The opinion of the court was delivered by: (Chief Judge Kane)
Presently pending before the Court is Defendant Earl Sampson's motion to dismiss the indictment based upon an alleged violation of the Speedy Trial Act, 18 U.S.C. § 3161 et seq. (Doc. No. 1287.) The motion has been fully briefed and is ripe for disposition. For the reasons that follow, the Court will grant Sampson's motion and dismiss the charges against him without prejudice.
On January 3, 2011, Sampson filed a motion to dismiss the indictment for violations of the Speedy Trial Act ("the Act"). (Doc. No. 1287.) The Government filed a brief in opposition to the motion on January 12, 2011. (Doc. No. 1294.) On January 14, 2011, the Court ordered supplemental briefing from both parties. (Doc. No. 1295.) The Government filed its supplemental brief on January 28, 2011. (Doc. No. 1303.) Sampson filed supplemental briefs on February 14 and 16, 2011. (Doc. Nos. 1317, 1320.) The Court held a hearing on Sampson's motion to dismiss on April 1, 2011.
The Speedy Trial Act provides that the trial of a defendant who has entered a plea of not guilty must commence within 70 days from the filing (and making public) of the indictment, or from the date the defendant has appeared before a judicial officer in which such charge is pending, whichever last occurs. 18 U.S.C. § 3161(c)(1). However, section 3161(h) sets forth various periods of delay which may be excluded when computing the time within which trial must commence.
The periods of delay relevant to this case include "delay resulting from any proceeding, including any examinations, to determine the mental competency or physical capacity of the defendant" and "delay resulting from any interlocutory appeal." 18 U.S.C. § 3161(h)(1)(A) & (C). Other relevant periods include "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 "delay reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement by the court." Id. § 3161(h)(1)(D) & (H). The Act also excludes a "reasonable period of delay when the defendant is joined for trial with a co-defendant as to whom the time for trial has not run and no motion for severance has been granted." Id. § 3161(h)(6). Finally, the Act excludes a delay resulting from an "ends of justice" continuance, defined as:
(7)(A)Any period of delay resulting from a continuance granted by any judge on his own motion or at the request of the defendant or his counsel or at the request of the attorney for the Government, if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial. No such period of delay resulting from a continuance granted by the court in accordance with this paragraph shall be excludable under this subsection unless the court sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial.
(B) The factors, among others, which a judge shall consider in determining whether to grant a continuance under subparagraph (A) of this paragraph in any case are as follows:
(i) Whether the failure to grant such a continuance in the proceeding would be likely to make a continuation of such proceeding impossible, or result in a miscarriage of justice.
(ii) Whether the case is so unusual or so complex, due to the number of defendants, the nature of the prosecution, or the existence of novel questions of fact or law, that it is unreasonable to expect adequate preparation for pretrial proceedings or for the trial itself within the time limits established by this section. . . .
(iv) Whether the failure to grant such a continuance in a case which, taken as a whole, is not so unusual or so complex as to fall within clause (ii), would deny the defendant reasonable time to obtain counsel, would unreasonably deny the defendant or the Government continuity of counsel, or would deny counsel for the defendant or the attorney for the Government the reasonable time necessary for effective preparation, taking into account the exercise of due diligence.
18 U.S.C. § 3161(7)(A) & (B).
For purposes of calculating includable time, "both the date on which an event occurs or a motion is filed and the date on which the court disposes of a motion are excluded." United States v. Lattany, 982 F.2d 866, 872 n.6 (3d Cir. 1992). Finally, the defendant bears the burden of proof of supporting a motion to dismiss the indictment. 18 U.S.C. § 3162(a)(2).
A. Speedy Trial Violation
On September 27, 2007, a grand jury returned an indictment against Sampson and thirteen other individuals. (Doc. No. 1.) Count One of the indictment charged Sampson and his thirteen co-defendants with conspiracy to possess with intent to distribute 5 or more grams of cocaine base (crack), conspiracy to possess with intent to distribute 500 or more grams of cocaine, and conspiracy to unlawfully, knowingly and intentionally possess with intent to distribute crack and cocaine within protected zones in violation of 21 U.S.C. § 860(a). (Doc. No. 1.) Count Nineteen of the indictment charged Sampson and co-defendant Dorothy Robinson with possession with the intent to distribute and distribution of cocaine within 1000 feet of public housing in violation of 21 U.S.C. § 841(a)(1) , 21 U.S.C. § 860(a), and 18 U.S.C. § 2. (Id.) Count Twenty-One of the indictment charged Sampson and Robinson with possession with intent to distribute and distribution of crack within 1000 feet of public housing in violation of section 841(a), section 860(a), and 18 U.S.C. § 2. (Id.) On October 2, 2007, Sampson made his initial appearance before a judicial officer when he was arraigned before Magistrate Judge Mannion. Sampson pled not guilty to all counts of the indictment and was ordered detained pending trial. (Doc. Nos. 31, 37, 58.) Thus, Sampson's speedy trial clock began to run on October 2, 2007. 18 U.S.C. § 3161(c)(1) ("[T]he trial of a defendant . . . 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."). Trial was scheduled for December 4, 2007. (Doc. No. 85.)
Section 3161(h)(1)(D) states that a "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" is excludable time. In the Third Circuit, "[a]ny pretrial motion, including a motion for an extension of time, is a pretrial motion within the meaning of [the Act] and creates excludable time, even if it does not in fact delay trial." United States v. Arbelaez, 7 F.3d 344, 347 (3d Cir. 1993). Thus, the speedy trial clock tolled on October 4, 2007, when Sampson's co-defendant Reyne Erb filed a motion to continue Erb's detention hearing. (Doc. No. 54.) See 18 U.S.C. § 3161(h)(6) (excluding "[a] reasonable period of delay when the defendant is joined for trial with a co-defendant as to whom the time for trial has not run and no motion for severance has been granted."); United States v. Novak, 715 F.2d 810, 815 (3d Cir. 1983) (finding that until severance is granted, "an exclusion applicable to one defendant applies to all co-defendants," subject to a reasonableness limitation). On October 5, 2007, Judge Mannion granted Defendant Erb's motion and the clock began to run again. (Doc. No. 56.) The clock tolled again on October 9, 2007, ...