The opinion of the court was delivered by: Herndon, District Judge
Before the Court are two motions filed by defendant Quawntay Adams. Previously, in an Order issued September 8, 2006 (Doc. 266), the Court granted Defendant's oral motion to reopen his Motion to Dismiss Counts One and Two of the Third Superseding Indictment (Doc. 253) in order to supply the Court with supplemental case law regarding one of the arguments made in the Motion. Thus, the Court now again considers Defendant's Motion to Dismiss (Doc. 253), focusing on Defendant's Supplemental Memorandum (Doc. 284). The Government has filed a supplemental opposing Response (Doc. 285), to which Defendant has replied (Doc. 292). Additionally, defendant Adams filed a Motion for Release from Custody Pursuant to 18 U.S.C. § 3164 (Doc. 287), which has also been timely opposed by the Government (Doc. 291). For the reasons as stated in this Order, as well as reasons stated on the record at the September 5, 2006 hearing (Docs. 260, 261 & 286) on Defendant's Motion to Dismiss (Doc. 253), Defendant's Motions are hereby denied. In making this determination, the Court also deems a hearing upon the merits unnecessary.
I. Defendant's Motion to Dismiss - Supplemental Grounds
In his Supplemental Memorandum, defendant Adams maintains his challenge that more than seventy (70) non-excludable days have elapsed under the Speedy Trial Act (Doc. 284). This is the same overall argument made in his original Motion to Dismiss (Doc. 253), which was thoroughly briefed and argued before the Court. The Court denied the Motion, for reasons stated on the record (Doc. 261), finding that the various Orders granting continuance of trial, challenged by Defendant, did not violate the requirements of the Speedy Trial Act and the time was therefore excludable under the Act (Doc. 286 -- see Transcript, Motion to Dismiss Hearing, 9/5/2006, 30:19 - 34:5).
1. When the Speedy Trial Clock Begins to Run
The main point of contention, albeit the parties now appear to take altered stances, is when exactly the 70-day speedy trial clock begins to run for defendant Adams. Defendant asserts, in his Supplemental Memorandum, that the speedy trial clock commenced, pursuant to 18 U.S.C. § 3161(c)(1), on the date of his Indictment, which was February 18, 2004 (Doc. 30). Although the Government did not agree with this interpretation of § 3161(c)(1) at the September 5, 2006 hearing, in its Response (Doc. 285, pp. 2 & 4), it now also acknowledges this as the starting point. Reviewing Seventh Circuit case law, the Court finds § 3161(c)(1) requires the running of the speedy trial clock to commence at either (1) the indictment; or (2) the defendant's appearance before the judge of the court in which the charge is pending, whichever is the latter. See United States v. Owokoniran, 840 F.2d 373, 374 (7th Cir. 1987)("Furthermore, the statutory language [of § 3161(c)(1)] clearly contemplates that the indictment can be the 'last occur[ring]' step, triggering the running of the 70-day period. Thus, where, as here, the defendant has been arrested and appeared before a magistrate prior to his indictment, the time commences running with the indictment.")(internal citations omitted).
However, this is somewhat of a moot point due to the fact that co-defendants were later added via superseding indictments. Although the Speedy Trial Act provides that a defendant's trial must "commence within seventy days from the filing date . . . 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," there are a number of exclusions which may toll the running of the clock and do not, therefore, count against the seventy days. 18 U.S.C. §§ 3161(c)(1) & (h). Most notably for this case, the seventy days did not begin to run until all defendants had been arraigned. Henderson v. United States, 476 U.S. 321, 323 n. 2 (1986); see also Owokoniran, 840 F.2d at 375.*fn1
Given this standard, and because the Superseding Indictments added new co-defendants, the speedy trial clock for defendant Adams did not begin running until the day of the arraignment of his last co-defendant, Johnny Johnson, was joined in this case, via the Second Superseding Indictment on June 3, 2005 (Docs. 155 & 156). See Henderson, 476 U.S. at 323 n.2 ("All defendants who are joined for trial generally fall within the speedy trial computation of the latest co-defendant. See 18 U.S.C. § 3161(h)(7). Once Bell [the latest added defendant] was joined with petitioners in the . . .superseding indictment, their 70-day period was measured with respect to his."). Although Defendant argues against such a calculation, the Court feels the guidance provided by the United States Supreme Court and Seventh Circuit is enough upon which to base this determination. Beginning the speedy trial clock at this point would effectively moot many of the remaining arguments advanced by defendant Adams. However, the Court feels it important to address the legal issues presented, in order to support its finding of an alternative speedy trial count if it is later determined that the speedy trial clock for defendant Adams began to run on the date of his Indictment, instead.
2. The Magistrate's Discovery Order
Defendant argues that the Government is incorrect in claiming that the ten-day pretrial motion filing period authorized by the Pretrial Discovery Order (Doc. 39), entered by the Magistrate Judge on March 2, 2004, is excludable time (Doc. 284, pp. 5-7). Yet, it appears that the Seventh Circuit disagrees with Defendant's assertion. See United States v. Garrett, 45 F.3d 1135, 1138 (7th Cir. 1995)(holding that the 10-day period established by the magistrate judge for filing of pretrial motions was "clearly excludable from the Speedy Trial Act" even though no pretrial motions were ever filed during this time frame)(citing United States v. Piontek 861 F.2d 152, 154 (7th Cir. 1988) and United States v. Montoya, 827 F.2d 143, 153 (7th Cir. 1987)).Therefore, the Court finds that the Government's calculation in this regard -- finding that the ten days pursuant to the Pretrial Discovery Order, from 3/2/2004 to 3/12/2004 -- amounts to ten (10) days of excludable time within defendant Adam's speedy trial calculation.
3. Pretrial Motions of Co-defendants
Additionally, Defendant does not agree that certain pretrial motions (Docs. 44-46, 48 & 53), filed by co-defendant Pedro Barrios-Casteneda, ascribe excludable time for all Defendants in the case (Doc. 284, p. 9; Doc. 292, pp. 1-2). Defendant does not believe this proper under 18 U.S.C. § 3161(h)(7) unless "the delay is reasonable" (Doc. 292, p. 2). Defendant also believes that motions to continue trial filed solely by other co-defendants (such as Nicole Bowline -- see Docs. 122 & 139) should not serve to ascribe excludable time to his speedy trial calculation. In support, Defendant cites to United States v. Neville, 82 F.3d 750, 763 (7th Cir. 1996). Although Nevillenoted that such excludable delay pertaining to one co-defendant must be "reasonable" in order to be ascribed to all other co-defendants, the Seventh Circuit went on to find that the delay was reasonable, and recognized the "'strong congressional preference for joint trials and an intention that delays resulting from the joinder of co-defendants be liberally construed.'" Id. (quoting United States v. Dennis, 737 F.2d 617, 621 (7th Cir. 1984), cert. denied, 469 U.S. 868, 105 S.CT. 215 (1984)).
The Government opposes this argument, explaining § 3161(h)(1)(F) allows an exclusion for delay resulting from a pretrial motion and that this exclusion can be ascribed to co-defendants via § 3161(h)(7). This interpretation has been upheld by the Seventh Circuit in United States v. Baker, 40 F.3d 154, 159 (7th Cir. 1994)("'Under § 3161(h)(7), the excludable delay of one defendant may be ascribed to all co-defendants in the same case, absent severance.'")(quoting United States v. Tanner, 941 F.2d 574, 580 (7th Cir.1991), cert. denied, 502 U.S. 1102, 112 S.Ct. 1190 (1992)). Further, the Seventh Circuit has upheld the notion that excludable time due to a co-defendant's motion for continuance of trial can be ascribed to other co-defendants. See, e.g., United States v. Mustread, 42 F.3d 1097, 1106 (7th Cir. 1994).
Considering Defendant's argument, the Court believes precedent supports a holding that excludable time caused by the filing of a pretrial motion by a co-defendant, such as the ones previously noted in this Order, are properly ascribed to defendant Adams for his speedy trial calculation. Further, the Court finds that the excludable delay was ...