The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on the defendant's Second Motion to Dismiss Indictment for Violation of the Speedy Trial Act (Doc. 614) and Memorandum in Support (Doc. 615). The government has filed a memorandum in opposition (Doc. 620) and the defendant, Donald Weidenburner, did not file a reply. In his motion, Weidenburner argues his absence prior to his arrest was the government's fault and that the Speedy Trial Act was violated when he allegedly did not hear from counsel for a sixty-five day period (Doc. 615).
The operative indictment in this criminal proceeding is the Third Superseding Indictment (Doc. 152) which was filed on June 2, 2003. The first indictment in this case was filed on December 12, 2002 and Weidenburner was apprehended in the Western District of Kentucky in November 2010 after his photo was aired following a television show and a viewer called with his whereabouts. In between the operative indictment and Weidenburner's apprehension, Weidenburner concealed his identity to evade arrest by using at least two aliases and securing identification documents through illegal and fraudulent means. Weidenburner's girlfriend stated that she and Weidenburner decided to disappear because of the forthcoming federal warrants. Weidenburner was then arraigned on December 10, 2010.
Following Weidenburner's arraignment, he was represented by court-appointed attorney Rodney Holmes (Doc. 577). On January 15, 2011, Mr. Holmes filed a motion to continue and the Court granted the motion and tolled the running of the Speedy Trial Act (Doc. 581). Mr. Holmes continued to represent Weidenburner until February 25, 2011 when he withdrew after Weidenburner sent letters to USA Today and Eric Holder alleging Mr. Holmes was not providing adequate counsel (Doc. 582). Weidenburner motioned for new counsel and on March 1, 2011, Robert Elovitz received notice of his appointment as counsel (Doc. 589). Mr. Elovitz filed a motion to continue to familiarize himself with the case on March 9, 2011 (Doc. 589) and it was granted on March 10, 2011 and continued the tolling of the Speedy Trial Act. Mr. Elovitz continued to represent Weidenburner until August, 4, 2011, when Weidenburner stated he no longer wished to be represented by Mr. Elovitz (Docs. 601, 603). Current counsel, Robert Herman, was then appointed by the Court on August 10, 2011 (Doc. 604). The Court continued the tolling of the Speedy Trial Act to give Mr. Herman sufficient time to provide knowledgeable representation (Doc. 606). Mr. Herman then made an oral motion to continue on September 22, 2011 in order to file motions in this case which the Court granted and continued the tolling of the Speedy Trial Act. Final Pretrial in this matter is now set for December 9, 2011 and the trial is set for January 23, 2012.
I. Constitutional Right to a Speedy Trial Weidenburner's motion is unclear as to whether it is alleging a violation of Speedy Trial Act or the right to a speedy trial under the Sixth Amendment. Although Weidenburner states the claim is under the Speedy Trial Act, he does not cite to the Speedy Trial Act and uses language more commonly used with the Sixth Amendment. In as much as he puts forth claims under the Sixth Amendment, the standard for these claims and its application, were already addressed by this Court in its order on the defendant's first motion to dismiss (Docs. 597, 592). The Court finds no reason to revisit the issue again here and directs the defendant to review its previous order (Doc. 597).
II. Alleged Violation of the Speedy Trial Act
The motion to dismiss and memorandum in support thereof purport to advance a claim under the Speedy Trial Act; however, nowhere does Weidenburner cite to the act itself. In fact, the motion is completely devoid of any legal citation and the memorandum of law in support barely references any case law in regards to the Speedy Trial Act and does not cite the Speedy Trial Act. Such a filing violates Local Rule 7.1 which requires citations to relevant legal authority and this Court has admonished the defendant for the same thing in the past (Doc. 597). Although the Court could properly deny the motion solely on the basis of being legally insufficient, the Court will examine Weidenburner's claim.
The Speedy Trial Act requires that a criminal defendant's trial must begin within seventy days of his indictment or initial appearance, whichever comes last. 18 U.S.C. § 3161(c)(1). In spite of this broad statement, the Act also provides for "excludable time." These "periods of delay shall be excluded in computing the time within which.the trial of any such offense must commence." 18 U.S.C. § 3161(h). Time that is excluded includes from the time of the filing of a pretrial motion by the defendant to the resolution of such motion (id. at 1(d)) and any period of delay resulting from a continuance granted by any judge on his own motion or at the request of the defendant or his counsel or at the request of the attorney for the Government, 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.
18 U.S.C. § 3161(h)(7). A violation of the Speedy Trial Act does not occur until more than seventy days of non-excluded time elapses between the arraignment or initial appearance and the start of the trial. See United States v. Broadnax, 536 F.3d 695 (7th Cir. 2008). If a violation has occurred, then the remedy is ...