890 F. Supp. 504

UNITED STATES of America v. Derrick JOHNSON, Duala Chappell, Lamont V. Teele, Defendants.

Crim. A. No. 95-00017-C.

United States District Court, W.D. Virginia, Charlottesville Division.

June 7, 1995.

William J. Rogers, Sr., Staunton, VA, for Kawan Palmer.

Steven David Rosenfield, Charlottesville, VA, for James Anthony Walker.

Charles Yancey Sipe, Huber & Sipe, Char-lottesville, VA, for Wesla Hughes.

Raymond B. Fitzgerald, Jr., U.S. Attorney’s Office, Roanoke, VA, for the U.S.

MEMORANDUM OPINION

MICHAEL, District Judge.

This matter comes before the court on Defendants’ motion to dismiss with prejudice the current indictment on the grounds that the Government has not complied with the requirements of the Speedy Trial Act, 18 U.S.C. § 3161 et seq. In addition, the Defendants allege that their continued detention without trial violates the speedy trial guarantee of the Sixth Amendment. For the reasons set forth herein, the Defendants’ motion is denied.

I.

The procedural chronology is reviewed at the outset because it forms the essence of any speedy trial motion. Arrest warrants were issued for the Defendants on October 20, 1994. Defendants appeared before Magistrate Judge Crigler on October 26, 1994. An indictment, alleging that the Defendants conspired to possess and distribute crack cocaine, was handed down on November 9, *5051994.1 Acting pursuant to 18 U.S.C. § 3161(h)(1)(F), Judge Wilson issued an Order excluding the period of November 30, 1994 through March 14, 1995 from the speedy trial calculation to allow the Defendants to file pretrial motions.2 On March 13, 1995, Judge Wilson granted a Government motion to dismiss the indictment. The Government sought to dismiss the indictment because on March 9, 1995 a second indictment naming the Defendants and several new, unnamed co-defendants was handed down. This second indictment was sealed to prevent the new, unnamed co-defendants, who had yet to be apprehended, from becoming alerted to the proceedings. Some of these co-defendants remain at large, the second indictment remains sealed, and the Defendants remain in federal custody.

II.

Defendants first rely on the Speedy Trial Act for relief. The Speedy Trial Act states in relevant part as follows:

In any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offense shall 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(e)(1).

The court is asked to interpret this language given that a second, sealed indictment has been handed down. The Defendants argue that the new indictment has essentially no effect on the running of the speedy trial clock. They reach this conclusion by arguing that the second indictment, although sealed, is in all likelihood indistinguishable from the original indictment.

Thus, the Defendants assert that the speedy trial clock began ticking with the first indictment, that it continues to the present, and that it is now well beyond the 70 day limit.3 Any other result, Defendants argue, would allow the Government, as a matter of course, to make end-runs around the Speedy Trial Act simply by dismissing indictments and then reindicting defendants on the same charges once the initial 70 day period was in jeopardy of expiring. See United States v. Rojas-Contreras, 474 U.S. 231, 239, 106 S.Ct. 555, 559, 88 L.Ed.2d 537 (1985) (Blackmun, J., concurring in the judgment). The Government, in contrast, contends that the second indictment serves to restart the speedy trial clock because a new crime has been charged. Moreover, the Government argues that the clock now rests at zero since the second indictment has not yet been made public.

It is not necessary for the court to resolve this issue.4 The Defendants’ motion to dismiss pursuant to the Speedy Trial Act is premature no matter what the contents of the second, sealed indictment reveal. If the second indictment, upon unsealing, alleges different crimes, then the speedy trial clock does indeed begin anew. In these circumstances, the Defendants’ claim must be rejected since the speedy trial clock will stand at zero upon the unsealing of the indictment. See United States v. DeTienne, 468 F.2d 151, 155 (7th Cir.1972), cert. denied, 410 U.S. 911, 93 S.Ct. 977, 35 L.Ed.2d 274 (1973) (“It would be absurd in the extreme if an arrest on one charge triggered the ... speedy trial protection as to prosecutions for any other *506chargeable offenses”). And if the second indictment, as Defendants suggest, is in fact a superseding indictment alleging the same crimes, the Defendants’ motion is still premature. By the court’s calculations, at most only 92 days have passed since the initial indictment for purposes of the Speedy Trial Act: 21 days between the initial November 9, 1994 indictment that under 18 U.S.C. § 3161(e)(1) started the speedy trial clock, and the beginning of the exclusion period on November 30,1994; and 71 days between the granting of the motion to dismiss the initial indictment on March 14, 1995 and this hearing on May 24, 1995.5

Assuming, arguendo, that the current delay is 92 days and, therefore, is beyond the 70 day period sanctioned by the statute, section 3161(h)(7) nevertheless allows for “a reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted.” 18 U.S.C. § 3161(h)(7).6 The court does not believe the current 12 day delay is unreasonable. See, e.g., United States v. Sutton, 801 F.2d 1346 (D.C.Cir.1986) (holding that a trial date 101 days after an initial arraignment but only 55 days after a second arraignment was not an unreasonable delay under § 3161(h)(7)). Obviously, if the delay continues indefinitely, a different set of facts is presented.

In summary, the Defendants’ motion to dismiss pursuant to the Speedy Trial Act appears premature despite the troubling fact that the Defendants have been incarcerated since October, 1994.

III.

Defendants next argue that their continued detention without trial violates the Sixth Amendment’s guarantee of a speedy trial. The Sixth Amendment’s familiar language reads: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” U.S. Const, amend. VI. The Sixth Amendment claim is analyzed under the four-prong test set out by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The factors the court must consider are: the length of the delay, the reason for the delay, Defendants’ assertion of their right to a speedy trial, and the prejudice, if any, the *507Defendants suffered by the delay. Id. at 530, 92 S.Ct. at 2191-92. As stated above, the court believes the length of the delay at this point is reasonable. Moreover, the reason for the delay is legitimate since the Government is seeking to try all the alleged co-conspirators together. See United States v. Hayes, 40 F.3d 362 (11th Cir.1994) (delay in trial caused by sealing of indictment so as not to alert at-large co-defendant is reasonable), reh’g, en banc, denied, 49 F.3d 734 (1995). In addition, the court does not believe Defendants have been prejudiced by the delay. They make no argument that the delay has impaired witnesses’ memories or otherwise prevented them from securing evidence. Of course, the fact that the Defendants languish in jail prejudices them in significant ways but not to an extent cognizable by the Constitution. The fact that the Defendants have asserted their right to a speedy trial in no way changes the balancing analysis.

For the foregoing reasons,7 the court denies the Defendants’ motion to dismiss the indictment. An appropriate Order will this day issue.

United States v. Johnson
890 F. Supp. 504

Case Details

Name
United States v. Johnson
Decision Date
Jun 7, 1995
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890 F. Supp. 504

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United States

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