USA v. Grimes

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
JEFFREY J. GRIMES,
Defendant.
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CR. 11-50029-JLV
ORDER
INTRODUCTION
On March 15, 2011, defendant Jeffrey J. Grimes was indicted by a grand
jury in the District of South Dakota with three counts of mailing threatening
communications, in violation of 18 U.S.C. § 876(d); two counts of repeated
telephone calls, in violation of 47 U.S.C. § 223(a)(1)(D); five counts of
anonymous telephone harassment, in violation of 47 U.S.C. § 223(a)(1)(C); five
counts of repeated harassing communication, in violation of 47 U.S.C.
§ 223(a)(I)(E); and two counts of stalking, in violation of 18 U.S.C. §§ 2261A(2),
2261(b)(5) & (6) and 2265A(a). (Docket 1). On June 15, 2011, the defendant
filed a motion to dismiss the indictment with prejudice. (Docket 22). The basis
for the motion is defendant’s claim he was not brought to trial within seventy
(70) days as required by 18 U.S.C. § 3161, the Speedy Trial Act (“STA”). Id.
Following briefing, the court conducted a hearing and received evidence on
defendant’s STA motion on July 6, 2011. For the reasons below, defendant’s
motion is denied.
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Fed. R. Crim. P. 5(a)(1)(A) requires that “a person making an arrest	1
within the United States must take the defendant without unnecessary delay
before a magistrate judge, or before a state or local judicial officer as Rule 5(c)
provides . . . .” Subsection (c) of Rule 5 requires that “[i]f the defendant was
arrested in a district other than where the offense was allegedly committed, the
initial appearance must be . . . . in the district of arrest.” Rule 5(c)(2)(A).
The Clerk of Court’s minute sheet for the hearing before Magistrate	2
Judge Welsh appears as Docket 4-2 and was received as Exhibit 1 during the
STA hearing. All further references will be to Exhibit 1.
2
FACTS
After the filing of the indictment, an arrest warrant was issued on March
16, 2011. (Docket 3). Mr. Grimes was arrested on March 21, 2011, by the
Shenandoah County, Virginia, Sheriff’s Office. Id. Mr. Grimes testified the
arrest occurred in New Market, Virginia. He was then transferred by the
United States Marshals Service (“USMS”) to Harrisonburg, Virginia. On March
24, 2011, Mr. Grimes appeared before United States Magistrate Judge James
G. Welsh for a Rule 5 - Initial Appearance. (Docket 4-2).1 2
At the initial appearance before Magistrate Judge Welsh, Mr. Grimes was
provided with court-appointed counsel and advised of his statutory rights.
(Exhibit 1). He was also advised of his rights to an identity hearing, a
preliminary hearing, and a detention hearing before transfer could occur. Id.
Mr. Grimes chose to waive both an identity hearing and a preliminary hearing.
Id. He did not contest detention until his return to the District of South
Dakota. Id. At the conclusion of the hearing, Magistrate Judge Welsh entered
an order that Mr. Grimes be transferred to the Western Division of the District
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of South Dakota. (Docket 4-1). The commitment order further required that
“[t]he [USMS] must transport the defendant, together with a copy of this order,
to the charging district and deliver the defendant to the [USMS] for that district
. . . . The marshal . . . in the charging district should immediately notify the
United States attorney and the clerk of the court for that district of the
defendant’s arrival so that further proceedings may be promptly scheduled.”
Id.
Mr. Grimes testified that on March 25, 2011, the USMS transported him
through a number of jails and jurisdictions until he arrived at the Federal
Transfer Center in Oklahoma City, Oklahoma, some time later. On April 6,
2011, Jane Kobal, USMS Supervisory Deputy for the Western Division of the
District of South Dakota, was contacted by the Justice Prisoner Alien
Transportation System (“JPATS”) in Oklahoma City. The purpose of that call
was to request that Deputy Marshal Kobal ask permission of Magistrate Judge
Veronica L. Duffy for the Western Division of the District of South Dakota to
permit the USMS to deliver Mr. Grimes on April 20, 2011.
Deputy Marshal Kobal submitted JPATS’ request dated April 6, 2011, to
Magistrate Judge Duffy. (Exhibit A). The application requested a “Rule 45(b)
extension of time limits for transportation of [Mr. Grimes], as provided for in
18 U.S.C. § 3161(h)(1)(H).” Id. JPATS indicated Mr. Grimes was “presently
awaiting transportation [to the District of South Dakota] and will arrive [there]
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on the next available airlift on 04/20/2011.” Id. Deputy Marshal Kobal also
represented to Magistrate Judge Duffy that if JPATS’s request was “not
approved [that arrangements would be made] for a special trip to pick [Mr.
Grimes] up and deliver him to [the District of South Dakota] as soon as
possible.” Id. On April 7, 2011, Magistrate Judge Duffy approved the request.
Id.
It appears Mr. Grimes arrived in Rapid City, South Dakota, on April 20,
2011, and an initial appearance was originally scheduled for that day. See
CM/EFC 04/20/11 text entry. For reasons not known to the court, the initial
appearance was rescheduled for the next day. Id. An initial appearance
occurred before Magistrate Judge Duffy on April 21, 2011. (Docket 5).
Following the hearing, Mr. Grimes was ordered detained. (Docket 7). A
scheduling and case management order was entered the same day. (Docket 8).
By this order, a jury trial was scheduled for June 28, 2011. Id.
On June 8, 2011, Mr. Grimes, pro se, filed an ex parte request that the
court hold a hearing regarding a number of issues, including what the court
initially perceived as a potential motion for change of counsel. (Docket 15).
Based on Mr. Grimes’ pro se motion, the court scheduled an ex parte hearing
with Mr. Grimes and his counsel for June 14, 2011. On June 14, 2011, Mr.
Grimes’ attorney filed an ex parte motion for status hearing. (Docket 21). This
motion reaffirmed Mr. Grimes’ pro se complaints regarding his incarceration
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and “seek[ed] a change in his current representation status . . . .” Id. The ex
parte hearing was rescheduled for June 17, 2011. See CM/ECF 06/14/2011
text entry.
On June 15, 2011, Mr. Grimes filed a motion to dismiss the indictment.
(Docket 22). The motion requested dismissal with prejudice for violating the
defendant’s speedy trial rights. Id.
An ex parte hearing was conducted with Mr. Grimes and counsel on June
17, 2011. (Docket 24). The purpose of the hearing was to address Mr. Grimes’
pro se letter and counsel’s motion for a status hearing. During the hearing,
Mr. Grimes clarified he was not seeking new counsel or the right to proceed pro
se, but rather seeking an order setting a schedule by which the USMS and
Pennington County Jail would be required to allow counsel access to Mr.
Grimes for trial preparation. Id. A motion to permit confidential access by
counsel, with proposed dates conforming to defense counsel’s schedule, was
filed on June 21, 2011. (Docket 26). An order granting the attorney-client
access in the Pennington County Jail was filed on June 23, 2011. (Docket 27).
On July 6, 2011, a hearing was held on Mr. Grimes’ STA motion to
dismiss. (Docket 29). Mr. Grimes and Deputy Marshal Kobal testified to
develop the evidence described above.
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DECISION
The Speedy Trial Act provides, in part, “the trial of a defendant charged
in an . . . indictment . . . shall commence within seventy days from the filing
date (and making public) of the . . . indictment, or from the date the defendant
has appeared before a judicial officer of the court in which such charge is
pending, whichever date last occurs . . . .” 18 U.S.C. § 3161(c)(1). Excluded
from this time requirement are a number of events and activities. See
18 U.S.C. § 3161(h). Subsection (h) provides, in pertinent part, the following:
The following periods of delay shall be excluded . . . in computing the
time within which the trial of any such offense must commence:
(1) Any period of delay resulting from other proceedings concerning
the defendant, including but not limited to--
. . .
(D) 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;
(E) delay resulting from any proceeding relating to . . . the removal
of any defendant from another district under the Federal Rules of
Criminal Procedure;
(F) delay resulting from transportation of any defendant from another
district, . . . except that any time consumed in excess of ten days
from the date an order of removal . . . and the defendant’s arrival at
the destination shall be presumed to be unreasonable;
. . .
(H) 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.
Id. Subsection (c)(1) determines when the speedy trial clock begins and
subsection (h) sets forth those events or activities which pause or toll the clock.
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See United States v. Leone, 823 F.2d 246, 249 (8th Cir. 1987) (“Section
3161(c)(1) of the Act . . . is unambiguous in stating that upon an initial
indictment, the seventy-day clock begins to run upon the later of either (1) the
information or indictment, or (2) the defendant's appearance before a judicial
officer of the court. Section 3161(h) of the Act sets out several periods of delay
which shall be excluded from the running of the seventy-day period.”). Only
those days not excludable under subsection (h) count against the defendant’s
STA right of trial within seventy days. “If a defendant is not brought to trial
within the time limit required by section 3161(c) as extended by [the excluded
delays of] section 3161(h), the . . . indictment shall be dismissed on motion of
the defendant.” United States v. Blankenship, 67 F.3d 673, 675 (8th Cir. 1995)
(citing 18 U.S.C. § 3162(a)(2)).
While there is not a significant amount of case law on the issue presently
before the court, United States v. Thirion, 813 F.2d 146 (8th Cir. 1987) is the
appropriate starting point for analysis in the Court of Appeals for the Eighth
Circuit. In Thirion, the grand jury returned an indictment in December of
1983. Id. at 150. Before issuance of the indictment, Mr. Thirion left the
United States. Id. During the pendency of the co-defendants’ appeal from
their conviction, Mr. Thirion was apprehended in Monaco on March 29, 1985.
Id. at 153. Following extradition proceedings, “on June 26, 1985, . . . [he was]
released . . . into the custody of a United States Marshal for transportation to
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South Dakota.” Id. at 153. Mr. Thirion appeared before a federal magistrate
judge in South Dakota on June 28, 1985. Id.
Mr. Thirion moved to dismiss the indictment for failing to satisfy the STA.
Id. The defendant argued his speedy trial clock started when he was arrested
and detained in Monaco. The court rejected the defendant’s STA claim.
“Thirion’s statutory right to speedy trial did not accrue until he appeared before
a judicial officer of the District of South Dakota. 18 U.S.C. § 3161(c)(1).” Id.
The decision in Thirion is consistent with other circuits focusing on the
pertinent language of the STA, that is, “from the date the defendant has
appeared before a judicial officer of the court in which such charge is pending .
. . .” 18 U.S.C. § 3161(c)(1). In United States v. Wilson, 720 F.2d 608 (9th Cir.
1983), the court addressed a situation where the defendant was first arrested
and appeared in a federal district court different from the court where the
indictment was issued. In Wilson, an information was filed in the Central
District of California on April 29, 1982. Id. at 608-09. Ms. Wilson was
arrested in Anchorage, Alaska. Id. She made an initial appearance in federal
district court in Alaska on June 4, 1982. Id. at 609. Ms. Wilson was then
transported to California and appeared on July 6, 1982, in the Central District
of California. Id. Before trial, the defendant moved to dismiss the charge
under the STA. In a case of first impression, the question was “whether the
defendant’s appearance in any court of the United States activated the Speedy
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The court referenced the Judicial Conference of the United States,	3
Committee on the Administration of the Criminal Law, Guidelines to the
Administration of the Speedy Trial Act of 1974, as amended (December 1979
revision with August 1981 amendments).
9
Trial Act’s time limit . . . .” Id. The court found the defendant’s claim could
not be reconciled “with the language of Section 3161(c)(1), which explicitly
refers to a defendant’s first appearance before ‘a judicial officer of the court in
which such charge is pending.’ ” Id. (citing 18 U.S.C. § 3161(c)(1)). For
guidance, the court turned to the “guidelines to the interpretation of the
Speedy Trial Act which have been issued by the Judicial Conference of the
United States.” Id. “The guidelines interpret Section 3161(c)(1) . . . to mean3
that the 70-day time limit does not begin to run ‘prior to the defendant’s initial
appearance before a judicial officer in the charging district’ ” Id. (emphasis in
original) (citing the Guidelines at 35). The Wilson court held “the 70-day time
period did not begin running until Wilson first appeared before a judicial officer
of the charging district, the Central District of California, on July 6, 1982.” Id.
See also United States v. Palomba, 31 F.3d 1456, 1462 (9th Cir. 1994)
(“Palomba argues that the clock began to run on April 12, 1990, the day he was
arrested and brought before a judge in the Central District of California. . . .
Palomba was not brought before a judicial officer of the Northern District of
California until May 15, 1990. Since Palomba’s appearance on May 15 was the
date [upon which he appears before a judicial officer in which the matter is
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pending] for purposes of Section 3161(c), the STA clock began to run on that
date.”) (emphasis in original).
The Court of Appeals for the Eleventh Circuit reached the same
conclusion in United States v. O’Bryant, 775 F.2d 1528 (11th Cir. 1985). On
September 15, 1982, the defendant was indicted by a grand jury in the Middle
District of Florida. Id. at 1530. Mr. O’Bryant was arrested and appeared
before a federal magistrate judge in Baltimore, Maryland, on May 13, 1983. Id.
Intervening state charges were resolved by dismissal on appeal on December
20, 1983. Id. Mr. O’Bryant was then arraigned on the federal charges by a
federal magistrate judge in Florida on March 21, 1984. Id. The court, looking
to the specific language of § 3161(c)(1), rejected defendant’s claim the STA
clock should begin on May 13, 1983. Id. at 1531. “On its face, . . . the Speedy
Trial Act, 18 U.S.C. § 3161(c)(1) provides otherwise. . . . where an indictment
has been filed, the seventy day clock does not begin running until a defendant
has appeared in the court where the charges are pending.” Id. (referencing
Wilson, 720 F.2d at 609). The court reasoned:
Where an indictment has previously issued, Congress clearly
intended that the Speedy Trial Act clock would not begin running
until a defendant appeared before a judicial officer in the district
where charges were pending. The original Mikva and Ervin bills
would have started the trial clock from the time of arrest. H.R. 7107,
92nd Cong., 1st Sess. 2 (1971); S.895, 92nd Cong., 1st Sess. (1971).
When the Ervin bill was reported out of a Senate subcommittee, a
provision had been added directing “an appropriate judicial officer
. . . [to] set a day certain for trial.” S.754, 93rd Cong., 1st Sess. 2
(1973). The 1974 House subcommittee and committee bills added the
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language starting the clock from where a defendant “has appeared
before a judicial officer of the court in which such charge is pending.”
H.R.17409, 93rd Cong., 2d Sess. 3 (1974). This language was
retained when the bill was enacted. Pub.L. 93-619, 93rd Cong.
§ 3161(c), 88 Stat. 2076, 2077 (1975); see generally, Partridge,
Legislative History of Title I of the Speedy Trial Act of 1974 (Fed.
Judicial Center 1980).
Id. at 1531 n. 3. “[I]n the instant case, the seventy day time period did not
begin running until O’Bryant appeared in the Middle District of Florida on
March 21, 1984.” Id. at 1531
Mr. Grimes argues the court should apply the limitation set forth in
§ 3161(h)(1)(F). (Docket 23 at p. 3). Mr. Grimes asserts § 3161(h)(1)(F) limits to
ten days the government’s travel time between arrest, wherever and whenever
it occurs, and the initial arraignment in South Dakota. Id. Mr. Grimes cites
United States v. McGhee, 532 F.3d 733 (8th Cir. 2008) as authority for his
argument. Id. In McGhee, the defendant filed a motion for determination of
mental competency. McGhee, 532 F.3d at 736. As a matter of course, this
motion was filed after the STA clock started. At issue was the delay in
transporting the defendant from an evaluation in Florida back to Arkansas for
further pretrial proceedings. Id. at 738. “The next issue is how many days are
excluded under the STA from January 4–the date of the order directing
transportation–to January 24–the date McGhee arrived in Arkansas.” Id.
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The McGhee court cited § 3161(h)(1)(H) (“except that any time consumed	4
in excess of ten days from the date an order of removal or an order directing
such transportation, and the defendant’s arrival at the destination shall be
presumed to be unreasonable”) (emphasis in original) (pre-October 2008
amendment to § 3161). McGhee, 532 F.3d at 738.
See footnote 3 supra.	5
12
Allowing ten days transportation permitted by § 3161(h)(1)(F), and after4
excluding intermediate Saturdays, Sundays, and a legal holiday under Fed. R.
Crim. P. 45(a), the court assessed three excess days under the STA for the time
unreasonably used to transport the defendant. “[T]he government used 3 days
(in excess) to transport McGhee; these days count toward the STA
computation.” Id. at 739.5
Mr. Grimes’ argument regarding § 3161(h)(1)(F) is without merit.
Likewise, the USMS’ request for an extension, by § 3161(h)(1)(F), erroneously
cited in Exhibit A as subsection (H), was unnecessary as the STA clock had not
started under Thirion.
The court finds the specific language of § 3161(c)(1) is controlling. Mr.
Grimes’ speedy trial clock did not start until he appeared for arraignment
before Magistrate Judge Duffy in the District of South Dakota on April 21,
2011. 18 U.S.C. §3161(c)(1); Thirion, 813 F.2d at 153; Wilson, 720 F.2d at 609;
O’Bryant, 775 F.2d 1531.
On June 8, 2011, Mr. Grimes, pro se, filed an ex parte letter requesting a
status hearing. (Docket 15). As of that date, 47 days of the STA had expired.
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While Mr. Grimes’ pro se motion for a status hearing was pending, the STA is
paused or tolled. See 18 U.S.C. §3161(h)(1)(D) (excluded from the 70-day
calculation is any “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 . . . .”).
“[E]very motion filed by a defendant, whether or not it is frivolous and
whether or not he is represented at the time of filing, tolls the speedy trial
clock.” United States v. El-Alamin, 574 F.3d 915, 923 (8th Cir. 2009) (citing
United States v. Williams, 557 F.3d 943, 952 (8th Cir. 2009)). “Periods of delay
caused by pretrial motions, whether filed by the defendant . . . or the
prosecution, are excluded from the calculation of this 70-day time frame.”
United States v. Shepard, 462 F.3d 847, 863 (8th Cir. 2006). “Under
subsection [D], ‘[a]ny pretrial motion . . . creates excludable time, even if it does
not in fact delay trial.’ ” United States v. Titlbach, 339 F.3d 692, 698 (8th Cir.
2003) (citing United States v. Arbelaez, 7 F.3d 344, 347 (3d Cir. 1993)).
Based on Mr. Grimes’ pro se motion (Docket 15), the court scheduled an
ex parte hearing with Mr. Grimes and his counsel. Because a hearing was
scheduled, all the time between the defendant’s pro se motion and the court’s
hearing on the matter is excludable. See 18 U.S.C. § 3161(h)(1)(D).
On June 14, 2011, while Mr. Grimes’ pro se motion was pending, Mr.
Grimes’ attorney filed an ex parte motion for a status hearing. (Docket 21).
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This motion reaffirmed Mr. Grimes’ pro se complaints regarding his
incarceration and potential change in his attorney. Id. On June 15, 2011,
counsel filed the STA motion to dismiss the indictment. (Docket 22). On July
7, 2011, a hearing was held on Mr. Grimes’ STA motion to dismiss. (Docket
29). Under 18 U.S.C. § 3161(h)(1)(D), this time is excluded from the speedy
trial deadline. Furthermore, the time between the hearing and entry of this
order is likewise excluded from the speedy trial deadline. Section 3161(h)(1)(H)
excludes any “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.” 18 U.S.C. § 3161(h)(1)(H).
In compliance with the STA, the status of defendant’s speedy trial clock
is calculated as follows:
Date Activity Days
since
last
event
Excluded
Days
Citation
Days
counted
in STA
Running
total to 70
days of
STA
04/21/11 Initial Appearance by
Magistrate Judge Duffy 0 § 3161(c)(1) 0 0
06/08/11 Mr. Grimes’ pro se
motion (Docket 15) 47 § 3161(h)(1)(D) 47 47
06/14/11 Defense Attorney’s
Motion for Status
Hearing (Docket 21)
6 § 3161(h)(1)(D) 0 47
06/15/11 Motion to Dismiss
Indictment re: STA
(Docket 22)
1
§ 3161(h)(1)(D) 0 47
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Date Activity Days
since
last
event
Excluded
Days
Citation
Days
counted
in STA
Running
total to 70
days of
STA
15
06/17/11 Ex parte Hearing on
Mr. Grimes’ pro se
motion
2
§ 3161(h)(1)(D) 0 47
07/06/11 Hearing on STA m otion 19 § 3161(h)(1)(D) 0 47
08/04/11 Order on STA m otion 28 § 3161(h)(1)(H) 0 47
The court finds 47 days have expired and 23 days remain under the STA
within which Mr. Grimes must be brought to trial. 18 U.S.C. § 3161(c)(1).
ORDER
Based on the analysis above, it is hereby
ORDERED that defendant’s motion to dismiss (Docket 22) is denied.
IT IS FURTHER ORDERED that 23 days remain under the Speedy Trial
Act, 18 U.S.C. § 3161(c)(1), within which Mr. Grimes’ jury trial must begin.
Dated August 4, 2011.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
UNITED STATES DISTRICT JUDGE
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