United States v. Smocks

• Court: District Court, District of Columbia
• Decided: May 10, 2021
• Docket: Criminal No. 2021-0198
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) UNITED STATES OF AMERICA ) ) v. ) Criminal No. 21-cr-00198 (TSC) ) TROY ANTHONY SMOCKS, ) ) Defendant. ) )

MEMORANDUM OPINION Troy Anthony Smocks has moved for dismissal of the indictment against him on the

grounds that the Government violated the Speedy Trial Act by failing to indict him within thirty

days of his arrest.

Smocks is charged with two counts of threats in interstate communications in violation of

18 U.S.C. § 875(c), specifically: a social media threat to kidnap and injure law enforcement

officers and a subsequent social media threat to kidnap and injure politicians and executives in

the technology industry. ECF No. 1, Compl. He was arrested on January 15, 2021 in the Eastern

District of Texas. On January 21, 2021, he appeared in that District before United States

Magistrate Judge Christine Nowak for a detention and preliminary hearing—which lasted several

hours and included live witness testimony—following which Judge Nowak issued a detention

order. See ECF No. 7, Maj. Ct. Docs. While in custody, Smocks was transported by the Justice

Prisoner and Alien Transportation System (“JPATS”) to the District of Columbia, where he

arrived on March 25, 2021. He was indicted on March 9, 2021. I. BACKGROUND

Approximately fifty-three days elapsed between Smocks’ arrest and his indictment,

during which time the Government attests that his transport by JPATS from Texas to the District

of Columbia was impeded by several obstacles.

Shortly after Smocks was arrested on January 15, the Government moved for pretrial

detention. Magistrate Judge Nowak scheduled a detention hearing for January 21, 2021.

Following the hearing, Judge Nowak issued an order finding probable cause to believe that

Smocks committed the offense charged and ordered that he be detained pending trial. She also

ordered the United States Marshals Service to transport Smocks from the Eastern District of

Texas to the District of Columbia, where he had been charged. JPATS reportedly received this

order on January 25, 2021, and on January 26 Smocks was scheduled for a January 29, 2021

transport to Grady County Jail in Chickasha, Oklahoma. See ECF No. 27, Wykert Decl. at 1.

Smocks was initially transported from Fannin County Jail in Texas to the Grady County Jail in

Chickasha, Oklahoma, because it is near to JPATS’s aircraft operations hub.1 Id.

Upon his arrival at the Grady County Jail, Smocks was scheduled for a February 8, 2021

flight to Lewisburg, West Virginia. Due to an “administrative error,” however, he was not

transported that day. Id. at 2. He was then rescheduled for a February 17, 2021 flight to

Harrisburg, Pennsylvania. Id. On February 12, 2021, however, Oklahoma entered a statewide

winter weather State of Emergency as the result of a major snow and ice storm, which blanketed

Texas and Oklahoma and caused significant damage, including rolling blackouts and water

outages across both states, as well as record low temperatures. Id. This extreme weather caused

1 JPATS also has a hub of aircraft operations located in Las Vegas, Nevada, which serves the western United States. See Gov’t Opp. at 7.

2 the cancellation of numerous JPATS flights, including the February 17 flight for which Smocks

was scheduled. Id. The delay was reportedly exacerbated by the restrictive movement protocols

in place due to the COVID-19 pandemic, which require pre-departure medical testing for all

passengers and implementation of strict social distancing and capacity limits, often resulting in

delays of 2-3 weeks. Id. at 2–3.

Smocks was next scheduled for a March 8, 2021, flight to Lewisburg, West Virginia. Id.

at 3.

Wykert Decl. at 3. Smocks was then scheduled for a

March 25, 2021 flight from Oklahoma to Harrisburg, Pennsylvania,

. Id. The Marshals Service was notified of his arrival in the District of Columbia on

March 26, 2021.

The Government filed a two-count Indictment on March 9, 2021 and Smocks was

arraigned on April 2, 2021.

II. LEGAL STANDARD

The Speedy Trial Act, codified at 18 U.S.C. § 3161 et seq., states that an “indictment

charging an individual with the commission of an offense shall be filed within thirty days from

the date on which such individual was arrested or served with a summons in connection with

such charges.” 18 U.S.C. § 3161(b). If no indictment is filed within this time, the charge

contained in the complaint “shall be dismissed or otherwise dropped.” 18 U.S.C. § 3161(a)(1).

Under the Act, certain periods of delay “shall be excluded in computing the time within

which an . . . indictment must be filed . . . .” 18 U.S.C. § 3161(h). Among these are periods of

delay attributable to “other proceedings,” which have been described as “automatically

3 excludable [because] they may be excluded without district court findings.” Bloate v. United

States, 559 U.S. 196, 203 (2010). These “automatically excludable” periods include:

(A) delay resulting from any proceeding, including any examinations, to determine the mental competency or physical capacity of the defendant;

...

(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]

(E) delay resulting from any proceeding relating to the transfer of a case or the removal of any defendant from another district under the Federal Rules of Criminal Procedure.

18 U.S.C. § 3161(h)(1). In addition, “delay resulting from transportation of any defendant from

another district, or to and from places of examination or hospitalization” shall be excluded,

“except that any time consumed in excess of ten days from the date an order of removal or an

order directing such transportation, and the defendant’s arrival at the destination shall be

presumed to be unreasonable[.]” § 3161(h)(1)(F). The D.C. Circuit has held that the list of

proceedings provided by the rule are “merely illustrative, and not intended to be exhaustive.”

United States v. Garrett, 720 F.2d 705, 709–10 (D.C. Cir. 1983).

If a circumstance or occurrence constituting an “other proceeding” exists, that proceeding

need not actually have caused—or even have been expected to cause—a delay in order for the

time period affected by that proceeding to be excludable under the Speedy Trial Act. See United

States v. Tinklenberg, 563 U.S. 647, 660 (2011) (“We disagree . . . that the Act’s exclusion

requires a court to find that the event the exclusion specifically describes, here the filing of the

pretrial motion, actually caused or was expected to cause delay of a trial. We hold that the Act

contains no such requirement.”).

4 III. DISCUSSION

Smocks contends that the time between his arrest and indictment exceeded the thirty days

permitted under the Speedy Trial Act. Def. Amend. MTD at 5–6. Smocks was arrested on

January 15, 2021, and was indicted on March 9, 2021, fifty-three days later.2 He asserts that the

only excludable portion of this time is the period covering his transportation from another

district, pursuant to 18 U.S.C. § 3161(h)(1)(F), and that this provision permits an exclusion of

only ten days. Def. Amend. MTD at 4–5. The exclusion of these ten days, Smocks argues,

would still leave a delay of forty-four days—fourteen days more than the Speedy Trial Act

permits. Id. at 5.

The Government counters both that there are other applicable exclusions under the

Speedy Trial Act and that, although the statute imposes a presumption that “any time consumed

in excess of ten days from the date an order of removal directing such transportation, and the

defendant’s arrival at the destination shall be presumed to be unreasonable,” 18 U.S.C. §

3161(h)(1)(F), the Government has presented sufficient evidence to rebut that presumption and

to demonstrate that additional transportation delays beyond the automatically excludable ten-day

period were reasonable under the circumstances. Gov’t Opp. at 12–13.

The court will consider each of the purportedly excludable periods in turn. First, both

sides agree, as does the court, that ten days of delay resulting from the transportation of Smocks

from the Eastern District of Texas to Washington, D.C., are automatically excludable under the

2 Although the Motion to Dismiss contends that fifty-four days elapsed, this calculation includes both the day of Smocks’ arrest and the day that the Indictment was filed. The day of the event that triggers the Speedy Trial Act, in this case Smocks’ arrest, is not included in the calculation; the clock begins to run the following day. United States v. Stoudenmire, 74 F.3d 60, 63 (4th Cir. 1996); accord United States v. Sparks, 885 F. Supp. 2d 92, 100 (D.D.C. 2012); United States v. Phinizy, No. 18-cr-0323 (ABJ), 2019 WL 2570038, *3 (D.D.C. June 21, 2019).

5 Speedy Trial Act. Def. Amend. MTD at 4–5; Gov’t Opp. at 12; see also 18 U.S.C. §

3161(h)(1)(F).

Second, the Government notes that the Speedy Trial Act “excludes the time resulting

from ‘any pretrial motion,’” and that such a motion was pending from January 15 through

January 21, 2021. Gov’t Opp. at 11–12 (quoting United States v. Hemphill, 514 F.3d 1350, 1357

(D.C. Cir. 2008)). Smocks argues in his reply that only January 15, 2021, should be excluded, as

the motion “was granted by the court on the same day,” ECF No. 26, Def. Reply at 3. The court

disagrees. Although Smocks was temporarily remanded to the Marshals’ custody following his

initial appearance on January 15, a hearing on the motion for pretrial detention was ordered for

January 21, and the motion remained pending until that time. See Docket, United States v.

Smocks, No. 4:21-mj-033 (E.D. Tx. filed January 14, 2021). The D.C. Circuit has repeatedly

held that any pending motion tolls the Speedy Trial clock. See, e.g., United States v. Hemphill,

514 F.3d 1350, 1357 (D.C. Cir. 2008); United States v. Wilson, 835 F.2d 1440, 1443

(D.C.Cir.1987); see also Bloate v. United States, 559 U.S. 196, 206 (2010) (abrogating Wilson,

835 F.2d 1440, but affirming that the Speedy Trial Act renders any time from the filing of a

pretrial motion through the disposition of said motion automatically excludable). The court thus

agrees that this period of seven days must be excluded under the Act.

Even excluding these two periods, however, thirty-seven days remain between Smocks’

arrest and his indictment. The court is therefore required to decide whether the Government’s

explanation for the additional delay in Smocks’ transportation shows that the delay was

reasonable. Smocks argues that the court should not exclude any additional time because the

“statute simply does not provide for excusable circumstances or acts of God in order to slow the

speedy trial clock.” Def. Reply at 4. This assertion is unsupported, and such a reading is not

6 reflective of the statute’s text, which does not set a limit of ten days of excludable time for

transport, but instead states that any delay in excess of ten days “shall be presumed to be

unreasonable.” 18 U.S.C. § 3161(h)(1)(F) (emphasis added); see also United States v. Noone,

913 F.2d 20, 26 (1st Cir. 1990) (finding that the government had failed to rebut the presumption

where it had offered “no explanation of the transportation delay”); United States v. Phinizy, No.

18-cr-0323 (ABJ), 2019 WL 2570038, *5 (D.D.C. June 21, 2019) (noting that “the government

may rebut this presumption by offering an explanation for the delay”); United States v. Sparks,

885 F. Supp. 2d 92, 101 (D.D.C. 2012) (finding that the government had offered no explanation

of the transportation delay and had therefore failed to rebut the presumption).

The Government submitted testimony that the winter storm beginning in mid-February

2021 “caused the cancellation of numerous JPATS flights,” including the February 17 flight to

Pennsylvania on which Smocks was scheduled to travel, Wykert Decl. at 5, and it contends that

the period from February 12 through February 20 is therefore appropriately excluded. Gov’t

Opp. at 13. Oklahoma’s Governor declared a State of Emergency beginning on February 12,

2021 in response to the storm. See Wykert Decl. at 5; Press Release: Governor Stitt Declares

State of Emergency as Winter Storm Approaches, OKLAHOMA GOVERNOR (February 12, 2021),

https://www.governor.ok.gov/articles/press_releases/governor-stitt-declares-state-of-emergency-

as-wint. The storm and associated damage were ongoing through February 20, 2021. See

Wykert Decl. at 5 (describing the conditions created by the winter storm and timeline of events

and noting that the storm conditions are “indicated by open source information”); Press Release:

Governor Stitt Requests Additional Federal Winter Storm Aid for Oklahomans, OKLAHOMA

GOVERNOR (February 23, 2021), https://www.governor.ok.gov/articles/press_releases/governor-

stitt-requests-additional-federal-winter- (seeking “additional federal aid for all 77 Oklahoma

7 counties related to this month’s historic winter storm . . . from Feb. 8–20”). The court therefore

agrees with the Government that a nine-day delay in transporting Smocks due to the extreme

winter weather in mid-February was reasonable. See Phinizy, 2019 WL 2570038, at *5 (finding

that “a flight delay due to weather conditions was reasonable”); see also United States v. King,

No. 18-cr-70, 2019 WL 3131118, *3 (W.D. Mich. July 15, 2019) (“The Government showed that

weather affected transport from January 28 to February 2, 2019, so the Court will exclude six

days for weather-related delays.”).

The Government further urges that a period of delay due to Smocks’ medical condition

was reasonable and should be excluded from Speedy Trial Act calculations. Gov’t Opp. at 13.

3 The court considers only whether March 7 through March 9, 2021 should be excluded, because an indictment was filed in this case on March 9, terminating the relevant period under the Speedy Trial Act.

8 Thus, pursuant to section 3161(h)(1)(F), out of the fifty-three days that elapsed between

Smocks’ arrest and his indictment, the court will exclude from the Speedy Trial calculation

seven days of delay resulting from pending pretrial motions, and ten days of permissible delay

resulting from Smocks’ transportation to Washington, D.C. Of the days in excess of the ten

automatically excludable days, the court finds that the Government has rebutted the presumption

with respect to nine days for the winter storm delay and three days for the medical delay.

Therefore, without considering the Government’s arguments regarding delays due either to

COVID-19-related logistical challenges or to

, twenty-nine of the fifty-

three days are excluded. That leaves twenty-four days, and the court therefore finds that the

Speedy Trial Act’s thirty-day statutory limit has not been violated.

IV. CONCLUSION

For the foregoing reasons, the court will DENY Smocks’ Motion to Dismiss, ECF No.

19, without prejudice. A corresponding order is forthcoming.

Date: May 7, 2021

Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge