United States District Court, N.D. Illinois, Western Division
REPORT AND RECOMMENDATION
D. Johnston United States Magistrate Judge
the Court is Defendant's, Demontrion Phillips',
Motion to Dismiss . The government has responded , and
Defendant has replied . For the reasons stated below, it
is this Court's Report and Recommendation that
Defendant's Motion  be denied. Any objection to this
Report and Recommendation shall be filed with the District
Judge by March 26, 2018. Failure to object may constitute a
waiver of objections on appeal. See Provident Bank v.
Manor Steel Corp., 882 F.2d 258, 260 (7th Cir. 1989).
August 22, 2017, Defendant was indicted for armed bank
robbery. Dkt. 2. The robbery was alleged to have occurred on
July 17, 2017. An arrest warrant was issued the same day.
Dkt. 5. However, Defendant was not arrested until September
5, 2017. Dkt. 33. Defendant was arraigned on the original
indictment the same day as his arrest on September 5, 2017.
December 19, 2017, Defendant was charged by superseding
indictment with armed bank robbery and a new count of bank
robbery. Dkt. 21. The newly added bank robbery was alleged to
have occurred on June 13, 2017. Defendant was arraigned the
following day on December 20, 2017. Dkt. 25.
seeks dismissal of the charges against him, alleging that he
was not indicted in a timely matter. Defendant points out
that the alleged offenses occurred in June and July 2017, but
he was not indicted until August 2017. Defendant cites
numerous cases, but none of them support his position.
Speedy Trial Act requires: “Any information or
indictment charging an individual with the commission of an
offense shall be filed within thirty days from the date on
which such individual was arrested or served with a
summons in connection with such charges.” 18
U.S.C. § 3161(b) (emphasis added).
asserts he was arrested on state charges on July 19, 2017,
and that this started the 30-day period under the Speedy
Trial Act. This is incorrect. Defendant admits he was
arrested on a warrant from Kankakee County. Even if these are
related state-court charges, Defendant was not taken into
custody in connection with the indictment in this case until
September 5, 2017. See United States v. Janik, 723
F.2d 537, 542 (7th Cir. 1983) (finding that an arrest by
state officers on state charges does not start running of
30-day period in 18 USCS § 3161).
Defendant claims that the FBI was gathering evidence against
him since his arrest on July 19, 2017 and that the state
arrest was a ruse to detain him until federal charges were
filed. Again, the 30-day timeline does not start until
defendant is arrested on the federal charges pending in this
case. See 18 U.S.C. § 3161(b); see also
United States v. Clark, 754 F.3d 401, 405-06 (7th Cir.
2014) (“The decision of state officials to arrest
someone because he is wanted for conduct in violation of
state law does not force the federal government to initiate
whatever proceedings it might bring for the same underlying
conduct at the same moment.”). Moreover, Defendant has
not shown that the pending state charges were a mere ruse,
regardless of what investigation the FBI was conducting.
also seeks dismissal because he was not arraigned on the
original indictment within 48 hours of being indicted. Local
Criminal Rule 10.1 states the following: “Following the
filing of an indictment or information the clerk shall
promptly enter a minute order setting the date of
arraignment. Where the defendant is not in custody, the
arraignment shall be conducted on or before 7 days after the
date of filing, unless the judge to whom the case is assigned
orders that the arraignment shall be held within a shorter
period of time. Where the defendant is in custody, the
arraignment shall be set for no later than the second
business day following such filing.” (emphasis
defendant was not in federal custody until September 5, 2017,
the same date he was arraigned. Accordingly, the Court does
not find any violation of this local rule or any support to
dismiss Defendant's indictment.
it is this Court's Report and Recommendation that
Defendant's Motion to Dismiss  be denied. Any
objection to this Report and Recommendation shall be filed
with the District Judge by March 26, 2018. Failure to object
may constitute a waiver of objections on appeal. See
Provident Bank v. Manor Steel Corp., 882 F.2d 258, 260
(7th Cir. 1989).
Court reiterates that Defendant may seek the appointment of
counsel if he cannot ...