The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
On May 2, 2007, Defendant, Brian K. Wasson, was charged in a third superseding indictment (#28) with one count of conspiracy to defraud the United States, in violation of 18 U.S.C. § 371, and seven counts of aiding the filing of a false tax return, in violation of 26 U.S.C. § 7206(2). Defendant was charged along with two co-defendants, Joseph Starns and John Wolgamot. Starns died on August 16, 2007, and all pending charges against him were dismissed on September 5, 2007. On August 21, 2008, pursuant to a written plea agreement (#57), Wolgamot plead guilty to count 6 of the third superseding indictment, which charged him with aiding the filing of a false tax return. Defendant Wasson proceeded to a bench trial which commenced on March 2, 2009, and concluded on March 17, 2009.
Following the bench trial, Defendant filed a pro se Motion to Dismiss the Third Superseding Indictment (#92) and the Government filed a Response to Defendant's pro se Motion to Dismiss (#95). Following this court's careful and thorough consideration of the arguments presented, Defendant's pro se Motion to Dismiss (#92) is DENIED.
On February 9, 2009, Defendant, through his counsel, 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 Motion and Memorandum, Defendant argued that the lengthy delay between the date of the original indictment in this case, September 8, 2006, and the date 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." Defendant conceded that a total of 247 days were "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's counsel clarified that his argument that Defendant's 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 was estopped from making an argument that his speedy trial rights were 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.
On February 13, 2009, this court entered an Opinion (#74). This court noted the following procedural history. 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 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, a status conference was held and this court set a deadline of January 16, 2009, for pretrial motions. 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. On February 9, 2009, Defendant filed his Motion to Dismiss.
This court noted that 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.
This court stated that, 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)." 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 in its ruling on [the defendant's] motion to dismiss." Zedner, 547 U.S. at 507; see also Janik, 723 F.2d at 544 (district court made no ends of justice findings at the time the continuance was granted).
This court then stated that, in United States v. Lucas, 499 F.3d 769 (8th Cir. 2007), cert. denied, 128 S.Ct. 1702 (2008), the defendant, like Defendant here, argued that the district court's ends of justice findings were insufficient based upon Zedner. The Eighth Circuit rejected this argument. The court noted that the district court made explicit findings to support its ends of justice continuance and balanced the ends of justice and the interests of the parties and the public. Lucas, 499 F.3d at 782-83. The court stated:
While there could have been more detailed findings, its order was sufficient to show compliance with the Act, particularly in the context of the government's stated reasons for requesting the continuance. This record is unlike the situation in Zedner where the district court "made no mention of the Act and did not make any findings to support exclusion."
This court stated that, in this case, each time a continuance was granted, specific reasons were given for the requested continuance and this court made findings, citing 18 U.S.C. § 3161(h)(8)(A), that the ends of justice served by taking such action outweighed the best interest of the public and Defendant in a speedy trial. Therefore, this court concluded that the record adequately included the reasons for ...