United States v. Azureeiah O'Connor, No. 09-2476
Azureeiah O'Connor was convicted by a jury of wire fraud and appeals her conviction on multiple grounds. She focuses first on the 1,229-day delay between the date the last of her codefendants was arraigned and the start of her trial, a delay that she contends violated the Speedy Trial Act (the "Act"), 18 U.S.C. § 3161 et seq.
Although the court excluded all 1,229 days, the government concedes — and we agree — that the district court erred by excluding 42 days from May 19, 2008, to July 1, 2008. This delay was attributable to the court's scheduling problems, and the Act explicitly prohibits the court from excluding time based on "general congestion of the court's calendar." Id. § 3161(h)(7)(C).
On July 25, 2005, O'Connor and eight codefendants were charged in a 13-count indictment with mail fraud, wire fraud, and filing false loan applications in violation of 18 U.S.C. §§ 1341, 1343, and 1014.
O'Connor's trial did not begin until January 2009, three and a half years after her indictment. The complexity of the case, scheduling problems, guilty pleas by O'Connor's codefendants, and other contingencies led to a series of continuances in which the court excluded all time from August 22, 2005 — the day O'Connor's speedy-trial clock began to run — until January 5, 2009, the day O'Connor's trial began.
On the eve of trial, O'Connor filed a motion to dismiss based on the Speedy Trial Act.
The Act requires criminal trials to begin within 70 days of the indictment or the defendant's initial appearance, whichever occurs later. 18 U.S.C. § 3161(c)(1). Where, as here, the defendant is jointly charged with codefendants, the speedy-trial clock starts when the last codefendant is indicted or arraigned, so long as the intervening delay is "reasonable." Id. § 3161(h)(6).
Two provisions of the Act are particularly relevant to this appeal. The first is known as the "ends of justice" provision, which permits the court to exclude delays resulting from continuances granted "on the basis of [the judge's] findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial." 18 U.S.C. § 3161(h)(7)(A).
The Act outlines several factors the trial judge should consider in determining whether to grant an ends-of-justice continuance, including "[w]hether the failure to grant such a continuance… 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…." Id. § 3161(h)(7)(B)(iv). The statute requires the court to "se[t] forth, in the record of the case, either orally or in writing, its reasons" for granting an ends-of-justice continuance. Id. § 3161(h)(7)(A).
trial clock. The pretrial-motion provision specifically permits the court to exclude "delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion." 18 U.S.C. § 3161(h)(1)(D) (emphasis added).
Bloate held that delays resulting from the preparation of pretrial motions are not covered by this provision, which automatically excludes delays from filing through disposition of motions. The Court held that delays attributable to the preparation of pretrial motions may be excluded under the ends-of-justice provision, but continuances granted for this purpose must be supported by case-specific findings that the benefits outweigh the costs, as required by § 3161(h)(7). See Bloate v. United States, 130 S.Ct. 1345, 1353 (2010).
Here, the magistrate judge did not make the findings Bloate requires prior to entering the August 22 exclusion; the exclusion of the 11 days from August 22 to September 2 was therefore error. Assuming this error was plain, however, reversal is unwarranted. Adding 11 days to the speedy-trial clock puts the total at 53 days, still well short of the 70-day limit. As such, O'Connors motion to dismiss was properly denied.
For more about Chicago Federal Criminal Defense Attorney Michael J. Petro, visit www.mjpetro.com or call 312-913-1111