United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER MEMORIALIZING PRIOR RULINGS,
FINDING EXCLUDABLE DELAY, DENYING DEFENDANT'S MOTIONS TO
DISMISS THE INDICTMENT  AND FOR DEFAULT JUDGMENT ,
AND DEEMING MOOT DEFENDANT'S MOTION FOR RETURN OF
STEPHEN J. MURPHY, III UNITED STATES DISTRICT JUDGE.
January 19, 2018, the Court held a hearing to address a
pending motion and to hear from the parties about a potential
trial date. At the hearing, the Government requested that the
Court formalize some matters addressed at the prior hearings
but not yet committed to written orders. One of those matters
was the issue of excludable delay under the Speedy Trial Act;
an issue Defendant also raised at the hearing and about which
he intended to file a motion. The Court will address these
matters, as well as a separate motion filed by Proge
concerning his property.
Proge's Self Representation
first matter is that of Proge's self representation. On
June 1, 2017, the Court continued a previous hearing on the
Government's motion to delay the trial date and
Defendant's motion to proceed pro se. At the hearing, the
Court questioned Defendant, consistent with Faretta v.
California, 422 U.S. 806 (1975), and confirmed that he
was knowingly, intelligently, and voluntarily choosing to
represent himself. Proge's appointed counsel likewise
confirmed that he had spoken with Proge prior to the hearing
and explained the risks Proge faced in representing himself.
As stated in open court and on the record, Proge's motion
(ECF 650) was and is granted and he will be permitted to
represent himself at trial.
Speedy Trial Act
is also the matter of the Speedy Trial Act. The Court of
Appeals's mandate issued on March 27, 2017. ECF 647. The
Speedy Trial Act directs retrials following appeals to
commence within 70 days from the date of the mandate, 18
U.S.C. § 3161(e), but permits a trial to commence later
than the 70-day period under certain circumstances. The Act
specifically permits the Court to extend the 70-day
post-appeal clock to 180 days "if unavailability of
witnesses or other factors resulting from passage of time
shall make trial within seventy days impractical." 18
U.S.C. § 3161(e). In addition, the Court may find
certain periods before retrial to be excludable delay.
Id. ("The periods of delay enumerated in
section 3161(h) are excluded in computing the time
limitations specified in this section.").
any motion practice or other extenuating circumstances, the
70-day deadline would have demanded a trial date no later
than Monday, June 5, 2017. But within two weeks of the
mandate's issuance, both parties filed
motions-Proge's concerned discovery, while the
Government's concerned excludable delay under the Speedy
Trial Act. The Court then set, but adjourned, a hearing
because Proge was confined out-of-state and transporting him
required additional arrangements. It was eventually held on
May 24, 2017 and continued on June 1, 2017. ECF 665.
Government's motion for a delay in the trial date, it
asked the Court to find the interim time as excludable delay.
The Government argued that "Proge will need time to
retain counsel or have a new CJA lawyer appointed",
noted that Proge's new lawyer will need time to prepare
for trial, and added that the Government, too, "needs
time to issue subpoenas, serve witnesses, and otherwise
prepare for re-trial." ECF 648, PgID 10561. At the
hearing, counsel for the Government and Proge's standby
counsel confirmed that additional time was needed to allow
Proge to obtain and review the necessary
materials. ECF 665, PgID 10655, 10658. The Court
affirmed the necessity of setting a trial date and urged the
parties to propose a trial date. Id. at 10657-58.
The Court also addressed Proge directly, and explained that
it was directing the Government to work with him and his
standby counsel to establish a date and, failing the
parties' ability to reach an agreement, Proge should
alert the Court so that it could properly rule consistent
with the Speedy Trial Act. Id. at 10658-59.
parties evidently conversed with the case manager about a
possible trial date, but a formal date was never set.
Instead, two weeks after the hearing, Proge sent the Court a
letter explaining that he objected to a January trial date
and demanded that discovery materials be sent directly to
him, rather than his standby counsel. ECF 659. Then, weeks
later, he filed a "judicial notice" alleging that
the Government was not providing him with discovery
materials. ECF 664. And in a letter dated October 19, 2017 he
informed the Court that he had had a complete breakdown in
communication with his standby counsel and that they had made
little to no headway together since his appointment. ECF 676.
Both Proge and his standby counsel confirmed at the recent
hearing, however, that their rift was remedied after Proge
filed the letter and Proge personally confirmed that he did
not wish to have standby counsel replaced. ECF 686, PgID
10904 (under seal). Most recently, Proge filed a motion for
return of property, ECF 678, the instant motion to dismiss
the indictment pursuant to the Speedy Trial Act, and a motion
for default judgment, also related to the Speedy Trial
there have been substantial barriers impeding a trial that is
on the one hand speedy but on the other affords Proge with
the time and resources to represent himself. The Court was
prepared to set a trial date as early as September 2017 to
both ensure a speedy trial and to permit the time for
discovery that Proge and his standby counsel argued for.
See ECF 665, PgID 10659. But according to Proge,
prior to October 23, 2017, he and his attorney had barely
begun to prepare. ECF 676. The ends of justice therefore
supported a continuance through at least that date.
Proge's motion practice has likewise slowed the progress
of the case-and formally tolled the Speedy Trial Clock. For
instance, his initial motion filed on April 7, 2017 tolled it
until June 1, 2017. And his motion filed December 6, 2017
tolled the clock while the Court arranged for the January 19,
2018 hearing, and would have continued to toll it for the 30
days subsequent to that hearing, had Proge not then filed
another motion (ECF 679), and then another (ECF 688). See
United States v. Mentz, 840 F.2d 315, 326 (6th Cir.
1988) (citing 18 U.S.C. § 3161(h)(1)(J)). The motions
have tolled the clock since their filings through the date of
this order, which resolves them.
Court is anxious to commence Proge's trial. But in light of
the need for Proge to meaningfully review discovery materials
and prepare for his own defense, the Court finds that the
ends of justice are served by excluding the period from March
27, 2017 to October 23, 2017 and the exclusion of that period
outweighs the best interests of the public and Defendant in a
speedy trial. This, in conjunction with the parties'
motion practice, and Proge's quasi-motion practice (i.e.,
his letters and notices), leads the Court to find and
conclude that the Speedy Trial Clock has not yet expired. And
the Court will therefore deny his dispositive motions (ECF
Motion for Return of Property
Proge filed a motion for return of property. Proge previously
filed a similar motion on this case's docket after his
criminal proceedings came to a close. The motion was an
ancillary matter to the criminal case and therefore should
have been filed as a separate, miscellaneous matter.
Accordingly, it was transferred to miscellaneous case number
2:16-mc-51749. An order addressing the motion under the
miscellaneous number will be ...