The opinion of the court was delivered by: Thomas W. Phillips United States District Judge
This matter came before the court for hearing on February 14, 2007, on defendant's appeal of the magistrate judge's order continuing the trial of this case. In addition to appealing the continuance of the trial date in this case, defendant Vincente Corona argues that the continuance has resulted in a violation of the Speedy Trial Act and his Sixth Amendment right to a speedy trial. Defendant asserts that he is entitled to a dismissal of the indictment against him, with prejudice, as a result of such violations.
The record shows that defendant Corona was arrested in California on January 7, 2006. After a detention and a transfer hearing in the Central District of California, he was ordered removed to the Eastern District of Tennessee on January 18, 2006. Defendant Corona has been detained at the Blount County Detention Center since his arrival in this district on February 13, 2006. His initial appearance was held on February 15, 2006, and trial was set for April 11, 2006.
On March 6, 2006, the defendants jointly moved to continue the trial, the motion was granted by the magistrate judge, and the trial was continued to September 19, 2006. Corona moved the court for a continuance of the September 19 trial date because of the return of a superseding indictment. The magistrate judge entered an order on September 8, 2006, setting the trial on the superseding indictment for January 11, 2007, and setting a pretrial motions hearing for November 8, 2006.
Two days before the November 8 motions hearing, counsel for co-defendant Jermaine Hughes, filed a motion to withdraw due to a conflict of interest. On November 8, the magistrate judge appointed new counsel for Hughes and set a scheduling conference for November 14 to discuss a date to reset the pretrial motions hearing and the trial. At the November 14, 2006 conference, the magistrate judge granted an oral motion to continue the trial by defendant Hughes, over the objection of defendant Corona, and reset the pretrial motions hearing to December 18, 2006, and the trial to March 13, 2007.
The week prior to the December 18 hearing, defendant Hughes filed a pro se motion for review of counsel. On the morning of December 18, the magistrate judge met with counsel for the parties to discuss Hughes' motion. Counsel for defendant Corona objected to any continuance of the hearing. The magistrate judge found that Hughes should receive new counsel. After appointing new counsel, and upon Hughes' counsel orally moving the court for a continuance, the magistrate judge continued the trial to July 24, 2007, and the pretrial motions hearing to March 6, 2007.
Defendant Corona appeals the magistrate judge's order continuing the trial, and argues that the continuance has resulted in a violation of the Speedy Trial Act and his Sixth Amendment right to a speedy trial. Corona asserts that he is entitled to a dismissal of the indictment against him, with prejudice, as a result of such violations.
The Speedy Trial Act generally requires that the trial of a defendant charged by indictment commence within seventy (70) days of the filing of the indictment or the date on which defendant first appears before a judicial officer in the district in which the defendant is charged, whichever date occurs last. 18 U.S.C. § 3161(c)(1). Section 3161(h)(8)(A) provides for an excludable period of delay resulting from a continuance granted by the court upon motion of a defendant and the court's "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." 18 U.S.C. § 3161(h)(8)(A).
On March 6, 2006, all three defendants charged in the original indictment jointly moved to continue the trial in this case. On March 13, 2006, the magistrate judge entered an order granting defendants' motion after making an "ends of justice" finding. The court held that the time between the March 10, 2006 hearing and the new trial date of September 19, 2006, was fully excludable under 18 U.S.C. § 3161(h)(8)(A).
On August 15, 2006, a superseding indictment was returned. On August 31, 2006, defendant Corona filed his second motion to continue. The magistrate judge granted the motion and trial was set for January 11, 2007. The magistrate judge entered a memorandum and order granting the motion to continue and making an "ends of justice" finding. The memorandum and order held that the time between the September 19 hearing and the January 11, 2007 trial date was excludable time under the Speedy Trial Act.
The record reflects that defendant Corona has filed the following pretrial motions in this case: (1) motion to revoke order of detention, filed February 16, 2006 [Doc. 21]; (2) motion to suppress recordings, filed June 30, 2006 ; (3) motion to exclude statements, filed June 30, 2006 [Doc. 56]; (4) motion to determine existence of conspiracy, filed June 30, 2006 [Doc. 58]; (5) motion to compel, filed June 30, 2006 [Doc. 60]; (6) motion to suppress statements, filed July 4, 2006 [Doc. 82]; (7) motion in limine to preclude admissibility of prior convictions, filed October 6, 2006 [Doc. 157]; (8) motion in limine to preclude admissibility of immigration status, filed October 6, 2006 [Doc. 158]; (9) motion to dismiss on basis of improper venue, filed October 6, 2006 [Doc. 159]; (10) motion for date of production, filed November 8, 2006 [Doc. 206]; and (11) motion to compel discovery, filed November 30, 2006 [Doc. 214].
On November 6, 2006, counsel for co-defendant Hughes filed a motion to withdraw based upon a conflict of interest. At a hearing on November 8, the motion was granted and new counsel was appointed to represent Hughes. A status conference was scheduled for November 14, 2006. During the November 14 status conference, counsel for Hughes moved to continue the trial. The motion was not opposed by the government; however, defendant Corona opposed continuing the trial. The magistrate judge found that a continuance was necessary to allow defendants and the government reasonable time to effectively prepare for the hearings on the various motions and for the trial. The memorandum and order found that the ends of justice served by granting the motion outweighed the best interest of the public and the defendants in a speedy trial. The trial was reset for March 13, 2007. The court found that the period of time between the November 14, 2006 hearing and the new trial date of March 13, 2007, was fully excludable under the provisions of the Speedy Trial Act.
On December 12, 2006, defendant Hughes filed a pro se motion for review of counsel. At a December 18 hearing on the motion, Hughes advised the court that in his opinion his counsel had been ineffective and expressed his desire to have his counsel relieved. The magistrate judge granted' Hughes' request and appointed new counsel. Hughes' counsel then orally moved to continue the March 13, 2007 trial date and the date for a hearing on pretrial motions in order that he might have time to prepare. Defendant Corona objected to the continuance. The magistrate judge, in a memorandum and order entered December 20, 2006, found that new counsel for defendant Hughes needed time to review discovery and prepare motions on defendant's behalf and to prepare for the pretrial hearing and the trial. The court found that the ends of justice served by granting defendant Hughes' motion to continue the trial outweighed the best interest of the public and the defendants in a speedy ...