United States District Court, D. Minnesota
REPORT & RECOMMENDATION
T. SCHULTZ, UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
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.
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.
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. 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.
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.
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.
Speedy Trial Act
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 ...