The opinion of the court was delivered by: Judge Munley
Before the court for disposition is Defendant Adolphus McNeil's motion to dismiss the indictment with prejudice based upon an alleged violation of the Speedy Trial Act. The matter has been fully briefed and is ripe for disposition.
James Hirchar, a Task Force Officer of the Drug Enforcement Administration filed a criminal complaint against Defendant Adolphus McNeil on April 14, 2008. (Doc. 1). The complaint charged McNeil with the following three federal crimes:
1) Conspiracy with Co-Defendant Steve McNeil to distribute and possession with intent to distribute in excess of 100 kilograms of marijuana in violation of 21 U.S.C. § § 841(a)(1), 841(b)(1)(B) and 846. Id.
2) Aiding and abetting Co-Defendant Steve McNeil on April 12, 2008 in the possession of with intent to distribute marijuana in violation of 21 U.S.C. § § 841(a)(1) and 18 U.S.C. § 2.
3) Aiding and abetting Co-Defendant Steve McNeil the possession of a firearm in furtherance of a drug trafficking crime in violation of 21 U.S.C. § 841(a)(1); 18 U.S.C. § § 924(c) and 2.
A grand jury returned an indictment against both defendants on April 14, 2008 charging them with these three crimes in addition to charging Defendant Adolphus McNeil with criminal use of a communication facility in violation of 21 U.S.C. § 843(b) and unlawful user of a controlled substance in possession of a firearm, a violation of 18 U.S.C. § 922(g)(3). (Doc. 13, Indictment). The indictment also contains a forfeiture count. (Id.).
In January 2009, a grand jury charged the defendant in a superseding indictment with the same crimes, but the date of the conspiracy charge was changed to between October 2005 and April 12, 2008. (Doc. 52, Superseding Indictment). A second superseding indictment was entered on May 19, 2009. This indictment changed the conspiracy dates to "[b]eginning in or about January of 1996, and continuing to on or about April 12, 2008[.]" (Doc. 75, Second Superseding Indictment). On May 28, 2009, Adolphus McNeil was arraigned and pled not guilty to the second superceding indictment. (Doc. 81).
Trial in this case is scheduled for Tuesday September 29, 2009. (Doc. 83, Rescheduling Order dated June 5, 2009). Defendant Adolphus McNeil moves to dismiss the case pursuant to the Speedy Trial Act.*fn1 18 U.S.C. § 3161 et seq.
The Speedy Trial Act provides:
In 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 ...