United States District Court, M.D. Georgia, Valdosta Division
LAWSON, SENIOR JUDGE.
the Court is Defendant Henry Austin, III's Motion to
Dismiss Indictment for Violation of Defendant's Speedy
Trial Rights. (Doc. 435). Defendant contends that a delay in
commencing his trial following his indictment violated his
statutory rights under the Speedy Trial Act, 18 U.S.C. §
3161, and that, as a consequence, the Court should dismiss
his indictment with prejudice. Upon consideration, and with
the benefit of oral argument, the Court
GRANTS Defendant's motion to dismiss,
but the dismissal is without prejudice.
November 9, 2016, Defendant and eleven codefendants were
indicted in a single count indictment alleging a conspiracy
to distribute more than five kilograms of cocaine in
violation of 21 U.S.C. §§ 846 and 841(a)(1) and
(b)(1). Defendant, along with Defendants Chris Waters, Marvin
Dumas, Cornelius White, Antonio Dennard, Ozell Lane, Jr.,
Eddie Smith, Adrian Lloyd, and Willie Tucker, made his
initial appearance on January 17, 2017. Defendant Willis Lee
Young made his initial appearance on January 18, 2017.
Defendant Ivan Starks, who first had to be removed from the
Middle District of Florida, made his initial appearance in
this District on February 13, 2017. Defendant Antonio Classen
was being held in state custody at the time of the indictment
and did not make his initial appearance until April 11, 2017.
March 23, 2017, the Government filed a joint motion to
continue trial of this case from the Court's May term of
Court to the next regularly scheduled term of Court, which at
that time was set for August 7, 2017, in part because the
final codefendant, Classen, had not yet made his initial
appearance. (Doc. 173). The Government further noted that
this case involved a large amount of discovery and that
Defendants required additional time to review the discovery
and to otherwise prepare for trial or enter into plea
negotiations. Finding that the ends of justice were best
served by continuing the case, the Court granted the motion
on March 28, 2017. (Doc. 177). The Court additionally denied
Defendant Lane's motion for severance. (Id.).
to the August trial term, all of Defendant's codefendants
negotiated plea agreements with the Government and entered
changes of plea with the Court. Defendant Smith pleaded
guilty to a superseding information on July 13, 2017.
Defendants Lane and Lloyd each pleaded guilty to a
superseding information on July 17, 2017. Defendants Dennard,
Tucker, and Classen likewise pleaded guilty to a superseding
information on July 18, 2017, followed by Defendant Young on
July 19, 2017. Defendants Waters, Dumas, and Starks each
pleaded guilty to a superseding information on August 1,
2017. The final codefendant, White, entered his plea of
guilty to a superseding information on August 2, 2017.
Government remained ready to proceed to trial with Defendant
on August 7, 2017. However, prior to trial, cause arose for
the Court to remove defense counsel as counsel of record.
Present defense counsel was appointed on August 8, 2017.
(Doc. 300). On October 1, 2017, Defendant's
newly-appointed counsel with the consent of the Government
moved to continue trial from the October 20, 2017 trial
calendar to the January 29, 2018 trial calendar. (Doc. 315).
The Court granted the motion on October 2, 2017, continuing
the case from October until January. (Doc. 316).
August 24, 2017, and January 31, 2018, each of
Defendant's codefendants was sentenced by the Court. The
last judgment was entered on February 7, 2018. The January
trial term, however, never transpired. This case next
appeared on the Court's April 23, 2018 trial calendar.
Defendant filed a motion to continue trial once more on March
21, 2018 without objection from the Government. (Doc. 429).
The Court denied the motion on March 22, 2018. (Doc. 430).
The parties appeared before the Court on April 4, 2018 for a
pretrial conference and announced that they were ready to
begin trial on April 23, 2018.
realizing that the case could not be tried within the time
allotted for the April trial term, the Court specially set
the trial of this matter to begin on May 14, 2018. On April
25, 2018, Defendant filed the present motion to dismiss the
indictment for an alleged violation of the Speedy Trial Act.
Speedy Trial Act provides that the trial of any defendant who
pleads not guilty must begin within 70 days of either the
filing of the indictment or the date the defendant first
appears before a judicial officer, whichever occurs later.
See 18 U.S.C. § 3161(c)(1). However, certain
periods of delay are excludable and effectively toll the
70-day period. 18 U.S.C. § 3161(h)(1). Pertinent to this
case, the Act provides an exclusion for delay resulting from
the court's consideration of a proposed plea agreement.
18 U.S.C. § 3161(h)(1)(G). The Act additionally provides
for the exclusion of “[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(a)(6). “[I]n a multi-defendant case, time excluded
due to one defendant results in excludable days for his
codefendants.” United States v. Mejia, 82 F.3d
1032, 1035 (11th Cir. 1996); see also United States v.
Pirolli, 742 F.2d 1382, 1384 (11th Cir. 1984)
(“Anything which ‘stops the clock' for one
defendant does so for the same amount of time as to all
period of delay resulting from a continuance granted by any
judge on his own motion or the request of the attorney for
the Government” is likewise excludable. 18 U.S.C.
§ 3161(h)(7)(A). However, “[n]o such period of
delay resulting from a continuance granted by the court . . .
shall be excludable . . . unless the court sets forth . . .
either orally or in writing, its reasons for finding that the
ends of justice served by the granting of such continuance
outweigh the best interests of the public and the defendant
in a speedy trial.” Id. The Act
“requires express findings, and without on-the-record
findings, there can be no exclusion of time past the 70-day
requirement because the Speedy Trial Act, with procedural
strictness, demands on-the record ends-of-justice
findings.” United States v. Ammar, 842 F.3d
1203, 1206 (11th Cir. 2016) (quoting Zender v. United
States, 547 U.S. 489, 506-07, 509 (2006) (internal
punctuation and quotation marks omitted).
parties here agree that the period of time between the
indictment and the appearance of the final codefendant on
April 11, 2017, qualifies as excludable delay. There
additionally is no dispute that the order granting the
parties' joint motion to continue trial from the May 2,
2017 term of Court to the August 7, 2017 term of Court
satisfied the ends-of-justice requirements of the Act and
created another period of excludable delay. The question is
when the Speedy Trial clock next began to run.
apparent to the Court that the clock remained stopped until
February 8, 2018, the day after Judgment was entered for the
last remaining codefendant, Antonio Classen. (Doc. 426).
Under 18 U.S.C. § 3161(h)(1)(G), any “delay
resulting from consideration by the court of a proposed plea
agreement to be entered into by the defendant and the
attorney for the Government” qualifies as excludable
delay. And, because any delay attributable to a codefendant
is also attributable to Defendant, see Mejia, 82
F.3d at 1035, the delay between Classen entering his plea on
July 18, 2017, and the Court accepting that plea and entering
Judgment on February 7, 2018, is therefore excludable as to
Defendant. Seventy-seven days of countable time elapsed