The opinion of the court was delivered by: Judge Kosik
This matter is before the court on the defense motion to dismiss the charges for violation of the Speedy Trial Act, 18 U.S.C. §3161, et seq.*fn1
This is a case in which the defendant was originally indicted on December 20, 2005 charging two firearms violations. It has a procedural history up to October 3, 2006, when a superseding indictment charged the defendant with four dditional and different unrelated charges in addition to those contained in the original indictment.*fn2
Since the original indictment, this defendant has had three different counsel. Two have been allowed to withdraw for irreconcilable differences with the defendant. When his second counsel was permitted to withdraw on June 7, 2006, defendant requested permission to represent himself. He was told to file a motion expressing such an intention.
In the absence of complying with our instructions to file a motion to represent himself, defendant instead filed seven pro se motions in a span of ten days. He was advised by letter that his motions would be served on the United States by the court. The court independently noted his desire for self-representation which would be taken up at a scheduled hearing. Defendant continued to file pro se motions up to the time of a hearing on his pro se representation and appointment of a third lawyer on July 17, 2006.*fn3
There have been five trial dates, including the present one; three have been continued at the instance of the defendant, one has been continued because of the change in counsel.
In United States v. Lattany, 982 F.2d 866, 870 (3d Cir. 1992), the court set out the intent of Congress in enacting the Speedy Trial Act. The Act is designed to ensure a federal criminal defendant's Sixth Amendment right to a speedy trial and to reduce the danger to the public from prolonged periods of the defendant's release on bail in an appropriate case.
The Act excludes periods of delay for purposes of calculating the seventy-day time limit for commencing trial.
See, Section 3161(h), which provides numerous exclusive circumstances warranting exclusions, including a pretrial motion, from its filing to its disposition, and any period of delay from a continuance provided there is an ends of justice reason articulated by the court. Section 3161(h)(8)(A). In subsection (B), the Act outlines factors, "among others," which a judge shall consider in determining whether to grant a continuance under subparagraph (A). These extensions include time allowing new counsel to become familiar and to be prepared to try the case. United States v. Rivera Const. Co., 863 F.2d 293, 296-297 (3d Cir. 1988).
In excluding the time for delay resulting from any pretrial motion, Section 3161(h)(1)(F) does not impose a reasonableness limitation on delay due to pretrial motions. See, Henderson v. United States, 476 U.S. 321, 326 (1986), stating that "the plain terms of the statute appear to exclude all times between the filing of and the hearing on a motion whether that hearing was prompt or not."
The Henderson principle is expanded on in United States v. Staula, 80 F.3d 596, 601 (10th Cir. 1996), the court observing that "[f]or motions that require a hearing, this subsection excludes the time between the filing of the motion, even if the delay is overlong, inexplicable or unreasonable."
Many of the pro se motions filed by the defendant did not comply with the rules in filing a brief, which could be filed after the motion. In others, a brief was filed. In addition to the pro se motions, we have counseled motions. Complications arose because at no time was the defendant without counsel, except in the periods between counsel when the court contemplated the selection of new counsel. When pro se motions are filed, whether in compliance with the rules or not, the court waits for appointed counsel to assess the necessity of adopting the pro se motions and determining if a hearing or argument is necessary. Otherwise, time ...