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