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United States v. Dicosola

United States District Court, Seventh Circuit

July 11, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
MICHELE DiCOSOLA, Defendant.

MEMORANDUM OPINION AND ORDER

HARRY D. LEINENWEBER, District Judge.

The Defendant, Michele DiCosola, has moved the court to dismiss the indictment pursuant to 18 U.S.C. ยง 3161 et seq. He contends that the court did not properly exclude time under the act so that his constitutional rights will be violated if the court fails to dismiss the indictment with prejudice. The Motion is denied for the following reasons.

The case got off to a rocky start on July 31, 2012, with the presentation of a Motion by the Defendant to discharge his attorney. The Motion was granted. The Defendant was given until August 30, 2012, to obtain new counsel. The time was excludable under Section 3161(h)(7)(B)(iv).

On August 30, 2012, the Defendant had not obtained counsel and his pretrial motions were held in abeyance while he continued to attempt to obtain counsel. The case was next set for status on September 27, 2012. The time was excluded again in the interest of justice for the Defendant to obtain counsel.

On September 27, 2012, the Defendant had not obtained counsel and told the Court that he was going to proceed pro se. The matter was continued until November 6, 2012, at which time the Court would consider the Defendant's competency to proceed pro se. The time was again excluded in the interests of justice.

On November 6, 2012, the court appointed a Federal Defender to assist the Defendant on a stand-by basis. The matter was continued to December 12, 2012, at which time the Defendant presented a Motion for a Bill of Particulars. This Motion was denied. The Court then allowed the Defendant to present his other motions for consideration by the court. A briefing schedule was adopted which culminated by setting the date of January 10, 2013 for Defendant's Reply to the Government's brief. The Court set the date of February 12, 2013 for ruling on the Defendant's motions. The time was excluded through February 12, 2013, to allow the Court time to consider and rule on the motions.

On February 12, 2013, the Court entered a Memorandum Opinion and Order, ruling on all of the Defendant's pretrial motions.

On February 27, 2013, the Court held a status hearing. At this hearing the Defendant presented a number of oral motions which were denied in open court. The Defendant contended that there were many more motions that the Court had not ruled on. The Court admonished Defendant that to be considered it was necessary for him to present the motions in open court which he had not done. The Defendant indicated that there were many more motions he intended to file and the Court advised him that the time for filing pretrial motions had elapsed but if he wanted the Court to consider additional motions he could ask leave of court to do so. The Defendant objected to stand-by counsel. The Court then stated that it was the Court's intention to set the case for trial. The following colloquy occurred:

THE DEFENDANT: Your Honor, I object to that. I'm not ready for trial. There are pretrial motions that have not been answered. There's an objection in there.
* * *
THE COURT: All right. Here's what I'm going to do. I'm going to set the case for trial but I'll put the matter over a week. [Standby counsel was on trial and was not available.]
THE DEFENDANT: Oh, Your Honor, I object. We don't have all the pretrial motions all yet-all resolved.
* * *
THE COURT: All right. We'll set the case ...

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