United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
REBECCA GRADY JENNINGS, DISTRICT JUDGE
matter comes before the Court on Defendant Leonardo Rodriquez
Prado's Motion to Dismiss for Speedy Trial Violations
(the “Motion to Dismiss”) which was filed on
September 14, 2018. [DE 114]. The United States filed a
Response in opposition on September 28, 2018. [DE 117]. Mr.
Prado filed a Reply on October 5, 2018. [DE 118]. This matter
is now ripe for adjudication. For the reasons set forth
below, the Court will DENY Defendant's Motion to Dismiss.
August 17, 2016, Mr. Prado was indicted in the Western
District of Kentucky. [DE 1]. The Indictment charged Mr.
Prado with one count of Wire Fraud and three counts of
Aggravated Identity Theft. [DE 1 at 1-3]. He was arraigned on
September 19, 2016. [DE 16]. On December 21, 2016, a
superseding indictment was issued, adding a fifth count:
Possession of Unauthorized and Counterfeit Access Devices.
[DE 22 at 46-49]. On September 6, 2017, a second superseding
indictment was issued. [DE 62]. The Second Superseding
Indictment charged Mr. Prado with one count of Wire Fraud,
one count of Possession of Access Devices, and seven counts
of Aggravated Identity Theft. [Id. at 350-56].
Additionally, the Second Superseding Indictment joined Ms.
Diaz Garcia as a co-defendant, and jointly charged them with
one count of Bank Fraud, four counts of Aggravated Identity
Theft, and three counts of Money Laundering. [Id.].
Mr. Prado was arraigned on September 29, 2017. [DE 70]. Ms.
Diaz Garcia was arraigned on November 30, 2017. [DE 79].
Prado filed the present Motion to Dismiss on September 14,
2018, asserting that more than seventy days had passed since
his arraignment. [DE 114]. The United States filed a Response
in opposition to that motion on September 28, 2018, asserting
that once the excludable periods were properly calculated,
there was no Speedy Trial Act violation. [DE 117 at 730-37].
Mr. Prado then filed a Reply on October 5, 2018, objecting to
certain of the periods the United States considered
excludable and alleging that the prosecutor was being
“vindictive by ordering an irrelevant transcript and
arguing that the Speedy Trial did not run until he ordered
that transcript.” [DE 118 at 750-51].
Speedy Trial Act (the “Act”), 18 U.S.C. §
3161, “requires dismissal of a criminal case, with or
without prejudice, if the defendant is not tried seventy days
after his indictment or the date he first appears in court,
whichever date last occurs.” United States v.
Jenkins, 92 F.3d 430, 438 (6th Cir. 1996) (citing
United States v. Mentz, 840 F.2d 315, 324-26 (6th Cir.
1988)). The seventy-day period is not unqualified. The Act
authorizes periods of time which are excludable, either as
expressly stated in the Act or by a finding of the trial
court that the interests of justice warrant such exclusion.
United States v. Morata, No. 3:14CR-82-CRS,
2016 WL 4535664, at *1 (W.D. Ky. Aug. 30, 2016). Excludable
delays permit the extension of the seventy-day “try
by” period, but such extensions are not without
defendant moving for dismissal has the burden of providing a
prima facie case that the Act had been violated, which merely
requires a simple showing that more than seventy days have
passed since the indictment or first appearance and trial has
not yet begun. Id. If the defendant does so, the
burden then shifts to the government, which must prove beyond
a preponderance of the evidence that once excludable time is
factored in, the seventy-day period has not passed.
Id. (citing Mentz, 840 F.2d at 326).
provides that several periods are to be excluded when
determining whether the seventy-day speedy-trial clock has
run. See § 3161(h). Five general rules of exclusion are
relevant to this case.
first period of exclusion is the time between the filling of
a pre-trial motion and the day on which a district court
becomes able to dispose of that motion. This includes
“the entire time from the filing of the motion through
the date of the hearing” as well as “all the days
during which [the district court] is waiting to receive
information necessary to decide a pending pre-trial motion,
” including the parties' filings regarding that
motion. Jenkins, 92 F.3d at 438-39 (citations omitted). This
time also includes the “period after a pretrial motion
during which the court is awaiting the preparation of a
transcript needed to rule on the motion.” United
States v. Polan, 970 F.2d 1280, 1285 (3d Cir. 1992).
also excludable 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.” 18 U.S.C. §
3161(h)(1)(H). If a district court refers a motion to a
magistrate judge, there is one thirty-day period of exclusion
while the motion is under advisement by the magistrate judge,
and then a separate thirty-day period of exclusion that
begins once the district court has received the magistrate
judge's report and recommendations and all other
materials required by the district court in order to review
the report and recommendation. United States v.
Andress, 943 F.2d 622, 626 (6th Cir. 1991) (holding that
when a party submits its objections to a report and
recommendation, “the district court has before it all
the materials it is due to receive [and] a new period of
excludable delay begins; viz., thirty days . . . within which
a motion may be kept under advisement”).
if a district court finds that the “ends of
justice” are served by excluding the delay attendant to
a continuance, that delay is excludable so long as the
district court sets forth its reasons for finding that the
ends of justice require the exclusion of that time. §
“[t]he filing of a superseding indictment does not
affect the speedy trial clock for offenses charged in the
original indictment.” Sylvester v. United
States, 868 F.3d 503, 508-09 (6th Cir. 2017) (alteration
in original) (collecting cases). However, “[a]ll
defendants who are joined for trial generally fall within the
speedy trial computation of the latest codefendant.”
Henderson v. United States, 476 U.S. 321, 323 n.2
(1986). Because of this, “absent evidence of bad faith
or unreasonable delay, courts have generally restarted the
speedy trial clock if the superseding indictment adds new
defendants to the case.” Sylvester v. United
States, 110 F.Supp.3d 738, 747 (E.D. Mich. 2015)
(collecting cases), aff'd 868 F.3d 503 (6th Cir. 2017);
see also United States v. Chen Chiang Liu, 631 F.3d
993, 998 (9th Cir. 2011) (recognizing that “not
allowing the STA clock to restart upon the addition of a
codefendant might result in the STA being used as a vehicle
for requiring the government to prosecute codefendants
piecemeal”) (citing United States v. King, 483
F.3d 969, 973 (9th Cir. 2007)); United States v.
Harris, 566 F.3d 422, 429 (5th Cir. 2009) (restarting
the speedy trial clock upon the arraignment of a newly-joined
codefendant). After the issuance of a superseding indictment
adding a defendant, 18 U.S.C. § 3161(h)(6) excludes from
the speedy trial clock 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.”
when calculating the length of an excludable period,
“both the date on which an event occurs or a motion is
filed and the date on which the court disposes of a motion
are excluded.” United States v. Cope, 312 F.3d
757, 777 (6th Cir. ...