The opinion of the court was delivered by: Paul L. Friedman, District Judge.
MEMORANDUM OPINION AND ORDER
The defendant has moved to dismiss the indictment and to
modify the conditions of his release based on alleged violations
of the Speedy Trial Act, 18 U.S.C. § 3161, et seq. Upon
consideration of the arguments of the parties in their briefs
and at the motions hearing, the Court denies defendant's motion
to dismiss and his motion to modify conditions of release.
Defendant Melvin Knight was arrested on December 21, 2000,
appearing before Magistrate Judge John M. Facciola that same
day. On December 27, 2000, Judge Facciola held a preliminary
hearing in which he determined that the government had probable
cause to arrest Mr. Knight; he also issued a detention
memorandum ordering that defendant remain in custody. Mr. Knight
has been in custody continuously since the date of his arrest.
On January 18, 2001, a grand jury returned a two count
indictment charging Mr. Knight with unlawful distribution of
five grams or more of cocaine base in violation of
21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii), and unlawful distribution of 50
grams or more of cocaine base in violation of
21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii). On January 25, 2001, defendant was
arraigned on this indictment before Judge Royce C. Lamberth to
whom the case was originally assigned. Just before the
arraignment, the prosecutor assigned to the case, Danny Onorato,
spoke with defense counsel, Robert Mance, regarding Mr.
Onorato's belief that Mr. Mance had a potential conflict of
interest that would prevent him from representing Mr. Knight in
this matter. Both counsel agreed that Mr. Onorato would refrain
from filing a motion to disqualify defense counsel until after
Mr. Mance had the opportunity to consider the matter and
determine for himself whether there was a potential conflict.
This understanding was communicated to Judge Lamberth at the
January 25 arraignment.
The parties appeared again before Judge Lamberth on February
16, 2001, at which time Judge Lamberth denied defendant's motion
for reconsideration of bond. On that day, Mr. Mance conveyed to
the Court his belief that he had no conflict or potential
conflict of interest and that he would be able to represent Mr.
Knight. The prosecutor disagreed and indicated that he would
file a motion to disqualify Mr. Mance. The motion to disqualify
was filed two weeks later, on March 2, 2001. Mr. Mance filed an
opposition on March 12, 2001. Judge Lamberth heard argument on
the motion on March 13 and took the matter under advisement.
On June 4, 2001, the case was randomly reassigned by the
Calendar Committee from Judge Lamberth to the undersigned. Three
days later, on June 7, 2001, defendant filed a motion to dismiss
the indictment based on the government's alleged violation of
the Speedy Trial Act and a motion for reconsideration of his
bond, also based on asserted Speedy Trial Act violations. On
July 6, 2001, the Court issued a memorandum opinion and order
under seal denying the motion to disqualify Mr. Mance as defense
counsel. On July 12, 2001, the Court heard argument on the
motion to dismiss and for reconsideration of bond and took the
matter under advisement.
Because defendant has not been brought to trial within the
time specified by the Speedy Trial Act, he contends that the
indictment must be dismissed. The Act provides that
the trial of a defendant charged in an information or
indictment with the commission of an offense shall
commence within seventy days from the filing date
(and making public) of the information or indictment,
or from the date the defendant has appeared before a
judicial officer of the court in which such charge is
pending, whichever date last occurs.
18 U.S.C. § 3161(c)(1). Because Mr. Knight's first appearance
before Magistrate Judge Facciola occurred before the indictment
was returned, the date of the filing of the indictment, January
18, 2001, is the relevant starting point for the Court's
analysis. See United States v. Richmond, 735 F.2d 208, 211
(6th Cir. 1984); United States v. Carrasquillo, 667 F.2d 382,
384 (3d Cir. 1981).
The parties agree that when the defendant filed the motion to
dismiss on June 7, 2001, the speedy trial clock stopped, and
they also agree that certain periods of delay may be excluded
from the Court's calculations under the Speedy Trial Act. See
18 U.S.C. § 3161(h). The parties agree that three days should be
excluded to account for the time between February 13, 2001 (when
the motion for reconsideration of bond was filed) and February
16, 2001 (when Judge Lamberth denied the motion) and that 11
days should be excluded between March 2, 2001 (when the motion
to disqualify counsel was filed) and March 13, 2001 (the date of
the hearing on the motion). See 18 U.S.C. § 3161(h)(1)(F).
They also agree that after Judge Lamberth took the motion to
disqualify under advisement following the motions hearing, an
additional 30 days should be excluded from the speedy trial
calculation. See 18 U.S.C. § 3161(h)(1)(J). Excluding these 44