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United States v. Sullivan

United States District Court, D. Hawaii

December 19, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
LEIHINAHINA SULLIVAN, Defendant.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS FOR VIOLATION OF THE SPEEDY TRIAL ACT, ECF NO. 255

          J. MICHAEL SEABRIGHT, CHIEF UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Defendant 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 without prejudice.

         II. BACKGROUND

         A. Factual Background

         Defendant 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.

         A First 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 that week.
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.

         Then, 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.

         On 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.[1] 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, 2018.

         During 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.

         B. Procedural Background

         Defendant 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.

         III. ...


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