US v . Harris CR-09-33-JL 08/31/09 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal N o . 09-cr-33-JL Opinion N o . 2009 DNH 128 Anthony Harris
MEMORANDUM ORDER
This case involves the calculation of periods of “excludable
time” under the Speedy Trial Act. Defendant Anthony Harris is
charged with conspiracy to commit robbery, robbery, and related
weapons offenses. He moves to dismiss the charges with
prejudice, claiming that the proceedings against him have been
continued in abrogation of his rights under the Speedy Trial Act,
18 U.S.C. § 3161 et seq.
After oral argument, the motion to dismiss is denied. The
time periods excludable due to his court-ordered competency
evaluation, and continuances granted to co-defendants whose cases
were not severed from Harris’ case, have reduced the amount of
elapsed time to an amount that complies with the Speedy Trial
Act.
I. Applicable Legal Standard
The Speedy Trial Act of 1974, as amended, requires that
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.
18 U.S.C. § 3161(c)(1) (West 2008). The Act also provides for
“periods of delay” that are excluded in calculating these seventy
days. See § 3161(h).
"If a defendant is not brought to trial within the time
limit required by section 3161(c) as extended by section 3161(h),
the information or indictment shall be dismissed on motion of the
defendant.” 18 U.S.C. § 3162(a)(2). “The defendant shall have
the burden of proof of supporting such motion but the Government
shall have the burden of going forward with the evidence in
connection with any exclusion of time under subparagraph
3161(h)(3).” Id.
II. Background
On January 1 3 , 2009, Harris was arrested in connection with
the pending charges. Four days later, on January 1 6 , he had an
initial appearance before the court. See Fed. R. C r . P. 5 . On
February 4 , the grand jury indicted him.1 That same day, the
1 The U.S. Attorney sought, and the grand jury returned, a superseding indictment involving these charges on August 2 6 , 2009. The superseding indictment has no impact on this analysis.
2 court granted a motion submitted by Harris’ former attorney to
stay proceedings for 30 days to conduct a psychological
evaluation of Harris.2 On February 1 3 , Harris successfully moved
pro se to appoint new counsel. On April 3 0 , 86 days after the
mental evaluation order, a completed psychological evaluation of
Harris was filed with the court.
In addition to the delay caused by this psychological
evaluation, Harris’ co-defendants twice moved for 60-day
continuances, which were granted on March 20 and May 1 1 ,
respectively. Harris’ counsel objected to the second of these
motions, intimating that the court “might be required to sever
these matters . . . in order to protect the defendant’s speedy
trial rights.” Harris did not actually file a motion to sever
his case, however, until July 1 7 . That motion was mooted when
his co-defendants entered guilty pleas on July 2 9 .
Harris filed this motion to dismiss on July 1 6 . On July 3 0 ,
the day after his co-defendants entered guilty pleas, the United
States filed a motion to continue trial until September 1 , which
the court granted over Harris’ objection.
2 The motion requested an examination to assess Harris’ mental state vis-a-vis a possible insanity defense. See 18 U.S.C. §§ 4242 and 4244. Judge Muirhead’s order, however, ordered a competency evaluation. See 18 U.S.C. §§ 4241 and 4247.
3 III. Analysis
The Speedy Trial Act, at 18 U.S.C. § 3161(h), provides that
certain “periods of delay shall be excluded . . . in computing
the time within which the trial” must commence under the Act.
Section 3161(h)(1)(A) requires exclusion of any “period of delay”
resulting from “any proceeding, including any examinations, to
determine the mental competency or physical capacity of the
defendant.” Section 3161(h)(6) requires exclusion of any
“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.”
On September 1 , 2009, the current date set for trial, 212
days will have elapsed since Harris’ indictment on February 4 ,
2009. The United States Attorney argues that due to the delays
caused by the court-ordered Harris’ mental competency exam
motion, and the two continuances requested by his co-defendants,
no time has elapsed from the 70-day speedy trial clock. While
the court disagrees with this conclusion, it nevertheless rules
that a trial date of September 1 , 2009 will not violate Harris’
statutory “speedy trial” rights.
4 Competency evaluation
On February 4 , 2009, the court granted a motion from Harris’
previous counsel to conduct a competency evaluation of Harris,
ordering him “committed to the custody of the Attorney General
for a period not to exceed thirty days for placement in a
suitable facility.” On April 3 0 , Harris’ forensic medical
evaluation report was submitted to the court. Under a plain
reading of section 3161(h)(1)(A), which provides for the
exclusion from the speedy trial clock of any “period of delay
. . . resulting from any proceeding, including any examinations,
to determine the mental competency or physical capacity of the
defendant,” this entire 86-day period should be excluded.
Harris argues that he “did not agree” to his original
counsel’s motion for a competency hearing, and he “never had the
opportunity to object” to i t . Alternatively, he argues that any
exclusion from the speedy trial clock should be limited to the
30-day window provided by the court’s February 4 order.
Whatever alleged dispute or personality conflict arose
between Harris and his previous counsel, neither Harris nor his
new counsel withdrew the motion or otherwise objected to the
order for the evaluation. Nor did they object to the Federal
Bureau of Prisons’ March 1 8 , 2009 request for an extension of the
30-day evaluation period, or request that the evaluation be
5 terminated so the case could proceed. Thus, Harris can not now
be heard to claim that the delay attributable to the process
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US v . Harris CR-09-33-JL 08/31/09 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal N o . 09-cr-33-JL Opinion N o . 2009 DNH 128 Anthony Harris
MEMORANDUM ORDER
This case involves the calculation of periods of “excludable
time” under the Speedy Trial Act. Defendant Anthony Harris is
charged with conspiracy to commit robbery, robbery, and related
weapons offenses. He moves to dismiss the charges with
prejudice, claiming that the proceedings against him have been
continued in abrogation of his rights under the Speedy Trial Act,
18 U.S.C. § 3161 et seq.
After oral argument, the motion to dismiss is denied. The
time periods excludable due to his court-ordered competency
evaluation, and continuances granted to co-defendants whose cases
were not severed from Harris’ case, have reduced the amount of
elapsed time to an amount that complies with the Speedy Trial
Act.
I. Applicable Legal Standard
The Speedy Trial Act of 1974, as amended, requires that
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.
18 U.S.C. § 3161(c)(1) (West 2008). The Act also provides for
“periods of delay” that are excluded in calculating these seventy
days. See § 3161(h).
"If a defendant is not brought to trial within the time
limit required by section 3161(c) as extended by section 3161(h),
the information or indictment shall be dismissed on motion of the
defendant.” 18 U.S.C. § 3162(a)(2). “The defendant shall have
the burden of proof of supporting such motion but the Government
shall have the burden of going forward with the evidence in
connection with any exclusion of time under subparagraph
3161(h)(3).” Id.
II. Background
On January 1 3 , 2009, Harris was arrested in connection with
the pending charges. Four days later, on January 1 6 , he had an
initial appearance before the court. See Fed. R. C r . P. 5 . On
February 4 , the grand jury indicted him.1 That same day, the
1 The U.S. Attorney sought, and the grand jury returned, a superseding indictment involving these charges on August 2 6 , 2009. The superseding indictment has no impact on this analysis.
2 court granted a motion submitted by Harris’ former attorney to
stay proceedings for 30 days to conduct a psychological
evaluation of Harris.2 On February 1 3 , Harris successfully moved
pro se to appoint new counsel. On April 3 0 , 86 days after the
mental evaluation order, a completed psychological evaluation of
Harris was filed with the court.
In addition to the delay caused by this psychological
evaluation, Harris’ co-defendants twice moved for 60-day
continuances, which were granted on March 20 and May 1 1 ,
respectively. Harris’ counsel objected to the second of these
motions, intimating that the court “might be required to sever
these matters . . . in order to protect the defendant’s speedy
trial rights.” Harris did not actually file a motion to sever
his case, however, until July 1 7 . That motion was mooted when
his co-defendants entered guilty pleas on July 2 9 .
Harris filed this motion to dismiss on July 1 6 . On July 3 0 ,
the day after his co-defendants entered guilty pleas, the United
States filed a motion to continue trial until September 1 , which
the court granted over Harris’ objection.
2 The motion requested an examination to assess Harris’ mental state vis-a-vis a possible insanity defense. See 18 U.S.C. §§ 4242 and 4244. Judge Muirhead’s order, however, ordered a competency evaluation. See 18 U.S.C. §§ 4241 and 4247.
3 III. Analysis
The Speedy Trial Act, at 18 U.S.C. § 3161(h), provides that
certain “periods of delay shall be excluded . . . in computing
the time within which the trial” must commence under the Act.
Section 3161(h)(1)(A) requires exclusion of any “period of delay”
resulting from “any proceeding, including any examinations, to
determine the mental competency or physical capacity of the
defendant.” Section 3161(h)(6) requires exclusion of any
“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.”
On September 1 , 2009, the current date set for trial, 212
days will have elapsed since Harris’ indictment on February 4 ,
2009. The United States Attorney argues that due to the delays
caused by the court-ordered Harris’ mental competency exam
motion, and the two continuances requested by his co-defendants,
no time has elapsed from the 70-day speedy trial clock. While
the court disagrees with this conclusion, it nevertheless rules
that a trial date of September 1 , 2009 will not violate Harris’
statutory “speedy trial” rights.
4 Competency evaluation
On February 4 , 2009, the court granted a motion from Harris’
previous counsel to conduct a competency evaluation of Harris,
ordering him “committed to the custody of the Attorney General
for a period not to exceed thirty days for placement in a
suitable facility.” On April 3 0 , Harris’ forensic medical
evaluation report was submitted to the court. Under a plain
reading of section 3161(h)(1)(A), which provides for the
exclusion from the speedy trial clock of any “period of delay
. . . resulting from any proceeding, including any examinations,
to determine the mental competency or physical capacity of the
defendant,” this entire 86-day period should be excluded.
Harris argues that he “did not agree” to his original
counsel’s motion for a competency hearing, and he “never had the
opportunity to object” to i t . Alternatively, he argues that any
exclusion from the speedy trial clock should be limited to the
30-day window provided by the court’s February 4 order.
Whatever alleged dispute or personality conflict arose
between Harris and his previous counsel, neither Harris nor his
new counsel withdrew the motion or otherwise objected to the
order for the evaluation. Nor did they object to the Federal
Bureau of Prisons’ March 1 8 , 2009 request for an extension of the
30-day evaluation period, or request that the evaluation be
5 terminated so the case could proceed. Thus, Harris can not now
be heard to claim that the delay attributable to the process
should not be excluded from the speedy trial calculation in clear
contravention of § 3161(h)(1)(A).
Continuances requested by codefendants
On March 2 0 , 2009, and again on May 1 1 , 2009, the court
granted 60-day continuances requested by Harris’ codefendants.
Although not specifically mentioned in Harris’ motion to dismiss,
these continuances, which constitute a 113-day window of
excludable time, see § 3161(h)(7)(A), if applicable to Harris,
bring his speedy trial clock calculation under 70 days.
The Speedy Trial Act requires, and the court of appeals has
held, that any period of delay attributable to one codefendant
applies to all codefendants. See § 3161(h)(6) (providing for the
exclusion from the speedy trial clock of any “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.”); United States v . Rush,
738 F.2d 4 9 7 , 503 (1st Cir. 1984) (“Every circuit court that has
considered this provision has held in essence that an exclusion
applicable to one defendant applies to all codefendants”)
(internal quotation marks omitted). Although Harris objected to
6 the second continuance, and hinted that the court “might be
required to sever these matters . . . in order to protect the
defendant’s speedy trial rights,” he did not actually move to
sever his case until July 1 8 , more than 60 days after the second
60-day continuance granted by the court, and only ten days before
his severance request was mooted by his co-defendants’ guilty
pleas.3 Thus, the time period attributable to the continuances
constitutes excludable time under § 3161(h)(6).
IV. Conclusion
Excluding the time attributable to these three delays (157
days of excludable time), and allowing Harris every possible
benefit by counting the days elapsing since Harris moved to sever
and dismiss on July 16 and 1 7 , 53 days will have elapsed from
Harris’ speedy trial clock when his trial begins on September 1 ,
3 The court further holds that these and other periods were excludable under 18 U.S.C. §§ 3161(h)(1)(D) (pendency of pretrial motions), 3161(h) (1)(H) (period during which motions were under advisement), and 3161(h)(7)(A) (justified continuances).
7 2009.4 Because this period of time is within the 70 days allowed
by the Speedy Trial Act, his motion to dismiss5 is DENIED.
SO ORDERED.
_____________ __________________ United States District Judge Dated: August 31, 2009
cc: Kenneth L . Perkes, AUSA Donald A . Kennedy, Esq. Andrew Michael Kennedy, Esq. Mark E . Howard, Esq. Michael J. Iacopino, Esq.
4 To allow Harris every possible benefit, the court also counts the days elapsed since July 1 1 , 2009, as July 11 would constitute the end of the 60-day continuance granted on May 1 1 , even though the court did not schedule the commencement of trial until a date in August. 5 Document n o . 58