United States District Court, D. Minnesota
Jeffrey S. Paulsen, United States Attorney's Office, for
Deshon Andrews, Reg. No. 21579-041, Pro Se.
MEMORANDUM OPINION AND ORDER ON REPORT AND
RICHARD NELSON, UNITED STATES DISTRICT JUDGE
matter comes before the Court on the Objections
(“Objections”) [Doc. No. 150] of Defendant Norris
Deshon Andrews to Magistrate Judge David T. Schultz's
Report and Recommendation (“R&R”) dated March
15, 2019 [Doc. No. 144] recommending that Defendant's
Motion to Dismiss on Speedy Trial [Doc. No. 126]
(“Motion to Dismiss”) be denied. For the reasons
set forth below, this Court overrules Defendant's
Objections, adopts the R&R in its entirety, and denies
Defendant's Motion to Dismiss.
following procedural history is relevant to the analysis of
Andrews' speedy trial rights in this case. On June 22,
2018, Andrews made an initial appearance and the Indictment
against him was unsealed. (June 22, 2019 Hr'g Min. [Doc.
No. 7].) At that initial appearance, the Government moved to
detain Andrews pending trial, tolling the speedy trial clock.
(Id.) The Court then held a detention hearing and
granted the motion on June 26, 2018. (June 26, 2018 Hr'g
Min. [Doc. No. 11].) On July 16, 2018, Andrews'
then-counsel, Mr. Reggie Aligada, sought a continuance of the
filing deadline for criminal motions. (Def's Mot. for
Continuance [Doc. No. 20].) The Court granted that Motion on
July 18. (Order Granting Def's Mot. for Continuance [Doc.
than a week later, on July 24, Andrews filed a Motion for
Disclosure of Rule 404 Evidence. (Def's Mot. for
Disclosure [Doc. No. 24]), as well as numerous other motions
([Doc. Nos. 25, 26, 27, 28, 29, 30, 31].) The clock was then
tolled. The Court held an evidentiary hearing related to
those motions on September 10. (Sept. 10, 2018 Hr'g Min.
[Doc. No. 39].) That hearing was continued by the Court when
counsel for Andrews discovered that the Government had failed
to produce an exhibit. (R&R at 2.) At the continued
hearing, on September 19, Andrews chose to appear pro se,
with Mr. Aligada serving as standby counsel. (Sept. 19, 2018
Hr'g Trans. 2:5-10 [Doc. No. 62].) The hearing went past
the close of business, so the Court continued the matter
until October 5. (Id. at 89:22-25.) On that date,
the Court held another hearing and a post-hearing briefing
schedule was set. (Oct. 5, 2018 Hr'g Min. [Doc. No. 48].)
October 17, Mr. Aligada filed a motion to withdraw as counsel
due to a conflict of interest. (Aligada's Mot. to
Withdraw [Doc. No. 60].) The Court granted Mr. Aligada's
motion and appointed Mr. Kevin O'Brien as counsel for
Andrews. (Order Granting Aligada's Mot. to Withdraw [Doc.
No. 64]; Order Appointing Attorney [Doc. No. 67].) Then, on
November 9, the Court held a Faretta evidentiary
hearing to determine whether Andrews wished to represent
himself. (Nov. 9, 2018 Hr'g Min. [Doc. No. 72].) During
that hearing, the Court determined that it was unclear
whether Andrews wished to retain Mr. O'Brien as his
counsel. (Id.) Therefore, the Court continued the
hearing, explicitly finding that the ends of justice
outweighed Andrews' interest in a speedy trial, and
excluded the period from November 9 to November 26. (Nov. 13,
2018 Order [Doc. No. 74].)
continued to file pretrial motions. [Doc. Nos. 75, 76, 77,
78, 79, 80, 81, 85, 86, 87, 88, 89, 91, 93, 96, 97, 98, 99,
100, 101, 102, 103, 104, 105, 109, 110, 111, 112, 116, 117,
118, 119, 120, 126, 128, 132, 135, 137, 138, 141, 142, 148].
On February 13, 2019, Andrews filed this Motion to Dismiss
for violation of the Speedy Trial Act pursuant to 18 U.S.C.
§ 3161 and his Sixth Amendment right to a speedy trial.
(See Mot. to Dismiss at 1.)
magistrate judge determined, in his R&R, that an
“accurate calculation of the non[-]excludable time
since Andrews' indictment affirms that his speedy trial
clock has not reached the seventieth day.” (R&R at
4.) Magistrate Judge Schultz calculated that, since Andrews
made his initial appearance on June 22, 2018, twenty-five
non-excludable days had passed. (Id. at 4-5.)
objects, both orally and in writing, to this finding. Andrews
argues that any time elapsed after a continuance is granted
may not be excluded, because the magistrate judge in this
case “did not set out an order for exclusion in the
record orally [or] in writing.” (Obj. at 3.) Andrews
contends that this argument applies to each of the magistrate
judge's continuances. (See Obj. at 1-7.)
Standard of Review
issuance of an R&R, a party may “serve and file
specific written objections to the proposed findings and
recommendations.” Fed.R.Civ.P. 72(b)(2). The objections
should specify the portion of the magistrate judge's
[R&R] to which objections are made and provide a basis
for those objections. Mayer v. Walvatne, No.
07-cv-1958 (JRT/RLE), 2008 WL 4527774, at *2 (D. Minn. Sept.
28, 2008). Then, the district court will review de
novo those portions of the R&R to which an objection
is made, and it “may accept, reject, or modify, in
whole or in part, ...