EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, November 19, 2010

Speed Bump: Tenth Circuit Finds Coconspirator Admission Motion Tolled Speedy Trial Clock

Pursuant to 18 U.S.C. Section 3161(c)(1) of the Speedy Trial Act,

In 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 filing date (and making public) of the information or 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. If a defendant consents in writing to be tried before a magistrate judge on a complaint, the trial shall commence within seventy days from the date of such consent.

That said, Section 3161(h)(1)(D) of the Act provides that

The following periods of delay shall be excluded in computing the time within which an information or an indictment must be filed, or in computing the time within which the trial of any such offense must commence:

(1) Any period of delay resulting from other proceedings concerning the defendant, including but not limited to....

(D) 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....

And, as the recent opinion of the Tenth Circuit in United States v. Mulgado-Patida, 2010 WL 4627875 (10th Cir. 2010), makes clear, evidentiary motions sometimes fall under Section 3161(h)(1)(D)

In Mulgado-Patida, Jose Mulgado-Patida (Defendant) was convicted of conspiracy to possess and distribute methamphetamine. He later appealed, claiming, inter alia, that the district court violated the Speedy Trial Act. In rejecting this argument, the Tenth Circuit noted that "[t]he period from October 15, 2008, until trial began on March 30, 2009, [wa]s excluded because of a motion filed by codefendant Christopher Vigil. Among other things, the motion sought a James hearing to determine whether statements by alleged coconspirators that would otherwise be hearsay would be admissible under the coconspirator exception."

The court then correctly noted that

A motion that "requires a hearing" tolls the speedy-trial clock from the filing of the motion until the conclusion of the hearing....A motion to determine the applicability of the coconspirator exception is such a motion. We have said that "a district court can only admit coconspirator statements if it holds a James hearing or conditions admission on forthcoming proof of a predicate conspiracy through trial testimony or other evidence" and have expressed a "strong preference for James proceedings."...Other circuits have decided that motions for James hearings are motions "necessitating hearings," and "[a]s such, the entire time from the filing of the motion to the conclusion of the hearing is excludable, even when the hearing is deferred until trial." 

Thus, according to the Tenth Circuit,

Although the district court never set Vigil's motion for hearing, it explained its intention to make James determinations during the trial itself. Accordingly, the period from the filing of Vigil's motion until the start of trial on March 30, 2009, is excluded under ยง 3161(h)(1)(D).



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