The opinion of the court was delivered by: PARKER
BARRINGTON D. PARKER, UNITED STATES DISTRICT JUDGE PRETRIAL MEMORANDUM ORDER NO. 9
(Denying Defendant's Motion to Dismiss for Lack of Speedy Trial)
Counsel for defendant Fawaz Yunis has filed a motion to dismiss the pending indictment with prejudice, claiming that the government has violated his client's rights under the Speedy Trial Act, 18 U.S.C. § 3161 et seq. (1988) ("Act"), and the Sixth Amendment to the United States Constitution.
The Court has considered the memoranda of counsel, the underlying material facts, and the relevant case law, and determines that neither the defendant's statutory right nor his constitutional right to a speedy trial has been violated. Accordingly, the defendant's motion to dismiss is denied.
On September 13, 1987, Fawaz Yunis was arrested under a United States Magistrate's warrant by agents of the Federal Bureau of Investigation ("FBI") in international waters of the Mediterranean Sea. Thereafter, Yunis was immediately transferred to a United States naval vessel engaged in NATO maneuvers. He was confined on that vessel in the custody of the FBI until September 17, 1987. Over the course of nine interrogation sessions held during the four-day period, and prior to an air flight to the United States, the FBI agents secured a written confession from defendant. A challenge to defendant's confession was sustained by this Court. United States v. Yunis, 681 F. Supp. 909 (D.D.C. 1988). That ruling was reversed by the Court of Appeals. United States v. Yunis, 859 F.2d 953 (D.C. Cir. 1988).
On September 17, 1987, Yunis was arraigned on an original indictment. On October 6, 1987, he was arraigned on a superceding indictment and entered a not guilty plea. The indictment charged defendant with several criminal offenses including hostage taking, placing a destructive device aboard and damaging an aircraft, and aircraft piracy. The defendant has been awaiting trial, held without bond, since September 13, 1987.
The Speedy Trial Act requires that the trial of a defendant held in custody on a federal charge or the trial of a high-risk defendant shall commence within 90 days following the beginning of continuous detention. 18 U.S.C. § 3164 (1988). The time period may be tolled by certain events which are considered "excludable delay." Three of the enumerated categories of excludable delay apply to this case: § 3161(h)(1) -- delays due to "other proceedings concerning the defendant"; § 3161(h)(1)(E) -- delays resulting from interlocutory appeals; and § 3161(h)(1)(F) -- delays attributable to pretrial motions.
From the legislative history of the Act it is clear that "other proceedings concerning the defendant" is to be read broadly. The category includes: bail hearings, preliminary examinations, arraignment proceedings, pretrial conferences and Rule 15 depositions. In this case, at the very least the dates of the indictment, arraignments, and bond litigation would be excluded under § 3161(h)(1).
There have been two interlocutory appeals filed by the government. The first, an appeal of the Court's ruling granting suppression of defendant's confession, was noticed on March 3, 1988, and the Court of Appeals issued its mandate on October 25, 1988. The time period involved is clearly excludable.
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 ...