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Case 1:10-cr-20753-PAS Document 164

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 10-20753-CR-SEITZ UNITED STATES OF AMERICA vs. PATRICK BRINSON and VELDORA ARTHUR, Defendants. / GOVERNMENTS SPEEDY TRIAL REPORT The United States of America, by and through the undersigned Assistant United States Attorney, files this Speedy Trial Report pursuant to Local Rule 88.5(B) and this Courts August 31, 2011 Order [DE 162]. The Courts Order requested a Speedy Trial Report as to defendants Patrick Brinson and Veldora Arthur who have a pending motion to dismiss the case based on alleged Speedy Trial Act violations. Patrick Brinson and Veldora Arthur were not defendants in the original Indictment filed on October 14, 2010 [DE 3]. The relevant indictment as to both defendants is the Superseding Indictment dated February 3, 2011 [DE 64]. Patrick Brinson was arraigned on February 11, 2011 and Veldora Arthur was arraigned on February 24, 2011. The arraignment date as to Veldora Arthur controls for Speedy Trial Act purposes (i.e., the date that the last defendant is arraigned). 1 Accordingly, four days (4) on the Speedy Trial clock ran between February 24, 2011 and March 1, 2011.

In United States v. Shaw, 510 F.Supp.2d 148 (D.D.C. 2007), the Court held that the trial clock was triggered from the date that the last defendant was arraigned. The Court reasoned: This is consistent with the legislative history of the Act. The Senate Report for the Speedy Trial Act states that Section 3161(h)(7) provides for the exclusion

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On March 1, 2011, Neil Fagan filed a Motion to Reset Trial [DE 94], in which all the defendants joined and all agreed that that the time from the filing of this motion to the resetting of the trial would be excludable time for any speedy trial computations. See DE 94 at 8-9. On March 1, 2011, this Court entered an Order [DE 95] granting the March 1, 2011 Motion to Reset Trial, and set the trial for trial period commencing on June 20, 2011. Accordingly, this period between March 1, 2011 and June 20, 2011 would be excludable time under the Speedy Trial Act pursuant to 18 U.S.C. 3161(h)(7)(A). On May 13, 2011, Neil Fagan filed another Unopposed Motion to Continue Trial [DE 115], which Veldora Arthur moved to adopt [DE 120]. On May 20, 2011, the Court held a hearing on various matters. At that hearing, Fagans Motion to Continue Trial was adopted by Patrick Brinsons counsel ore tenus. At the hearing, the Court granted the continuance and reset the trial for the trial period commencing September 12, 2011. Thus, the time between and up to and including September 12, 2011 would be excludable time under the Speedy Trial Act pursuant to 18 U.S.C. 3161(h)(7)(A). Based on the foregoing, the governments calculation as required by Local Rule 88.5(B)(3) is as follows: Gross Time = 201 days (i.e., time between February 24, 2011 and September 12, 2011) Excludable Time = 197 days
of time from the time limits where the defendant is joined for trial with a codefendant who was arrested or indicted after the defendant. The purpose of the provision is to make sure that [ 3161(h)(7)] does not alter the present rules on severance of codefendants by forcing the Government to prosecute the first defendant separately or be subject to a speedy trial dismissal motion. . . . S.Rep. No. 83-1021, 93d Cong., 2d Sess. 38 (1974); see also United States v. Sutton, 801 F.2d 1346, 1365 (D.C. Cir. 1986) (finding that although the trial date was 101 days after the arraignment of the first codefendant, it was only 55 days after arraignment of the second codefendant so there was no speedy trial violation as to the first defendant). Id. at 150-51; see also 18 U.S.C. 3161(h)(6) (stating that the excludable time under the Speedy Trial Act encompasses a reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted.).

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Net Time Remaining = 66 days Final Date 2 = Thursday, November 17, 2011 3 Pursuant to Local Rule 88.5(B)(2), 4 the Speedy Trial Report must address [a]ll

excludable time as recorded on the docket on which there is conflict, including the applicable statutes or law. Defendants Arthur and Brinson claim that there is conflict as to the

excludable time as recorded in this Courts Orders granting the various continuances. Specifically, they appear to argue that this Court made insufficient factual findings under 18 U.S.C. 3161(h)(7)(A) when it granted the continuances requested by the defendants themselves. In United States v. Smith, 350 Fed. Appx. 320, 323 (11th Cir. 2010), the Eleventh Circuit held: The Speedy Trial Act mandates that a trial commence within 70 days after the date the defendant appeared before a judicial officer or the date of the indictment, whichever occurs later. 18 U.S.C. 3161(c)(1). Excluded from the 70 days are periods of delay resulting from a continuance where the district court sets forth, either orally or in writing on the record, its reasons for finding that the ends of justice are served by the continuance and outweigh the best interest of the public or the defendant in a speedy trial. Id. at 323 (citing 18 U.S.C. 3161(h)(7)(A) and Zedner v. United States, 547 U.S. 489, 498-99 (2006)). The Speedy Trial Act, Title 18 U.S.C. 3161(h)(7), provide, in pertinent part: (B) The factors, among others, which a judge shall consider in determining whether to grant a continuance under subparagraph (A) of this paragraph in any case are as follows:

This calculation references the final date upon which the defendant can be tried in compliance with the Speedy Trial Plan of this Court. S.D. Fla. Local R. 88.5(B)(3).

This date assumes that none of the excludable-time provisions of the Speedy Trial Act are triggered between September 12, 2011 and November 17, 2011.
4

Local Rule 88.5(B)(2) requires that the speedy trial report include [a]ll excludable time as recorded on the docket on which there is conflict, including the applicable statutes or law.

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(i) Whether the failure to grant such a continuance in the proceeding would be likely to make a continuation of such proceeding impossible, or result in a miscarriage of justice. (ii) Whether the case is so unusual or so complex, due to the number of defendants, the nature of the prosecution, or the existence of novel questions of fact or law, that it is unreasonable to expect adequate preparation for pretrial proceedings or for the trial itself within the time limits established by this section. .... (iv) Whether the failure to grant such a continuance in a case which, taken as a whole, is not so unusual or so complex as to fall within clause (ii), would deny the defendant reasonable time to obtain counsel, would unreasonably deny the defendant or the Government continuity of counsel, or would deny counsel for the defendant or the attorney for the Government the reasonable time necessary for effective preparation, taking into account the exercise of due diligence Id. (emphasis added). In Zedner, the Supreme Court held that Section 3161(h)(7)(A) gives the district court discretionwithin limits and subject to specific proceduresto accommodate limited delays for case-specific needs by granting a continuance. Zedner, 547 U.S. at 498-99, 503. When a district court grants a continuance under this provision, it must se[t] forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice are served and that they outweigh other interests. Id. at 507. The motion claims that the Speedy Trial Act has been violated because the Court failed to adequately articulate its reasoning behind granting the continuance. In applying the factors set forth in the Speedy Trial Act stated above when deciding to grant a continuance that will toll the Speedy Trial Act, [c]ourts need not necessarily expressly conduct a balancing or use particular language if it is clear from the record that the trial court struck the proper balance when it granted the continuance. United States v. Mathis, 96 F.3d 1577, 1581 (11th Cir. 1996) (quoting United States v. Spring, 80 F.3d 1450, 1456 (10th Cir. 1996)). We decline to apply a hypertechnical construction to the language of the Act in this case where the judge clearly granted the Page 4 of 7

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continuance for the benefit of and at the indirect request of the defendant who now complains of that grant. United States v. Eakes, 783 F.2d 499 (5th Cir.1986) As the Second Circuit has held: [A] trial is neither a game nor an obstacle course; failure to utter the magic words ends-of-justice at the time of ordering the continuance is not necessarily fatal. In short, we are convinced by the record that in granting the continuance . . . the trial court considered the factors indicated in 3161(h)(8) and performed the required balancing of interests. United States v. Breen, 243 F.3d 591, 597 (2d Cir. 2001). See Davis v. United States, 2009 WL 3488052 (N.D. Tex. 2009) (Section 3161(h)(8)(A) does not require courts to use magic words to state an adequate reason for a continuance.); United States v. Paul, 326 F. Supp. 2d 382, (E.D.N.Y. 2004) (Importantly, there are no magic words that must be employed to justify an ends of justice exclusion of time.). Speedy Trial motions such as the one presently before the Court have been characterized as engaging in what some courts describe as working both sides of the street by lulling the court and prosecution into a false sense of security only to turn around later and use the waiverinduced leisurely pace of the case as grounds for dismissal. United States v. Pringle, 751 F.2d 419, 434 (1st Cir. 1984). Courts disallow this practice as a means to dismissal because [t]he Speedy Trial Act was not enacted to allow a defendant to string the court along . . . and then use the Act as a sword to dismiss a proper indictment, rather than as a shield to protect against unnecessary and unfair delays. United States v. Studnicka, 777 F.2d 652, 658 (11th Cir. 1985); see also United States v. Eakes, 783 F.2d 499, 503 (5th Cir. 1986) (The Speedy Trial Act entitles criminal defendants to adequate time for preparing a defense, but that right may not be used as a two-edged sword in this fashion.); United States v. Rush, 738 F.2d 497, 508 (1st Cir. 1984) (defendants may not deliberately obtain an (h)(8) continuance for their own convenience

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in the face of speedy trial concerns articulated by the trial court and then later claim that the court abused its discretion in granting the requested continuance); United States v. Richmond, 735 F.2d 208, 211-12 (6th Cir. 1984) (two-week postponement of trial after jury selection because defense counsel was not ready did not constitute attempt by trial judge to evade Speedy Trial Act requirements); United States v. Nance, 666 F.2d at 353, 357-58 (9th Cir. 1982) (portion of continuance necessitated by defense counsel's scheduling conflicts was excludable under ends of justice provision). Ultimately, for purposes of this Speedy Trial Report, the orders granting continuance, coupled with the record, including matters occurring in open court and the motions adopted/joined by the defendants themselves, show the Courts reasons for finding that the ends of justice were served in granting the continuances and that they outweighed other interests.

Respectfully submitted, WIFREDO A. FERRER UNITED STATES ATTORNEY By: /s/ Armando Rosquete Armando Rosquete Assistant United States Attorney Florida Bar No. 0648434 99 N.E. 4th Street, 4th Floor Miami, FL 33132 Tel: (305) 961-9377 Fax: (305) 530-6168 Armando.Rosquete@usdoj.gov

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was uploaded onto the Courts CM/ECF system and sent via CM/ECF this 1st day of September 2011 to defense counsel.

/s/ Armando Rosquete Armando Rosquete Assistant United States Attorney

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