The opinion of the court was delivered by: R. Allan Edgar United States District Judge
This case is currently scheduled for trial on September 4, 2007, and for a final pretrial conference on August 31, 2007. [Doc. No. 39]. After his motion to suppress evidence was denied, defendant Johnson engaged in plea negotiations with the United States Attorney. Instead of entering into a plea agreement, defendant on August 16, 2007, moved to dismiss the indictment with prejudice under the Speedy Trial Act ("STA"),18 U.S.C. §§ 3161 - 3162. [Doc. No. 39].
The government opposes the motion. [Doc. No. 43]. The government argues that although a technical violation of the STA may have occurred, the Court should apply the doctrine of judicial estoppel. The government contends defendant is estopped from seeking dismissal of the indictment based on an alleged violation of his rights under the STA. In the alternative, the government argues the indictment should be dismissed without prejudice pursuant to 18 U.S.C. § 3162(a)(2).
After reviewing the record and calculating the applicable STA time limits and exclusions pursuant to 18 U.S.C. § 3161(c) and (h), the Court finds that there has been an inadvertent violation of the STA and that defendant Johnson has not been brought to trial within the time limit required by 18 U.S.C. § 3161. The Court will not apply the doctrine of judicial estoppel. For the following reasons and for the reasons expressed by the government in its response [Doc. No. 43], the indictment will be dismissed without prejudice pursuant to 18 U.S.C. § 3162(a)(2).
After his arrest, defendant Johnson made his initial appearance before a Magistrate Judge on March 31, 2006. The federal grand jury returned an eight-count indictment on April 11, 2006. [Doc. No. 7]. Count One of the indictment charges defendant with conspiracy to distribute 50 grams or more of cocaine base (crack) in violation of 21 U.S.C. § 846. Counts Two through Seven charge defendant with distributing cocaine base (crack) in violation of 21 U.S.C. § 841(a)(1). Count Eight charges that defendant possessed with intent to distribute five grams or more of cocaine base (crack) in violation of 21 U.S.C. § 841(a)(1).
On April 13, 2007, defendant was arraigned on the indictment and detained without bond. It was at this point -- the arraignment on April 13, 2007 -- that the STA "clock" commenced to run under 18 U.S.C. § 3161(c)(1). Section 3161(c)(1) generally provides that the trial of defendant Johnson shall commence within 70 days from the date of his arraignment. 18 U.S.C. § 3161(h) provides that certain periods of delay shall be excluded in computing the 70-day time limit. See e.g. United States v. Gardner, 488 U.S. 700, 717-18 (6th Cir. 2007).
On April 13, 2007, the Magistrate Judge entered a scheduling order [Doc. No. 14] and set the trial for June 26, 2006. On May 11, 2006, defendant made his first motion for continuance of the trial. [Doc. No. 20]. Defendant asserts that as of May 11, 2006, 26 days of the 70-day time limit under the STA had elapsed. The defendant's first motion for continuance was granted and on June 2, 2006, the Court entered an order rescheduling the trial for July 24, 2006. [Doc. No. 21].
On May 25, 2006, defendant made a motion to substitute new counsel [Doc. No. 18], and the motion was granted on May 26, 2006. [Doc. No. 19]. On June 1, 2006, defendant's new counsel made a second motion for continuance of the trial. [Doc. No. 20]. At this juncture, four more STA days had elapsed. The Court granted the defendant's second motion for continuance on June 2, 2006, and rescheduled the trial for July 24, 2006. [Doc. No. 21].
On June 5, 2006, defendant, with the Court's permission, filed a late motion to suppress evidence. [Doc. No. 23]. The Court referred the suppression motion to Magistrate Judge William B. Mitchell Carter for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1). [Doc. No. 25]. Magistrate Judge Carter held an evidentiary hearing on September 12, 2006. The hearing transcript was prepared and filed on September 25, 2006. On January 16, 2007, the government filed a post-hearing brief. [Doc. No. 34]. On February 16, 2007, Magistrate Judge Carter submitted his report and recommendation. [Doc. No. 36]. On February 19, 2007, defendant filed objections [Doc. No. 37]. The government did not respond to the defendant's objections.
The Court then took the defendant's motion to suppress and the report and recommendation under advisement. The Court carefully reviewed the matter because the defendants' suppression motion raised some novel, complex questions of law. On July 27, 2007, the Court adopted the report and recommendation, and denied the suppression motion. [Doc. No. 38]. On July 27, 2007, the Court also rescheduled the trial for September 4, 2007. The Court inadvertently did not on July 27, 2007, make contemporaneous findings pursuant to the STA, 18 U.S.C. § 3161(h)(8), that the ends of justice served by taking such action and by the delay in ruling on the suppression motion outweighed the best interest of the public and the defendant in a speedy trial.
18 U.S.C. § 3161(h)(1)(F) provides that "delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion" shall be excluded in computing the STA 70-day time limit. 18 U.S.C. § 3161(h)(1)(J) provides that "delay reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement by the court" shall be excluded in computing the STA 70-day time limit. The period of time from June 5, 2006, when defendant made his suppression motion) through February 19, 2007, when defendant filed his objections to the Magistrate Judge's report and recommendation, constitutes delay that is properly excluded under the STA pursuant to 18 U.S.C. § 3161(h)(1)(F).
The primary issue in calculating the running of the STA clock focuses on the period of time from February 19, 2007, when the case was taken under advisement by the Court through July 27, 2007, when the Court adopted the report and recommendation denying the suppression motion. Only the first 30 days of this time period -- from February 19 through March 21, 2007 -- constitutes delay that is excluded. Based on § 3161(h)(1)(F) and ...