United States District Court, D. Minnesota
A. Slaughter, Jr., United States Attorney for the government.
Wold and Aaron Morrison, for the defendant, Martavis Shawn
ORDER AND AMENDED TRIAL NOTICE
RICHARD NELSON UNITED STATES DISTRICT JUDGE
matter is before the Court upon the Government's Motion
to Continue the March 5, 2019 Trial Date and related
Pre-Trial Due Dates [Doc. No. 33]. In support of its motion,
the Government submitted a memorandum requesting that the
Court exclude time from computations under the Speedy Trial
Act, due to the unavailability of law enforcement officers
involved in the case for the currently scheduled March 5,
2019 trial date. (See Gov't's Mem. [Doc. No.
35.) The Government has also submitted sworn declarations
from the officers, Minneapolis Police Department Sergeants
David Swierzewski and Jeffrey Waite, attesting to their
unavailability for the current trial date. (See
Waite Decl. [Doc. No. 35-2]; Swierzewski Decl. [Doc. No.
35-2].) The Government states that these two officers are
both “clearly necessary to address and coordinate the
bulk of [the] evidence” and are “essential to the
Government's proof of the charges alleged in the
Indictment.” (Gov't's Mem. ¶ 6.) For the
reasons stated below, the motion is granted.
the Speedy Trial Act guarantees a criminal defendant the
right to a speedy trial within a specified period, 18 U.S.C.
§ 3161(c)(1), it contains specific exceptions that
warrant the delay and tolling of the speedy trial clock. As
pertinent here, it contains a provision for the exclusion of
time resulting from the unavailability of essential
witnesses, or “any period of delay resulting from a
continuance granted by any judge . . . 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. §§
Unavailability of Essential Witnesses
the unavailability of essential witnesses, 18 U.S.C. §
3161(h)(3), the Government has demonstrated that Sgts. Waite
and Swierzewski are essential. Sergeant Waite not only
participated in the investigation of Defendant Martavis Shawn
Demar James (“James”), he applied for several
surveillance tools, conducted hours of surveillance, and was
involved in interviewing and debriefing witnesses, as well as
arresting and interviewing James. (Waite Decl. ¶ 3.) In
short, he functions as a case agent, and his presence before
and during trial will be necessary to help the Government
prepare and present its evidence. Similarly, Sergeant
Swierzewski participated in the investigation of Defendant,
including surveillance activities. (Swierzewski Decl. ¶
3.) He attests that he was an eyewitness to James'
alleged efforts in scouting, preparing for, and attempting to
commit a June 1, 2018 robbery. (Id.) In his role as
an investigator and key eyewitness, the Court is likewise
satisfied that Swierzewski's testimony and assistance
will be essential to the Government's case.
witness unavailability, “a defendant or an essential
witness shall be considered unavailable whenever his
whereabouts are known but his presence for trial cannot be
obtained by due diligence or he resists appearing at or being
returned for trial.” 18 U.S.C.A. § 3161(h)(3)(B).
In United States v. Meyer, 803 F.2d 246, 247-48 (6th
Cir. 1986), the Sixth Circuit found that the conflict between
the trial date and the government witness's pre-paid,
non-refundable honeymoon trip met the standard for the
witness's unavailability under 18 U.S.C. §
3161(h)(3). The Sixth Circuit noted that the agent had
recently been married and “had made extensive wedding
and honeymoon plans and expended large sums of non-refundable
money in connection with these plans.” Id. at
247. Similarly, here, Sgt. Waite submits that he has long
planned an out-of-state trip to celebrate his daughter's
16th birthday, which conflicts with the current trial date.
(Waite Decl. para. 6.) Similar to the honeymoon in
Meyer, Sgt. Waite's planned trip marks a
once-in-a-lifetime family event and involves the expenditure
of a significant amount of pre-paid costs, many of which are
non-refundable or subject to cancelation fees. (Id.)
Moreover, in United States v. Petruk, 16-cr-285
(ADM/LIB), this Court granted a trial continuance in which
one of the reasons for the request was that two of the
Government's investigator- witnesses were unavailable due
to long-planned personal travel. (See United States v.
Petruk, 16-cr-285 (ADM/LIB) [Doc. Nos. 63, 70].)
Court also finds that Sgt. Swierzewski is unavailable under
18 U.S.C. § 3161(h)(3)(B). In United States v.
Carillo, 230 F.3d 1364 (8th Cir. 2000), the Eighth
Circuit upheld the grant of a continuance where an essential
government witness was unavailable due to health problems.
While Sgt. Swierzewski does not suffer from a medical issue
himself, Carillo provides guidance. Sergeant
Swierzewski has been approved for a 10-week FMLA leave during
the time of trial due to the impending birth of his fourth
child. (Swierzewski Decl. ¶ 6.) He attests that he is
prohibited by law from returning to his work activities
during the FMLA leave. (Id.) Even it were
permissible, he states that it would be unsafe to leave his
wife to care for a newborn alone, along with three other
young children, while she is in medical recovery.
(Id.) The Court finds that under these
circumstances, Sgt. Swierzewski is unavailable.
finding that these two Government witnesses are essential and
unavailable, the granting of a continuance is proper. The
Speedy Trial clock is therefore tolled pursuant to 18 U.S.C.
Ends of Justice
noted, the Government also argues that a continuance is
warranted to serve the ends of justice. The Speedy Trial
clock may also be tolled where the court finds “the
ends of justice served by the granting of [a] continuance
outweigh the best interests of the public and the defendant
in a speedy trial.” 18 U.S.C. § 3161(h)(7)(A). The
Government notes that after Sgts. Waite and Swierzewski
promptly alerted counsel of their conflicts with the March 5
trial date, defense counsel indicated his involvement in
defending the homicide charges against a former Minneapolis
police officer in Hennepin County District Court, set for
trial in mid-March, with pretrial needs arising earlier in
March. (Gov't's Mem. ¶ 7.) The Government also
asserts that a brief continuance will allow it to effectively
prepare for trial. (Id. ¶ 14.)
Court finds that the ends of justice will be served by
granting a continuance here. A continuance will allow counsel
for both sides to effectively prepare for trial, and it
acknowledges their good faith efforts to try to resolve their
trial date conflicts. See United States v.
Bonilla-Filomeno, 579 F.3d 852, 857 (8th Cir. 2009)
(finding court's ends-of-justice finding sufficient where
it noted that continuance would permit counsel for the
defendant and the government more time to prepare for trial
or pursue plea negotiations). As such, the failure to permit
a continuance under these circumstances would likely result
in a miscarriage of justice. See 18 U.S.C. §
3161(h)(7)(B)(i); United States v. Lucas, 499 F.3d
769, 782-83 (8th Cir. 2007) (affirming district court's
findings for ends-of-justice continuance that failure ...