United States District Court, D. Nebraska
FINDINGS AND RECOMMENDATION
Michael D. Nelson United States Magistrate Judge.
matter is before the Court on Defendant Cardell Bonner's
Motion to Dismiss (Filing No. 54), alleging a
violation of his right to a speedy trial under the Speedy
Trial Act (“STA”), 18 U.S.C. § 3161.
Defendant filed a brief (Filing No. 55) in support
of the motion and the government filed a brief (Filing
No. 60) opposing the motion. For the reasons set forth
below, the undersigned recommends that Defendant's motion
21, 2017, Defendant was indicted on two counts of
distribution of more than 28 grams of cocaine base
(“crack cocaine”). (Filing No. 1).
Defendant was arrested on or about August 24, 2017
(Filing No. 8), and entered not guilty pleas at his
arraignment on August 25, 2017 (Filing No. 10). The trial was
initially set to commence on October 17, 2017. (Filing
October 9, 2017, Defendant filed an unopposed motion to
continue trial. (Filing No. 16). The Court entered
an Order on October 12, 2017, granting Defendant's motion
and continuing the trial until November 28, 2017. The time
between October 12, 2017, and November 28, 2017, was deemed
excludable in any computation of time under the requirement
of the STA. (Filing No. 17).
November 17, 2017, Defendant filed a second unopposed motion
to continue trial. (Filing No. 29). The Court
entered an Order the same date, granting the motion and
continuing the trial until January 9, 2018. The time between
November 17, 2017, and January 9, 2018, was deemed excludable
in any computation of time under the requirement of the STA.
(Filing No. 30).
December 28, 2017, Defendant filed yet another motion to
continue trial. (Filing No. 37). Defendant
acknowledged in an affidavit attached to this motion that the
period of delay resulting from his request for continuance of
trial would be excluded under the STA. (Filing Nos. 37-1,
37-2). The Court entered an Order on December 29, 2017,
granting the motion and continuing the trial until April 16,
2018. The Court specifically advised Defendant that
“Failing to timely object to this order as provided
under this court's local rules will be deemed a waiver of
any right to later claim the time should not have been
excluded under the Speedy Trial Act.” (Filing No.
38). Defendant failed to object to the granting of the
continuance under the court's local rules.
filed the instant motion to dismiss on March 15, 2018,
alleging that his statutory right to a speedy trial was
violated. (Filing No. 54). Defendant alleges that a
total of 127 days should be calculated as having run against
the speedy trial clock from the dates between August 25,
2017, to October 12, 2017, and November 8, 2017, to December
28, 2017. (Filing No. 55 at p. 3). The government
counters that no more than a total of 44 days have run.
(Filing No. 60 at p. 5).
alleges that his statutory right to a speedy trial has been
violated. The Speedy Trial Act provides:
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
information or indictment, or from the date the defendant has
appeared before a judicial officer of the court in which such
a charge is pending, whichever date last occurs.
18 U.S.C. § 3161(h)(1).
may be excluded from this calculation for specific periods of
delay provided for in 18 U.S.C. § 3161(h). Time is
excluded for “[a]ny period of delay resulting from
other proceedings concerning the defendant, ” including
delay from pretrial motions, and delay attributable to any
period “during which any proceeding ...