Thursday, October 9, 2008
Day(s) Of Atonement: D.C. Case Reveals That Continuances Based Upon Yom Kippur Are Non-Excludable Under The Speedy Trial Act While Most Delays From Motions To Admit/Exclude Evidence Are Excludable
The recent opinion of the District Court for the District of Columbia in United States v. Ferguson, 565 F.Supp.2d 32 (D.D.C. 2008), reveals that delays resulting from motions to admit/exclude evidence which are subject to "prompt disposition" are excludable under the Speedy Trial Act while delays resulting from continuances granted as the result of (Jewish) holidays are not. In Ferguson, Darren A. Ferguson was indicted on February 5, 2004 on one count of conspiracy to import five kilograms or more of cocaine and one thousand kilograms or more of marijuana into the United States and to knowingly manufacture or distribute the same with the intent that they would be unlawfully imported into the United States. Because of a "long and convoluted procedural history," his trial did not commence until May 2008. On the eve of trial, Ferguson moved to dismiss the indictment, claiming that his rights had been violated under the Speedy Trial Act, 18 U.S.C. Section 3161.
The trial court took the motion under advisement but nonetheless proceeded with the trial, after which Ferguson was convicted. The government thereafter filed its opposition to Ferguson's motion to dismiss, and the court found that Ferguson's arguments carried the day. It found the there was a violation of the Speedy Trial Act, granted Ferguson's motion, and dismissed the indictment without prejudice, effectively undoing the results of the trial.
In affirming this conclusion, the District Court for the District of Columbia had to determine how many of the days in 2004-2008 were excludable from the Speedy Trial Act's clock. I will focus on just two of these determinations, but you can find the rest of them in the court's opinion.
First, the court noted that some of the delays in the case were the result of the court needing time to resolve the prosecution's multiple motions to admit evidence pursuant to Federal Rule of Evidence 404(b). The court found that these delays were excludable from the Speedy Trial Act's clock, concluding that:
"[D]elay 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” is properly excludable under the Act. 18 U.S.C. Section 3161(h)(1)(F). In calculating delay caused by the filing of pretrial motions, the Act distinguishes between motions which require a hearing and motions where no hearing is required and the motion is subject to 'prompt disposition....' In the latter situation, which is applicable here, the Act 'permits an exclusion of 30 days from the time a motion is actually 'under advisement' by the court."
Second, the court noted that Ferguson's trial was at one point scheduled for September 11, 2007. The court indicated, however, that on July 23, 2007, Ferguson moved to continue the September 11, 2007 trial date because trial would conflict with Rosh Hashanah and Yom Kippur, which was problematic for his attorney. The motion was unopposed by the prosecution and was granted by the court on August 7, 2007, when trial was rescheduled to begin on October 9, 2007. The court concluded, and the prosecution did not dispute, that the delay caused by this continuance was non-excludable because it failed to fit within any of the specific exclusions provided by the Speedy Trial Act. However, because the prosecution actually filed one of its motions to admit evidence under Rule 404(b) on September 18, 2007, the Rosh Hashanah/Yom Kippur continuance actually only caused 7 days of non-excludable delays, with the rest of the days up to October 9th being excludable.
In the end, however, this second ruling was unnecessary because the court merely needed to find that more than 70 non-excludable days passed between Ferguson's first court appearance and trial for there to be a Speedy Trial Act violation, and there were 112 such days, with only 7 of those days being the result of the Rosh Hashanah/Yom Kippur continuance.