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United States v. Deuise

United States District Court, E.D. Michigan, Southern Division

December 26, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
MARVIN DEUISE, Defendant.

          ORDER DENYING MOTION TO DISMISS [#33]

          Denise Page Hood Chief Judge, United States District Court

          I. Introduction and Factual Background

          Defendant Marvin Deuise (D-2) and three other defendants (Andre Lee Ashley (D-1), Leshawna Leshae Randall (D-3), and Hannah Rose Lee (D-4)), were named in a Complaint filed on August 21, 2017, the same day Defendant was arrested and detained temporarily. On August 22, 2017, a detention hearing was conducted and Defendant was ordered detained pending trial.

         On August 31, 2017, the Government filed an Indictment, wherein the defendants were charged with: (a) aiding and abetting bank fraud, in violation of 18 U.S.C. §§ 1344, 2; (b) conspiracy to commit bank fraud, in violation of 18 U.S.C. § 1349; and (c) aiding and abetting aggravated identity theft, in violation of 18 U.S.C. §§ 1028A, 2. Dkt. No. 23. Defendant and Randall were arraigned on September 1, 2017. Ashley and Lee were not arraigned until October 25, 2017.

         On or about August 25, 2017, Defendant's attorney contacted the Government to advise that her client wished to “resolve this matter.” On August 28, 2017, the Government attorney and Defendant's counsel discussed the case. According to Defendant's counsel, she orally requested the discovery in the case. Defendant's counsel was advised that AUSA Saima Mohsin was starting a trial very soon but would furnish discovery shortly/soon, something that Ms. Mohsin reiterated upon a chance meeting outside of the courthouse a week or two later. There were no further communications between the Government and Defendant's counsel regarding the matter until October 10, 2017, shortly after the Court had sent out a trial notice on October 6, 2017, advising the parties that they had an October 31, 2017 trial date.

         On October 10, 2017, Defendant's counsel sent an email to counsel for the Government and Randall, requesting a stipulation to adjourn the trial for 60-75 days. Dkt. No. 53, Ex. 1. Defendant's counsel also filed a Request for Disclosure on October 10, 2017. Dkt. No. 32. On October 11, 2017, the Government forwarded to Defendant's counsel (and counsel for Randall, the only other defendant who had been arraigned at that time) a proposed stipulation and order to adjourn the October 31, 2017 trial date for 60 days. Dkt. No. 53, Ex. 2. Randall agreed that an adjournment was warranted and concurred in the stipulation, but Defendant's counsel advised in an email: “I have since changed my course. I do not stipulate to the adjournment” on behalf of Defendant. Dkt. No. 53, Ex. 3. On October 17, 2017, Defendant filed his Motion to Dismiss, seeking a dismissal of the Indictment, with prejudice, for alleged violations of the Speedy Trial Act and Sixth Amendment. On October 25, 2017, Ashley and Lee were arraigned in federal court. All defendants are being detained pending trial. The Motion to Dismiss was fully briefed, and the Court held a hearing on the Motion to Dismiss on December 7, 2017.

         II. Applicable Law

         Pursuant to the Speedy Trial Act, a defendant's trial must be commenced within 70 days of the filing date of his indictment or arraignment, whichever is later. See 18 U.S.C. § 3161(c)(1); United States v. Cianciola, 920 F.2d 1295, 1298 (6th Cir. 1990). “Where, as in the case at bar, multiple defendants are charged together and no severance has been granted, one speedy trial clock governs.” United States v. Cope, 312 F.3d 757, 776 (6th Cir. 2002) (citing 18 U.S.C. § 3161(h)(7)). Generally, all joined defendants “fall within the speedy trial computation of the latest co-defendant.” United States v. Blackmon, 874 F.2d 378, 380 (6th Cir.1989).

         Section 3161(h)(8)(A) gives district courts broad discretion to exclude time from the running of the seventy-day period based upon a finding that the “ends of justice” are served by such delay. United States v. White, 985 F.2d 271, 275 (6th Cir. 1993). “A district court judge cannot wipe out violations of the Speedy Trial Act after they have occurred by making the findings that would have justified granting an excludable-delay continuance before the continuance occurred.” United States v. Crane, 776 F.2d 600, 606 (6th Cir. 1985) (quoting United States v. Janik, 723 F.2d 537, 544-45 (7th Cir. 1983)). Section 3161(h)(8)(C) explicitly forbids granting ends of justice continuances due to the “lack of diligent preparation . . . on the part of the attorney for the Government.” Section 3161(h)(8)(C) precludes any lack of preparation by the Government from being a reason for granting an excludable continuance. Crane, 776 F.2d at 605.

         III. Analysis

         A. Discovery

         Defendant argues that the Government failed to provide discovery as required by this Court. Pursuant to a Standing Order of this Court, (1) within ten days of Defendant's September 1, 2017-arraignment, the Government was required to file a Discovery Notice; and (2) the Government was to furnish defense counsel on request “the information described in Federal Rules of Criminal Procedure 16(a)(1).” Administrative Order No. 03-AO-027, Standing Order for Discovery and Inspection and Fixing Motion Cut-Off Date in Criminal Cases, ¶ 1. (a)-(b) (September 30, 2003) (the “Standing Order”).

         As of the date Defendant filed his Motion to Dismiss, no discovery had been provided to Defendant. Defendant's counsel verbally requested discovery on two occasions in late August/early September. Defendant filed a written request for discovery on October 10, 2017 (one week before filing the Motion to Dismiss). The Government states that it provided Defendant with the Rule 16 discovery materials on October 20, 2017. In his November 14, 2017 reply brief, Defendant states that the Government had “furnished a portion of the discovery since the filing of the motion to dismiss.”

         The Government seems to suggest that its duty to provide discovery did not begin to run until it received the written request of Defendant's counsel on October 10, 2017 - after she requested that the parties stipulate to an adjournment of the October 21, 2017 trial. But, the Standing Order does not specify that the request of defense counsel has to be in writing, as it states “Upon request of defense counsel[, ] the government shall: ...


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