The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER
The Court has before it Defendant Douglas John Fitzgerald Motion to Dismiss (Dkt. 60). Fitzgerald will have awaited 456 days from his arraignment on November 23, 2009, to his upcoming trial on February 22, 2009; he has remained out of federal custody since his arraignment. During this time, Fitzgerald moved for, and the Court granted, three continuances under the ends-of-justice provision of the Speedy Trial Act, 18 U.S.C. § 3161(c). In his motion to dismiss, Fitzgerald claims that the Court failed to make the requisite factual finding when granting the continuances, and therefore over seventy nonexcludable days have passed between his arraignment in Idaho and upcoming trial in violation of his speedy trial rights. For the reasons expressed below, the Court will deny Fitzgerald's motion to dismiss.
On May 13, 2009, the grand jury returned an indictment charging Mr. Fitzgerald with corruptly obstructing and impeding the administration of the Internal Revenue laws, in violation of 26 U.S.C. § 7212(a) (Count One), and attempting to evade and defeat taxes for the years 1999-2003 and 2005 (Counts Two through Seven).
Fitzgerald was arrested in the Philippines, where he had been living, on September 10, 2010. From the Philippines, Fitzgerald was flown in federal custody to the Central District of California, Western Division, Los Angeles, where he made an initial appearance and was arraigned on October 9, 2002. He was then transferred and appeared before a United States magistrate judge in Idaho on November 23, 2009.
At his initial appearance and arraignment, trial was set for January 19, 2010. Id. Later that same day, the Court held a detention hearing, and Fitzgerald accepted appointment of Tom Monaghan, Federal Defender. Minute Entry, Dkt. 8. Fitzgerald was released to await trial. Order, Dkt. 9.
On December 11, 2011, Fitzgerald filed a motion to continue the trial until June 2010. The reasons for the request, detailed in an affidavit of counsel, included: (1) the Government discovery was extremely voluminous, numbering over 10,000 pages; (2) the investigation and resulting charges spanned many years, dating back to 1997; (3) the defense anticipated a need for substantial investigation, including out of district travel to contact potential witnesses; (4) the defense anticipated that expert services would be required; (5) Fitzgerald was currently out of custody and agreed with the need for a lengthy continuance; and (6) the Government did not object. Monaghan Aff., Dkt. 12-1. Fitzgerald's motion was granted on December 14, 2009, to allow Fitzgerald time for effective preparation. Order, Dkt. 13. The trial was continued until June 21, 2010.
Nearly three months prior to the trial date, Fitzgerald filed a second motion for continuance, requesting an additional three months due to the complexity of his case. In a sealed affidavit, Teresa A Hampton, co-counsel with Mr. Monaghan, detailed additional reasons for the requested continuance. Ex Parte Hampton Decl., Dkt. 18. The Court granted Fitzgerald second request for a continuance on April 13, 2010. Trial was reset for September 27, 2010.
In late August, both the Government and Fitzgerald filed various motions in limine in preparation for the September 27, 2010 trial. On September 1, 2010, Fitzgerald entered into a plea agreement, which was filed on September 3, 2010. The Plea Hearing was set for September 14, 2010, but Fitzgerald withdrew his plea, the Federal Defenders withdrew as counsel, and Fitzgerald retained private attorney Terrance McCauley to defend him. Fitzgerald filed a third motion to continue the trial to allow new counsel to review the nearly 20,000 pages in discovery. Fitzgerald's third request was granted due to the complexity of the case and to allow new counsel to adequately prepare for trial.
Trial is currently set for February 22, 2011. Now on the eve of trial, Fitzgerald has filed a motion to dismiss the indictment on the ground that his speedy trial rights were violated.
The Speedy Trial Act requires a defendant, charged with a crime, to be brought to trial within 70 days from the filing date of the indictment or the date of the defendant's initial appearance in the court in which the charges are pending, whichever date occurs last. 18 U.S.C. § 3161(c)(1). "If the defendant is not brought to trial within the 70-day period mandated by the Speedy Trial Act (subtracting all properly excludable periods of delay), then the defendant may move for a dismissal of ...