United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
P. Mehta United States District Judge
the court is the Government's First Motion for
Continuance, which requests that the court (1) move the trial
presently set for June 13, 2017, to a date in October 2017,
and (2) exclude the intervening days from the 70-day period
in which Defendant James Marvin Reed must receive a trial,
pursuant to the Speedy Trial Act, 18 U.S.C. §§
3161-3174. As grounds for these requests, the Government
submits that four of its essential witnesses are unavailable
on either the present trial date-June 13, 2017-or the
alternative trial date recently proposed by the court, August
14, 2017. Defendant, who is detained pending trial on two
counts of engaging in illicit sexual activity with minor
victims while in the Philippines, opposes the Motion and
asserts his right to a speedy trial.
reasons that follow, the court grants in part and denies in
part the Government's Motion. The court will continue the
trial to August 14, 2017, but will not exclude any time under
the Speedy Trial Act.
December 15, 2015, a grand jury indicted Defendant James
Marvin Reed on one count of traveling in foreign commerce and
engaging in illicit sexual conduct, in violation of 18 U.S.C.
§ 2423(c). See Indictment, ECF No. 1; Arrest
Warrant, ECF No. 9. On August 3, 2016, the Philippines'
Immigration Authority arrested Defendant, and the U.S.
Department of Homeland Security subsequently took him into
custody and transported him to the United States.
See Def.'s Resp. to Gov't's Mot. to
Continue Trial, ECF No. 28 [hereinafter Def.'s
Opp'n], at 1. Defendant appeared before a Magistrate
Judge in the Central District of California on September 16,
2016, in Los Angeles, California, whereupon he was ordered
held without bond. See Order of Detention After
Hearing, ECF No. 8, at 12-15. Defendant made his initial
appearance and was arraigned in this District Court on
October 4, 2016, and a Magistrate Judge again ordered him
held without bond. See Minute Order, Oct. 4, 2016.
Defendant's 70-day Speedy Trial period began to run as of
that date. See 18 U.S.C. § 3161(c)(1)
(providing that the 70-day period commences “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”).
subsequent hearings, Defendant moved to exclude days from the
Speedy Trial calculation. Defendant's first hearing
before this court took place on October 17, 2016, at which
point 13 days had run on the Speedy Trial clock following his
arraignment. See Id. At that hearing, Defendant
moved to exclude the time between October 18 and November 17,
2016, from the 70 days allowed under the Act, which the court
granted in the interest of justice. See Order, ECF
No. 11; 18 U.S.C. § 3161(h)(7). Similarly, at a status
conference held on November 12, 2016, Defendant moved to
exclude the time between November 18, 2016, and January 18,
2017, which the court again granted in the interest of
justice. See Order, ECF No. 12; 18 U.S.C. §
3161(h)(7). Once more, at a status conference held on January
18, 2017, Defendant moved to exclude the time between January
19 and March 20, 2017, which the court granted in the
interest of justice. See Order, ECF No. 14; 18
U.S.C. § 3161(h)(7). Thus, as of March 20, 2017, only 13
days of Defendant's Speedy Trial time had run.
Speedy Trial clock re-started on March 21, 2017, after
Defendant declined to toll any additional time during a
status hearing held on the previous day. See
Hr'g Tr., Mar. 20, 2017. The court entered a Pretrial
Order on March 21, 2017, that directed Defendant to file his
pretrial motions on or before April 3, 2017, and set trial to
begin on June 13, 2017. See Pretrial Order, ECF No.
15. Defendant moved for an extension of time to file his
pretrial motions on March 31, 2017, which the court granted
the same day. See Def.'s Mot. for Ext. of Time,
ECF No. 16; Minute Order, Mar. 31, 2017. The court ordered
Defendant to file his pretrial motions on or before April 12,
2017, and excluded the days from April 4 to April 12, 2017,
in computing the Speedy Trial time. See Minute
Order, Mar. 31, 2017. Between March 21 and April 3, 2017, an
additional 13 days ran on the Speedy Trial clock, meaning
that, as of April 3, 2017, a total of 26 days had run on the
70-day period. Defendant filed three pretrial motions,
including two motions to dismiss the indictment, on April 12,
2017, thereby halting the Speedy Trial clock. See 18
U.S.C. § 3161(h)(1)(D); Def.'s Mot. for Bill of
Particulars, ECF No. 17; Def.'s Mot. to Dismiss
Indictment Due to Pre-Indictment Delay, ECF No. 18;
Def.'s Mot. to Dismiss the Indictment, ECF No. 19. After
the court granted the Government's two unopposed motions
for extensions of time, see Minute Order, Apr. 20,
2017; Minute Order, Apr. 26, 2017, the Government filed three
opposition briefs on May 1, 2017. See
Gov't's Resp. to Def.'s Mot. for Bill of
Particulars, ECF No. 23; Gov't's Resp. to Def.'s
Mot. to Dismiss Indictment Due to Pre-Indictment Delay, ECF
No. 24; Gov't's Resp. to Def.'s Mot. to Dismiss
the Indictment, ECF No. 25.
Government returned a Superseding Indictment on May 4, 2017.
See Superseding Indictment, ECF No. 26. The new
indictment added a second count against Defendant for
residing in a foreign country and engaging and attempting to
engage in illicit sexual conduct with a different minor, in
violation of 18 U.S.C. §§ 2423(c), (e).
Compare Indictment, ECF No. 1, with
Superseding Indictment, ECF No. 26. The Superseding Indictment
did not halt the Speedy Trial clock with respect to Count I.
See United States v. Marshall, 935 F.2d 1298, 1302
& n.7 (D.C. Cir. 1991); cf. United States v. Van
Smith, 530 F.3d 967, 972 (D.C. Cir. 2008).
status conference held May 5, 2017, Defendant was arraigned
on Count II and orally moved to dismiss the new count on the
same grounds as Count I. He also moved to file a reply brief
as to one of his motions to dismiss, which the court granted.
See Hr'g Tr., May 5, 2017. Defendant filed his
reply brief on May 12, 2017. See Def.'s Reply in
Supp. of Mot. to Dismiss the Indictment and Superseding
Indictment, ECF No. 29. With his “reply” brief,
however, Defendant also moved to dismiss Count II on a ground
not advanced with respect to Count I-that Count II violates
the Ex Post Facto Clause. See Id. The
Government's response to that newly asserted ground for
dismissal is not due until May 26, 2017. See LCrR
47(b). Defendant's reply is not due until June 2, 2017.
See LCrR 47(d).
same status conference on May 5, 2017, the Government noticed
its intention to file a motion to continue the trial based on
the unavailability of certain witnesses. Without indicating
whether it would agree to continue the trial in light of
Speedy Trial considerations, the court identified an
alternative trial date of August 14, 2017. See
Hr'g Tr., May 5, 2017. The Government filed its Motion to
Continue Trial on May 8, 2017, and Defendant filed his
Opposition on May 11, 2017. See Gov't's Mot.
to Continue Trial, ECF No. 27 [hereinafter Gov't's
Mot.]; Def.'s Opp'n.
summarize, as of the issuance of this Memorandum Opinion, a
total of 26 days have run on Defendant's Speedy Trial
time on Count I. The Speedy Trial clock has not started to
run on Count II because Defendant orally moved to dismiss
Count II on the same day he was arraigned on that count and
later supplemented that motion in writing, which remains
pending. See 18 U.S.C. § 3161(h)(1)(D).
previously mentioned, the Speedy Trial Act provides a
criminal defendant with a statutory guarantee that he will go
to trial within 70 days of the date on which his indictment
is made public or he makes his initial appearance, whichever
is later. See 18 U.S.C. § 3161(c)(1). Not every
day after the time of charging or initial appearance counts
toward that 70-day period, however. The Act provides a
specific list of circumstances warranting delay and tolling
of the Speedy Trial clock. See Id. § 3161(h).
Amongst those reasons warranting an exclusion of time from
the 70-day window is “[a]ny period of delay resulting
from the absence or unavailability of . . . an essential
witness, or “[a]ny period of delay resulting from a
continuance granted by any judge . . . 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.” Id. §§
3161(h)(3)(A), (7)(A). The Government cites both of these
exceptions as justifying an exclusion of time under the
Speedy Trial Act in this case.
Exclusions of Time for the Absence or Unavailability of an
Speedy Trial Act does not define who qualifies as an
“essential witness.” In the absence of a
statutory definition, the D.C. Circuit has held that an
“essential witness” is one “whose testimony
would be extremely important to the proceeding, perhaps
providing proof that was not otherwise attainable”-in
other words, “a witness so essential to the proceeding
that continuation without the witness would either be
impossible or would likely result in a miscarriage of
justice.” United States v. McNeil, 911 F.2d
768, 773 (D.C. Cir. 1990) (per curiam) (internal quotation
marks omitted); accord United States v. Ortiz, 687
F.3d 660, 663 (5th Cir. 2012); United States v.
Hamilton, 46 F.3d 271, 277 (3d Cir. 1995); United
States v. Eagle Hawk, 815 F.2d 1213, 1218 (8th Cir.
1987); United States v. Marrero, 705 F.2d 652, 656
(2d Cir. 1983). To prove a witness is “essential,
” the Government “must show how the testimony
that it expects a particular witness will give fits within
the overall framework of its case, and why that witness's
testimony would be not only useful, but essential.”
McNeil, 911 F.2d at 774. The Circuit has recognized
that the district court may not have a concrete idea of a
witness's anticipated testimony at the time the court has
to determine whether the witness is “essential”
for purposes of the Speedy Trial Act. See McNeil,
911 F.2d at 773. Accordingly, the Circuit will not
disturb the lower court's determination that a witness is
“essential” provided that the court's
determination “was reasonable in light of the
information [the court] had or should have asked for at the
time that the decision had to be made.” Id.
itself speaks directly to when an essential witness is
considered “absent” or, as pertinent here,
“unavailable.” An essential witness is
“unavailable” when “his whereabouts are
known but his presence for trial cannot be obtained by due
diligence or he resists appearing at or being returned for
trial.” Id. Although the D.C. Circuit has yet
to opine on the meaning of “due diligence, ”
other federal appellate courts appear to have reached
consensus that the Government “must present evidence
that the witness's presence could not be obtained through
its ‘reasonable' efforts” in order to meet
its burden. United States v. Burrell, 634 F.3d 284,
290 (5th Cir. 2011) (per curiam) (quoting Black's Law
Dictionary 523 (9th ed. 2009)) (collecting cases). This
requires a showing, by testimony or affidavit, that the
Government made a reasonable effort to use the resources at
its disposal to bring the witness to trial-i.e., providing
transportation, see United States v. Patterson, 277
F.3d 709, 711-12 (4th Cir. 2002); subpoenaing the witness to
appear, see United States v. Brown, 819 F.3d 800,
819 (6th Cir. 2016); granting use immunity to secure
testimony, see Hamilton, 46 F.3d at 279; posting
bond or enforcing a writ of habeas corpus ad testificatum,
see McNeil, 911 F.2d at 775 (Sentelle, J.,
concurring)-but those efforts were too much of a hardship to
make or failed through no fault of the Government. See
Burwell, 634 F.3d at 291. When the Government ...