The opinion of the court was delivered by: Roszkowski, District Judge.
Before the court are defendant's motions in arrest of judgment,
for a new trial and for judgment of acquittal after discharge of
the jury. The principal basis for defendant's various motions is
the alleged violation of the Speedy Trial Act. 18 U.S.C. § 3161
et seq. For the reasons set forth herein, defendant's motion in
arrest of judgment is allowed and the subject indictment is
dismissed without prejudice. Defendant's remaining motions are
At the September 16th status hearing, the defendant announced
that he had not yet retained counsel. At the defendant's request,
an additional continuance was granted until September 30th. Since
no transcript is presently available from that hearing, it is
unclear whether the Magistrate made any oral findings similar to
those he set forth at the hearing on September 16th. No written
findings appear in the record.
At the September 30th status hearing, the defendant announced
that he had decided to proceed pro se. The Magistrate ordered the
defendant's appointed advisory counsel to remain in the case to
assist the defendant. The parties were ordered to undertake a
Local Rule 2.04 conference by October 14th. The Magistrate
further ordered that the defendant was given ten days thereafter
to file his pretrial motions. The government was given ten days
to respond and the defendant was given five days to reply. The
next status hearing was set before the Magistrate on November
On October 17th, the parties proceeded with their discovery
conference. On October 31st and November 1st, the defendant filed
seventeen pretrial motions along with various supporting
memorandums. Two of the supporting memorandums exceeded fifteen
pages. The government failed to file any written response or
request for a continuance within ten days.
On November 15th, in order to facilitate the defendant's
business travel abroad, the November 18th status hearing was
stricken. A new status hearing was set for December 2nd. While
the government had not yet responded to the defendant's pending
motions, no motion for a continuance was brought to the
At the December 2nd status hearing, the Magistrate granted the
government's oral request for forty additional days in which to
reply to the defendant's pending motions. The defendant stated he
had no objection to the continuance. Finally, the Magistrate
ordered the parties to appear before this court for a status
hearing on January 13, 1984.
On January 13th, the defendant filed a motion and supporting
memorandum in excess of fifteen pages relating to the appointment
of a non-attorney as the counsel of his choice. The government,
which had not yet responded to the defendant's previous motions,
orally requested additional time to respond to all of the
defendant's pending motions. The reason given for the request was
the illness of the Assistant United States Attorney assigned to
the case. This court granted the government until January 23rd to
file its response to the defendant's motion for the appointment
of counsel and gave the defendant until February 3rd to reply.
The defendant, accompanied by his appointed advisor, again voiced
no objection to the briefing schedule. Finally, the court set a
firm trial date of February 27th.
On January 25th, still not in receipt of any government
response to the pending motions, the court set the case for a
status hearing on February 17th. In the interim, on February
13th, the court ruled upon the defendant's pending motions; in
particular, the court denied the defendant's motion for the
appointment of a non-attorney counsel.
At the conclusion of the status hearing on February 17th, the
court entered an order providing:
The court finds that the ends of justice will be
served and outweigh the best interests of the public
and defendant in a speedy trial in order to insure
that defendant's counsel is given adequate time to
prepare the defense of this case.
Therefore the time between August 26, 1983 and
February 13, 1984 is excludable pursuant to T.
18 U.S.C. § 3161(h)(8).
On February 24th, the defendant filed a motion for a
continuance alleging he needed additional time to adequately
prepare his case for trial. Specifically, defendant alleged he
"had expected the court to grant his motion for counsel of his
choice, and had consulted with said individual in preparation for
trial." As a result of the court's ruling, the defendant alleged
he had "not had adequate time to confer with court appointed
counsel." Because his appointed counsel had been assisting him
since his arraignment and because of the late date of his motion,
defendant's motion for a continuance was denied.
On February 27th, the defendant moved the court to reconsider
its excludable time order of February 17th and moved to dismiss
his indictment based upon the government's failure to comply with
the Speedy Trial Act. Both motions were denied. On February 27th,
the jury was impaneled and the defendant was granted a recess for
the remainder of the day. Evidence was heard by the ...