United States District Court, E.D. Tennessee, Greeneville
REPORT AND RECOMMENDATION
Clifton L. Corker United States Magistrate Judge
has filed a motion to dismiss the superseding indictment in
this case [Doc. 84]. The United States has filed a response
[Doc. 93]. The matter is before the Court pursuant to 28
U.S.C. § 636 and the standing orders of the District
Court for a Report and Recommendation. Oral argument was held
on the motion on March 8, 2018. The matter is now ripe for
FINDINGS OF FACT
14, 2016, the Grand Jury returned a superseding
multi-defendant indictment, alleging that Defendant conspired
to distribute methamphetamine. The United States requested
the Court to issue a Writ of Habeas Corpus ad
prosequendum from the State of California [Doc. 16]. The
Court granted that motion and the Clerk issued the writ. That
writ was returned unexecuted as California refused to
relinquish custody of Defendant at that time. [Doc. 21, pg.
26, 2017, Defendant appeared before the Court on a
subsequently issued writ, and the Court arraigned him on the
charges. At that time, the Court did not schedule a trial
because not all of the Defendants had appeared before the
Court. On December 29, 2017, co-Defendant Anthony Campbell
filed a motion for new counsel, which was granted on January
9, 2018 [Doc. 76, 83]. On January 5, 2018, Defendant filed a
motion for Discovery [Doc. 80]. On January 12, 2018,
Defendant filed a motion to dismiss the indictment for
violation of the Speedy Trial Act [Doc. 84].
January 16, 2018, the Court held a status conference on this
case, and the United States made an oral motion to sever the
remaining outstanding defendant from the case. The Court
granted the United States' motion to sever. On that same
date, January 16, 2018, the Court set the case for trial on
April 10, 2018 [Doc. 86].
requests this Court dismiss the indictment, alleging that it
has been set outside the confines of the Speedy Trial Act.
Under the Speedy Trial Act, 18 U.S.C. § 3161 et
seq., in “any case in which a plea of not guilty
is entered, the trial ... shall commence within seventy
days” from the later of (1) the “filing
date” of the information or indictment or (2) a
defendant's first appearance before a judicial officer,
e.g. an arraignment. 18 U.S.C. § 3161(c)(1).
“Where, as is the case at bar, multiple defendants are
charged together and no severance has been granted, one
speedy trial clock governs.” United States v.
Cope, 312 F.3d 757, 776 (6th Cir. 2002) (citing 18
U.S.C. § 3161(h)(7)). “Moreover, the excludable
delay of one defendant is also excluded for his
codefendants.” United States v. Sobh, 571 F.3d
600, 602 (6th Cir.2009) (citing United States v.
Blackmon, 874 F.2d 378, 380 (6th Cir.1989)); see also
United States v. Smith, 510 Fed.Appx. 390, 393 (6th
U.S.C. § 3161(h)(7) excludes “[a] reasonable
period of delay when the defendant is joined for trial with a
codefendant as to whom the time for trial has not run and no
motion for severance has been granted.” In this case,
it was not until January 16, 2018, that the Court granted the
motion to sever from the case the codefendant, who had not
yet been arraigned on the superseding indictment. Thus, the
speedy trial clock did not begin to run until that point.
Prior to then, the speedy trial clock remained in the paused
position. As noted in United States v. Sobh, 571
F.3d 600, 603 (6th Cir. 2009), the speedy trial clock starts
when the latest codefendant joined for trial was
arraigned. Id. citing Coviello v. United
States, 287 F.App'x 503, 507 (6th Cir.2008) (holding
that the speedy-trial clock when the latest codefendant
joined for trial was arraigned); United States v.
Story, 125 Fed.Appx. 646, 650 (6th Cir. 2005) (holding
that although the speedy trial clock began to run when the
last codefendant was arraigned on July 16, another
defendant's pending pretrial motions resulted in
excludable delay from July 16 until November 19).
argument on the motion, Defendant argued that once the
codefendant was severed on January 16, 2018, the Court was to
go back to June 26, 2017, the date Defendant was arraigned on
the superseding indictment, and start the speedy trial clock
from that date. Under that scenario, severing the codefendant
from the case would immediately cause a violation of the
Speedy Trial Act and result in the dismissal of the
indictment. The Court finds that position is not consistent
with Sixth Circuit case law and in practice makes very little
sense. “Where multiple defendants are charged in an
indictment and no motion for severance has been granted, only
one speedy trial clock governs the action.” United
States v. Culpepper, 898 F.2d 65, 66 (6th Cir. 1990).
That clock did not begin until the motion to sever was
granted on January 16, 2018. Thus, Defendant's Speedy
Trial Act rights have not been violated with the April 10th
also cited in his motion that his constitutional right to a
speedy trial has been violated. The Sixth Amendment
guarantees in relevant part that “[i]n all criminal
prosecutions, the accused shall enjoy the right to a speedy
and public trial.” U.S. Const. amend. VI; see also
Brown v. Romanowski, 845 F.3d 703, 712 (6th Cir.),
cert. denied sub nom. Brown v. Haas, 138 S.Ct. 93,
199 L.Ed.2d 28 (2017). In Barker v. Wingo, 407 U.S.
514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Supreme Court
held that a court must consider in evaluating a
constitutional speedy trial claim (1) the length of the
delay, (2) the reason for the delay, (3) the defendant's
assertion of his right, and (4) prejudice to the defendant.
Id. at 530.
first factor, length of the delay, is a triggering
mechanism.” Brown, 845 F.3d at 714 quoting
United States v. Brown, 498 F.3d 523, 530 (6th Cir.
2007). A one-year delay is presumptively prejudicial and
triggers analysis of the remaining Barker factors.
Id. In this case, there is not a one year delay and
no presumption of prejudice is raised by the delay. Defendant
claims prejudice because he has been held “so long in
Tennessee on the superseding indictment and no trial has been
scheduled because it interrupted his ongoing prison term for
the sentence rendered in California.” [Doc. 84, pg. 1].
The amount of time between his arraignment and the severance
is approximately seven months. He does not allege that as a
result of this delay evidence has been lost or destroyed or
anything of the sort. In fact, he argued at oral argument
that he has been prejudice because during the delay
codefendant Gerlacher decided to testify against him. The
Court does not find that witnesses cooperating with the
United States is the kind of prejudice the statute was
the Court finds that the April 10, 2018, trial date is within
the confines of the Speedy Trial Act. The Court also finds
that Defendant's constitutional right to a speedy trial
has not been ...