Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States of America v. John Tomkins

May 4, 2011


The opinion of the court was delivered by: Judge Robert M. Dow, Jr.


Before the Court is Defendant John Tomkins' motion to dismiss superseding indictment for violation of the Speedy Trial Act [332]. For the reasons set forth below, the motion [332] is respectfully denied.

I. Background

This Court has previously addressed many of the issues raised in Defendant's pending motion to dismiss, and decided that, in denying pretrial release under § 3164, no Speedy Trial Act violation had occurred. R. 217. The Court's decisions under § 3164 have twice been upheld by the Seventh Circuit. United States v. Tomkins, No. 11--3379, slip op. (7th Cir. Nov. 18, 2011); United States v. Tomkins, No. 12--1009, slip op. (7th Cir. Feb. 2, 2012). In ruling on the pending motion to dismiss, the Court incorporates by reference the prior opinion denying pretrial trial release and the remarks made on the record in open court on the first day of trial.

II. Analysis

The current motion is a motion to dismiss based on Speedy Trial Act violations, rather than a motion for pretrial release. The Speedy Trial Act, 18 U.S.C. § 3161, requires trial to begin within seventy days from the filing of the indictment or the date on which the defendant "appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs." 18 U.S.C. § 3161(c)(1) (1990). In determining whether trial began within 70 days of indictment or appearance, the district court excludes certain periods of delay, including "delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion." Id. § 3161(h)(1)(F).*fn1 Periods of delay resulting from the pendency of a pretrial motion are automatically excluded; "no ends-of-justice balancing by the court is necessary." United States v. O'Connor, 656 F.3d 630, 642 (7th Cir. 2011). The district court may also exclude time "at the request of the attorney for the Government,if the judge grant[s] such continuance on the basis of his findings that the ends of justice served bytaking such action outweigh the best interest of the public and the defendant in a speedy trial."18 U.S.C. § 3161(h)(8)(A).*fn2 In ruling that the ends of justice warrant the exclusion of time, the district court must set out its reasons for granting the exclusion, and the court may consider whether "failure to grant such a continuance" would "unreasonably deny the defendant or the Government continuity of counsel, or would deny counsel for the defendant or the attorney for the Government the reasonable time necessary for effective preparation." Id. The district court "must enter the findings into the record not later than the time the court rules on a defendant's motion to dismiss." O'Connor, 656 F.3d at 636; see also Zedner v. United States, 547 U.S. 489, 507 (2006) (explaining that the Speedy Trial Act does not require that these findings be made contemporaneously with the exclusion of time, so long as the findings were made, "if only in the judge's mind, before granting the continuance").

Defendant argues that the Speedy Trial Act has been violated. The Court previously determined that Defendant was not entitled to pretrial release under § 3164 because 90 days had not run off of the speedy trial clock and because many of the delays caused in the trial were the fault of Defendant.R. 217 at 17--23. Although dismissal of an indictment for speedy trial violations under § 3162 does not include as a statutory consideration whether the defendant caused delays, the Seventh Circuit does review the role that the defendant played in causing the continuance in assessing the merits of an exclusion of time. See United States v. Adams, 625 F.3d 371, 379--80 (7th Cir. 2010) (explaining that defendant could not successfully allege speedy trial violations where his own continuance motions caused delays). Additionally, whether the defendant caused or agreed to delays is a factor that courts consider in determining whether the defendant incurred any prejudice due to the delays. United States v. Sykes, 614 F.3d 303, 309 (7th Cir. 2010). As a result, much of the analysis previously conducted by the Court in determining whether time was properly excluded applies to Defendant's pending motion.

Judge Lindberg declared the case "complex" under § 3161(h)(7)(B)(ii) on October 31, 2007. All delays in this case following that declaration-and all exclusions of time resulting from those delays-are viewed through that lens. The case is complex, and the Speedy Trial Act allows for courts to grant leeway and additional preparation time to parties in such instances. See O'Connor, 656 F.3d at 639 (explaining that "the ends-of-justice provision exists" to offer "district judges the flexibility needed to effectively manage complex litigation"). Many of the delays in this case have arisen directly because of the complexity of the case: that is, the volume of discovery, the nature of the charges, and the scope of and motives for the crimes. Add to that the fact that Defendant changed counsel several times and then was proceeding pro se for a good portion of this case (and through trial). Additionally, Defendant himself admitted on the record this winter that he would not be able to go to trial prior to the April 2012 date suggested by the Court. A pro se defendant in a complex case adds a whole host of difficulties and issues not found in a complex case with lawyers on both sides. While Judge Lindberg's "complex case" ruling in 2007 cannot alone support every one of the exclusions of time, that ruling provides necessary context for the delays.

In his motion, Defendant contends that "[b]ecause the last time Judge Lindberg relied on the automatic exclusion under § 3161(h)(1)(F) was on January 12, 2009 * * * the violation of the STA occurred before the superseding indictment was returned." R. 332 at 4. Defendant also contends that "the STA clock for Counts One through Eight began to run on May 6, 2009," and that the "only question then is whether Counts Nine through Thirteen should be dismissed with or without prejudice." R. 332 at 4. However, in his reply brief, Defendant reiterates that not only is he challenging continuances prior to the filing of the superseding indictment, he is challenging "each of the continuances that Judge Lindberg granted under § 3161(h)(1)(8)(A) and the fact that a trial date was not set in accord with § 3161(a)." R. 348 at 5. He states that he is "waiving" his argument for "the time that this court has excluded because this court has complied with the requirements of Zedner and Bloate in excluding time." Id. Thus, Defendant does not present a Speedy Trial Act claim resulting from delays after December 2, 2010. See18 U.S.C. § 3162(a)(2); United States v. Hassebrock, 663 F.3d 906, 912 (7th Cir. 2011). Thus, the Court, in deciding this motion, looks only at the exclusions of time prior to December 2, 2010.

The Court is satisfied that the findings previously made by the Court in denying Defendant's motion for pretrial release apply to the instant motion. However, in the interest of completeness, the Court makes the following findings as further support (beyond the reasons previously articulated for finding no Speedy Trial Act violation) in denying Defendant's motion to dismiss.

First, the Court previously addressed the 21-day period between arraignment and the filing of the Government's motion for the court to declare the case "complex." Under the law governing this Court and Magistrate Judge Schenkier in September 2007, see Tibboel, 753 F.2d at 610, this exclusion was proper. R. 210 at 12--13; R. 217 at 19--20 (Order). While Bloate has since changed the law on whether time to file pretrial motions is automatically excludable, courts may still determine that allowing an exclusion of time to allow for parties to file pretrial motions is in the interest of justice. See United States v. Napadow, 596 F.3d 398, 404 (7th Cir. 2010) (explaining that excluding time to allow parties to prepare pretrial motions "was a practical, common-sense way of proceeding"). Given that the case was at its earliest stages when Judge Schenkier set the pretrial motion schedule, excluding time to allow for the parties to consider, prepare, and file pretrial motions would have been reasonable and in the interest of justice. Indeed, Defendant has since filed numerous pretrial motions (including the motion now pending). Excluding time would have been (and was) in the interest of justice and appropriate under that provision of the Speedy Trial Act. The Court held precisely that in its previous opinion: "it seems reasonable that granting a continuance for pretrial motions would be in the interest of justice at an early juncture of a complex case." R. 217 at 20. Because no court has yet ruled on Defendant's dismissal motion, the Court now finds that implicit in Judge Schenkier's 2007 order was an exclusion of time in the interest of justice.

Next, at the November 29, 2007 status hearing, the parties discussed setting the deadline for pretrial motions in January 2008 due to the volume of discovery and Judge Lindberg's prior ruling that the case was complex. R. 241 at 3--4 (transcript) (setting response and reply dates and a status for March 19, 2008.). In this Court's view, excluding time in the interest of justice is appropriate in light of the colloquy at the hearing, Judge Lindberg's "complex case" ruling," and what, to Judge Lindberg, was an obvious need for additional time to review extensive discovery. The Court now completes the record by confirming what was clear to Judge Lindberg: that time was to be excluded in the interest of justice to allow for defense counsel to review the large volume of discovery and prepare appropriate pretrial motions. The Government previously argued this issue in a brief addressing Defendant's § 3164 claim. R. 210 at 13--14. And the Court already has held that "[a]lthough the minute order does not make any reference to § 3161(h)(8)(A) * * * it seems clear that the previous judge excluded time on that basis, especially when the November 29, 2007, order is considered in the context of the case, and in particular, the October 31, 2007, order declaring the case complex." R. 217 at 21. The Court's prior reasoning has the same weight in assessing Defendant's current motion to dismiss the indictment as it does in responding to his previous motion for pretrial release. This reasoning applies to continuances granted on April 16, 2008 (R. 37), May 5, 2008 (R. 43), June 9, 2008 (R. 46), July 14, 2008 (R. 68), August 12, 2008 (R. 71), September 22, 2008 (R. 74), October 20, 2008 (R. 78), and December 10, 2008 (R. 88).

With respect to the January 30, 2008 order granting an extension of time to file pretrial motions, the Court previously held that, consistent with Judge Lindberg's declaration that the case is complex and his other orders excluding time for pretrial filings, "the time necessary to resolve [this and subsequent] proceedings also was properly excluded." R. 217 at 21. Again, this conclusion has as much force in responding to Defendant's motion to dismiss as in considering his motion for pretrial release. To complete the record on these exclusions of time in the interest of justice, the Court follows its prior reasoning and concludes that, because the reasoning was put on the record before Defendant's motion to dismiss was decided, the exclusion was proper and adequately placed in the record.

On March 19, 2008, Judge Lindberg granted Defendant's motion to change defense counsel. Along with the other reasons noted by the Court for excluding time in the interest of justice at the time of this hearing, time also would have been properly excluded to allow a reasonable time for Defendant's new attorney to become familiar with this case. See18 U.S.C. ยง 3181(h)(8)(B)(iv) (delay is necessary to allow counsel reasonable time for effective preparation of case). Judge ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.