time period is also excluded from the calculations. The trial of the defendant cannot commence until the interlocutory appeal has been decided by the Circuit Court and the mandate has been issued.
The Act also excludes delays resulting from the filing of any pretrial motion. § 3161(h)(1)(F). The exclusion of time between the filing and disposition of pretrial motions is "automatic." United States v. Wilson, 266 U.S. App. D.C. 344, 835 F.2d 1440, 1443 (D.C. Cir. 1987). While numerous pretrial motions have been filed by counsel, their responses have been prompt and have rarely required extensions of time.
As of this date, January 26, 1989, approximately 499 days have passed since the defendant's arrest. Under § 3161(h), 469 days have been excludable and approximately 30 of the maximum 90 speedy trial days have elapsed. During the past 16 months, there have been overlapping periods of delay which are justifiable under more than one category of excludable delay. Presently, the speedy trial clock is stopped, but it will resume once the pending motions have been ruled upon or when the mandate is issued on the pending interlocutory appeal, whichever occurs later.
Since the tolling provisions of the Act unquestionably apply to delays resulting from the disposition of numerous pretrial motions and two interlocutory appeals, it is clear that there has been no violation of the Speedy Trial Act.
Defendant's counsel also asserts that his client's right to a speedy trial as guaranteed by the Constitution has been violated. The Sixth Amendment to the Constitution provides that "in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury . . . ." Such challenges receive separate review distinct from the Speedy Trial Act. United States v. Gonzalez, 671 F.2d 441, 442-43 (11th Cir.), cert. denied, 456 U.S. 994, 73 L. Ed. 2d 1291, 102 S. Ct. 2279 (1982). It is an unusual case, however, in which the Sixth Amendment right has been violated when the Act's time limit has been met. United States v. Nance, 666 F.2d 353, 360 (9th Cir.), cert. denied, 456 U.S. 918, 72 L. Ed. 2d 179, 102 S. Ct. 1776 (1982).
Litigation concerning this constitutional right is highly fact-specific and centers on the application of the major case Barker v. Wingo, 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972). In Barker, a unanimous Supreme Court identified four factors which lower courts are to assess in determining whether the speedy trial right of a particular defendant has been violated: length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant. Id. at 530.
Although more than 16 months have passed since Yunis' arrest, this case has moved as expeditiously as possible given the circumstances of this case. Delays have been attributable to court proceedings, pretrial motions, and interlocutory appeals. These are all valid reasons which impact the trial date.
The Court recognizes that defendant has asserted his right to a speedy trial in a timely fashion, but finds that his right has not been violated at this point.
The delay in beginning the trial in this proceeding is unfortunate, but it is not sufficiently prejudicial to justify dismissal of the indictment. Defendant has been charged with very serious crimes and as the First Circuit has remarked, "the graver the crimes, the greater the insult to societal interests if the charges are dropped, once and for all, without a meaningful determination of guilt or innocence." United States v. Hastings, 847 F.2d 920, 925 (1st Cir. 1988).
After weighing the four Barker factors, this Court concludes that Yunis's Sixth Amendment right to a speedy trial has not been violated.
Accordingly, it is this 26th day of January, 1989,
That defendant's statutory and constitutional rights to a speedy trial have not been violated. Defendant's motion to dismiss the indictment with prejudice is denied.
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