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United States v. Boone

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY


December 6, 2002

UNITED STATES OF AMERICA,
v.
KEVIN BOONE, DEFENDANT.

The opinion of the court was delivered by: Simandle, District Judge

OPINION

Presently before the Court is the motion of defendant to dismiss the Indictment for violations of the Speedy Trial Act and the Sixth Amendment right to a speedy trial. This Court will consider both claims on the merits and will find that defendant has not been deprived of his right to a speedy trial under either the Speedy Trial Act or the Sixth Amendment.

I. BACKGROUND

Mr. Boone was arrested on August 12, 1999 upon a criminal complaint, and he was indicted on a seven-count indictment on January 5, 2000. His arraignment on the indictment was held on January 13, 2000. His trial commenced eighteen months later on July 23, 2001. This motion with respect to the Speedy Trial Act is directed to the 18-month period between indictment and trial, while the 23-month period from arrest to trial is the focus of the constitutional speedy trial arguments. The underlying facts of the case, which resulted in Mr. Boone's August 16, 2001 conviction on Count Four of the Superseding Indictment charging distribution and possession with intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1), are well recorded and will not be fully recounted herein. This Court will detail the facts as they pertain to this motion in the discussion section of this opinion.

Defendant Boone, through his most recent attorney Arthur R. Shuman, Esquire, *fn1 filed the present motion on November 4, 2002. The Court heard argument on November 14, 2002.

This motion for relief under the Speedy Trial Act and under the speedy trial clause of the United States Constitution, although not filed until more than a year after the trial commenced in July, 2001, is essentially a supplementation to Mr. Boone's pro se motion for release from custody under 28 U.S.C. § 2241, which he filed in the Eastern District of Pennsylvania while in custody in Pennsylvania awaiting trial in this Court on or about July 19, 2001, encaptioned Kevin Boone v. Joseph V. Smith, Warden, 01-CV-3616 (ECR)(E.D. Pa.). The section 2241 petition was assigned to the Honorable Eduardo C. Robreno, who ordered on May 22, 2002 that the case be transferred to the District of New Jersey. Boone v. Smith, 01-CV-3616 (E.D. Pa., Order filed May 22, 2002). Mr. Boone, pursuing mandamus relief, sought in the United States Court of Appeals for the Third Circuit to block the transfer. In re Kevin Boone, Petitioner, App. No. 02-2754 (3d Cir.). The Third Circuit, in an unreported per curiam opinion filed August 26, 2002, denied Boone's mandamus petition, and permitted the transfer to this Court, the Third Circuit panel expressing that it was "confident that the District of New Jersey will address Boone's claims in his transferred §2241 petition." In re Kevin Boone, Petitioner, App. No. 02-2754 slip op. at 4 (3d Cir., filed Aug. 24, 2002). Judge Robreno thereupon signed the final transfer order, Boone v. Smith, 01-CV-3616 (E.D. Pa., Order filed September 25, 2002). The section 2241 petition was docketed in this District on September 30, 2002, encaptioned Kevin Boone, Petitioner v. Joseph V. Smith, Warden, 02-CV-4681 (JBS) (D.N.J.). This Court held a status hearing on the section 2241 petition on October 21, 2002, in which Mr. Shuman entered his appearance on Mr. Boone's behalf. At that hearing, counsel for Mr. Boone and for the respondent agreed, with the explicit agreement of Mr. Boone on the record, *fn2 that the section 2241 petition would be dismissed without prejudice to the rights of Mr. Boone to file a motion raising speedy trial issues, and the timetable for filing and hearing the speedy trial motion was set. See United States v. Boone, Cr. No. 00-0003 (JBS) (Order filed Oct. 22, 2002). The Stipulation of Dismissal of the section 2241 petition was filed on October 31, 2002. The present motion was filed on November 4, 2002.

II. DISCUSSION

Defendant argues that this Court violated the Speedy Trial Act and violated his Constitutional right to a speedy trial based on post-indictment delay. *fn3 The Government asserts that defendant has waived his right to present this claim, and further argues that even if he has not, the post-indictment delay did not violate the Act or the Constitution. This Court has considered the submissions and arguments of the parties and has decided that while defendant did not waive his right to assert these claims, his claims clearly fail on the merits.

A. Speedy Trial Act

1. Waiver

The Speedy Trial Act is not self-executing; a criminal defendant has the burden of asserting a violation of the statute prior to his trial. United States v. Gomez, 67 F.3d 1515, 1519 (10th Cir. 1995). The statute explicitly provides that the:

[f]ailure of the defendant to move for dismissal prior to trial or entry of a plea of guilty or nolo contendere shall constitute a waiver of the right to dismissal under this section. 18 U.S.C. § 3162(a)(2).

As a result, the plain language of the statute requires that the defendant bring his claim, if ever, prior to his trial. See United States v. Tanh Huu Lam, 251 F.3d 852, 860-61 (9th Cir. 2001) (finding waiver because defendant did not move for dismissal before his trial); United States v. Pipkin, 114 F.3d 528, 534-35 (5th Cir. 1997) (stating that failure to move for dismissal prior to trial waives right under act); United States v. Nazarenus, 983 F.2d 1480, 1483 (8th Cir. 1993) (holding that defendant waived right under statute because he did not move for dismissal before trial); Gomez, 67 F.3d at 1520 (finding that defendant waived right to speedy trial remedy by not moving for dismissal prior to trial); United States v. Alvarez, 860 F.2d 801, 821 (7th Cir. 1988) (citing cases which have strictly applied waiver language).

Jury selection begins a trial for Speedy Trial Act waiver purposes. Gov't of Virgin Islands v. Duberry, 923 F.2d 317, 320 (3d Cir. 1991); accord United States v. Arnold, 113 F.3d 1146, 1149 (10th Cir. 1997); United States v. Mentz, 840 F.2d 315, 326 (6th Cir. 1988); United States v. Fox, 788 F.2d 905, 908 (2d Cir. 1986); United States v. Crane, 776 F.2d 600, 603 (6th Cir. 1985). Prior to voir dire, therefore the defendant must file a motion to dismiss for violations of the Speedy Trial Act to avoid a waiver of such rights. See United States v. Register, 182 F.3d 820, 828 (11th Cir. 1999) (holding that defendant must move to dismiss indictment for Speedy Trial Act violations, not just move for release from prison based upon excessive pretrial detention); United States v. Baker, 40 F.3d 154, 159 (7th Cir. 1994) (finding waiver where defendant's motion to dismiss did not mention the Speedy Trial Act); United States v. Brown, 761 F.2d 1272, 1276-77 (9th Cir. 1985) (stating that Speedy Trial Act claim is waived if defendant's only pretrial motion to dismiss was based on sixth amendment right to speedy trial).

Defendant's trial began on July 23, 2001 and was concluded on August 17, 2001. He attempted to raise the present Speedy Trial Act claims in the following ways: (1) in June 7, 2001 motion filed pro se, although represented by counsel, to protect attorney/client privilege and to dismiss indictment with prejudice for various speedy trial violations (pre-indictment and post-indictment); (2) in a June 25, 2001 affidavit that defendant signed and filed pro se with the Court although represented by counsel; (3) in the July 19, 2001 section 2241 habeas complaint filed pro se in the Eastern District of Pennsylvania, as discussed above; (4) in a pro se motion presented to this Court while represented by counsel after jury selection on July 24, 2001; and (5) in the present motion to dismiss filed November 4, 2002.

Because defendant tried to raise the issue prior to his trial, this Court will consider this speedy trial motion on its merits. It is a close issue, though, because the record shows that defendant's pretrial filings were all flawed in some significant manner. Defendant's June 7, 2001 motion and June 25, 2001 affidavit were dismissed because defendant filed them pro se even though he was represented by counsel and had waived his right to self-representation. [Docket Items 89-1, 90-1]. Defendant had been informed that he was not to file any pro se motions while represented by counsel. (See 6/15/01 Order at [85-1]; (stating "the next time Mr. Boone purports to file a motion on his own behalf at any time when he is represented by counsel, Mr. Boone will be subject to all applicable sanctions for contempt of court and/or obstruction of justice"); see also 1/24/01 Memorandum Order at [55-1]; 6/15/01 Order at [86-1]; 6/18/01 Order at [88-1]; 6/20/01 Order at [89-1]; 6/29/01 Order at [93-1].) Furthermore, at no time, before or after trial, did Boone's trial attorney, Tariq Karim El-Shabazz, Esquire, adopt any of Boone's speedy trial submissions with regard to post-indictment delay, even when given the opportunity to do so, as he did with other of Boone's many pro se motions while representing Boone.

The July 19, 2001 habeas petition was filed in the Eastern District of Pennsylvania, instead of with this Court. The July 24, 2001 pro se motion was filed after jury selection had commenced, so was not filed before defendant's trial as required by the Act. The present November 4, 2002 motion was filed long after defendant's trial.

However, this Court recognizes that the right to a Speedy Trial is an important right that belongs not just to the defendant, but to the public at large. See United States v. Carrasquillo, 667 F.2d 382, 389 (3d Cir. 1981) (quoting H.R. Rep. No. 1508, 93d Cong., 2d Sess. at 15). As a result, this Court will recognize the defendant's attempts to raise the issue before trial even if they suffered procedural flaws. *fn4

Therefore, because plaintiff tried to raise allegations of Speedy Trial Act post-indictment violations in some fashion before his trial, this Court will find that he did not waive his right to assert the present claims and will consider them on the merits.

2. Speedy Trial Act Post-Indictment Delay Claim

The Speedy Trial Act requires that the trial of a criminal defendant begin within seventy days of the filing of the indictment or the date of the defendant's first appearance before a judicial officer, whichever is later. 18 U.S.C. § 3161(c)(1). The remedy for a violation of the Act is dismissal of the indictment. 18 U.S.C. § 3162(a)(2). However, "certain carefully defined periods of delay" are automatically excluded from the calculation of the seventy-day period. United States v. Brenna, 878 F.2d 117, 120 (3d Cir. 1989). Additional periods of delay may also be excluded if the judge grants a "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." 18 U.S.C. § 3161(h)(8)(A).

Defendant argues that the Speedy Trial Act was violated because more than seventy days passed between the filing of the indictment and his trial. He argues that the delay is not justified by the automatic exclusions *fn5 or by continuances entered for the ends of justice. (Def.'s Br. at 2.)

(a) Automatically excludable delays

Delay between defendant's indictment and trial caused by the filing and hearing of pretrial motions is automatically excluded from the Speedy Trial Act calculation. United States v. Felton, 811 F.2d 190, 195 (3d Cir. 1987). Two provisions within the Act make this clear. First, 18 U.S.C. § 3161(h)(1)(F) allows exclusion for "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." This section automatically excludes either "all of the days between the filing of the motion and the conclusion of a hearing" on the motion or, if the court does not hold a hearing, all the days "from the filing of the motion until the parties complete the submissions necessary for the court to reach a decision." Felton, 811 F.2d at 195 (citing Henderson v. United States, 476 U.S. 321, 329 (1986)). The exclusion applies to all of the days between the filing of the motion and the hearing whether the hearing was prompt or not. Henderson, 476 U.S. at 329-30. The exclusion extends past the hearing if the trial judge requires the submission of additional materials that are necessary for the proper disposition of the motion. Id. at 331.

The second applicable section is 18 U.S.C. § 3161(h)(1)(J) which provides an exclusion for "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." Pretrial motions are included within the scope of this section. Felton, 811 F.2d at 197. Therefore, a period of at least thirty additional days of delay is automatically excluded if the trial judge, after the hearing on a pretrial motion, takes the matter under advisement. Id.

These automatic exclusions are necessary because "although the Act is meant to speed prosecutions, it is not intended to ensnare trial judges . . . and force judges to race to decisions." United States v. Molt, 631 F.2d 258, 262 (3d Cir. 1980). "It seems clear that a slight delay while a court carefully considers and decides a legion of pretrial motions is preferable to the court deciding the motions with one eye--or perhaps both eyes--on the clock." United States v. Kraselnick, 702 F. Supp. 489, 492 (D.N.J. 1988). *fn6

Here, the docket shows that about thirty-three pretrial motions were filed with this Court. (See Appendix A to this Opinion; see also Def.'s Br., Ex. A.) A motion of some kind was pending before this Court from August 25, 2000 when the first motion was filed until July 19, 2001 when the last hearing on a pretrial motion was held. (Id.) As a result, the pending pretrial motions stalled the Speedy Trial Act clock from August 25, 2000 to July 19, 2001 under 18 U.S.C. § 3161(h)(1)(F) and (J) and the time is excluded from the Speedy Trial Act seventy-day calculation. *fn7

(b) Ends of justice continuances

The defendant argues that certain "ends of justice" continuances were not sufficiently documented. Section 3161(h)(8)(A) authorizes a trial judge to exclude a period of time from the Speedy Trial Act calculation by finding that "the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant." 18 U.S.C. § 3161(h)(8)(A). To enter an appropriate ends of justice continuance, the court must grant the continuance before the Speedy Trial Act clock has run and must place its reasons for granting the continuance on the record. United States v. Lattany, 982 F.2d 866, 877 (3d Cir. 1992); United States v. Carrasquillo, 667 F.2d 382, 386 (3d Cir. 1981). The reason that the ends of justice continuance must be determined before the Speedy Trial clock has run is that otherwise:

[i]f the judge gives no indication that a continuance was granted upon a balancing of the factors specified by the Speedy Trial Act until asked to dismiss the indictment for violation of the Act, the danger is great that every continuance will be converted retroactively into a continuance creating excludable time. United States v. Brenna, 878 F.2d 117, 122 (3d Cir. 1989) (quoting United States v. Janik, 723 F.2d 537, 544-45 (7th Cir. 1983)).

The judge must place the reasons for the continuance on the record for two purposes:

First, Congress wanted to ensure that a district judge would give careful consideration when balancing the need for delay against "the interest of the defendant and of society in achieving a speedy trial." Second, the requirement provides a record so that an appellate court may review the decision. Lattany, 982 F.2d at 877 (quoting United States v. Rivera Construction Co., 863 F.2d 293, 296 (3d Cir. 1988)).

It is clear, though, that the judge does not need to articulate the reasons at the same time that he grants the continuance; a subsequent explanation is sufficient. Lattany, 982 F.2d at 877 (citing Rivera, 863 F.2d at 297). In that situation, because the continuance was granted for bona fide reasons during the seventy-day Speedy Trial Act period, there is no concern that the continuance was created as "an afterthought" to justify a delay. Id. at 876-77 (citing Carrasquillo, 667 F.2d at 385).

The statute provides the factors that which the court should consider in determining whether to grant an ends of justice continuance. Section 3161(h)(8)(B) and (C) provide:

(B) The factors, among others, which a judge shall consider in determining whether to grant a continuance under subparagraph (A) of this paragraph in any case are as follows:

(i) Whether the failure to grant such a continuance in the proceeding would be likely to make a continuation of such proceeding impossible, or result in a miscarriage of justice.

(ii) Whether the case is so unusual or so complex, due to the number of defendants, the nature of the prosecution, or the existence of novel questions of fact or law, that it is unreasonable to expect adequate preparation for pretrial proceedings or for the trial itself within the time limits established by this section. . . .

(iv) Whether the failure to grant such a continuance in a case which, taken as a whole, is not so unusual or so complex as to fall within clause (ii), would deny the defendant reasonable time to obtain counsel, would unreasonably deny the defendant or the Government continuity of counsel, or would deny counsel for the defendant or the attorney for the Government the reasonable time necessary for effective preparation, taking into account the exercise of due diligence.

(C) No continuance under subparagraph (A) of this paragraph shall be granted because of general congestion of the court's calendar, or lack of diligent preparation or failure to obtain available witnesses on the part of the attorney for the Government.

This Court finds that six ends of justice continuances were appropriately entered in this case. They were entered for the following periods of time and are recorded as the following docket entries:

1/13/00 - 5/22/00 [18-1] Continuance granted on 1/13/00 [20-1] Order signed on 3/30/00

5/22/00 - 9/18/00 [23-1] Continuance order signed on 5/24/00

9/18/00 - 10/23/00 [27-1] Continuance granted on 9/22/00 [28-1] Order signed on 9/26/00

10/23/00 -11/22/00 [32-1] Continuance granted on 10/23/00 [37-1] Order signed on 11/3/00

11/22/00 - 12/6/00 [38-1] Continuance order signed on 11/22/00

12/6/00 - 1/11/01 [40-1] Continuance granted on 12/11/00 [41-1] Order signed on 12/15/00

This Court granted defense counsel's request for continuance, in which defendant Boone explicitly agreed on the record at the arraignment on January 13, 2000, for purposes of assuring continuity of defense counsel and to continue pursuit of plea negotiations, all as memorialized on the record of the January 13, 2000 hearing. Nonetheless, defendant argues that the January 13, 2000 continuance was not an appropriate ends of justice continuance so that the first ends of justice continuance was granted on March 30, 2000, when the resulting Order was entered. He then argues that the March 30, 2000 order was invalid because the Speedy Trial Act clock had already run. Therefore, defendant argues that his indictment must be dismissed.

Defendant would be correct that absent any exclusionary periods except defendant's date of arraignment, *fn8 the seventy-day calculation in his case would have required a trial to begin on March 17, 2000. Therefore, the March 30, 2000 order was entered after the Speedy Trial Act period would have expired. However, the Third Circuit has made it clear that a Court may enter an ends of justice order after the Speedy Trial period has run; in fact the Court may even articulate the reasons for the ends of justice continuance for the first time after the period has run. Lattany, 982 F.2d at 877. The essential and decisive inquiry is whether the Court granted an ends of justice continuance before the period had run. Id. If it did, then orders entered and reasons given after the seventy-day clock would have run comply with the Act because they fulfill the purposes of the Act. Id. Such orders are not an afterthought since the continuance was actually granted during the Speedy Trial Act period, and the orders ensure that an appropriate record is created for appellate review that shows the judge's consideration of relevant facts. Id.

Defendant's argument thus hinges on whether the Court granted a continuance on January 13, 2000, the date of arraignment before the undersigned, and a date before the Speedy Trial Act had run. If a continuance was properly granted on January 13, 2000, then it exempted time from the Speedy Trial Act clock and the March 30, 2000 order was a proper memorialization of the January 13th reasons for the continuance. If a continuance was not properly granted on January 13, 2000, then the first order would be the March 30, 2000 order and would be an invalid attempt to create a continuance after the March 17, 2000 Speedy Trial Act period would have run. This Court finds, and the record reflects, that the Court properly granted a continuance on January 13, 2000. Defendant's formalistic argument does not even present a close question in light of the indisputable record of January 13, 2000, and its immediate aftermath.

Defendant admits that this Court had a hearing on January 13, 2000 and granted a continuance "because of the unavailability of defendant's counsel and the fact that plea negotiations were ongoing." (Def.'s Br. at 5.) However, defendant argues that the order was not an ends of justice order and did not exempt any time under the Speedy Trial Act because the Court, on January 13th, "neither stated that it was granting an `ends of justice' continuance, nor stated that the continuance was granted pursuant to 3161(h)(8)(A)." (Def.'s Br. at 5.) Defendant bases his argument on the Third Circuit's language in United States v. Brenna, 878 F.2d 117 (3d Cir. 1989), where the court stated:

We continue to hold . . . that a district judge may detail his reasons for granting an ends of justice continuance some time after he enters the order granting such a continuance. We reaffirm, however, that an ends of justice continuance pursuant to 3161(h)(8)(A) cannot be entered nunc pro tunc, and hold that in its order, the district court must, at a minimum, state that it is entering an "ends of justice" continuance or a continuance pursuant to 3161(h)(8)(A). Brenna, 878 F.2d at 122.

Defendant thus argues that because this Court did not utter the incantation "ends of justice" or "section 3161(h)(8)(A)," it did not grant an ends of justice continuance on January 13, 2000.

This argument fails to recognize the Third Circuit's subsequent case, United States v. Lattany, 982 F.2d 866 (3d Cir. 1992), where the court specifically stated that:

[t]he formal requirements imposed by Brenna supplement the requirements we set out in Rivera. In Rivera, the district court did not utilize a preprinted Speedy Trial Act delay form order or state that the continuance was pursuant to the Act or necessary for the "ends of justice." Rather, the district court merely stated that it was granting a continuance to allow counsel adequate time to prepare for trial. This reason met the requirements of the Act's special provision allowing continuances to give adequate preparation time to counsel. See 18 U.S.C. § 3161(h)(8)B)(ii),(iv). Lattany, 982 F.2d at 879 n.16.

The court explained that in Brenna, it required the words "ends of justice" or "3161(h)(8)(A)" to "condemn" post hoc creation of ends of justice periods in cases where the district court "attempted to grant the continuance, or first officially recognize the continuance, after the time period would have expired in the absence of such continuance." Id. at 879-80. However, the Court held in Lattany, that "the concern we expressed in this statement from Brenna is not present here . . . because the requirements of Rivera were met." Id. at 879. The Third Circuit in Lattany thus held that Rivera is good law in spite of Brenna's formal requirements. The United States District Court for the District of the Virgin Islands explained it as follows:

[t]he Court of Appeals [in Lattany] made it clear that a district court can state reasons contemporaneously with an order continuing a trial that demonstrate an ends-of-justice finding without actually using the words "ends of justice" or referring to the statute at the time of the continuance. United States v. Brodhurst, No. 2000-012, 2001 WL 1112143 at *2 (D.V.I. 2001).

The Lattany court explained the Rivera standard which can be met instead of the Brenna standard as follows:

The Rivera court . . . did not make any reference to the Act at the time it granted the continuance. Five days before the scheduled trial date, the defendants filed a motion to dismiss the indictment for violation of the Speedy Trial Act. The district court denied the motion to dismiss and only then stated that the time was excluded under § 3161(h)(8)(B)(iv). . . . In Rivera, the district court did state on the record when it granted the continuance that it was doing so in order to allow new counsel sufficient time to prepare the defense.

This Court held: "Viewed in the totality of the circumstances," the district court had made findings that were supported by the evidence and met the Act's requirement that they be stated on the record. Lattany, 982 F.2d at 877.

Upholding this standard, the Lattany court emphasized that the purpose of Act, and not the specific words used in granting the continuance, is key:

The purpose of the requirement that reasons be stated is to insure careful consideration of the relevant factors by the trial court and to provide a reviewable record on appeal. Both purposes are served if the text of the order, taken together with more detailed subsequent statements, adequately explains the factual basis for the continuance under the relevant criteria. . . . [Then,] there is no danger of the district court's retroactively using the continuances to manufacture excludable time after being asked to dismiss the indictment for violation of the Act. Lattany, 982 F.2d at 879-80 (citing United States v. Rush, 738 F.2d 497, 507 (1st Cir. 1984)).

The Second Circuit also focused on the purpose of the requirement that the reasons for an ends of justice continuance be stated when it found that "failure to utter the magic words `ends-of-justice' at the time of ordering the continuance is not necessarily fatal." United States v. Breen, 243 F.3d 591 (2d Cir. 2001). There, the trial judge did not use the words "ends of justice," but the Second Circuit examined the record and found that when the judge granted the continuance, he was "clearly focusing on the factors involved in applying the Speedy Trial Act" and "everybody knew what was going on: The judge was determining how much time to exclude from the speedy trial clock after listening to all the parties. In fact, counsel for [the defendant] specifically referred to `exclusion of time.'" Id. at 596-97. Therefore, the Second Circuit found that the continuance was proper because

the parties and their counsel all understood from the May 25 colloquy fixing the trial date in open court that the judge was concerned over speedy trial considerations, that the time until trial was being excluded and that various interests, including the needs of counsel for more time to prepare, were being balanced against the concern over delay. Id. at 597.

This Court likewise finds that the continuance granted in this case on January 13, 2000 was understood by all parties present to be an ends of justice continuance which was requested and assented to by the defendant. While the Court did not use the words "ends of justice," the words that the Court did use during the January 13, 2000 proceeding leave no doubt that the Court was granting a continuance for the ends of justice.

The Speedy Trial discussion begins on page five of the transcript of January 13, 2000. Assistant United States Attorney William Hughes appeared on behalf of the government. The defendant was present with two attorneys, Christopher D. Warren and Ross Begelman who also entered an appearance for Dennis Cogan. The proceeding progressed as follows:

Mr. Hughes: . . . I do believe that the defendant will be making a motion at this time for a, for continuation under the speedy trial act due to the congested schedules of Mr. Warren and Mr. Cogan.

Mr. Warren: That's correct, Your Honor. Mr. Cogan is scheduled to try a case in front of Judge Buckwalter in Philadelphia, it's a 15 year racketeering indictment that's scheduled to go to trial March 6th. With that in mind, and I've discussed this with Mr. Boone, we're prepared to waive his rights under the Speedy Trial Act. And the case . . . is probably going to take I'd say four to five weeks, so we'd be looking for a trial date towards the end of May. . .

Mr. Hughes: Your Honor, whatever date the Court sets for discovery, please keep in mind that today we have extended, the government has extended to the defendant a plea offer. And while the defendant may take the time to consider the plea offer, this may be a basis for the grant of a continuance under Speedy Trial time.

Mr. Warren: I would concur with that.

The Court: . . . I'll exclude time under the Speedy Trial Act upon the motion of the defendant due to unavailability of trial counsel, so that the time from now until - when would the [other] trial be done?

Mr. Warren: It's probably . . . mid April, so that's why we were looking for 30 days after that in order to prepare in case for trial, mid to late May.

The Court: Alright. Does your client concur with the exclusion of time from today until May the 15th?

Mr. Warren: Yes, he does. And I have discussed this with him. If he could state that you understand it and agree to it.

Defendant: Yes, Your Honor, I understand.

Mr. Warren: And do you have any problem with waiving your rights under the Speedy Trial Act?

Defendant: No, sir.

The Court: And do you understand that if you don't waive your rights, that your trial would be scheduled within 70 days of today's date, which is your right under the Speedy Trial Act?

Defendant: Yes.

The Court: Okay, very well. I'll accept your waiver of the Speedy Trial Act rights, and I'll ask that an order be submitted that excludes the time from January 13th to May the 15th from the Speedy Trial Act. . . . Mr. Hughes, would you be willing to do the honors?

Mr. Hughes: Yes, Your Honor. The basis will be unavailability of trial counsel and plea negotiations or just unavailability of counsel? . . .

Mr. Warren: Please include plea negotiations.

The Court: Negotiations, very well.

Mr. Hughes: Thank you, Your Honor.

The Court: Then it will be both bases.

Mr. Hughes: I will prepare and submit an order and also fax it around to the battery of lawyers hired by the defendant for their approval.

The Court: Okay. For the trial date, . . . The trial date will be May 22nd. . . .

Mr. Hughes: Your Honor, point of clarification. The Speedy Trial exclusion will go from January 15th to May 15th?

Mr. Warren: We'll exclude it up until the trial date if you like, sir, up to May 22nd on our request.

The Court: Okay. . . . So it would be today, January 13th until scheduled date of trial, which is May the 22nd. . . . Because this is quite an extended schedule, I hopefully wouldn't see a need to extend it again.

Mr. Warren: I don't think it'll be necessary sir. (1/13/00 Tr. 5:7-9:3.)

The interchange between the Court, counsel, and the defendant makes clear that everyone in attendance at the January 13, 2000 proceeding was aware that time was being excluded under the Speedy Trial Act. Everyone was also aware that the reasons for the exclusion were those listed in section 3161(h)(8)(B)(iv) which states that the Court should consider:

[w]hether the failure to grant such a continuance in a case . . . would unreasonably deny the defendant or the Government continuity of counsel, or would deny counsel for the defendant or the attorney for the Government the reasonable time necessary for effective preparation, taking into account the exercise of due diligence.

The Court accepted the dilemma that defendant's chosen counsel faced since he needed to prepare for defendant's trial and for an imminent complex racketeering trial. The Court determined that justice would be served by allowing defendant to continue with his chosen counsel who had represented him since September 1999, by providing defense counsel additional time after the racketeering trial to prepare an effective case for defendant, and by allowing time for plea negotiations to proceed. Assistant United States Attorney Kevin Smith determined that the "ends of justice" order which memorialized the exclusion was sent via facsimile to defendant's counsel for their review five days later on January 18, 2000. (11/14/02 Tr.) That order, drafted on January 18th, made explicit reference to the Court's findings regarding the ends of justice exclusion under section 3161(h)(8)(A). Through lack of follow-up by Mr. Cogan's office, the draft order was not submitted to the Court for two months. The order was then signed by this Court on March 30, 2000. [Docket Item 20-1.] It parallels and memorializes the January 13, 2000 determination to exclude time, except that it adds the words "ends of justice," stating:

IT IS THE FINDING OF THIS COURT that this action should be continued for the following reasons:

(1) Trial counsel for the above-captioned matter will be unavailable to participate in the trial of the above-captioned matter until May 22, 2000;

(2) The defendant has indicated on the record that he desires to waive his rights under the Speedy Trial Act until trial counsel is available;

(3) The parties in the above-captioned matter are in plea negotiations which, if successful, would render a trial in the matter unnecessary; and

(4) Pursuant to 18 U.S.C. § 3161(h)(8)(A), the ends of justice served by granting the continuance outweigh the best interest of the public and the defendant in a speedy trial. (3/30/00 Order at 1-2.)

The record, thus, fully supports this Court's conclusion that this Court granted a continuance on January 13, 2000 which all parties understood to be an ends of justice continuance as described in the March 30, 2000 order. As in Rivera, where the district court satisfied the requirements of section 3161(h)(8)(A) without using the words "ends of justice," here:

[t]he district court considered all of the competing interests before making its decision. The record is clear as to which interest tipped the balance and no party was misled. . . . In this case, there was no after-the-fact justification. Rivera, 863 F.2d at 297.

Similarly, in this case, the ends of justice continuance was specifically granted upon the record on January 13, 2000, the Court finding good cause due to the need for defendant's chosen counsel to prepare for trial and the ongoing plea negotiations. The subsequent order was in no way a post-hoc justification for delay. Therefore, this Court finds that the period from January 13, 2000 through May 22, 2000 is excludable from the Speedy Trial Act calculation.

(c) Calculation of delay

This Court finds that the delay in bringing defendant's case to trial, considering the excludable periods of delay, totals no more than eleven days. *fn9

The starting point for computing the seventy-day limit in this case is January 6, 2000, the day after the defendant's indictment was filed. *fn10 See United States v. Lattany, 982 F.2d 866, 871 (3d Cir. 1993) (stating that day of indictment is not included in calculating time within which defendant must be brought to trial). Then, excludable periods are considered. Here, as explained supra, the periods that this Court will exclude are: (1) August 25, 2000 to July 19, 2001 for pretrial motions, and (2) January 13, 2000 to May 22, 2000, May 24, 2000 to September 18, 2000, September 22, 2000 to December 6, 2000, and December 11, 2000 to January 11, 2001 due to ends of justice continuances. Then, the date of trial, July 23, 2001, is not included in the calculation. See Lattany, 982 F.2d at 872 (stating "in calculating includable time, both the date on which an event occurs or a motion is filed and the date on which the court disposes of a motion are excluded").

This means that between defendant's indictment and trial, the only days during which the trial clock was ticking in 2000 were January 6, 7, 8, 9, 10, 11, and 12, and May 23, and in 2001 were July 20, 21, and 22. This totals 11 days, well under the 70 days allowed by the Speedy Trial Act. There was no Speedy Trial Act violation.

B. Constitutional Right to a Speedy Trial

The Sixth Amendment to the Constitution guarantees a speedy trial, stating that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed." The Supreme Court has directed district courts to conduct a balancing test when assessing a defendant's Constitutional speedy trial claim in which the conduct of both the prosecution and the defendant are weighed. Barker v. Wingo, 407 U.S. 514, 530 (1972). The four factors that are significant in deciding whether the defendant was deprived of his speedy trial right are: (1) length of the delay, (2) reason for the delay, (3) defendant's assertion of his right, and (4) prejudice to the defendant. Id.; see also United States v. Dreyer, 533 F.2d 112, 114 (3d Cir. 1976). No one factor is either necessary nor sufficient; all must be considered together in a "difficult and sensitive balancing process." Barker, 407 U.S at 533.

Here, defendant argues that the four factors show that he has a valid speedy trial claim because he was tried and acquitted on three counts of his eight-count indictment and his jury hung on four counts, because he was prejudiced by the death of a material exculpatory witness prior to trial, and because he has been incarcerated since August 12, 1999. (Def.'s Br. at 8-9.)

(1) Length of Delay

The right to a speedy trial cannot be quantified into a specified number of days or months. Barker, 407 U.S. at 523. Instead, the length of delay is one factor that must be considered in the overall analysis of the right. Id. It is actually the "triggering mechanism" for any speedy trial inquiry. Id. at 530. If the delay is not "presumptively prejudicial," then there is no need to even consider the other factors in the balance because there is no speedy trial claim. Id.

To determine whether the delay is presumptively prejudicial, the court must consider the "peculiar circumstances of the case." Id. at 531. "The delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge." Id. The delay is calculated from the date of the arrest or indictment, whichever occurs first, to the date the trial commences. Hakeem v. Beyer, 990 F.2d 750, 760 (3d Cir. 1993) (citing United States v. MacDonald, 456 U.S. 1, 6-7 (1982)). A fourteen month delay is not dispositive of a speedy trial violation, as the Third Circuit has found that a five-year delay did not violate the Sixth Amendment, but the Third Circuit has held that a fourteen-month delay is sufficiently lengthy to warrant further inquiry into the other Barker factors. United States v. Dent, 149 F.3d 180, 184-85 (3d Cir. 1998); Hakeem, 990 F.2d at 760 (citing United States v. Shovlin, 464 F.2d 1211, 1214 (3d Cir. 1972)).

Defendant was arrested on August 12, 1999 and his trial commenced just less than two years later on July 23, 2001. Therefore, this Court will continue the inquiry by considering the other three Barker factors.

(2) Reason for Delay

The reasons given for the delay may weigh for or against justifying the delay. Barker, 407 U.S. at 531. If the delay is caused by the government's deliberate attempt to delay the trial to "hamper the defense," then this factor should be "weighted heavily" against the government as it is not a valid justification for delay. Id. If the delay is caused by overcrowded court dockets, the factor should be weighed against the government which ultimately controls the proceedings against the defendant, but not quite as heavily. Id. If the delay is caused by "a valid reason, such as a missing witness," then the factor weighs for the government and likely justifies the delay.

The defendant previously filed a motion on March 23, 2001 to dismiss the indictment for pre-indictment delay. [Docket Items 62-1, 63-1.] The Court convened hearings addressing pre-indictment delay in which Mr. Boone testified on May 31, 2001 and his former attorney, Assistant Federal Public Defender Lisa Evans, testified on July 16, 2001. The period from Boone's arrest on August 12, 1999 until his indictment on January 5, 2000 was closely examined. The Court rendered a lengthy oral opinion on July 16, 2001, finding that Mr. Boone knowingly and voluntarily consented, through his attorneys, to the waiver of his right to a preliminary hearing and to the exclusion of pre-indictment time under the Speedy Trial Act memorialized in four appropriate orders. (Oral Opinion, 7/16/01 Tr. at 67:14-76:11.) Those findings establish that the reasons for pre-indictment delay arose from Mr. Boone's desire to achieve a pre-indictment guilty plea and to cooperate with the prosecutor in investigating others. (Id. at 69:11-71:4.) Following his substitution as counsel, defense attorney Cogan also endorsed the various pre-indictment Speedy Trial orders, as found by the Court, (id. at 71:14-72:1), and Mr. Cogan repeated Boone's willingness to cooperate, (id. at 72:2-72:9). Indeed, proffer sessions exploring Boone's cooperation were held on and between August 13, 1999 and December 13, 1999. (Id.) The Court found, contrary to Boone's testimony and in accordance with AFPD Evans' testimony and the contemporaneous orders and correspondence in the evidence, that Boone's indictment was delayed, at his request, to explore cooperation and guilty plea, which was in his best interests and consistent with the ends of justice. These reasons for pre-indictment delay, as expressed in the Court's findings on July 16, 2001, are incorporated herein and present absolutely no concern of constitutional dimension. We turn next to the reasons for post-indictment delay.

Here, the reasons that defendant's trial was delayed post-indictment were also almost entirely to benefit the defendant. The record is clear that the government was not attempting to stall defendant's trial. Instead, the defendant requested each ends of justice continuance, and consented to them so he could have continuity of representation by his original trial counsel, [Docket Items 20-1, 23-1], could have additional time to respond to pretrial motions, [Docket Item 27-1], and could have time to review his case with new counsel who may wish to investigate and file additional pretrial motions, [Docket Items 37-1, 38-1, 41-1]. The avalanche of pretrial motions that delayed his trial were almost exclusively filed by defendant as well. The docket shows three pretrial motions filed by the government, [Docket Items 25-1, 67-1, 106-1], and about thirty pretrial motions filed by the defendant, [Docket Items 30-1, 39-1, 42-1, 43-1, 44-1, 48-1, 50-1 through 8, 51-1, 52-1, 53-1, 54-1, 62-1, 63-1 through 3, 64-1, 65-1, 81-1, 82-1, 83-1, 87-1, 91-1]. The government was exceedingly responsive to all defense motions that required a response. When witnesses were needed, they were timely produced on the hearing dates. Clearly, the government was not trying to deliberately stall defendant's trial.

The delay was also not the result of an overcrowded court docket. Instead, the delay resulted in large part because defendant changed counsel twice during the period that the pretrial motions were pending. His first motions were filed by Dennis Cogan, Esquire, who represented him pro hac vice in accordance with a September 21, 1999 order. [Docket Item 12-1.] Cogan and Boone had a falling out, with Boone filing a motion on October 16, 2000, to replace him. [Docket Item 30-1.] On October 23, 2000, this Court granted defendant's motion for Dennis Cogan, Esquire, to withdraw as attorney and appointed Assistant Federal Public Defender Lori Koch. [Docket Items 33-1, 34-1.] AFPD Koch filed pretrial motions on defendant's behalf and defendant, though represented by counsel, filed additional motions on his own behalf. [See Docket Item 56-1]. On February 5, 2001, defendant obtained permission for new defense counsel, Tariq Karim El-Shabazz, Esquire, to represent him and to have time to "file additional motions and/or withdraw presently-filed motions." [Docket Item 57-1.] Defendant also continued to file pro se motions while represented by Mr. El-Shabazz. [See Docket Items 85-1, 86-1, 88-1, 89-1, 93-1]. The Court delayed deciding the pretrial motions, at Mr. El-Shabazz's request, to ensure that Mr. El Shabazz was ready to competently represent defendant on all the motions, and to enable El-Shabazz to refine the prior motions if desired. On May 31, 2001, the "return date on a large number of motions," (5/31/01 Tr. 4:12-13), including "motions that have been filed in . . . different ways, first by Mr. Cogan, second by Ms. Koch, and third by Mr. El-Shabazz . . . [and] filed pro se by Mr. Boone," (Id., Tr. 5:4-7), the Court stated that it was "prepared to decide all of these motions today," (Id., Tr. 5:23-24). However, defense counsel requested additional time to see if some of the motions could be resolved. (Id., Tr. 5:17-22). This Court agreed to provide additional time, and set up a July 5, 2001 hearing date. (Id., Tr. 5:24-6:8.) The record shows that this Court would have "prefer[red] to have the hearing a little bit earlier," but could not because defendant's counsel "Mr. El-Shabazz will be unavailable because of some previously scheduled trials and also some personal time." (Id., Tr. 6:8-12.) The Court did meet on July 5, 2001 and by July 19, 2001, the Court had resolved all of defendant's motions. [Docket Items 105-1 through 126-1.] Defendant's trial began on July 23, 2001. [Docket Item 129-1.]

Therefore, this Court finds that the reason for the delay in bringing defendant to trial was valid. Defendant's trial was not delayed by government tactics or by court congestion or inattention; his trial was delayed because he needed time to file and defend his own waves of multiple pretrial motions, while being represented by a succession of four attorneys before trial. As a result, this Court finds that second Barker factor weighs strongly against defendant and in favor of justifying the delay, since defendant and his defense tactics were the cause of the delay.

(3) Defendant's Assertion of His Right

The failure of a defendant to assert his right to a speedy trial "will make it difficult for [him] to prove that he was denied a speedy trial" because "the more serious the deprivation, the more likely a defendant is to complain." Barker, 407 U.S. at 531-32. The strength that the defendant uses to assert his right is naturally affected by the length of the delay, the reason for the delay, and "most particularly by the personal prejudice, which is not always readily identifiable, that he experiences." Id. at 531. As a result, this factor weighs heavily against the defendant if he is represented by competent counsel who had notice of motions for continuances of the trial, but never objected to the continuances. Id. at 534-36. The Supreme Court explained the situation as follows:

We do not hold that there may never be a situation in which an indictment may be dismissed on speedy trial grounds where the defendant has failed to object to continuances. There may be a situation in which the defendant was represented by incompetent counsel, was severely prejudiced, or even cases in which the continuances were granted ex parte. But barring extraordinary circumstances, we would be reluctant indeed to rule that a defendant was denied this constitutional right on a record that strongly indicates, as does this one, that the defendant did not want a speedy trial. Id. at 536.

Here, defendant's first attempt to assert his post-indictment speedy trial right occurred on June 7, 2001, almost six months after the last ends of justice continuance was granted by this Court on December 11, 2000. *fn11 The record is clear that defendant never objected to the granting of any post-indictment ends of justice continuance in his case; instead, defendant requested the continuances. (See [Docket Item 20-1] (stating "[t]his matter having come before the Court on the application of the defendant . . . for an order granting a continuance"); [Docket Item 23-1] (stating "[t]his matter having come before the Court on the joint application of the United States . . . and defendant Kevin B. Boone . . . for an order granting a continuance of the proceedings"); [Docket Item 27-1] (stating that the Court "granted the parties request for additional time to answer motions and to prepare for trial"); [Docket Item 37-1] (stating "[t]his matter having come before the Court on the application of the defendant, Kevin B. Boone . . . and the government . . . for an order granting a continuance of the proceedings"); [Docket Item 38-1] (stating "[t]his matter having come before the Court on the application of the defendant, Kevin B. Boone . . . and the government . . . for an order granting a continuance of the proceedings"); [Docket Item 41-1] (stating "[t]his matter having come before the Court on the application of the defendant Kevin B. Boone, . . . for an order granting a continuance of the proceedings")).

The record also makes clear that defendant was aware that his requests for continuances would delay his trial. In the January 13, 2000 proceeding, defendant was asked by the Court if he agreed to an exclusion of time from the speedy trial calculation. (1/13/00 Tr. 6:24-7:3.) He stated, "Yes, Your Honor, I understand." (Id., Tr. 7:4.) He was also asked if he had "any problem with waiving [his] rights under the Speedy Trial Act," and he said "No, sir." (Id., Tr. 7:5-7.) Then he was asked, "Do you understand that if you don't waive your rights, that your trial would be scheduled within 70 days of today's date, which is your right under the Speedy Trial Act?" and he said, "Yes." (Id., Tr. 7:8-12)(emphasis added). The continuance orders record defendant's awareness of his speedy trial right and his desire to forego a speedy trial. Each includes a statement to the effect that:

The defendant being aware that he has the right to trial within 70 days of indictment; the defendant having acknowledged his understanding of his rights and having consented to the continuance in the above-captioned matter in open court on January 13, 2000 . . . the defendant has indicated on the record that he desires to waive his rights under the Speedy Trial Act until trial counsel is available. [Docket Item 20-1]; [see also Docket Items 23-1, 27-1, 37-1, 38-1, 41-1.]

The record thus shows that when defendant had the opportunity to assert his right to a speedy trial in a way that would actually speed the trial, he did not. Instead, he requested delays to allow for his trial counsel to be available, [Docket Items 20-1, 23-1], to provide time for him to respond to pretrial motions, [Docket Item 27-1], and to allow time for his new counsel to review his case, to meet with him, and to file additional pretrial motions, [Docket Items 37-1, 38-1, 41-1]. Then, when defendant's trial was delayed as he requested, he filed speedy trial claims which lengthened his wait for trial even more. This Court thus finds that defendant's belated assertion of his speedy trial right does not support his claim, and the third Barker factor weighs against the defendant and toward justifying the delay.

(4) Prejudice to the Defendant

The fourth Barker factor, prejudice to the defendant, must be viewed in light of the three interests that the speedy trial right was designed to protect: (1) to prevent oppressive pretrial incarceration, (2) to minimize anxiety and concern of the accused, and (3) to limit the possibility that the defense will be impaired. Barker, 407 U.S. at 532. Of the three, the "most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system." Id.

Here, defendant has argued that he suffered long pretrial incarceration which caused him pain and anxiety, and that his defense was impaired because his material exculpatory witness named Mitchell Broughton died two months prior to trial and his prolonged incarceration exhausted all his funds so that he could not employ appropriate investigators and experts. (Def.'s Motion ¶ 18.)

It is clear that pretrial incarceration can cause serious mental pain as the accused lives "under a cloud of anxiety, suspicion, and often hostility," generally loses his job and his ability to gather evidence and contact witnesses, and often has his family life disrupted. Barker, 407 U.S. at 532-33. The Third Circuit has stated that "such anxiety in a defendant is one of the evils against which the Sixth Amendment is designed to protect." United States v. Shovlin, 464 F.2d 1211, 1215 (3d Cir. 1972) (being "sensitive" to anxiety suffered, but finding fourteen month delay was justified in spite of it); see also United States v. Dreyer, 533 F.2d 112, 116 (3d Cir. 1976) (considering defendant's psychiatric record of "severe mental disturbance"). The anxiety is certainly more prejudicial to "those persons who are ultimately found to be innocent." Barker, 407 U.S. at 533.

Defendant testified on November 14, 2002 that his time at the Federal Detention Center in Philadelphia, Pennsylvania has really "taken a toll" as he has been unable to spend time in the sun and fresh air, has been too far from his family for them to visit, has been constantly cold due to the temperature setting in the building, and has lost weight. He stated that his incarceration has been "mentally grueling," especially since he has felt that the government was "vindictive and doing anything in its power" to convict him and sentence him for an extended period. Certainly, this is evidence to consider in weighing defendant's claim. However, it does not weigh too strongly in his favor because defendant was indeed convicted of distribution and possession with intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1), and because his testimony as to his alleged mental anguish was not at all convincing.

Defendant has also argued that he suffered prejudice because his defense was impaired by the pretrial delay since his finances were drained and his key witness died. The Supreme Court has held that a trial delay of any length does not "per se prejudice the accused's ability to defend himself." Barker, 407 U.S. at 521. Instead, the court must consider the effect of the delay to see if defendant was in fact prejudiced. Id. Sometimes the delay can actually help the defendant who uses it as a defense tactic in hopes that evidence will be lost and that prosecution witnesses will become unavailable or forgetful by the time of trial. Id. Many times, however, the delay can cause "obvious" prejudice to the defendant if his witnesses die, disappear, or forget their testimony during the delay. Id. at 532.

This Court has considered defendant's claims of prejudice, but does not find them to be weighty. First, defendant argues that his defense was impaired by a draining of his finances due to his incarceration. However, defendant has since been able to pay private counsel to represent him in the sentencing process. Defendant testified that he had funds to pay private counsel because, since his trial, a limited liability company in which he had an interest sold two properties. In addition, nothing in the record indicates that defendant's defense was impaired by lack of funds. Even when represented by private counsel, defendant applied for and received CJA funding to purchase transcripts and to hire an investigator, due to his financial circumstances. Defendant has agreed in his testimony on November 14, 2002 that Mr. El-Shabazz, his trial counsel, was able and competent and skillfully guided him through the pretrial and trial processes.

Second, defendant argues that he suffered substantial prejudice because an allegedly key witness, Mitchell Broughton, died three months before trial. Defendant testified on November 14, 2002 that Mr. Broughton told defendant that he would testify that his son Troy Thompson, and not defendant, possessed and distributed the drugs that defendant was indicted for. Indeed, after Broughton died, defendant mentioned this prejudice prior to his trial. See 6/7/01 Motion at [Docket Item 87-1] (stating "[t]here has been a death of the most valuable witness to the defense . . . "); 6/25/01 Affidavit at [Docket Item 90-1] (stating "that Mitchell Broughton who is the father of Troy Thompson was willing to testify for the Defense in many areas in this case and I have been prejudiced by the loss of a key and very important witness who could have exposed Wendelyn and Troy Thompson . . ."); 7/10/01 Petition for Writ of Habeas Corpus (stating "Mitchell Broughton who was a key witness in this case has died and he was going to testify for the defense"). However, this Court finds that even if Mitchell Broughton was going to testify that his son Troy had "set up" the defendant, which itself is dubious as discussed below, his death did not unduly prejudice defendant's case.

The transcript is clear that the jury was informed that Wendeline Thompson, the wife of Troy Thompson, had ulterior motives for reporting defendant to the police. The government, in its opening statement admitted that she contacted the Cumberland County Prosecutor's Office with information about the defendant "to help for a recent arrest of her husband." (Tr. 59:22-60:9, 81:1-21.) Senior Detective Edminster of the Cumberland County Prosecutor's Office testified that Wendeline told him that she would "do anything she could" to provide information to help her husband. (Tr. 195:19-196:11, 282:12-14.) Wendeline Thompson testified that she was married to Troy Thompson in April 1999, (Tr. 317:14-24), and that Troy told her that his charges would be dropped if she purchased from the defendant, (Tr. 322:1-24). Nonetheless, if pinning the origin of the drugs on Troy Thompson was the defense strategy, it was never elicited, such as through Mr. El-Shabazz's cross-examination of Wendeline Thompson. For able defense counsel to not pursue this line of inquiry or argument strongly suggests that there was nothing to it in fact. During closing arguments, defendant's counsel vigorously tried to create doubt as to Wendeline's and Troy's status in the transactions. He never argued or implied that Troy supplied the drugs. At one point, defense counsel argued to the jury:

People take care of themselves and try to provide for their family, that's the self-preservation. Wendeline didn't come as some concerned citizen. She was in the practice of trying to get somebody involved in something that she and her husband was involved in so they can get her husband off. . . . Do you think common sense, common sense, do you think that might have had some kind of motivation in her all of a sudden wanting to do something to free Troy, just a little something? . . . Do you think she would do and say whatever she needs to do and say to benefit him? (Tr. 2188:1-2189:10)

Thus, this Court finds that the jury knew that Troy and Wendeline Thompson had self-serving reasons for their involvement in defendant's apprehension, but that the defense did not assert that Troy participated in Boone's drug deals, let alone claim that Troy supplied the drugs for which Boone was ultimately convicted.

No documentation memorialized Broughton's alleged intent to testify for defendant before he died. No investigator's note, attorney's interview, or letter from Broughton has been produced to corroborate what Boone has said about Broughton's intent. At the hearing on November 14, 2002, defendant presented the testimony of Bernard Days who said he knew Broughton as a family friend and handyman. They were not close, but would run into one another occasionally. Days testified that Broughton told him his son Troy had said that he gave Wendeline drugs to give to the undercover officer, and to say the drugs were supplied by Boone. Days, although listed as a trial witness, did not testify at trial. Days' testimony at the hearing was not credible. He couldn't recall where or when Broughton told him this. He said he never talked to Boone about what Broughton allegedly told him. He had no answer to the question of why Broughton would confide such a thing to him, nor is any reason apparent to the Court. In any event, he never testified that Broughton intended to so testify at trial and thus implicate his son and daughter-in-law. From Mr. Days' demeanor and inability to supply crucial information about when, where, and why this alleged conversation with Broughton occurred, his testimony gives this Court no confidence in his veracity.

Also, while the defendant argues that Mitchell Broughton would have testified that Troy Thompson, and not the defendant, supplied Wendeline with drugs, the record shows that Troy Thompson was not involved in the transaction at issue in the count that defendant was found guilty on. Count Four related to a drug transaction on June 16, 1999 during which Wendeline Thompson introduced the defendant to undercover detective Julie Cash from the Atlantic City Police Department. (Tr. 117:10-11, 416:19-417:3.) Wendeline testified that on June 16th, she first met Detective Cash at the fire hall. (Tr. 417:5-418:7.) Troy was not there. (Tr. 418:15-16.) Then, she and Detective Cash went to the defendant's house. (Tr. 418:22-419:4, 557:1-2.) Troy was not there. (Tr. 419:2-4.) While at defendant's house, defendant Boone agreed to the sale and arranged to meet Wendeline and Detective Cash later at Wendeline's house. (Tr. 420:14-22.) Wendeline and Ms. Cash returned to Wendeline's house to wait for the defendant. (Tr. 421:3-4.) Wendeline testified that when they arrived at the house, Troy was there, but that he "immediately" took the two children outside of the house. (Tr. 421:9-21.) Defendant then arrived with two ounces of cocaine. (Tr. 422:3-7, 665:12-666:10.) Testimony corroborated Wendeline's version of the June 16, 1999 events. The actions of the parties were under surveillance. (Tr. 123:8-134:14, 656:1-10, 1256:1-9.) Ms. Cash testified in depth to the details that Wendeline had recounted. (Tr. 657:23-667:12). Ms. Cash also testified that Troy Thompson was not present during the June 16, 1999 drug transaction, (Tr. 662:17-19, 665:14-16), and that on any occasion if Troy saw her arrive at the house, "he wouldn't stay long because he knew what was going on." (Tr. 662:20-663:14.) While Mitchell Broughton may have testified that Troy Thompson supplied the drugs to Wendeline on June 16, 1999, the evidence showed that Troy was not even present when Wendeline and Detective Cash negotiated with the defendant for the cocaine or when the defendant delivered the supply.

Therefore, this Court finds that the defendant did not suffer prejudice because of Mitchell Broughton's untimely death. If living, he may have testified for the defendant and revealed Troy Thompson's plan to cooperate with police and turn in defendant in exchange for having his own charges dropped. However, the record shows that the jury was presented with this information. As a result, this Court finds that under the fourth Barker factor, defendant suffered the no meaningful prejudice attributable to a lengthy pretrial incarceration.

(5) Balance of Barker Factors

This Court finds that defendant's Sixth Amendment right to a speedy trial was not violated. While the twenty-three month delay between his arrest and trial warranted a speedy trial inquiry, the record shows that the reasons for the delay clearly justified its length as the delay occurred for the benefit of the defendant, that the defendant did not assert his right when given the opportunity to contest continuances which would postpone his trial date, that the defendant well understood his right to obtain a speedier trial, and that the defendant did not suffer prejudice at trial due to the death of his alleged witness, Mitchell Broughton. Therefore, while the defendant may have suffered discomfort associated with his pretrial incarceration, this Court finds that the delay was justified and was not a Sixth Amendment violation especially because the defendant was a direct participant in the events that led to its postponement.

III. CONCLUSION

For the reasons discussed herein, this Court finds that defendant, Kevin Boone, was not deprived of his right to a speedy trial under either the Speedy Trial Act or the Sixth Amendment to the Constitution. The accompanying order is entered.

JEROME B. SIMANDLE U.S. District Judge

Date

Appendix A *fn12

8/25/00 - 5/31/01 *fn13 [25-1] Motion by USA for pretrial determination of admissibility of certain evidence under Rule 404(b) (8/25/00) [71-1] Hearing, Decision stated (5/31/01)

10/16/00 *fn14 - 10/23/00 [30-1] Motion for Dennis Cogan to withdraw as attorney (10/16/00) [33-1, 34-1] Hearing, Decision (10/23/00)

12/6/00 - 12/11/00 [39-1] Motion to establish deadlines for motions, discovery, reviewing evidence (12/6/00) [40-1] Hearing (12/11/00)

1/2/01 - 7/5/01 [42-1] Motion for discovery (1/2/01) [105-2] Hearing, Decision stated (7/5/01) [108-11] Order (7/10/01)

1/5/01 - 7/5/01 [43-1] Motion for discovery (1/5/01) [105-1] Hearing, Decision stated (7/5/01) [108-6] Order (7/10/01)

1/5/01 - 7/19/01 [44-1] Motion for pretrial determination to dismiss indictment for outrageous governmental misconduct (1/5/01) [121-1] Hearing, Decision stated (7/19/01) [123-1] Order (7/19/01)

1/10/01 - 7/16/01 [48-1] Motion for pretrial determination to exclude all evidence for cumulative violations of federal and state laws and statutes (1/10/01) [75-1] Hearing (5/31/01) [107-8] Hearing, Decision Reserved (7/10/01) [112-2] Order (7/16/01)

1/11/01 - 5/31/01 [50-2] Motion to sever count seven from remaining counts (1/11/01) [76-1] Hearing, Decision stated (5/31/01) [107-3] Order (7/10/01)

1/11/01 - 5/31/01 [50-3] Motion to bifurcate trial of prior felony element in count eight (1/11/01) [76-2] Hearing, Decision stated (5/31/01) [107-4] Order (7/10/01)

1/11/01 - 7/5/01 [50-1] Motion that bill of particulars be filed as to count seven (1/11/01) [105-3] Hearing, Decision stated (7/5/01) [108-3] Order (7/10/01)

1/11/01 - 7/5/01 [50-4] Motion to compel disclosure of all exculpatory evidence pursuant to Brady v. Maryland (1/11/01) [105-4] Hearing, Decision (7/5/01) [108-4] Order (7/10/01)

1/11/01 - 7/5/01 [50-5] Motion to compel government to provide information related to confidential source (1/11/01) [105-6] Hearing, Decision stated (7/5/01) [108-8] Order (7/10/01)

1/11/01 - 7/5/01 [50-7] Motion to compel government to disclose substance of any expert testimony it intends to offer at trial (1/11/01) [105-7] Hearing, Decision stated (7/5/01) [108-9] Order (7/10/01)

1/11/01 - 7/5/01 [50-8] Motion to compel government to disclose statements required by Rule 16(a)(1)(A) (1/11/01) [105-8] Hearing, Decision stated (7/5/01) [108-10] Order (7/10/01)

1/11/01 - 7/19/01 [50-6] Motion to determine whether state wiretap procedures were violated(1/11/01) [121-5] Hearing, Decision stated (7/19/01) [131-1] Order (7/24/01)

1/12/01 - 7/19/01 [51-1] Motion for exclusion of evidence for violations of constitutionally protected areas, New Jersey Electronic Surveillance Act (1/12/01) [121-5] Hearing, Decision stated (7/19/01) [131-2] Order (7/24/01)

1/12/01 - 7/19/01 [52-1] Motion for pretrial determination to exclude all evidence pertaining to count 7 and to dismiss Indictment for violations of 5th and 6th Amendment, and prosecutorial misconduct (1/12/01) [121-1] Hearing, Decision stated (7/19/01) [126-1] Order (7/19/01)

1/19/01 - 1/19/01 [53-1] Motion for complete breakdown of communication between defendant and appointed counsel, defendant's denial of access to the court, 5th and 8th Amendment violations (1/19/01) [56-1] Hearing, Decision stated (1/19/01)

1/19/01 - 1/24/01 [54-1] Motion for evidentiary hearing to keep the integrity of these proceedings (1/19/01) [56-1] Hearing (1/19/01) [55-1] Decision (1/24/01)

3/23/01 - 7/16/01 [62-1] Motion to dismiss Indictment and complaint for failure to timely indict and for intentional denial of the preliminary hearing (3/23/01) [114-3] Hearing, Decision stated (7/16/01)

3/23/01 - 7/5/01 [63-1] Motion to compel government to provide all Brady material, including impeachment material of government witness (3/23/01) [105-5] Hearing, Decision stated (7/5/01) [108-5] Order (7/10/01)

3/23/01 - 7/10/01 [63-2] Motion for disclosure of any and all evidence and discovery of entrapment (3/23/01) [108-2] Hearing, Decision stated (7/10/01)

3/23/01 - 7/16/01 [63-3] Motion to dismiss indictment for pre-indictment delay (3/23/01) [114-4] Hearing, Decision stated (7/16/01)

3/23/01 - 7/19/01 [64-1] Motion to dismiss indictment based on Grand Jury abuse (3/23/01) [121-1] Hearing, Decision stated (7/19/01) [123-2] Order (7/19/01)

3/23/01 - 7/16/01 [65-1] Motion for suppression of evidence (3/23/01) [107-5] Hearing (7/10/01) [112-1] Order (7/16/01)

3/23/01 - 7/16/01 [65-2] Motion for return of property seized from 148 North Pearl Street in Bridgeton (3/23/01) [107-5] Hearing (7/10/01) [112-1] Order (7/16/01)

4/30/01 - 7/5/01 [67-1] Motion by USA for reciprocal discovery (4/20/01) [105-10] Hearing, Decision stated (7/5/01) [108-1] Order (7/10/01)

6/8/01 - 6/15/01 [81-1] Motion for order permitting defendant to proceed without prepayment of fees and costs or security (6/8/01) [85-1] Order (6/15/01)

6/8/01 - 6/18/01 [82-1] Motion for continued presentation of same counsel as well as appointment of co-counsel to assist present counsel (6/8/01) [88-1] Order (6/18/01)

6/8/01 - 6/15/01 [83-1] Motion for declaration of eligibility for costs (6/8/01) [86-1] Order (6/15/01)

6/15/01 - 6/20/01 [87-1] Motion to protect attorney/client privilege and to move court for dismissal of indictment with prejudice for various speedy trial violations (6/15/01) [89-1] Order (6/20/01)

6/26/01 - 7/16/01 [91-1] Motion for disqualification of justice, judge, or magistrate (6/26/01) [114-2] Hearing, Decision stated (7/16/01) [116-1] Order filed (7/17/01)

7/10/01 - [106-1] Motion by USA for in limine determination regarding matters for cross-examination of defendant should he elect to testify at trial (7/10/01) [114-1] Hearing, Ordered motion to be heard prior to testimony of defendant, if any (7/16/01)

ORDER

This matter having come before the Court upon the motion of defendant Kevin Boone's motion to dismiss the indictment with prejudice because of speedy trial violations [Docket Item 257-1]; and the Court having considered testimony and the submissions of the parties; and the Court having heard the argument of the parties at a hearing on November 14, 2002; and for the reasons stated in the Opinion of today's date;

IT IS this 6th day of December 2002 hereby

ORDERED that defendant's motion to dismiss the indictment with prejudice because of speedy trial violations [Docket Item 257-1] be, and hereby is, DENIED.


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