United States District Court, D. Hawaii
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION TO DISMISS FOR VIOLATION OF THE SPEEDY
TRIAL ACT, ECF NO. 255
MICHAEL SEABRIGHT, CHIEF UNITED STATES DISTRICT JUDGE
Leihinahina Sullivan (“Defendant”) moves to
dismiss all charges against her based on alleged violation of
the Speedy Trial Act (“STA”), 18 U.S.C. §
3161, et seq. ECF No. 255 (the “Motion”). For the
reasons discussed below, the Motion is GRANTED in part and
DENIED in part. There is no STA violation as to counts 29,
47, 48, and 59 of the Second Superseding Indictment (which
are reasserted as counts 28, 46, 47, and 58 in the Third
Superseding Indictment) and counts 21, 23, 24, 26, 59, and 60
of the Third Superseding Indictment. That is, there is no STA
violation as to counts 21, 23, 24, 26, 28, 46, 47, 58, 59,
and 60 of the Third Superseding Indictment (which includes
counts that were newly-asserted in the Second Superseding
Indictment and reasserted in the Third Superseding
Indictment, and counts that were newly-asserted in the Third
Superseding Indictment). The Government concedes that the STA
is violated as to all other counts and they are DISMISSED
first appeared for arraignment and plea to the Original
Indictment on February 24, 2017, at which time trial was set
for April 25, 2017. ECF No. 8. The parties then stipulated to
continue trial and to toll time under the STA from April 25,
2017 through December 12, 2017. ECF Nos. 17, 19, 25.
Superseding Indictment was returned by the grand jury on
November 8, 2017. ECF No. 27. At the November 13, 2017
arraignment and plea, Defendant's then-counsel William
Harrison, the Assistant United States Attorney
(“AUSA”), and the magistrate judge engaged in the
following discussion regarding resetting the trial Dated:
MR. HARRISON: And, Your Honor, the Government and the
Defendant have spoken previously to this hearing and because
of substantial discovery we anticipate going through,
we're asking for additional time on the superseding
indictment until the week of March 26th, but actually it
would be a trial date of March 28, because it's a holiday
THE COURT: Very well. Ms. Permutter, is that-
[THE AUSA]: The Government's in agreement, Your Honor.
THE COURT: Okay. All right. May we have some deadlines?
Tr. at 3:2-12, ECF No. 450 at PageID #4790. The magistrate
judge then set trial for March 28, 2018. See Id. at
3:13-14, ECF No. 450 at PageID #4790. Neither the parties nor
the court discussed tolling time under the STA, and no order
(written or oral) tolled time under the STA from December 12,
2017 through March 28, 2018.
on February 28, 2018, the parties stipulated to continue
trial and toll time under the STA from March 28, 2018 through
August 21, 2018. ECF No. 93.
March 28, 2018, a Second Superseding Indictment was returned
by the grand jury. ECF No. 95. During the April 5, 2018
arraignment and plea, Defendant's counsel again asked for
a new trial date, stating his belief that Defendant was
entitled to an additional thirty days. The magistrate
judge agreed and set trial for September 25, 2018:
MR. HARRISON: . . . Your Honor, Ms. Sullivan has received a
copy of the second superseding indictment in this matter,
would waive a public reading of the charge, enter a plea of
not guilty and, obviously, ask the matters be reset for
trial. I think we have 30 days additional time that we were
entitled to, and we're going to request that, Your Honor.
THE COURT: All right. The court will enter a plea of not
guilty for and on behalf of Ms. Sullivan to the second
superseding indictment. And let's see, this is set for
trial August the 21st. And, Mr. Harrison, you wanted the
additional 30 days?
MR. HARRISON: Yes, Your Honor.
THE COURT: Okay. [AUSA], any objection to that?
[THE AUSA]: The 30 days from August 21st, Your Honor?
THE COURT: Yeah.
[THE AUSA]: No objection.
THE CLERK: Jury selection/jury trial, September 25, 2018, at
9:00 a.m., before Judge Seabright. . . .
MR. HARRISON: Thank you, Your Honor.
THE COURT: Will that work?
MR. HARRISON: That's fine.
THE COURT: Okay. Very well. Well, then we'll go with the
new trial setting pursuant to Defendant's request. . . .
Tr. at 2:14-3:18, ECF No. 451 at PageID #4808-09. Again,
neither the parties nor the court discussed tolling time
under the STA, and no order (written or oral) tolled time
under the STA from August 21, 2018 through September 25,
an August 21, 2018 status conference, the court again
continued trial, tolled time under the STA from September 25,
2018 through April 30, 2019, and directed the Government to
prepare a stipulation, which was filed on February 7, 2019.
ECF Nos. 137, 159. Pursuant to a sixth stipulation (entered
February 7, 2019) and two court orders (issued May 2, 2019
and June 21, 2019), trial was again continued, and time was
again tolled under the STA from April 30, 2019 to January 22,
2020. ECF Nos. 160, 167, 181. On July 25, 2019, a Third
Superseding Indictment was returned by the grand jury. ECF
No. 188. And following the July 29, 2019 arraignment and
plea, trial remains set for January 22, 2020. See
ECF No. 197.
filed the instant Motion on September 30, 2019. ECF No. 255.
The Government filed its Opposition on November 1, 2019. ECF
No. 291. On November 8, 2019, this court issued an order
identifying “December 12, 2017 to March 28, 2018”
and “August 21, 2018 to September 25, 2018” as
“periods of time for which the parties did not request,
and the court did not make, findings pursuant to [18 U.S.C.]
§ 3161(h)(7) tolling time for purposes of the STA”
and directing the parties to submit supplemental briefing.
ECF No. 313. Defendant filed supplemental briefs on November
19, 25, and 27, and December 2, 3, and 6, 2019, addressing
the Government's Opposition and/or in response to the
court's November 8 order. ECF Nos. 344, 365, 374-75, 395,
399, 427. The Government filed a supplemental brief on
November 29, 2019. ECF No. 386. A hearing was held on
December 17, 2019.