Filed: Jun. 28, 2013
Latest Update: Jun. 28, 2013
Summary: Speedy Trial Order GEORGE A. O'TOOLE, Jr., District Judge. This matter having been opened to the Court on motion by the government, by Carmen M. Ortiz, United States Attorney for the District of Massachusetts, Suzanne Sullivan and Nadine Pellegrini, Assistant United States Attorneys, for an Order under the Speedy Trial Act, 18 U.S.C. 3161, et. seq. , and for good cause having been shown, IT IS THE FINDING OF THIS COURT that: 1. On August 31, 2011, the grand jury returned a three-count in
Summary: Speedy Trial Order GEORGE A. O'TOOLE, Jr., District Judge. This matter having been opened to the Court on motion by the government, by Carmen M. Ortiz, United States Attorney for the District of Massachusetts, Suzanne Sullivan and Nadine Pellegrini, Assistant United States Attorneys, for an Order under the Speedy Trial Act, 18 U.S.C. 3161, et. seq. , and for good cause having been shown, IT IS THE FINDING OF THIS COURT that: 1. On August 31, 2011, the grand jury returned a three-count ind..
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Speedy Trial Order
GEORGE A. O'TOOLE, Jr., District Judge.
This matter having been opened to the Court on motion by the government, by Carmen M. Ortiz, United States Attorney for the District of Massachusetts, Suzanne Sullivan and Nadine Pellegrini, Assistant United States Attorneys, for an Order under the Speedy Trial Act, 18 U.S.C. § 3161, et. seq., and for good cause having been shown,
IT IS THE FINDING OF THIS COURT that:
1. On August 31, 2011, the grand jury returned a three-count indictment, charging the defendant with one count of Distribution of Child Pornography, in violation of 18 U.S.C. § 2252 (a) (2); one count of Possession of Child Pornography, in violation of 18 U.S.C. § 2252(a) (4) (B); and one count of Accessing Child Pornography, in violation of 18 U.S.C. § 2252 (a) (4) (B); as well as a forfeiture allegation.
2. In relation to the indictment, the defendant first appeared before a Magistrate Court on September 21, 2011, at his initial appearance. On that date, the government moved to detain the defendant. At his arraignment and detention hearing held on October 6, 2011, the defendant entered a plea of not guilty and agreed to voluntary detention without prejudice. The defendant is in custody.
3. This case is complex given the factually and legally dense and novel issues of law relating to the motion to suppress, the lengthy briefs and supplemental briefs filed relative to same and the oral and evidentiary suppression hearings held in this case.
a. On April 25, 2012, after two assented to motions to extend the deadline to file the motion had been filed and allowed by the Court, the defendant filed a lengthy Motion to Suppress with accompanying exhibits (See docket #20).1
b. On June 8, 2012, after two assented to motions to extend the deadline to file its opposition had been filed and allowed by the Court, the government filed its lengthy Opposition to the Motion to Suppress with accompanying exhibits (See docket entries #24 and 26). On June 19, 2012, as an additional exhibit to its opposition, the government filed a declaration from America On Line ("AOL") (See docket entry # 28).
c. On June 19, 2012, the defendant filed a Motion for Leave to file a Reply to the Government's Opposition to Defendant's Motion to Suppress (See docket entry # 29), which the Court allowed on June 20, 2012.
d. On June 20, 2012, the defendant filed a Reply to the Government's Opposition (See docket entry # 30).
e. Also on June 20, 2012, the Court heard oral arguments on the motion to suppress and took the matter under advisement. The novel issues surrounding the motion to suppress have not previously been decided in this District.
f. On July 16, 2012, the defendant filed a Supplemental Memorandum in Support of the Motion to Suppress (See docket entry #33).
g. On August 8, 2012, the Court held a status conference. At said conference, the Court determined it wished to receive evidence from a representative of AOL and a representative from the National Center for Missing and Exploited Children ("NCMEC") or a similar agencies for purposes of the motion to suppress. As such, an evidentiary hearing was scheduled for September 20, 2012.
h. On September 20, 2012, an evidentiary hearing was held where a representative from AOL and a representative from NCMEC each testified.
i. On September 21, 2012, the Court scheduled a status conference for October 22, 2012.
j. Per the government's motion for complex case designation, from October 10, 2012, to April 10, 2013, Assistant United States Attorney Sullivan was out on leave. During that period of time, Assistant United States Attorney Nadine Pellegrini handled the case.
k. On October 17, 2012, the government filed an assented to motion to continue the status conference to November 26, 2012, and requested the time from October 22, 2012, through November 26, 2012, be excludable (See docket entry #41). On October 22, 2012, the Court cancelled the status conference originally set for that date.
l. On October 23, 2012, the Court directed the parties to respond to specific inquiries made by the Court by November 16, 2012 (See docket sheet).
m. On November 7, 2012, December 17, 2012, and December 28, 2012, either assented to or joint motions to extend the time and to exclude this time were filed and thereafter allowed by the Court and the filing date was ultimately extended to January 2, 2013 (See docket entries # 45, 46, 47, 48, 49, 50). On January 2, 2013, both parties filed written responses to the Court's order (See docket entries # 51, 52). As of January 2, 2013, there were zero (0) days of non-excludable time under the Speedy Trial Act.
n. The parties are awaiting a ruling from the Court on the motion to suppress.
4. Pursuant to previous orders of the court, the time up to and including April 25, 2012, has been excluded from the calculations of the Speedy Trial Clock pursuant to 18 U.S.C. § 3161(h) (7) (A) (See docket entries # 8, 11, 13, 15, 18, 19, 20, 45-50 and docket sheet). Further, the time up to and including January 2, 2013, is excludable from the calculations of the Speedy Trial Clock pursuant to 18 U.S.C. § 3161(h)(7)(A).
5. The Court finds the ends of justice served by the granting of such a continuance and excluding the time outlined herein outweigh the best interest of the public and the defendant in a speedy trial. A failure to exclude this time may result in a miscarriage of justice, taking into account the exercise of due diligence.
THEREFORE, IT IS HEREBY ORDERED, for the reasons stated above, that this matter shall be treated as a complex case pursuant to Title 18, United States Code, § 3161 (h) (7) (B) (ii), for purposes of the Speedy Trial Act, 18 U.S.C. § 3161 et seq.
IT IS FURTHER ORDERED that for purpose of computing time under the Speedy Trial Act of 1974 within which the trial must commence, the period from the date of January 2, 2013, up to and including the date of May 22, 2013, inclusive, shall be deemed an excludable period of pursuant to 18 U.S.C. §§ 3161 (h) (7) (A), 3161(h)(7)(B)(I), 3161(h)(7)(B)(ii), and 3161(h)(7)(B)(iv)
