The opinion of the court was delivered by: Judge Sylvia H. Rambo
The background of this order is as follows: on February 6, 2007, Defendant Thomas D. Jones filed a motion to dismiss the indictment against him. (Doc. 5.) He alleges violation of the Speedy Trial Act, 18 U.S.C. § 3161(c), and his due process rights under the Fifth Amendment. For the reasons that follow, the motion will be denied.
On June 12, 2006, in proceedings before Judge Caldwell of the Middle District of Pennsylvania, Defendant was sentenced to twenty-one months of imprisonment after pleading guilty to a charge of receiving stolen property. He was permitted to remain free on bail until the Bureau of Prisons designated an institution in which he would serve his sentence. His reporting date for sentencing was August 17, 2006.
Before his reporting date, the Drug Enforcement Agency searched an apartment in which it found packaging material, cutting agents, and more than 50 grams of suspected crack cocaine. The DEA learned that Defendant had been using the apartment as a location in which to store cocaine and convert cocaine HCL into crack cocaine. If these facts are true, they violate 21 U.S.C. § 841(a)(1).
Thus, on August 14, 2006, the United States filed a motion to revoke Defendant's bail under 18 U.S.C. § 3148(b) and issue a warrant for his arrest. Defendant was arrested and brought before Judge Caldwell on August 16, 2006. Judge Caldwell found that Defendant had violated the conditions of his release and ordered his bail revoked. Defendant was committed to the custody of the Attorney General for confinement in a corrections facility designated by the Bureau of Prisons. He was incarcerated immediately in the State Correctional Institution at Schuylkill ("SCI-Schuylkill"), located within the boundaries of the Middle District of Pennsylvania.
On November 8, 2006, Defendant was indicted for the knowing manufacture and possession with intent to distribute 50 grams or more of a mixture or substance containing crack cocaine. (Doc. 1.) He appeared before Magistrate Judge Smyser on February 27, 2007, and pled not guilty to the indictment. (Doc. 10.) Defendant's motion to dismiss the indictment (Doc. 5) has been fully briefed and, after oral argument held on April 5, 2007, is ripe for disposition.
Defendant claims that the indictment should be dismissed for failure of the Government to abide by the Speedy Trial Act. It requires that:
[i]n 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.
18 U.S.C. § 3161(c)(1). The text could not be more plain. If an indictment is filed before a defendant "appears before a judicial officer of the court in which such charge is pending," the trial must begin no fewer than seventy days after the defendant appears before that judicial officer. 18 U.S.C. § 3161(c)(1). In the Third Circuit, the post-indictment appearance must be an arraignment to begin the running of the seventy-day period. United States v. Willaman, 437 U.S. 354, 358 (3d Cir. 2006). If, however, the defendant appears before a judicial officer of the court in which such charge is pending before an indictment is filed and made public, the date upon which the indictment is filed and made public triggers the seventy-day period.
18 U.S.C. § 3161(c)(1).*fn1
Here, Defendant was indicted on November 8, 2006. (Doc. 1.) He was arraigned on February 27, 2007. (Doc. 10.) Under § 3161(c)(1), February 28, 2007 was the first day of the seventy-day period during which Defendant must be tried. This proceeding is well within the seventy allotted days until trial, especially in light of the time necessary to dispose of the pretrial motions filed by Defendant.
Defendant asserts that his appearance before Judge Caldwell on bail revocation was a physical appearance before a judicial officer of this court, and thus the filing of the indictment, should have triggered the start of the seventy-day period. This assertion is utterly meritless. United States v. Hermanski, 861 F.2d 1240, 1241 (11th Cir. 1988) ("This position is untenable as a matter of law and administrative policy."). His bail revocation was unrelated to the charges now at issue. "[W]here a defendant appears on unrelated charges, his appearance does not trigger the statutory timetable." Id. Further, Defendant's argument that his "presence" in the Middle District as a result of his incarceration at SCI-Schuylkill equates to a "physical appearance before a judicial officer" of the Middle District under § 3161(c)(1) -- and thus that the indictment should have triggered the seventyday period -- is unsupported by any case law cited by Defendant or unearthed by this court. Defendant's arguments regarding due process violations are equally unavailing.
In light of the foregoing, Defendant's motion to dismiss the indictment ...