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United States v. Reese

United States District Court, M.D. Pennsylvania

July 19, 2019

UNITED STATES OF AMERICA
v.
KEVIN L. REESE, Defendant

          MEMORANDUM

          JAMES M. MUNLEY UNITED STATES DISTRICT COURT, JUDGE

         Before the court for disposition is Defendant Kevin L. Reese's motion to dismiss the indictment with prejudice based upon an alleged violation of the Speedy Trial Act. (Doc. 113). The matter has been fully briefed and is ripe for disposition.

         Background

         On December 15, 2015, Defendant Reese was convicted of six counts of wire fraud and six counts of aggravated identity theft related to his work as an office manager at Sheehan Pipe Line and Construction Company. (Doc. 1). The indictment alleged that, between 2014 and 2015, the defendant cut false checks on Sheehan's behalf to other employees and then cashed them for his own benefit. (Id.)

         On November 10, 2016, we held a pre-trial conference, which both parties, including the government and the defendant's attorney, Joseph D'Andrea, attended. (Doc. 29). This conference opened with the following colloquy concerning the date of Defendant Reese's trial:

THE COURT: So I'm setting the trial - - and I apologize for this, because I can't try the case until February, February 22nd.
MR. D'ANDREA: February 22nd will work for me. I'm just really bad in December and January myself. February opens up.

(Doc. 111). As this interaction indicates, defense counsel not only agreed to the extension, but he also affirmed that February is the earliest that he could attend trial. The government also acquiesced by remaining silent without any objections. We subsequently entered an order rescheduling the defendant's trial from December 5, 2016 to February 22, 2017. (Docs. 29, 34).

         On the eve of trial, the defendant filed a motion to dismiss based on a violation of the 70-day time limit under the Speedy Trial Act. (Doc. 47). On the first day of trial, we entered an oral order denying the defendant's motion to dismiss. (Doc. 50). After a three-day trial, the jury returned a verdict finding the defendant guilty on all twelve counts charged in the indictment. (Doc. 55). We sentenced the defendant to 70 months' imprisonment, restitution, and three years of supervised release. (Doc. 88). The defendant appealed. (Doc. 89).

         On appeal, the Third Circuit had to decide whether the court erred as a matter of law in denying the speedy trial motion because of the court's November 2016 continuance where the 70-day clock had expired before the defendant was brought to trial. United States v. Reese, 917 F.3d 179 (3d Cir. 2019). Holding that this continuance violated the speedy trial act, the Third Circuit vacated the defendant's conviction and remanded the case to us to dismiss the defendant's indictment. Id. at 185. Now, we must decide whether to dismiss the case with or without prejudice, which brings this case to its current posture.

         Discussion

         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 judicial ...

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