United States District Court, D. Maryland
MEMORANDUM OPINION
Peter
J. Messitte, Judge
The
Court has before it the parties' Consent Motion to
Exclude Time Pursuant to 18 U.S.C. § 3161 (ECF No. 76),
and their Consent Motion to Continue the Motions Hearing and
Trial (ECF No. 77). Although the Government and Defense
Counsel consent to the Motions, the request to exclude time
is the eighth such request in the case to date. The Court has
also received a letter from Defendant Kenneth Hart expressing
concern that he has been incarcerated pending trial for over
two years since a sealed Complaint was filed. Although
Defendant has not styled his letter as a motion or request,
given the numerous continuances heretofore, the Court writes
to address his concerns and in particular to explain the
justification for granting the Motion tolling the speedy
trial clock. For the reasons that follow, the Court GRANTS
the consent Motions (ECF Nos 76, 77). Trial will be set for
November 12-22, 2019.
I.
PROCEDURAL BACKGROUND
Defendant
was first indicted in this case on July 17, 2017. There were
three subsequent Consent Motions to toll the speedy trial act
clock filed on August 25, 2017 (ECF No. 14, 15) October 2,
2017 (ECF No. 18, 19), and November 12, 2017 (ECF No. 21,
22), all of which were granted. A Superseding Indictment was
filed on January 8, 2018. ECF No. 26. Shortly thereafter, on
January 19, 2018, Defendant's attorney at the time asked
to be terminated from the case. Substitute and current
counsel, Michael Lawlor, Esquire, was appointed on January
23, 2018. ECF No. 41. Over the next year and a half, the
parties filed four additional Consent Motions to toll the
speedy trial act clock-on February 2, 2018 (ECF No. 51, 52),
March 20, 2018 (ECF No. 56, 57), May 10, 2018 (ECF No. 58,
59), and July 12, 2018 (ECF No. 60, 61)-all of which were
granted. The final Motion tolled the clock until July 23,
2019, when trial was initially set. See Id. A Second
Superseding Indictment was filed on June 24, 2019.
On June
19, 2019, the Government and Defense Counsel sent a joint
email to Chambers explaining that both parties "believe
a continuance is appropriate both because the government has
recently produced additional discovery" and for other
evidentiary reasons, inquiring whether the Court would be
available to hold the trial in November 2019. The Court
confirmed it was available for trial during the month of
November. The Court subsequently received a letter directly
from Defendant, which was dated June 26, 2019 but received in
Chambers on July 1, 2019. ECF No. 74. In it, he expressed
concern over the fact that he has been incarcerated awaiting
trial for roughly two and a half years, which he believes
violates his Sixth Amendment right to a speedy trial. See
Id. The Court therefore asked the Government and
Defense Counsel to submit a more complete explanation of the
need to continue tolling the speedy trial act clock. Counsel
filed the Consent Motion to Toll the Speedy Trial Act Clock,
ECF No. 76, on July 9. 2019, and the Consent Motion to
Continue the trial, ECF No. 77, on July 10, 2019. At the
Court's request, the Government filed a Memorandum in
Support of these requests on July 19, 2019. ECF No. 81.
II.
LEGAL STANDARD
The
Speedy Trial Act provides that a defendant's trial must
commence within seventy days from the filing of the
indictment unless one of several exceptions applies. 18U.S.C.
§§ 3161(c)(1), (h). Exceptions include the filing
of a pretrial motion, 18 U.S.C. § 3161(h)(1)(D), other
proceedings including plea negotiations, 18 U.S.C. §
3161(h)(1), see United States v. Keita, 742 F.3d
184, 188 (4th Cir. 2014), the joining of a codefendant, 18
U.S.C. § 3161(h)(6), and "ends of justice"
reasons, 18 U.S.C. § 3161(h)(7)(A).
As to
an ends of justice continuance, the Speedy Trial Act excludes
any delay caused by a continuance granted at the request of
the Government, the defendant, or based on the court's
own judgment "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. at
§ 3161(h)(7)(A). Several courts have held that time
spent in plea negotiations is appropriately excluded pursuant
to the "ends of justice" justification when judge
finds that those interests outweigh the public's and the
defendant's interest in a speedy trial. See, e.g.,
United States v. Cano-Silva, 402 F.3d 1031, 1034 (10th
Cir. 2005) ("Periods of time devoted to negotiating plea
agreements . . . may be excluded if the district court"
determines that "'the ends of justice served by
[granting a continuance and excluding the time from
calculation] outweigh the best interest of the public and the
defendant in a speedy trial.'"); United States
v. Van Somerern, 118 F.3d 1214, 1218-19 (8th Cir. 1997)
("ends of justice" exclusion and section 3161(h)(1)
may in some cases permit a continuance or plea negotiations);
United Slates v. Fields, 39F.3d439, 445 (3d Cir.
1994); see also United Slates v. Robey, 831 F.3d
857, 863 (7th Cir. 2016) (court's "ends-of-justice
continuances" were "reasonable decisions because
they allowed [the defendant], at an early stage in the case,
to pursue the option of a plea agreement and still prepare
for trial"), cert, denied, 137 S.Ct. 2214 (2017);
but see United States v. Ramirez-Cortez, 213 F.3d
1149, 1155 (9th Cir. 2000) ("[negotiation of a plea
bargain is not one of the factors supporting [an
ends-of-justice] exclusion”) (quoting United States
v. Perez-Reveles, 715 F.2d 1348, 1352 (9th
Cir. 1983)).
III.
ANALYSIS
The
first Consent Motion tolling the speedy trial clock was filed
on August 25, 2017, ECF No. 14-thirty-nine days after July
17, 2017, the date Defendant was first indicted. ECF No. 12.
Since that date there have been no breaks in the tolling
motions. See ECF Nos. 18, 21, 51, 56, 58, 60. The clock is
currently tolled through July 23, 2019. ECF No. 61. All of
those Motions have been agreed to by both the Government and
Defense Counsel. If all of those Motions are deemed
appropriate, only thirty-nine of the seventy days on the
speedy trial act clock have passed. The Court finds they
were.
As an
initial matter, the Speedy Trial Act explicitly provides that
continuances may come “at the request of the defendant
or his counsel." 18 U.S.C. § 3161(h)(7)(A)
(emphasis added). Several courts have endorsed the idea that
"in the ordinary course and within the confines of the
STA exclusion provisions, Defense Counsel has the power to
seek an STA continuance without first informing his client or
obtaining his client's personal consent." United
States v. Gates, 709 F.3d 58, 66 (1st Cir. 2013) (citing
United States v. Bryant, 134 F.3d 364 (4th Cir.
1998) (explaining that the district judge was entitled to
conclude defendant's counsel spoke for him in the STA
context)). The Court is skeptical of Defendant's
assertions that he never consented to any of the seven prior
continuances in this case. At those times, "he never
asked to proceed pro se or even expressly requested the
appointment of new counsel.[1] Bryant, 134 F.3d 364 at *3. Two
separate lawyers have had to get up to speed on the case,
notably after Defendant's first attorney spent several
months on the case, beginning shortly after the Superseding
Indictment was filed. The Court is entitled to presume that
at the time of the previous continuances, Defendant's
attorneys spoke for him.
Overall,
the case is complex-including charges ranging from sex
trafficking to narcotics offenses, several victims, and three
other related federal cases, see ECF No. 76 at 6-such that
sufficient time for counsel to study the case has been called
for throughout. Furthermore, each of the seven previous
continuances, as well as the one at issue, is independently
justified.
The
first Consent Motion tolling the speedy trial clock noted
that4i[t]he parties require additional time to
complete and review discovery... and to explore whether the
case may be resolved short of trial." ECF No. 14 at 2.
The first consent motion was therefore appropriate, given
both parties' interest in preparing for trial, and to
allow them to engage in plea negotiations. After this first
motion was granted, on September 18, 2017, Defendant's
then-attorney requested a preliminary criminal history
report, to determine how his history might affect "the
non-mandatory sentencing guidelines and applicable sentencing
statutes." ECF No. 16 at 1. Given Defendant's
apparent extensive criminal history, the Court granted the
Motion and excluded the time for the preparation of that
report.
The
second Consent Motion tolling the speedy trial clock was
filed on October 2, 2017 and requested that time be tolled
starting September 25. 2017 to allow for the completion of
discovery, and further plea negotiations in view of the U.S.
Probation Office's completed pre-plea criminal history
report. ECF No. 18 at 2. Again, given the ongoing plea
negotiations, the request ...