USA v. Hill

OCR transcription for search; preserved printed pages are authoritative

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS

FAYETTEVILLE DIVISION
UNITED STATES PLAINTIFF
V. CASE NO. 5:24-CR-50025
DERRICK HILL DEFENDANT
OPINION AND ORDER

Defendant Derrick Hill filed a Motion to Dismiss (Doc. 25) on grounds that the
speedy trial time limit has elapsed. The Government filed its response (Doc. 26), and the
Court now takes up the Motion.

The Speedy Trial Act requires a defendant to be brought to trial within 70 days of
the information, indictment, or arraignment, whichever is later. 18 U.S.C. § 3161(c). This
70-day time limit, however, is subject to certain exclusions under § 3161(h). Mr. Hill
asserts that—at the time he filed the Motion to Dismiss—267 days had elapsed since his
arraignment on May 6, 2024, and only 182 of these were excludable, which would mean
the 70-day time limit was surpassed by 15 days. Most pertinent here is the time
surrounding Mr. Hill’s still-pending motion to suppress. Mr. Hill filed his motion to suppress
on July 16, 2024.The Court held a suppression hearing on September 4, 2024, took the
matter under advisement, and gave the parties until October 4, 2024, to submit post-
hearing briefing with an additional 14 days to file responses. Mr. Hill contends—and the
Government does not dispute—that the final excludable period ended on November 18,
2024, 30 days after the post-trial briefing ripened. He is correct.

Under 18 U.S.C. § 3161(h)(1)(D) [hereinafter “subsection D”], any “delay resulting

from any pretrial motion, from the filing of the motion through the conclusion of the hearing

1

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on, or other prompt disposition of, such motion” is excluded from the 70-day limit. And
§ 3161(h)(1)(H) [hereinafter “subsection H”] excludes “delay reasonably attributable to
any period, not to exceed thirty days, during which any proceeding concerning the
defendant is actually under advisement by the court.” (emphasis added). This “under
advisement” period commences once “the court receives all the papers it reasonably
expects” to decide the motion. Henderson v. United States, 476 U.S. 321, 329 (1986). In
other words, “when a pretrial motion requires a hearing, the excludable period [under
subsection D] runs from the filing of the motions to the date of the hearing, or until the
date when the parties have submitted any additional materials requested by the court.”'
United States v. Long, 900 F.2d 1270, 1274 (8th Cir. 1990) (emphasis added); see
Henderson, 476 U.S. at 328-31. “Following this period excluded under [subsection D],
the Act will allow exclusion of up to 30 more days for the court to consider the motions
[under subsection H].” /d. (first citing Henderson, 476 U.S. at 328-31; and then citing 18
U.S.C. § 3161 (h)(1)(H)). So, the speedy trial clock here restarted on November 18, 2024,
and the 70-day limit has now passed.

Under 18 U.S.C. § 3162(a)(2), “[i]f a defendant is not brought to trial within the time
limit required by section 3161(c) as extended by section 3161(h), the information or
indictment shail be dismissed on motion of the defendant.” (emphasis added). The Eighth
Circuit has held that such dismissal is mandatory. United States v. Koory, 20 F.3d 844,

846 (8th Cir. 1994) (citations omitted). Despite the Government’s concession that more

1 Similarly, “[w]hen the motions require no hearing, the excludable period runs from the
date of filing until the court receives all the parties' submissions regarding the motions.”
United States v. Long, 900 F.2d 1270, 1274 (8th Cir. 1990) (citing Henderson v. United
States, 476 U.S. 321, 328-31 (1986)).

2

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than 70 days have elapsed, it asks the Court to find sua sponte that an ends-of-justice
continuance under § 3161(h)(7)(A) was proper in this case and, thereby, exclude any time
that this Court has had the matter under advisement beyond the 30 days provided by
subsection H.

Section 3161(h)(7)(A) permits the exclusion of “[a]ny period of delay resulting from
a continuance granted by any judge on his own motion,” so long as the court “sets forth,
in the record of the case, either orally or in writing, its reasons for finding that the ends of
justice served by the granting of such continuance outweigh the best interests of the
public and the defendant in a speedy trial.” While the Government has provided some
case law that suggests courts may issue ends-of-justice continuances after subsection
H’s 30-day exclusion has run,? it has not provided any authority to support the notion that
courts may retroactively grant an ends-of-justice continuance affer the 70-day limit has
passed and after the defendant has moved to dismiss.

Here, Mr. Hill has raised speedy trial concerns by filing a motion to dismiss, and
the Government concedes that the 70-day limit has elapsed. Assuming arguendo that
courts may issue a continuance sua sponte even once subsection H’s 30-day exclusion
has run, the Court does not believe that granting a retroactive continuance after the 70-
day limit has passed and after the defendant has moved to dismiss is in keeping with the

Eighth Circuit's explicit instruction: “When a violation of the time limits of the Act is shown

2 In United States v. Ellison, 739 F. Supp. 3d 564, 588 n.1 (E.D. Mich. 2024), the court
granted an ends-of-justice continuance sua sponte under § 3161(h)(7)(A) after the 30-
day period had run. But in Ellison, unlike here, neither party had raised speedy trial
concerns or moved to dismiss on speedy trial grounds. Moreover, courts do not agree on
this point. The Third Circuit has stated that a district court may “invoke § 3161(h)(7)(A)”
sua sponte “before the thirty days have elapsed” under subsection H. United States v.
Felton, 811 F.2d 190, 197 n.7 (3d Cir. 1987) (emphasis added).

3

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to have occurred, dismissal is mandatory on motion of the defendant.” Koory, 20 F.3d at
846 (citations omitted) (emphasis added); 18 U.S.C. § 3162(a)(2). If courts that are
confronted with speedy trial violations can retroactively exclude any excess time sua
sponte, it would undermine the mandatory nature of dismissal in these cases. Therefore,
the Court finds dismissal is appropriate here.

The Court may exercise discretion in deciding whether to dismiss the case with or
without prejudice. 18 U.S.C. § 3162(a)(2). In so deciding, the Court should consider:
(1) the seriousness of the offense; (2) the facts and circumstances which led to the
dismissal, and (3) the impact of reprosecution on administration of the Act and justice in
general. /d. The Government argues for dismissal without prejudice, and Defendant
defers to the Court on this issue. For the reasons that follow, the Court will dismiss without
prejudice.

Seriousness of the offense. Here, Mr. Hill has been indicted for one count of
possession with intent to deliver cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(C). This carries a maximum sentence of 20-30 years and a maximum fine of
$1,000,000—$2,000,000.* This Court deems this to be a relatively serious offense, so this
factor weighs in favor of dismissal without prejudice.

Facts and circumstances of dismissal. This dismissal results from the Court's
consideration period of Mr. Hill’s motion to suppress, and there has been no showing that
the Government was at all responsible for the delay. See Koory, 20 F.3d at 848 (looking

to whether the government's negligence in complying with the speedy trial time limits was

3 According to the Pretrial Report, it appears Mr. Hill committed the alleged violation after
a prior conviction for a felony drug offense had become final, potentially subjecting him to
the increased maximum of 30 years and $2,000,000.

4

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to gain a tactical advantage or was part of a recurring pattern). Further, “[w]here the crime
charged is serious, the court should dismiss [with prejudice] only for a correspondingly
severe delay.” /d. (quoting Russo, 741 F.2d at 1267). Here, there was only a 15-day lapse
beyond the 70-day limit; such a short delay is far outweighed by the severity of the offense
in this case.* This factor weighs in favor of dismissal without prejudice.

Impact of reprosecution. Here, the parties and Court will likely endure some burden
should the pending suppression issue rear its head in a subsequent prosecution. This
burden, however, is rather minimal and could potentially be eased through certain
stipulations by the parties. Indeed, “[rleprosecution always involves some element of
increased burden on the administration of justice and hinders the Act's goal of swift
prosecution, yet the Act does not mandate that every dismissal be with prejudice.” Koory,
20 F.3d at 849 (citation omitted). And, when balanced against the severity of the offense
and the minimal delay, the Court finds that reprosecution ultimately weighs in favor of
dismissal without prejudice.

For the reasons stated herein, IT IS HEREBY ORDERED that the one-count
indictment against Mr. Hill (Doc. 1) is DISMISSED WITHOUT PREJUDICE.

IT IS SO ORDERED on this v day of February, 2025.

L. BROOKS
ITEDIS S DISTRICT JUDGE

4 There is also no evidence that Mr. Hill has suffered prejudice from this delay; in fact, he
has been in custody during this time due to the Court revoking his supervised release on
an unrelated conviction. See No. 18-CR-50008-005, ECF 304 (W.D. Ark.).

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