United States District Court, D. Nebraska
MEMORANDUM AND ORDER
R. Zwart, United States Magistrate Judge.
government has moved to continue the trial currently set for
September 18, 2017. (Filing No. 219). As explained in the
motion, the government's counsel and its expert witness
(for analysis of historical cell-site records) are not
available during the scheduled trial week; the district
judge's rulings on my findings and recommendation on
motions to suppress cell site information filed by Defendants
Brown, Hazel, and Pittman (Filing Nos. 134, 136, & 138)
are still pending and it is highly likely these defendants
will object to my decision; and Defendant Hazel's motion
to suppress statements remains pending.
Lyle Gordon objects to the continuance, arguing he has
already been detained for 13 months on the charges in this
case and underlying and related state charges,  and the evidence
against him is sparse. He demands an immediate trial in
accordance with his right to a speedy trial. (Filing Nos. 222
& 223). No other defendant has timely objected to the
government's motion to continue.
government's federal indictment, filed on January 19,
2017, alleges the defendants, including Defendant Lyle
Gordon, were engaged in a conspiracy to commit bank larceny.
Generally, persons charged in a conspiracy or jointly
indicted on similar evidence should be tried together.
United States v. Lewis, 557 F.3d 601, 609 (8th Cir.
2009); United States v. Brown, 331 F.3d 591, 595
(8th Cir. 2003). The case against Defendants Brown, Hazel,
and Pittman is not ready for trial-motions to suppress
evidence are currently pending and will not be resolved
before September 18, 2017. As such, if the conspiracy charges
are to be tried together, the trial of this case must be
continued as to all defendants.
Lyle Gordon demands a right to a speedy trial. Upon review of
the court record, Defendant Lyle Gordon's rights under
the Speedy Trial Act have not been violated. While the case
has been pending for more than 70 days, numerous pretrial
motions have been filed. Whether filed by Defendant Lyle
Gordon or by a co-defendant, the time during which these
motions were pending is excludable as to all defendants.
United States v. Mallett, 751 F.3d 907, 911 (8th
Cir. 2014) (“Exclusions of time attributable to one
defendant apply to all codefendants.”).
Defendant Lyle Gordon's Sixth Amendment rights, in
determining whether a defendant's Constitutional right to
a speedy trial has been (or is being) violated the court
considers four factors: 1) the length of delay; 2) the reason
for delay; 3) whether the defendant asserted the right to
speedy trial; and 4) whether the defendant suffered any
prejudice. Barker v. Wingo, 407 U.S. 514, 530
(1972). In assessing the impact of the length of the delay,
the court must first determine whether there has been an
“uncommonly long” delay between indictment and
trial. United States v. Porchay, 651 F.3d 930, 940
(8th Cir. 2011). This inquiry has two parts. First,
“[s]imply to trigger a speedy trial analysis, an
accused must allege that the interval between accusation and
trial has crossed the threshold dividing ordinary from
‘presumptively prejudicial' delay.”
Dogget v. United States, 505 U.S. 647, 651 (1992)).
Second, “the court must then consider . . . the extent
to which the delay stretches beyond the bare minimum needed
to trigger judicial examination of the claim.”
Id. at 652.
threshold for finding a presumptively prejudicial delay is a
delay of approximately 12 months from indictment to trial.
See United States v. Titlbach, 339 F.3d
692, 699 (8th Cir. 2003). Under the facts of record, the
court finds the delay between indictment and trial has not
crossed and is not anticipated to cross “the threshold
dividing ordinary from ‘presumptively prejudicial'
delay.” The federal indictment against Defendant Lyle
Gordon has been pending for less than eight months. Defendant
Lyle Gordon's objection and accompanying brief fail to
“trigger a speedy trial analysis.”
Dogget, 505 U.S. at 651. A hearing on the issue is
addition, the right to a fair trial is not solely for the
benefit of criminal defendants: The public, acting by and
through counsel for the government, is equally entitled to a
fair trial. In this case, the government's primary
counsel and its expert witness cannot attend the trial as
scheduled. Particularly where, as in this case, the
government's case-in-chief will require explaining cell
site records in the context of witness accounts and the
hands-on investigation of law enforcement, holding a trial
with a substitute prosecutor and expert rather than the
persons most familiar with the case would violate the
public's right to a fair trial. And to be clear, the
current trial date was selected and set by the undersigned
magistrate judge without first consulting with the parties:
The government is not retreating from any prior promise to be
present and ready for trial on September 18, 2017.
court finds Defendant Lyle Gordon's objection must be
overruled. and the government's motion to continue must
IT IS ORDERED:
1) Defendant Lyle Gordon's objection to continuing the
trial of this case, (Filing No. 222) is overruled.
2) The government's motion to continue, (Filing No.
219), is granted.
3) As to all defendants, the trial of this
case is set to commence before the Honorable John M. Gerrard,
United States District Judge, in Courtroom 1, United States
Courthouse, Lincoln, Nebraska, at 9:00 a.m. on October 16,
2017, or as soon thereafter as the case may be called, for a
duration of ten (10) trial days. Jury selection will be held
at commencement of trial.
3) Based upon the showing set forth in Defendant's motion
and the representations of counsel, the Court further finds
that the ends of justice will be served by continuing the
trial; and that the purposes served by continuing the trial
date in this case outweigh the interest of Defendant and the
public in a speedy trial. Accordingly, as to all
defendants, the additional time arising as a result
of the granting of the motion, the time between today's
date and October 16, 2017, shall be deemed excludable time in
any computation of time under the requirements of the Speedy
Trial Act, because although counsel have been duly diligent,
additional time is needed to adequately prepare this case for
trial and failing to grant additional time might result in a
miscarriage of justice. 18 U.S.C. § 3161(h)(1), (h)(6)