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United States v. Prado

United States District Court, W.D. Kentucky, Louisville Division

October 29, 2018

UNITED STATES OF AMERICA Plaintiff
v.
LEONARDO RODRIQUEZ PRADO Defendant

          MEMORANDUM OPINION AND ORDER

          REBECCA GRADY JENNINGS, DISTRICT JUDGE

         This 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.

         I. Background

         On 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].

         Mr. 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].

         II. Discussion

         The 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 limitation. Id.

         A 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).

         The Act 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.

         The 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).

         Second, 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”).

         Third, 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. § 3161(h)(7)(A).

         Fourth, “[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.”

         Finally, 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. ...


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