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United States v. Bonner

United States District Court, D. Nebraska

March 29, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
CARDELL BONNER, Defendant.

          FINDINGS AND RECOMMENDATION

          Michael D. Nelson United States Magistrate Judge.

         This 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 be denied.

         BACKGROUND

         On June 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 No. 14).

         On 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).

         On 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).

         On 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.

         Defendant 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).

         ANALYSIS

         Defendant 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).

         Time 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 ...


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