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United States v. Reed

United States District Court, District of Columbia

May 16, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JAMES MARVIN REED, Defendant.

          MEMORANDUM OPINION AND ORDER

          Amit P. Mehta United States District Judge

         Before 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.

         For the 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.

         I. BACKGROUND

         On 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”).

         At 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.

         The 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.[1] 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.[2] 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.

         The 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.[3] 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).

         At a 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).

         At the 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.

         To 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).

         II. LEGAL PRINCIPLES

         As 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.

         A. Exclusions of Time for the Absence or Unavailability of an Essential Witness

         The 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).[4] 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.

         The Act 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 ...


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