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United States v. Andrews

United States District Court, D. Minnesota

March 15, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
NORRIS DESHON ANDREWS, Defendant.

          REPORT & RECOMMENDATION

          DAVID T. SCHULTZ, UNITED STATES MAGISTRATE JUDGE

         INTRODUCTION

         Pro Se Defendant Norris Deshon Andrews moves to dismiss the indictment against him, contending that his rights under the Speedy Trial Act and Sixth Amendment have been violated. After reviewing the docket, the Court concludes that Andrews's right to a speedy trial, as codified in the Speedy Trial Act and as guaranteed by the Sixth Amendment, has not been violated.

         FINDINGS OF FACT

         Andrews made an initial appearance on June 22, 2018, at which time the indictment against him was also unsealed. Initial Appearance Minutes, Docket No. 7. At the initial appearance, the Government moved to detain Andrews pending trial. Id. The Court held a hearing and granted the motion on June 26, 2018. Detention Hr'g Minutes, Docket No. 11.

         On July 16, 2018, Andrews's then-counsel sought a brief continuance of the motion filing deadline. Docket No. 20. The Court granted the motion on July 18. Order, July 18, 2018, Docket No. 22. Andrews filed his first pretrial motions on July 24. Docket Nos. 24-31. The Court held an evidentiary hearing on these motions on September 10, but it was cut short when the Defense discovered that the Government had inadvertently failed to produce an exhibit. Hr'g Minutes, Sept. 10, 2018, Docket No. 39. Following the hearing and production of the exhibit, Andrews, still represented by counsel, filed additional motions. Docket Nos. 40-42.

         At the next evidentiary hearing on September 19, Andrews went pro se for purposes of the hearing, with Mr. Aligada serving as standby counsel. Hr'g Tr., Sept. 19, 2018, at 10-11, Docket No. 62. The hearing went past 5 p.m., so the Court continued the matter until October 5, when another hearing was held. Hr'g Minutes, Oct. 5, 2018, Docket No. 48. The Court set a briefing schedule on the motions, expecting to take the motions under advisement on November 2. Id.

         Following the October 5 evidentiary hearing, Andrews filed new motions pro se. Docket Nos. 53-59, 65-67. Mr. Aligada also moved to withdraw as counsel, citing a conflict of interest. Docket No. 60. The Court granted Mr. Aligada's motion and ordered the appointment of new counsel, Mr. Kevin O'Brien. Docket Nos. 64, 67. On November 9, the Court held a hearing to determine Andrews's wishes regarding counsel. Docket No. 72. Because it was unclear to the Court whether Andrews wished to retain Mr. O'Brien or continue pro se, the Court gave him time to decide and, in a separate order, found that the ends of justice served by this continuance outweighed Andrews's interest in a speedy trial and excluded the period of November 9 to November 26 from the speedy trial calculation. Docket No. 74. It also ordered Mr. O'Brien to “clean up” the docket by withdrawing motions filed by prior counsel, as well as those Andrews filed pro se, and refiling any motions after discussing them with his client.

         Mr. O'Brien did as the Court requested, withdrawing and refiling several motions. Docket Nos. 80, 85-88. Andrews also requested that the evidentiary hearing be reopened so that he could give additional testimony in support of some of his motions in which he bore the burden of proof.[1] Docket No. 81. The Court held the requested hearing on December 17, at which Andrews waived his right to counsel and testified in support of his motions. At the end of the hearing, the Court gave Andrews until December 18 to refile any of the other pro se motions he had originally filed. It then set a briefing schedule, giving Andrews the last word.

         Andrews filed numerous motions on December 18, Docket Nos. 97-105, to which the Government responded on December 28, Docket No. 108. After the Government responded, Andrews filed additional motions. Docket Nos. 109-12, 116-20, 123. He filed his support memorandum on January 18, 2019. Docket No. 122. The Court filed an Order and Report and Recommendation regarding Andrews's motions, including those filed after the December 18 deadline, on February 19, 2019. Docket No. 133. On February 13, before the R&R was filed, Andrews filed his motion to dismiss for violation of the Speedy Trial Act. Docket No. 126.

         CONCLUSIONS OF LAW

         Andrews asks the Court to dismiss the indictment against him pursuant to 18 U.S.C. § 3162(a)(2), which states that an indictment shall be dismissed “[i]f a defendant is not brought to trial within the time limited required by section 3161(c) as extended by section 3161(h).” By Andrews's calculation, at least 117 nonexcludable days have passed since the indictment was unsealed against him until the date he wrote his memorandum in support of the motion on February 7, 2019. The Court finds that no more than 26 days of nonexcludable time have elapsed since the indictment against Andrews was unsealed, and Andrews has not otherwise demonstrated a violation of his Sixth Amendment rights, so his motion is denied.

         I. Speedy Trial Act

         The Speedy Trial Act requires that a defendant's trial begin “within seventy days from the indictment or the first appearance, whichever occurs later.” United States v. Porchay, 651 F.3d 930, 935 (8th Cir. 2011) (citing 18 U.S.C. § 3161(c)(1)). However, the Act also provides for exclusions from the computation of the seventy days. Relevant here, such excludable time includes “delays resulting from any pretrial motion, ” from the motion's filing through its hearing “or other prompt disposition[.]” 18 U.S.C. § 3161(h)(1)(D). But, no more than thirty days may be excluded once the motion or any other “proceeding concerning the defendant is actually under advisement by the court.” Id. at § 3161(h)(1)(H). The Act also allows a court to exclude any time from a continuance “if the judge granted such continuance on the basis of his ...


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