Opinion
Criminal No. 03-700.
March 4, 2004
MEMORANDUM
On March 3, 2004, the Court held a hearing on two pretrial motions — Defendant's Motion to Vacate the Pretrial Detention Order and Impose Conditions of Release Pending Retrial and Continuance of Time for the Commencement of Trial (Docket No. 55), and the government's Motion for a Continuance (Docket No. 57).
The background of this case is set forth in the Court's Memorandum dated February 18, 2004 and will not be repeated here. Following the government's securing of body samples from the Defendant pursuant to the search warrant approved by this Court, the government determined that the Federal Bureau of Investigation ("FBI") laboratory would not be able to complete its examination and report thereon in time for the trial to begin at the next scheduled trial date of March 8, 2004. The government, therefore, moved for a continuance of the trial, and the Defendant countered that he would object to any continuances unless he was released to home detention.
At the hearing on March 3, 2004, the Court pressed the government to submit the testing samples to a private laboratory either as an alternative to, or jointly with, the FBI. After a brief recess, the attorney for the government advised that the U.S. Attorney's Office could not get any commitment from the FBI as to when their examination would be completed, and subject to final Department of Justice approval for retention of expert witnesses, the government would engage a private laboratory, the identity of which was disclosed at the hearing, to examine the samples on a rush basis and which would promise that the attorney for the government would receive the results no later than March 22, 2004 and would forthwith make them available to defense counsel who may wish to engage a different expert to review the report.
Also disclosed at the hearing was the fact that because of motions filed since the end of the first trial in December, the deadline for the trial of this case was established to be March 29, 2004, pursuant to the Speedy Trial Act, 18 U.S.C. § 3161-3174 (2004).
Recognizing that the interest of justice requires that DNA testing should be completed prior to the start of trial, the Court determined that the trial would be delayed until March 29, 2004. It is possible that the DNA testing may exonerate the Defendant, or may provide additional evidence for the government to use at the trial, or may be inconclusive. In any result, since the Defendant raised the lack of DNA testing at the first trial, the Court believes that it is in the interest of justice, particularly since the Defendant's speedy trial rights will not be violated, that the trial be delayed until March 29, 2004 with the expectation that the DNA testing will have been completed by March 22, 2004, which will give both counsel one week for final preparation for trial to begin on March 29, 2004.
Courts have come to different conclusions as to whether the time to examine clothing and receive DNA reports should be "excludable time". Compare United States v. Dog Taking Gun, 7 F. Supp.2d 1118 (D. Mont. 1998) (granting the government's motion for a continuance in order to allow the defendant time to evaluate DNA evidence, but finding that the delay in trial caused by the continuance was not excludable time, notwithstanding the FBI laboratory testing backlog), with United States v. Van Chase, 137 F.3d 579 (8th Cir. 1998) (suggesting that the delay caused by a continuance compensating for the FBI laboratory backlog would be excludable time), and United States v. Drapeau, 978 F.2d 1072 (8th Cir. 1992) (finding that where the government exercised diligence in initiating DNA testing procedures, the delay in trial caused by the continuance did not violate the Speedy Trial Act).
Concerning the Defendant's Motion to Vacate the Pretrial Detention Order and Impose Conditions of Release Pending Retrial and Continuance of Time for the Commencement of Trial, additional facts were placed on the record concerning the Defendant's background at the hearing on March 3, 2004, specifically that the Defendant has a conviction for burglary, an outstanding warrant for a narcotics violation in New Jersey, and prison infractions since the existing detention order. Therefore, the Court denied the Defendant's Motion.
An appropriate Order follows.
ORDER
AND NOW, this 4th day of March, 2004, the Defendant's Motion to Vacate the Pretrial Detention Order and Impose Conditions of Release Pending Retrial and Continuance of Time for the Commencement of Trial (Docket No. 55) is DENIED. The government's Motion for Continuance of Trial (Docket No. 57) is GRANTED, and the trial is continued from March 8, 2004 to March 29, 2004, with the provision that the government shall engage a private laboratory to conduct the DNA testing, and shall make arrangements that the results are provided to the attorney for the government and the attorney for the Defendant no later than the close of business on March 22, 2004. The trial shall begin on March 29, 2004.