United States District Court, E.D. Washington
ORDER DENYING DEFENDANT'S MOTION TO
ROSANNA MALOUF PETERSON United States District Judge
THE COURT is Defendant's Motion to Dismiss, ECF No. 47 in
2:16-CR-69-RMP (ECF No. 32 in 2:16-CR-176-RMP). The Court has
reviewed the motion, the record, and is fully informed.
argues that the Government has violated his right to a speedy
trial, as guaranteed by the Sixth Amendment of the U.S.
Constitution. ECF No. 47. Defendant was indicted in the first
federal case, 2:16-CR-69-RMP, on April 20, 2016, and in
2:16-CR-176-RMP on October 18, 2016, but Defendant was not
arraigned until December 2, 2016. Therefore, he did not
appear before a judicial officer of the U.S. District Court
for the Eastern District of Washington until December 2,
over a month later, on January 5, 2017, Defendant filed a
motion seeking a continuance of at least sixty days.
See ECF No. 37. One month later, along with his
motion to dismiss, Defendant requested that the trial be
reset for a month later, during a time period when a critical
Government witness is unavailable. The Court granted
Defendant's request to reset the trial date, but set it
for May 22, 2017, to accommodate the Government's
witness. See ECF No. 54.
Speedy Trial Act states in relevant part that
the trial of a defendant charged in an information or
indictment with the commission of an offense shall commence
within seventy days from the filing date (and making public)
of the information or 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). As stated in the Court's prior
orders granting continuances that were requested by the
parties, the resulting delays are accounted for by 18 U.S.C.
§ 3161 and do not count against the seventy-day time
period. See ECF Nos. 43 and 54. Therefore,
Defendant's rights pursuant to the Speedy Trial Act have
not been violated. However, Defendant asserts a violation of
his Sixth Amendment right to a speedy trial, not his rights
under the Speedy Trial Act.
United States Supreme Court has stated that
[d]epending on the nature of the charges, the lower courts
have generally found postaccusation delay
“presumptively prejudicial” at least as it
approaches one year. See 2 W. LaFave & J.
Israel, Criminal Procedure § 18.2, p. 405 (1984);
Joseph, Speedy Trial Rights in Application, 48
Ford.L.Rev. 611, 623, n. 71 (1980) (citing cases). We note
that, as the term is used in this threshold context,
“presumptive prejudice” does not necessarily
indicate a statistical probability of prejudice; it simply
marks the point at which courts deem the delay unreasonable
enough to trigger the Barker enquiry. Cf.
Uviller, Barker v. Wingo: Speedy Trial Gets a
Fast Shuffle, 72 Colum.L.Rev. 1376, 1384-1385 (1972).
Doggett v. United States, 505 U.S. 647, 652 
(1992). The Barker inquiry is a four-factor
balancing test used to assess the merits of Defendant's
Sixth Amendment speedy trial claim; the factors to be
considered are “(1) the length of the delay; (2) the
reason for the delay; (3) the defendant's assertion of
his right to a speedy trial; and (4) the prejudice to the
defendant.” United States v. Gregory, 322 F.3d
1157, 1161 (9th Cir. 2003) (citing Barker v. Wingo,
407 U.S. 514, 530 (1972)).
federal trial date was initially set for February 6, 2017, a
date that was well within a year of when Defendant was
subject to the first federal indictment, and just over two
months after he first appeared in front of a “judicial
officer of the court in which such charge is pending.”
However, now that the trial has been moved to May 22, 2017,
just over one year has transpired since Defendant was first
indicted in case number 2:16-CR-69-RMP and seven months have
passed since Defendant was indicted in case number
2:16-CR-176-RMP. Therefore, sufficient time has passed to
invoke the analysis of the pre-trial delay pursuant to
The length of the delay
the Sixth Amendment, delay is measured from ‘the time
of the indictment to the time of trial.'”
United States v. Gregory, 322 F.3d 1157, 1162 (9th
Cir. 2003) (quoting United States v. Sears, Roebuck &
Co., 877 F.2d 734, 739 (9th Cir. 1989)). As stated
above, the delay between the indictments and Defendant's
trial date equates to thirteen months and seven months,
respectively. Although these delays are sufficient for the
Court to proceed with the analysis of the other
Barker factors, this factor only slightly weighs in
Defendant's favor, as the delays are not exceedingly long
under the circumstances (as discussed in further detail