The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
This case is before the court for ruling on the Motions to Dismiss (#67, #68) filed by Defendant, Brian K. Wasson. This court has carefully considered Defendant's Motions and the oral argument presented to this court on February 12, 2009. Following this careful consideration, Defendant's Motions (#67, #68) are DENIED.
On August 22, 2008, a telephone status conference was held in this case. At the conference, the Government moved to continue the trial scheduled for September 22, 2008, and set out its reasons for requesting the continuance. Defendant stated that he had no objection. This court then granted the Government's motion and a jury trial was scheduled for March 2, 2009. This court then made a specific finding that the ends of justice were met pursuant to 18 U.S.C. § 3161(h)(8)(A) and that the time from August 22, 2008 to March 2, 2009 was excluded from the Speedy Trial Act calculation. This court also stated that Defendant's bond remained in effect.
On December 5, 2008, another telephone status conference was held. This court stated that the jury trial remained scheduled for March 2, 2009. This court stated that the Government's Santiago proffer was due by February 2, 2009, and any objections by Defendant were due by February 9, 2009. This court stated that any pretrial motions were due by January 16, 2009, and responses were due by January 30, 2009. This court also set deadlines for proposed voir dire questions, jury instructions, and exhibit and witness lists. This court also stated that Defendant's bond remained in effect.
Defendant filed a Motion in Limine (#60) on January 16, 2009, the deadline for pretrial motions. The Government filed a Response (#62) on January 30, 2009, and this court entered an Order (#65) denying the Motion as moot. On February 2, 2009, the Government filed its Santiago Proffer (#64). On February 6, 2009, a telephone status conference was held and Defendant's counsel informed this court that Defendant requested to waive his right to a jury trial and proceed to a bench trial. This court stated that Defendant's request would be addressed at the final pretrial conference scheduled on February 12. This court noted that a written jury trial waiver would need to be executed by Defendant.
On February 9, 2009, Defendant filed his Response to the Government's Santiago proffer (#66). Defendant also filed a Motion to Dismiss based upon a violation of his speedy trial rights (#67). On February 10, 2009, Defendant filed a Memorandum of Law and Supplementary Motion to Dismiss based on Speedy Trial Violation (#68).
In his Motions and Memorandum, Defendant argued that the lengthy delay between the date of the original indictment in this case, September 8, 2006, and the date currently set for trial, March 2, 2009, violated Defendant's right to a speedy trial under the Speedy Trial Act and the Fifth and Sixth Amendments to the United States Constitution. Defendant contended that the "delay of years" prejudiced him "due to the death of co-defendant Starns, whose presence at trial could have bolstered Defendant's case." (The record shows that Joseph Starns died on August 16, 2007). Defendant conceded that a total of 247 days are "excludable" from computing the Speedy Trial time limits because those days elapsed while motions were pending in this case. Defendant also conceded that this court granted seven continuances in this case and stated, on each occasion, that the time was excluded under 18 U.S.C. § 3161(h)(8). Defendant argued, however, that this court failed to enter findings of fact and conclusions of law as to why it granted the seven continuances. Defendant argued that, based upon Zedner v. United States, 547 U.S. 489 (2006) and United States v. Janik, 723 F.2d 537 (7th Cir. 1983), this court's ends of justice findings were not sufficient to exclude the continuance time from the Speedy Trial Act calculation. Defendant argued that the third superseding indictment against him must be dismissed with prejudice.
During oral argument, Defendant clarified that his argument that his constitutional right to a speedy trial was violated was based upon the Government's Santiago proffer which stated that Defendant's criminal conduct began in 1994 and continued until 2003. Defendant argued that the Government's long delay in seeking an indictment against him violated his constitutional speedy trial rights. Defendant admitted that he had no authority to cite in support of this argument except for the constitution itself.
The Government argued that Defendant is estopped from making an argument that his speedy trial rights have been violated because Defendant agreed to all of the continuances granted in this case. The Government, citing Zedner, argued that estoppel applies when a defendant's later position is inconsistent with his earlier position. See Zedner, 547 U.S. at 504.
This court first notes that Defendant's Motion to Dismiss was not filed by the pretrial motion deadline set by this court. There is certainly nothing in the motion that was not known by Defendant as of January 16, 2009, the deadline for pretrial motions set by this court. This court will nevertheless consider Defendant's arguments.
The Speedy Trial Act provides that no more than 70 days may elapse between arraignment and the commencement of trial. 18 U.S.C. § 3161(c)(1). However, certain periods of time between arraignment and trial are excluded from the Speedy Trial calculation. United States v. Larson, 417 F.3d 741, 744-45 (7th Cir. 2005). Importantly, the Act provides that "[a]ny period of delay resulting from a continuance . . . [is excluded] 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." Larson, 417 F.3d at 745, quoting 18 U.S.C. § 3161(h)(8)(A). Absent legal error, exclusions of time cannot be reversed except where there is an abuse of discretion by the court and a showing of actual prejudice. Larson, 417 F.3d at 745.
In Zedner, the United States Supreme Court confronted a situation where the defendant signed a blanket, prospective waiver of his rights under the Speedy Trial Act. Zedner, 547 U.S. at 492. The Court concluded that a defendant may not prospectively waive the application of the Act so that the defendant's waiver "for all time" was ineffective. Zedner, 547 U.S. at 503. The Court went on to conclude that time was not excluded when the district court granted a continuance. Zedner, 547 U.S. at 507. The Court stated that "without on-the-record findings, there can be no exclusion under § 3161(h)(8)(A)." Zedner, 547 U.S. at 507. The Court stated that "§ 3161(h)(8)(A) is not satisfied by the District Court's passing reference to the case's complexity and its ...