UNITED STATES OF AMERICA v. QUILLAN INMAN (2023)

ORDER

This matter comes before the court on defendant's motion to dismiss pursuant to the Speedy Trial Act and the Sixth Amendment (DE 89). The government responded in opposition, and the court heard argument on the motion at the start of trial, on November 27, 2023. In this posture, the issues raised are ripe for ruling. For the following reasons, the motion is denied.

BACKGROUND 1

Indictment filed January 11, 2022, charged defendant with felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924. Defendant was arrested July 5, 2022, in the District of South Carolina, and defendant first appeared in this district September 9, 2022. Scheduling order entered that day set arraignment for the court's November 8, 2022, term, and it set a deadline for motions October 14, 2022, as well as a deadline for voir dire questions and requests for jury instructions on or before seven days prior to arraignment.

Defendant moved October 14, 2022, for an extension of time to file pre-trial motions and to continue arraignment, which motion the court granted October 17, 2022, continuing the motions deadline to November 14, 2022, and arraignment to the court's December 6, 2022, term. November 14, 2022, the court granted defendant's additional motion for extension of time, continuing motions deadline to December 5, 2022, and arraignment to the January 10, 2023, term. Defendant filed a motion to suppress December 5, 2022. Defendant's first appointed attorney, David E. Wicclair (“Wicclair”), moved to withdraw January 21, 2023, on the basis that defendant requested new counsel and the “attorney-client relationship [had] irreparably broken down.” (DE 22 at 2). The court allowed the motion to withdraw, and defendant's second appointed counsel, William Michael Dowling (“Dowling”), entered an appearance for defendant January 30, 2023.

The motion to suppress was referred to a magistrate judge, April 18, 2023, who set the motion for hearing. On May 10, 2023, defendant's counsel, Dowling, moved to withdraw as attorney, on the basis that “there has been a complete and irreversible breakdown in the attorney-client relationship.” (DE 41 at 1). The court allowed the motion to withdraw, and defendant's third and present appointed counsel, H.P. Williams, Jr. (“Williams”), entered an appearance May 19, 2023, and the court held hearing on the motion to suppress on July 5, 2023. The magistrate judge entered a memorandum and recommendation (“M&R”) on the motion to suppress July 18, 2023, and defendant filed objections, to which the government responded. Defendant moved for appointment of new counsel August 14, 2023.

The court denied the motion to suppress and the motion for appointment of new counsel September 21, 2023, directing the clerk to set arraignment during the court's November 2023 term of court. On October 10, 2023, defendant moved to dismiss the indictment on the basis of a Second Amendment violation, which motion the court denied October 24, 2023. In the meantime, on October 18, 2023, the court noticed arraignment to take place November 1, 2023. Defendant appeared for arraignment on that date and did not consent to proceed before a magistrate judge, who continued arraignment to take place before the undersigned November 8, 2023.

This court held arraignment November 8, 2023, at which point the court accepted a not-guilty plea and scheduled trial to take place November 27, 2023, setting a November 15, 2023, deadline for proposed jury instructions and voir dire. The court entered a written order, November 9, 2023, detailing its findings regarding speedy trial issues. The court denied November 14, 2023, a motion by defendant for court approval to proceed by bench trial. At pretrial conference November 27, 2023, the court noted it did not believe there has been a violation of the Speedy Trial Act and that a written order will follow.

COURT'S DISCUSSION

A. Speedy Trial Act

1. Applicable Law

The Speedy Trial Act requires that “[i]n any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the ․ 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.” 18 U.S.C. § 3161(c)(1).

The “clock begins to run the following day” after the indictment or initial appearance. United States v. Stoudenmire, 74 F.3d 60, 63 (4th Cir. 1996). “If [the] 70-day period elapses and the defendant moves to dismiss the charges on Speedy Trial grounds before trial, then the charges shall be dismissed.” United States v. Velasquez, 52 F.4th 133, 136 (4th Cir. 2022) (citing § 3162(a)(2)).

The 70-day period stops running during the time of any “excludable delay,” which may fall into one of several pertinent categories applicable here. Stoudenmire, 74 F.3d at 63 n.3. One such category is the time spent on “any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion.” 18 U.S.C. § 3161(h)(1)(D). Another is the “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.” Id. § 3161(h)(1)(H).

“Where a hearing is required, subparagraph ([D]) excludes the entire period from the filing of the motion to the conclusion of the hearing on that motion, regardless of whether any delay in holding the hearing was ‘reasonably necessary.’ ” United States v. Parker, 30 F.3d 542, 549 (4th Cir. 1994) (quoting Henderson v. United States, 476 U.S. 321, 330 (1986)). “Once the court has held the hearing and received any post-hearing submissions from the parties that it needs for proper disposition of the motion, the court takes the motion ‘under advisement’ and subparagraph ([H]) excludes up to 30 additional days thereafter, up to and including the date on which the court finally disposes of the motion.” Id.

“If the pretrial motion requires no hearing, sub paragraph ([D]) excludes the period from the filing of the motion to the time the court receives all the papers it reasonably expects.” Id. “Once the court has received the papers, the motion ‘is actually under advisement’ and subparagraph ([H]) excludes up to 30 additional days thereafter, up to and including the date on which the court finally disposes of the motion.” Id.

A third category, applicable here, is “on the basis of [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.A. § 3161(h)(7)(A). This exclusion only applies if the “court sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial.” Id. “The factors, among others, which a judge shall consider in determining whether to grant a continuance” under this category include whether failure to grant a continuance would result in a “miscarriage of justice,” whether the case is “so unusual or so complex ․ that it is unreasonable to expect adequate preparation,” or whether failure to grant the continuance otherwise would deny counsel “time necessary for effective preparation.” Id. § 3161(h)(7)(B).

“While it is the best practice for a district court to put its findings on the record at or near the time when it grants the continuance, it need not do so.” Velasquez, 52 F.4th at 138. “Instead, at the very least the Act implies that those findings must be put on the record by the time a district court rules on a defendant's motion to dismiss.” Id. “Even still, it must be clear from the record that the court conducted the mandatory balancing contemporaneously with the granting of the continuance.” Id.

2. Application

In this case, the speedy trial clock began to run on September 10, 2022, the day after defendant's initial appearance in this district. It then ran 34 days to October 13, 2022. The speedy trial clock then stopped running on October 14, 2022, due to an excludable for defendant's filing of a motion for extension of time. This excludable continued until the court's order on this motion was entered October 17, 2022. See 18 U.S.C. § 3161(h)(1)(D). The court's October 17, 2022, order, in turn, started another excludable under § 3161(h)(7)(A), due to extension of the pre-trial motions deadline to November 14, 2022, and continuance of arraignment to December 6, 2022, on the basis of the court's finding that the “ends of justice served by [defendant's] motion outweigh[ed] the best interests of the public and the [d]efendant in a speedy trial.” (DE 15 at 1).

Defendant and the government are both in accord with the foregoing calculations, including the speedy trial clock running 34 days to October 13, 2022, and the excludable period running from October 14, 2022, to December 6, 2022. (See Def's Mot. (DE 89) ¶¶ 17, 46; Gov. Resp. (DE 90) ¶¶ 15-17). Nevertheless, to the extent further specification of reasons for the “ends of justice” finding by the court is required, pursuant to Velasquez, 52 F.4th at 138, the court notes here that defendant himself “request[ed] that the pre-trial motions deadline be extended thirty (30) days through and including 14 November 2022 and that the arraignment be continued accordingly,” and that such continuance served the ends of justice because counsel “need[ed] time to review ․ footage with [defendant] before an appropriate course of action in the case [was] determined.” (DE 14 at 2). An additional partially-overlapping excludable period applied from the date of the court's November 14, 2022, order on defendant's second motion to continue, until the date of January 10, 2023, arraignment term, based upon identical reasons grounded in defendant's motion. (DE 16 at 2).

The next excludable period began December 5, 2022, upon defendant's filing of a motion to suppress. See 18 U.S.C. § 3161(h)(1)(D). On the next day, triggering a separate “ends of justice” excludable, the court entered the following text order regarding a continuance of the arraignment that had then been set for the court's January 10, 2023, arraignment term:

TEXT ORDER as to Quillan Inman - It is ordered that arraignment, currently scheduled for the 1/10/2023 term of court, is continued and will be reset to occur no sooner than 45 days after the court's ruling on the now pending motion to suppress. Counsel should refer to 11 SCHEDULING ORDER for additional directives. It is further ordered that any delay that results from this continuance is excluded from the Speedy Trial Act computation pursuant to 18 U.S.C. § 3161(h)(7)(A) for the reason that the ends of justice served by granting this continuance outweigh the best interest of the public and the defendant in a speedy trial.

(December 6, 2022, Text Order) (emphasis added). The court thus excluded the time period after an anticipated ruling on defendant's motion to suppress up to the date of the next reset arraignment. The court addresses this exclusion in more detail, further below, following consideration of the end point of the exclusion based upon defendant's motion to suppress.

Because the court held an evidentiary hearing on the motion to suppress, this triggered application of subparagraphs § 3161(h)(1)(D) and (H) in tandem. Parker, 30 F.3d at 549. In particular, the subparagraph (D) exclusion applied to the entire period from the filing of the motion until the conclusion of the hearing, July 5, 2023. Subparagraph (H) then took over with an exclusion running until 30 days after the court has “received any post-hearing submissions from the parties that it needs for proper disposition of the motion,” upon which the motion is “actually under advisement.” Id. In this case, the motion to suppress was actually under advisement on the date it was “submitted” to the undersigned, August 22, 2023. (See Docket Entry (unnumbered) dated August 22, 2023 (“Motion Submitted to District Judge Louise Wood Flanagan regarding 53 MEMORANDUM AND RECOMMENDATIONS regarding 18 MOTION to Suppress as to Quillan Inman. (Akerly, J) (Entered: 08/22/2023)). The subparagraph (H) exclusion thus ran until the court's order denying the motion to suppress on September 21, 2023, less than thirty days after submission.

Defendant suggests that the subparagraph (H) exclusion expired six days earlier, on September 13, 2023, based on the filing date of the government's amended response to defendant's objections to the M&R. (See Def's Mot. (DE 89) ¶¶ 33-36).² This is incorrect for two independent reasons. First, the motion to suppress was not actually under advisement until the date it was submitted to the undersigned, because that is the date that the court actually determined that it had received all the filings “that it need[ed] for proper disposition of the motion.” Parker, 30 F.3d at 549. In this case, triggering the subparagraph (H) exclusion solely from the date of filing of the government's amended response to objections, August 14, 2023, would render meaningless the term “actually” in the statutory provision “actually under advisement.” 18 U.S.C. § 3161(h)(1)(D); cf. United States v. Bush, 404 F.3d 263, 273 (4th Cir. 2005) (“Once a hearing has been held on a motion and all necessary additional materials submitted to the court, ․ § 3161(h)(1)(J) limits the excluded period to thirty days.”) (emphasis added).³

Second, and alternatively, an additional exclusion under subparagraphs (D) and (H) was running based upon the filing of defendant's motion to appoint new counsel on August 14, 2023. Upon its filing, the court set a response deadline to that motion for August 29, 2023, and no response was filed. See Parker, 30 F.3d at 549 (“If the pretrial motion requires no hearing, sub paragraph ([D]) excludes the period from the filing of the motion to the time the court receives all the papers it reasonably expects.”). Thereupon, the motion was submitted September 7, 2023, as noted in a docket entry made that date. The 30-day advisement period for that motion thus began running on the submission date or, at the earliest, after the response deadline had run, on August 29, 2023.

Accordingly, the subparagraph (D) and (H) exclusions continued running on the basis of both defendant's motions up to the court's order entered September 21, 2023.⁴ At that point, the speedy trial clock remained at 34 days. The court turns next to considering the time periods after the court's September 21, 2023, order.

On September 21, 2023, an “ends of justice” excludable remained in operation based upon the court's December 6, 2022, text order. 18 U.S.C. § 3161(h)(7)(A). As noted earlier, that text order continued arraignment to occur no sooner than 45 days after the court's ruling on the motion to suppress. That ruling, in turn, directed the clerk to set arraignment “for the court's November 2023 term of court,” (DE 64 at 8), and the clerk set arraignment to take place “for term of court commencing on 11/14/2023” with a specific date to be noticed. (Docket Entry (unnumbered) dated September 21, 2023).

Defendant argues that the “ends of justice” excludable articulated in the court's December 6, 2022 text order was procedurally ineffective because the court did not set forth its reasons for finding that the ends of justice served by the granting of such continuance outweighed the best interest of the public and the defendant in a speedy trial.⁵ However, the court's reasons for the “ends of justice” finding on December 6, 2022, were the same as those for its “ends of justice” finding in its October 17, 2022, and November 14, 2022, continuance orders. Namely, defendant himself had twice moved to continue arraignment, and each time the court continued arraignment to take place over 45 days after the continuance order. (See DE 15, DE 17). A 45 day continuance period for setting the next arraignment, upon resolution of defendant's motion to suppress, therefore, comported both with the parties' and the court's expectations for the time period necessary for efficient administration of the arraignment schedule and for effective preparation therefor. Specifically, a 45 day continuance period allows time reasonably required for: 1) preparation and filing of voir dire and jury instructions as required by Local Rule 24.1 and the court's scheduling order; 2) determining “an appropriate course of action in the case” with respect to a plea, as reflected also in defendant's previous two motions to continue arraignment, (e.g., DE 16 ¶5); and, 3) promoting efficient administration of justice by adhering to regular terms of court, where neither defendant nor the government identify any prejudice resulting from such regular terms. (E.g., id. ¶ 8 (“Neither the Government nor the Defendant would be prejudiced by the ․ continuance sought herein.”). It was on the basis of these considerations that the court found the “ends of justice served by granting this continuance outweigh the best interest of the public and the defendant in a speedy trial.” (December 6, 2022, Text Order).

In sum, although the court did not articulate these findings in its December 6, 2022, text order, or in its September 21, 2023, order, it is “clear from the record,” as it was then before the court, “that the court conducted the mandatory balancing contemporaneously with the granting of the continuance.” Velasquez, 52 F.4th at 138. Therefore, an “ends of justice” excludable applies for the time period from the court's September 21, 2023, order, to the November 14, 2023, arraignment date then set, or at least until the date arraignment actually was held, on November 8, 2023.⁶

Accordingly, as of November 8, 2023, the speedy trial clock remained at 34 days, and when trial commenced November 27, 2023, the speedy trial clock had not run. Therefore, that part of defendant's motion made under the Speedy Trial Act must be denied on this basis alone.

In addition, and in the alternative, additional excludables apply during three time periods after September 21, 2023, which also serve to preclude a Speedy Trial Act violation. First, an excludable under § 3161(h)(1)(D), applies to the time from filing of defendant's motion to dismiss on October 10, 2023, to decision thereon October 24, 2023. Second, “ends of justice” exclusions apply to the time from November 2, 2023, to November 7, 2023, and from November 9, 2023, to November 27, 2023. § 3161(h)(7)(A). Finally, an exclusion applies under § 3161(h)(1)(H) for the November 1, 2023, and November 8, 2023, dates on which defendant appeared before the court for hearing.⁷

Defendant argues that the “ends of justice” exclusions noted here are inapplicable because the court did not sufficiently articulate its reasons for them and because there is no justifiable reason for excluding this time. The court disagrees. With respect to the first continuance, from November 1, 2023, to the time of arraignment before the undersigned, the court found that “the ends of justice served by this continuance outweigh the best interests of the public and defendant in a speedy trial.” (November 1, 2023, Text Order). Although the text order did not make additional findings, it is “clear from the record, that the court conducted the mandatory balancing contemporaneously with the granting of the continuance.” Velasquez, 52 F.4th at 138. At hearing, November 1, 2023, the court addressed defendant's objection to exclusion of the time on speedy trial grounds, and the court invited the government to articulate reasons why the time should be excluded until the reset arraignment date. The government argued that defendant understood that the arraignment that date was to be before a magistrate judge, and if he had an issue with that he could have made it known prior to the time of hearing, so that the case could have been set before the undersigned district judge.⁸ As it was, the government noted, defendant showed up for arraignment before the magistrate judge but then changed his mind at hearing about proceeding forward. Accordingly, the government argued, because of defendant's own “waffling on that point,” the time between the November 1, 2023, and the arraignment before the undersigned should be excluded. The magistrate judge, upon completion of that argument, then found “there is good cause” to exclude the time.

Such good cause was well supported on the basis of this record, and other circumstances then before the court at the time. Implicitly, the court found good cause on the basis of the reasons articulated by the government then at hearing. Defendant brought about the need for the delay himself, by a request communicated to the court only at the moment of the originally-scheduled arraignment, which had been expressly noticed to take place before a magistrate judge, through a notice of hearing entered on the docket October 18, 2023. Defendant could have avoided this delay by requesting arraignment before district judge during the weeks prior to November 1, 2023.

In addition, good cause for excluding the time between November 1, 2023, and November 8, 2023, arose from the fact that defendant had not filed any requests for voir dire or jury instructions, even though defendant expressed at hearing November 1, 2023, a desire to proceed to trial as soon as possible, as well as a desire to move to dismiss the indictment on speedy trial grounds. The court previously articulated in its scheduling order, entered September 9, 2022, the requirements under Local Criminal Rule 24.1 for voir dire and jury instructions requests, and the court expressly found:

If the parties fail to file proposed voir dire and jury instructions by the deadline set herein, this evidences to the court that the parties are not prepared to proceed to trial at the time of arraignment owing to their own trial preparation needs. In such instances, trial date certain and deadlines for submission of voir dire and jury instructions will be set by Judge Flanagan at administrative conference with counsel following arraignment.

(DE 11 at 2 n. 1) (emphasis added). Thus, the “ends of justice” continuance at the November 1, 2023, also properly was based on the finding that defendant was not prepared then to proceed to trial, which serves as an additional factor weighed by the court pursuant to § 3161(h)(7)(B).

With respect to the second “ends of justice” continuance, from November 8, 2023, to the date of trial, the court in fact made explicit findings supporting the exclusion in its November 9, 2023, order. The court determined that “for ․ reasons herein discussed, a trial date prior to November 27, 2023, would result in a miscarriage of justice.” (DE 71 at 1 n. 1). Specifically, the court noted that “considering the totality of the circumstances of the instant case, as well as the information and arguments presented at hearing, the court finds that, in the interest of providing counsel for defendant the reasonable time necessary for effective trial preparation, taking into account his exercise of due diligence in addressing a number of issues raised by defendant, holding trial prior to November 27, 2023, would result in a miscarriage of justice.” (DE 71 at 3).

Defendant suggests this was procedurally inadequate because counsel “does not remember hearing the time being excluded in open court,” and because the “exclusion was entered the next day.” (Def's Mot. (DE 89) at 8). The timing of the court's order, however, does not render it procedurally improper, because it is within “[t]he best practice ․ for a district court to put its findings on the record at or near the time when it grants the continuance.” Velasquez, 52 F.4th at 138 (emphasis added). The court's written order serves this purpose.

In any event, the court's November 9, 2023, order independently provides reasons for a continuance beginning on that date, based not only on information presented at hearing November 8, 2023, but also on the circumstances presented at the time of the court's entry of the order on November 9, 2023. These circumstances include the fact that at the time of hearing on November 8, 2023, the court had noted that the clerk of court calculated time under the Speedy Trial Act would expire November 29, 2023. Based on that understanding at hearing, the court then set trial in this case to take place November 27, 2023, within the speedy trial deadline as then calculated.

However, as noted in the court's order, “[a]fter hearing, the clerk recalculated and reported to the court a speedy trial expiration deadline of November 23, 2023.” (DE 71 at 1 n. 1). This triggered at that point further consideration by the court of the calculation of the speedy trial deadline and the balancing of additional factors bearing on a trial date, including the express finding that “a trial date prior to November 27, 2023, would result in a miscarriage of justice.” (Id.). For example, the court considered further defendant's argument, articulated to the undersigned only for the first time at hearing November 8, 2023, that the speedy time had run, or if not run that it is “very close.”⁹ Likewise, the court considered further the government's observation that the speedy trial calculation was going to be “more complex than your average case.”

These circumstances provided impetus for detailed consideration and articulation of factors bearing on a trial date and speedy trial deadlines. As such, it is “clear from the record that the court conducted the mandatory balancing contemporaneously with the granting of the continuance” announced in the court's November 9, 2023, order. Velasquez, 52 F.4th at 138. Defendant thus has not established the “district court's failure to comply with ends-of-justice exclusion's procedural requirements.” Id.

Defendant also suggests that the court's “ends of justice” exclusion was not substantively valid, because “[t]here is no justifiable reason to exclude this time.” (Def's Mot. (DE 89) at 6). Defendant states that although defendant pro se stated he needed 30 days to prepare, “counsel was ready for trial.” (Id.). The court, however, did not rest solely on defendant's pro se statement that he needed 30 days to prepare for trial. Rather the court took into account counsel's exercise of due diligence “in addressing a number of issues raised by defendant,” (DE 71 at 3), which then included unresolved issues regarding 1) whether defendant was going to proceed by bench trial or jury trial, 2) whether defendant reasonably could challenge whether he is a felon based on “restoration of rights” or Second Amendment rights, and 3) whether counsel had then sufficient opportunity to “talk with defendant” regarding potential stipulations. The court also took into account the need for filing requests for jury instructions and voir dire, further reinforcing the court's findings in its scheduling order. The court likewise took into account a deadline for expert disclosures, as well as the time required for the court to evaluate the parties' upcoming filings, and to prepare court's draft jury instructions. Finally, the court took into account the court's closure between November 22, 2023, at 1:00 p.m. and November 24, 2023, due to the Thanksgiving holiday. Accordingly, multiple factors justified a continuance of trial between November 8, 2023, and November 27, 2023.

In sum, based upon application of both primary and alternative excludable periods discussed herein, the speedy trial clock had not run prior to the commencement of trial on November 27, 2023. Therefore, that part of defendant's motion based upon the Speedy Trial Act is denied.

B. Sixth Amendment

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” U.S. Const. amend. VI. In determining whether there has been a violation of this right, the court must consider: (1) the “length of the delay”; (2) “the reason for the delay”; (3) “the defendant's assertion of his right”; and (4) the “prejudice to the defendant.” Barker v. Wingo, 407 U.S. 514, 530 (1972); see United States v. Robinson, 55 F.4th 390, 400 (4th Cir. 2022).

“The constitutional and statutory rights to a speedy trial should ideally operate in tandem.” United States v. Pair, 84 F.4th 577, 589 (4th Cir. 2023). “In the Speedy Trial Act, Congress gave more concrete expression to the general Sixth Amendment concerns.” Id. “[I]t is thus not surprising that courts have consistently recognized that it will be the unusual case where the time limits under the Speedy Trial Act have been satisfied but the right to a speedy trial under the Sixth Amendment has been violated.” Id. This case is no exception.

As an initial matter, the court recognizes that the 510 day period between defendant's arrest and trial is a “presumptively prejudicial” delay. Id. “Therefore, the first Barker factor favors” defendant. Id. The other factors, however, favor the government.

On the second factor, “[t]he reasons for a trial delay should be characterized as either valid, improper, or neutral.” Robinson, 55 F.4th at 400. Reasons codified as exclusions under the Speedy Trial Act are valid. See Pair, 84 F.4th at 589. And “[v]alid reasons for delaying a trial are weighed in favor of the [g]overnment.” Robinson, 55 F.4th at 400. Defendant argues that the government is “more to blame” for the delays, including its transport of defendant after arrest and its motions for extension of time, (Def's Mot. (DE 89) at 11); however, blame does not alone make a reason invalid. The government articulated valid reasons for seeking extensions, including plea negotiations. The government also explains that it transported “via U.S. Marshal transport, as is the normal process for moving a defendant from one district to another.” (Gov. Resp. (DE 90) ¶ 10). Moreover, defendant himself sought multiple continuances in this case, and he played a role in delays due to breakdowns in attorney-client relationships with his first two counsel. Here, where most of the period of delay is covered by an exclusion, and other periods are neutral, this factor weighs in favor of the government.

The third factor, “the timeliness and vigor of the assertion of the speedy trial guarantee,” likewise weighs in the government's favor. Pair, 84 F.4th at 590. Defendant first asserted his speedy-trial right on the record in a letter to the court on August 28, 2023, over a year after his arrest. (DE 61). This assertion first was reiterated through counsel when defendant appeared for arraignment before the magistrate judge November 1, 2023. Since defendant's “trial started not long after he asserted his speedy-trial right, this factor favors the government.” See Robinson, 55 F.4th at 400; United States v. Grimmond, 137 F.3d 823, 828 (4th Cir. 1998) (holding that a defendant's failure to assert his speedy trial right weighed in the government's favor where he asserted that right four months before the trial began). In addition, defendant did not object on speedy trial grounds to the government's motions for extension of time to respond to defendant's motion to suppress or to its motion to continue the suppression hearing. See Pair, 84 F.4th at 590 (noting defendant “had remained silent in the face of various continuances”). Although defendant now asserts he did not want a motion to suppress but wanted a speedy trial because of delay following his arrest, he neither withdrew his motion to suppress, nor asserted a speedy trial motion.

The fourth factor, prejudice, also favors the government. When analyzing prejudice, the court considers three interests of defendants: “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” Barker, 407 U.S. at 532. The third is the “most serious ․ because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” Id. As in Robinson, “[t]he first interest supports defendant's position but the second and third don't.” Robinson, 55 F.4th at 400. The court recognizes that defendant has been detained since arrest, and that he suffers from significant medical impairments and pain, but defendant identifies no “restraint on liberty, disruption of employment, strain on financial resources, or exposure to public obloquy that was greater than that faced by anyone openly subject to criminal investigation.” Id. In addition, “[d]efendant fails to provide a single example of something relevant to his case that he or another witness couldn't remember.” Id. He does not point to “any evidence ․ damaged or lost,” or witnesses not found, in a manner harming his defense. Pair, 84 F.4th at 591. “Without such an example, [defendant] merely alleges a generalized prejudice common to all cases and all delays.” Robinson, 55 F.4th at 400.

On balance, the constitutional speedy-trial factors weigh in the government's favor. Therefore, defendant's motion in this part is denied.

CONCLUSION

Based on the foregoing, defendant's motion to dismiss pursuant to the Speedy Trial Act and the Sixth Amendment (DE 89) is DENIED.

SO ORDERED, this the 21st day of December, 2023.

FOOTNOTES

2.   The government “[a]ssum[es] without conceding” that this six days is attributable to the speedy trial clock in its argument. (Gov. Resp. (DE 90) ¶ 42).

3.   In addition, the court notes that the government's deadline for filing response to objections was August 15, 2023, but that the government first filed a response August 11, 2023, and then filed an amended response August 14, 2023. (See DE 58-59). The fact that the government filed a response and an amended response before the response deadline had passed further demonstrates why the motion should not be considered actually under advisement until the motion is submitted. Moreover, a filing date trigger potentially could lead to arbitrary shortening of the 30-day time period, in a practical sense, where a filing does not need to be made during court business hours.

4.   Additional overlapping excludables took place at various points between the filing of the motion to suppress, on December 5, 2022, and the court's September 21, 2023, order. The court does not address them here because they are not necessary to the court's Speedy Trial Act calculation. The court takes note of their validity, however, for purposes of the Sixth Amendment analysis addressed further below.

5.   The government also takes the position, without any reference to the court's December 6, 2022, text order, that the “days between September 22, 2023 and October 10, 2023, are 18 days that should be included for Speedy Trial calculations.” (Gov. Resp. (DE 90) ¶ 44). The court addresses this alternative position further below.

6.   This difference between scheduled and actual arraignment dates contributed to the clerk's original and recalculated speedy trial clock expiry dates, as reported in the court's November 9, 2023, order. In contrast to the instant analysis, the clerk additionally had included in the speedy trial clock calculations the running of 21 additional days, from October 18, 2022, to November 7, 2022, bringing the total run time, as of November 8, 2023, to 55 days. In this manner, 15 days remaining on the speedy trial clock corresponded to the reported November 23, 2023, expiration date. (See DE 71 at 1 n.1). The court, however, does not include in the Speedy Trial Act calculations in the instant order such 21 additional days from October 18, 2022, to November 7, 2022, for the reasons stated herein and because the parties do not include those days.

7.   Taking these alternative exclusions into account, but not the six day period between September 15, 2023, and September 21, 2023, and not the 18 day period between September 22, 2023, and October 10, 2023, as the government presumes in its brief, results in the speedy trial clock moving up to 65 days as of November 1, 2023, and remaining there until the date of trial.

8.   The court's instant account of statements at hearing November 1, 2023, is drawn from a recording of the hearing maintained by the clerk. In addition to the above-noted statement by the government, counsel for defendant noted at hearing that he had previously discussed with defendant having arraignment before a magistrate judge.

9.   The court's account of the hearing again is drawn from a recording of the hearing maintained by the clerk.

LOUISE W. FLANAGAN United States District Judge