF No. 126). Specific to the motion to dismiss filed by Defendant on April 5, 2019 at ECF No. 93, the Government, in its response (ECF No. 101) asserts such motion to dismiss consists of arguments relating to evidence that Judge Cercone has already ruled upon. The Government also argues this motion to dismiss is frivolous and irrelevant as Defendant was never even charged with the controlled buys Defendant is objecting to in this motion.
The Government also contends there are three outstanding pleadings filed by Defendant on October 29, 2018 (ECF Nos. 73, 74, and 75) where Defendant appears to request a hearing, and should the Court deem a hearing necessary for the resolution of these pleadings, the scheduling of that hearing would place an additional pause on the speedy trial clock. As a preliminary issue, it is not apparent that the filings at ECF Nos. 73, 74, and 75 are even motions, as Defendant clearly styles them as "Amendments" to previously filed motions. Notably, the Government never filed responses to any of these filings, even after the Court requested the Government review the docket and seek leave of court to file any responses it wished to file to Defendant's various pending motions/pleadings.
In short, the motions and filings the Government states are likely to require a hearing do not plausibly require a hearing. Furthermore, finding the time periods of June 28, 2019 to September 29, 2019 and January 3, 2020 to March 12, 2020 are excludable would defeat the purposes of the Speedy Trial Act. See United States v. Bryant , 523 F. 3d 349, 359 (D.C. Cir. 2008) ("the District Court never held a hearing on the Rule 609 question, nor did it ever indicate that such a hearing might be required. Thus, once ... counsel failed to file a timely response ... the Rule 609 filing was ‘under advisement’ by the District Court. This meant that the trial judge could toll the speedy trial clock only for an additional 30 days while deciding the motion."). The Government cannot rely on the mere possibility of a hearing being scheduled to toll the speedy trial clock under 18 U.S.C. Section 3161(h)(1)(D) for months and/or years after motions are filed. The Court will not adopt the Government's argument that Henderson cures all the Speedy Trial Act violations in this case, and accordingly, finds the Indictment in this case must be dismissed.
IV. Dismissal With Prejudice
If a defendant is not brought to trial within the seventy-day limit, the Speedy Trial Act requires the charges in the charging document to be dismissed on motion of the defendant. 18 U.S.C. § 3162(a)(2) ; See also Zedner v. United States , 547 U.S. 489, 509, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006) (sanction for a violation of the Speedy Trial Act is dismissal). Section 3162(a)(2) then provides:
In determining whether to dismiss the case with or without prejudice, the court shall consider, among others, each of the following factors: the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of this chapter [ 18 U.S.C. §§ 3161 et seq. ] and on the administration of justice.
See 18 U.S.C. § 3162.
Although dismissal of the charges is required, "the district court retains broad discretion whether to dismiss the [charges] with or without prejudice." United States v. Abdush-Shakur , 465 F.3d 458, 462 (10th Cir. 2006).
In this case, the Government relies on the case of United States v. Stevenson , 832 F. 3d 412 (3d Cir. 2016) to argue that, if the Court finds the Speedy Trial Act has been violated, the Court should dismiss the case without prejudice. In the Stevenson case, defendant was first indicted on June 5, 2012 after a multipart investigation into a heroin distribution ring that operated out of a Scranton hip-hop radio station and recording studio called Hood Promo. Following the investigation, Stevenson and eight other people were arrested around the same time in connection with the Hood Promo conspiracy.
In Stevenson , the Third Circuit acknowledged the "number of Defendants and the complexity of the case resulted in a lengthy and sometimes hectic pretrial process:"
The next year involved a steady stream of pretrial motions and extension requests from the Defendants. Among them was a motion by Stevenson to suppress evidence seized from his residence for lack of probable cause to support the search warrant, which the District Court denied on October 25, 2013. From that day until February 7, 2014, the 70-day Speedy Trial Act clock was running (except for one excludable day). See 18 U.S.C. § 3161(c)(1), (h). Seizing on this
inappropriate delay, Stevenson filed a motion to dismiss on June 16, 2014. After the Government conceded that at least 103 non-excludable days had passed since Stevenson's arraignment, the District Court agreed with Stevenson that the Speedy Trial Act required dismissal of the first superseding indictment. The "chaotic nature" of the case resulted in a speedy trial clock violation, where the Government conceded that there were 103 non-excludable days in Stevenson's case ...
Id. at 421.
In affirming the district court's dismissal without prejudice and in applying the considerations under 18 U.S.C. § 3162(a)(2), the Third Circuit recognized that Stevenson was facing serious heroin and firearms charges. Also, while noting the Government certainly neglected its duties by failing to bring the case to trial, the Third Circuit found no reason to believe the Government had engaged in a "pattern of neglect." (internal citations omitted). Additionally, the Third Circuit opined that Stevenson was not prejudiced simply because the Government reached a plea agreement with two of his co-defendants and turned them against Stevenson during the delay, as there was no indication the delay impaired Stevenson's ability to mount an effective defense or that any witnesses or evidence became unavailable as a result of the delay.
In the instant case, contrary to the result in Stevenson , the application of the Section 3162(a)(2) factors requires dismissal with prejudice. As to the first factor to consider, there is no dispute Defendant is facing a serious drug charge. Defendant is charged in Count One with possession with intent to distribute twenty-eight (28) grams or more of crack cocaine, which carries a penalty of not less than five (5) years and not more than forty (40) years of imprisonment. See 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii). An appropriate measure of the seriousness of an alleged crime is "the punishment prescribed by statute." United States v. Melguizo , 824 F.2d 370, 371 (5th Cir. 1987). Generally, crimes that carry penalties of five years or more are considered serious offenses for the purposes of the Speedy Trial Act. See, e.g., United States v. Lewis , 611 F.3d 1172, 1180 (9th Cir. 2010) (holding crimes that carried maximum penalties of five years were serious offenses); United States v. Salgado-Hernandez , 790 F.2d 1265, 1268 (5th Cir. 1986) (noting with approval that the Seventh Circuit has held an offense punishable by imprisonment for five years is serious for purposes of Speedy Trial Act).
The second factor under the Act considers "the facts and circumstances of the case which led to the dismissal." 18 U.S.C. § 3162(a)(2). "This factor requires courts to consider the reasons for the delay: did it stem from ‘intentional dilatory conduct’ or a ‘pattern of neglect on the part of the Government,’ or rather, from a relatively benign hitch in the prosecutorial process?" Stevenson , 832 F. 3d at 420 (internal citation omitted). Ultimately, this factor aims to lay blame at the feet of either the defendant or the government (whether that be the prosecutor or the court). See United States v. Hastings , 847 F.2d 920, 925 (1st Cir. 1988) ; see also United States v. Bert , 814 F.3d 70, 80 (2d Cir. 2016). This is not, however, a simple binary determination. United States v. Erickson , 2020 WL 3001047, at *11, 2020 U.S. Dist. LEXIS 97508, at *30 (D.V.I. June 3, 2020). Rather, "the appropriateness of barring reprosecution increases in relatively direct proportion to the degree of culpability which attaches." Hastings , 847 F.2d at 925. At one end of the scale is where the delay results from "intentional noncompliance with the Act or from actions designed to gain unfair prosecutorial advantage." Id. ; see also Stevenson , 832 F.3d at 420. Such conduct weighs heavily in favor of dismissal with prejudice. Id. On the other end of the scale is where the Government committed "an isolated administrative oversight" or "[r]andom negligence." Hastings , 847 F.2d at 925. Somewhere in between these two extremes is where the "delay is occasioned by a pattern of governmental inattention." Stevenson , 832 F.3d at 420.
The Government has asserted, and the Court agrees, this case has been overly convoluted by Defendant's serial filing of duplicative motions. However, this case stands in stark contrast to the multidefendant, multicount "chaos" found in Stevenson that resulted in the Speedy Trial Act violation of thirty-three (33) days beyond the 70-day limit. This case is a single-count indictment, involving one defendant, that, while involving a serious offense, has been pending for more than 100 days beyond the 70-day limitation provided by the Speedy Trial Act. While Defendant chose to file extensive pretrial motions with the Court, there is nothing substantively complex or legally confounding about his repetitive motions.
The Government, in its position statement, argues it has not engaged in a "pattern of neglect" or "intentional dilatory conduct" in the case against Defendant, and rather, has filed numerous and lengthy responses to both original motions and requests for reconsideration, as well as supplied Defendant with multiple rounds of discovery in response to his varied inquiries. The Court agrees there is nothing in the record indicating the Government is implementing a strategy to needlessly complicate or delay this matter. However, the Government's inaction must also be considered. See United States v. Ramirez, 973 F.2d 36, 39 (1st Cir. 1992) ; see also United States v. Bert, 814 F.3d 70 (2d Cir. 2016) ("[D]istrict courts ... look to prosecutors for assistance as officers of the court ... [and they should] be alert to [Speedy Trial Act] calculations in order to aid the court in its enforcement of the [Speedy Trial Act]."); United States v. Moss, 217 F.3d 426, 431 (6th Cir. 2000) (dismissing indictment with prejudice where the government failed to notify the court the speedy trial deadline was approaching or had passed).
The Court's role in the Speedy Trial Act violation must also be analyzed. "In scrutinizing the circumstances which gave rise to the speedy trial violation --- the focus on the culpability of the delay-producing conduct --- the conduct of the court is included in the equation." Hastings, 847 F.2d at 925 . The Act controls the conduct of the parties and the court itself during criminal pretrial proceedings. United States v. Pringle , 751 F.2d 419, 429 (1st Cir. 1984). Not only must the court police the behavior of the prosecutor and the defense counsel, it must also police itself. Id. The Act is as much aimed at the delay caused by judicial congestion and mismanagement as it is aimed at the deliberate stalling of counsel. 120 Cong. Rec. 41618 (1974) (statement of Sen. Ervin). Id. "Where ... the delay-causing conduct is attributable to the sovereign (the court or the prosecutor), it inveighs progressively in favor of the accused. As we see it, the appropriateness of barring reprosecution increases in relatively direct proportion to the degree of culpability which attaches." Hastings, 847 F.2d at 925. In the instant case, the Court's delay and inattention also led to the violation of the Speedy Trial Act, and the Court must accept this responsibility. In reviewing Defendant's case, the periods of non-excludable delay are simply not attributable to Defendant and must be laid at the feet of the Court and the Government.
To be clear, while finding error on the Government's part, specifically under the Speedy Trial Act, the Court is in no way finding Defendant has shown any occurrence of prosecutorial misconduct in this case.
As to the final factor to consider under 18 U.S.C. § 3162(a)(2), the Government's position statement relies heavily on the following excerpt from Stevenson : "[t]he main considerations that courts have taken into account when examining this [third] factor are whether the defendant suffered actual prejudice as a result of the delay and whether the government engaged in prosecutorial misconduct that must be deterred to ensure compliance with the Act." Id. at 422 (quoting United States v. Howard , 218 F.3d 556, 562 (6th Cir. 2000) ). However, prior to Stevenson , the United States Supreme Court provided guidance on how this final factor should be interpreted. The Supreme Court in United States v. Taylor , 487 U.S. 326, 108 S.Ct. 2413, 101 L.Ed.2d 297 (1988) interpreted this Section to find that:
Section 3162(a)(2) ’s language establishes that, in determining whether to dismiss with or without prejudice, courts must consider at least the three factors specified in the section. The Act's legislative history indicates that prejudice to the defendant should also be considered before reprosecution is barred, and that the decision to dismiss with or without prejudice is left to the district court's guided discretion, with neither remedy having priority.
The Taylor court further explained that "[t]he longer the delay, the greater the presumptive or actual prejudice to the defendant, in terms of his ability to prepare for trial or the restrictions on his liberty." Id. at 340, 108 S.Ct. 2413. As more fully stated:
[I]nordinate delay between public charge and trial, ... wholly aside from possible prejudice to a defense on the merits, may seriously interfere with the defendant's liberty, whether he is free on bail or not, and ... may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.
Id. at 341, 108 S.Ct. 2413 (internal citations omitted).
In Taylor , the Supreme Court overturned the district court's finding that defendant's case should be dismissed with prejudice. In that case, on July 25, 1984, Larry Lee Taylor was indicted by a federal grand jury on charges of conspiracy to distribute cocaine and possession of 400 grams of cocaine with intent to distribute. Id. at 328, 108 S.Ct. 2413. Taylor failed to appear for trial and was eventually arrested, however, even with the time he was at-large excluded, the Act's seventy-day indictment-to-trial period was exceeded by fourteen (14) non-excludable days. Id. at 329, 108 S.Ct. 2413. In evaluating the factors as to whether the charges should be dismissed with or without prejudice, the district court stated the prosecution had been "lackadaisical" in the case, and there was "no excuse" for the Government's conduct, but did not find the Government acted in bad faith or that there was a pattern of neglect by the prosecution. Id. at 330, 108 S.Ct. 2413.
The United States Court of Appeals for the Ninth Circuit affirmed the dismissal with prejudice, and the Government appealed to the United States Supreme Court, which reversed the district court's finding that the dismissal should be with prejudice. In reviewing the case, the Supreme Court reasoned that:
The District Court did not explain how it factored in the seriousness of the offenses with which respondent was charged. Rather, the court relied heavily on its unexplained characterization of the Government conduct as "lackadaisical," while failing to consider other relevant facts and circumstances leading to dismissal. Seemingly ignored were the brevity of the delay in bringing respondent to trial and the consequential lack of prejudice to respondent, as well as respondent's own illicit contribution to the delay in failing to appear for trial. The court's desire to send a strong message to the Government that unexcused delays will not be tolerated is by definition implicated in almost every case under the Act, and, standing alone, does not suffice to justify barring reprosecution in light of all the other circumstances present.
Id. at 343, 108 S.Ct. 2413.
The Taylor Court states a finding the Government acted in bad faith would have altered the balance of the factors, but Taylor does not go so far as to state the lack of such a finding is determinative of whether the dismissal should be with or without prejudice. Id. at 339, 108 S.Ct. 2413. To the contrary, the opinion focuses on the district court's duty to fully analyze the relevant factors and circumstances that led to the dismissal, such as the brief fourteen (14) day violation of the Speedy Trial Act, the lack of prejudice with such a short time period of delay, and the defendant's own contributions to the delay when he failed to appear for trial.
In the case at bar, the Government argues the Third Circuit's analysis in Stevenson requires a finding that Defendant has not suffered prejudice because he has not been affected in his ability to properly defend the case at trial. Defendant has the burden under the Speedy Trial Act to show specific prejudice. See Stevenson , 832 F.3d at 422. Here, Defendant has repeatedly asserted the delay in his case has prejudiced his ability to prepare for trial. (ECF Nos. 70 and 133). The Court is unaware of any "witness or evidence [that] became [un]available as a result of the delay." See Stevenson , 832 F.3d at 422. Nonetheless, Defendant asserted, back in 2018, he has been prejudiced by the delay in this case through harm to his relationships, livelihood, and his chance of getting evidence and witnesses for his defense, and continues to assert this prejudice and the deprivation of his liberty. (ECF Nos. 70 and 133). In response, the Government summarily states Defendant is not prejudiced, without further explanation. (ECF No. 130). The Government also does not describe any facts in support of its position that Defendant's ability to defend himself at trial has not been affected.
The Government also does not address the restrictions on defendant's liberty identified as considerations in Taylor . Defendant was indicted on February 17, 2017 and has remained incarcerated since that time. In accordance with 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii), Defendant is facing a mandatory minimum sentence of sixty (60) months in federal prison. Defendant has been imprisoned and awaiting trial on these charges for approximately forty-six (46) months, and the reprosecution of this case would undoubtedly extend Defendant's pretrial incarceration even further.
The Court cannot disregard Defendant's assertion of prejudice in light of the almost four years he has been incarcerated awaiting trial. This lengthy period of pretrial incarceration for his single-count Indictment, and the likely continued incarceration during reprosecution, weighs in favor of dismissal with prejudice. See United States v. Moss , 217 F.3d 426 (6th Cir. 2000) (holding that "the impact on [the defendant's] liberty" after "be[ing] incarcerated for two years" was significant); US v. Tinklenberg , 563 U.S. 647, 656, 131 S.Ct. 2007, 179 L.Ed.2d 1080 (2011) (dismissing with prejudice defendant's indictment for federal drug and gun charges after calculating seventy-six (76) non-excludable days finding that reprosecution would be contrary to justice when defendant already served his sentence); United States v. Clymer , 25 F.3d 824, 831-32 (9th Cir. 1994) (considering total delay of 522 excludable and non-excludable days and holding that " ‘the sheer length of the period involved’ weighs heavily in favor of dismissal with prejudice.").
There is no dispute Defendant's crime in this case is a serious offense. Possession with intent to distribute twenty-eight (28) grams or more of crack cocaine is a significant and profoundly concerning crime. The conduct of the Government and the Court that caused the delay in bringing this charge to trial, while not intentional, demonstrates the disregard for the Speedy Trial Act and the public's right to have its Government and Court administer that Act in this case. The absence of a finding of bad faith on the part of the Government does not supersede the Court's and the Government's role in the circumstances of the dismissal of this case or the restrictions on Defendant's liberty. See United States v. Reese , 2019 WL 3252643, 2019 U.S. Dist. LEXIS 120527 (M.D. Pa. July 19, 2019) (district court determined that the 3162(a)(2) factors all weighed in favor of dismissal with prejudice, despite finding no bad faith or prosecutorial misconduct on the part of the Government.). Defendant has not contributed to the one-hundred seventy-six (176) non-excludable-day delay in this case and has been incarcerated while awaiting trial for almost four years. Finally, Defendant has alleged prejudice in the ability to try his case, as well as suffered harm to his relationships and livelihood, and the Government has offered no facts otherwise. Considering these factors together, the Court finds that a dismissal without prejudice, which would permit reindictment of Defendant, would clearly frustrate the Speedy Trial Act's purposes of protecting and effectuating defendants’ rights to a speedy trial and furthering the interests of the public in the fair and timely resolution of criminal cases.
V. Conclusion
For the reasons set forth above, the Court will dismiss the Indictment in this matter with prejudice. An appropriate order will follow.
ORDER
AND NOW, on this 21st day of December, 2020. upon consideration of Defendant's pending motions, specifically Defendant's motion at ECF No. 70, the Government's response at ECF No. 76, the record, and the position statements of the parties relative to 18 U.S.C. § 3161 et seq. , and 18 U.S.C. §§ 3162(a)(2) (ECF Nos. 130 and 133), and for the reasons set forth in the Court's Opinion filed this day:
IT IS ORDERED that Defendant's Motion to Dismiss filed at ECF No. 70 is hereby GRANTED. The Indictment in this matter is hereby DISMISSED WITH PREJUDICE; and
IT IS FURTHER ORDERED that all remaining pending motions/filings (ECF Nos. 51, 53, 66, 71, 73, 74, 75, 79, 85, 89, 93, 95, 105, 129, and 134) are hereby DENIED AS MOOT; and
IT IS FURTHER ORDERED that Defendant Robert Earl Noble be RELEASED IMMEDIATELY from the federal custody of the United States Marshals Service; and IT IS FURTHER ORDERED that the Clerk of the Court shall remove this case from the Court's active docket.