United States v. Cova, 580 F. Supp. 588 (N.D. Ind. 1984)

*589 Scott L. King, Asst. U.S. Atty., Hammond, Ind., for plaintiff.

Richard F. James, Dyer, Ind., for defendant Cova.

Richard A. Hanning, Hammond, Ind., for defendant Pozywio.

KANNE, District Judge.

On the 25th day of January, 1984, the Court had before it defendant Cova's motion to dismiss the indictment because of the Government's failure to comply with the Speedy Trial Act. 18 U.S.C. § 3161 et seq. The defendant and Government had previously filed memorandum of law in support and opposition. Upon argument the Court orally denied defendant Cova's motion. The Court now enters this order to memorialize its ruling.

The relevant procedural history of this case is as follows:

      Date                Activity
September 25, 1983  The Government filed a complaint
                     against the defendants before the
                     Magistrate. The Magistrate issued
                     an arrest warrant for defendant
                     Cova and defendant Cova
                     was arrested. Defendant Cova
                     appears without counsel before
                     the Magistrate.
October 21, 1983     The original 7-count indictment
                     returned against defendant Cova
                     and codefendant Sandra Pozywio.
                     Defendant Cova named in all
                     counts except Count III.
November 7, 1983     Defendant Cova appeared before
                     the Magistrate and requested a
                     continuance. The Magistrate sets
                     defendant Cova's arraignment for
                     November 18, 1983.
November 18, 1983    Defendant Cova arraigned on the
                     indictment. Defendant pled not
                     guilty to all counts. The Magistrate
                     set trial for December 19,
                     1983, before Judge Moody.
November 22, 1983    Judge Moody recused himself.
                     The clerk reassigned defendant's
                     case to Judge Kanne.
November 23, 1983    Judge Kanne sets defendant's
                     case for trial on December 12,
                     1983.
December 8, 1983     On motion of the Government the
                     Court dismissed the original indictment
                     without prejudice.
December 16, 1983    The Government filed the second
                     7-count indictment against defendant
                     and codefendant Pozywio.
                     Again defendant Cova named in
                     all counts except Count III. The
                     arraignment on the second indictment
                     scheduled for January 5,
                     1984.
January 5, 1984      Defendant failed to appear because
                     the United States Marshal
                     never served the defendant with
                     summons. Defendant's arraignment
                     reset for January 11, 1984.
                     The Magistrate advised defendant
                     Cova's counsel of a January
                     30, 1984 trial date.
January 11, 1984     Defendant arraigned and pled not
                     guilty to all the counts naming
                     him in the second indictment.

In addressing a speedy trial issue the starting point is Title 18 U.S.C. § 3161(c) (1) which states in pertinent part:

In any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs.

Defendant's preindictment appearance before the Magistrate on September 25, 1983, constituted an "appearance" under § 3161(c) (1) and thus makes the first indictment filing date of October 21, 1983, the latter of the two. Consequently the seventy day time period began to run on October 21, 1983.

*590 Under the Speedy Trial Act certain periods of time are excluded from the seventy day time limitation. Section 3161(h) (6) defines the excludable time when, as here, the Government moves to dismiss the indictment and then files a second indictment.

3161(h) The following periods of delay shall be excluded ... computing the time within which the trial of any such offense must commence.

....

(6) If the information or indictment is dismissed upon motion of the attorney for the Government and thereafter a charge is filed against the defendant for the same offense, or any offense required to be joined with that offense, any period of delay from the date the charge was dismissed to the date the time limitation would commence to run as to the subsequent charge had there been no previous charge.

Defendant argued that this section only calls for the exclusion of time between the dismissal of the first indictment, December 8, 1983, and the filing of the second indictment, December 16, 1983, a period of eight days.

The Government argued that excludable time under § 3161(h) (6) does not automatically end on the filing of the second indictment. The period of excludable time is determined by applying § 3161(c) (1) to the subsequent indictment. The excludable time then runs to the latter of the date of the filing of the second indictment or the date defendant has first appeared on these amended charges. In support of this interpretation the Government relied on the language in § 3161(h) (6) as if there had been no previous charge. The latter date in this case was January 11, 1984.

The Court agreed with the Government's interpretation. Thus the period of time from December 8, 1983, the dismissal of the first indictment to January 11, 1984, to defendant's post second indictment appearance was excludable time under § 3161(h) (6).

This same interpretation of § 3161(h) (6) was made in United States v. Scott, 557 F. Supp. 990, 994-995 (N.D.W.Va.1983). In Scott, on June 25, 1982, the Court granted the Government's motion to dismiss the first indictment. On September 17, 1982, the grand jury returned a second indictment and on September 23, 1982, the defendant was arraigned on the second indictment. The Court held that the time period excluded under 18 U.S.C. § 3161(h) (6) started on the dismissal of the first indictment and ended on the day of defendant's arraignment on the second indictment.

The same result was also reached in United States v. Rodriquez-Restrepo, 680 F.2d 920 (2nd Cir. 1982). There the second indictment was filed on February 22, 1980, and because of defendant's disappearance she was not arraigned on the second indictment until January 14, 1981. In holding that the time period excludable under § 3161(h) (6) lasted until January 14, 1981, the Court stated:

When an indictment is dismissed and the defendant is subsequently indicted on the same offense or an offense based on the same conduct, the time between the dismissal and the later re-indictment or first appearance on the subsequent indictment is not included in the computations pursuant to the Act. 18 U.S.C. § 3161(h) (6). Thus, the appropriate date for calculating the recommencement of running of time pursuant to the Act is January 14, 1981, the date of Ms. Rodriquez-Restrepo's first appearance before a judicial officer in the Eastern District on these charges. From that date, a mere twentythree days passed; adding the thirty days during which charges were pending in New Jersey reaches a total of fiftythree days, an amount well within the Act's seventy-day requirement. Id. at 921.

The following computations, using the Scott and Rodriquez-Restrepo interpretation of § 3161(h) (6), demonstrate that defendant Cova's motion to dismiss was without merit:

*591
 1. Time elapsed from the 70 day
    period under first indictment (October
    21, 1983December 8,
    1983)                                     48 days
    Excludable time of November 7
    and 18, 1983, pursuant to
    3161(h) (1)                               - 2 days
                                             ________
    Total Includable Time under the
    first indictment                          46 days
 2. Time elapsed from the 70-day period
    between defendant's
    arraignment on the second indictment
    to defendant's trial (January
    11, 1984, to February 6, 1984)           27 days
    Excludable time from January
    30, 1984, to February 6, 1984,
    because of a trial continuance
    granted by the Court at the request
    of defendant Cova 3161(h)
    8 (a)                                  - 7 days
                                           ________
    Total Includable Time under the
    second indictment                       20 days
 3. Total Includable Time under both
    indictments (46 days + 20 days)        66 days

Defendant's trial took place within the required period under the Speedy Trial Act. Accordingly the defendant's motion to dismiss based on the Speedy Trial Act was OVERRULED and DENIED.