Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Hill

United States District Court, D. Utah

November 27, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
GARY MARK HILL, Defendants.

          MEMORANDUM DECISION AND ORDER

          DALE A. KIMBALL, United States District Judge

         Before the court is Defendant Gary Mark Hill's Motion to Dismiss based on alleged violations of the Speedy Trial Act. This case is currently set for trial on December 10, 2018. The Defendant filed his Motion to Dismiss on November 5, 2018. In order to accommodate the United States' request to maintain the trial date, the court informed the parties that it will decide the motion without a hearing based on the briefing.

         FACTUAL BACKGROUND

         On January 5, 2018, the United States filed a Felony Information against Defendant alleging a violation of 18 U.S.C. § 922(a)(1)(A), Dealing in Firearms Without a License. The Defendant made an initial appearance before the court on March 9, 2018. The parties informed the court that they had reached a negotiated settlement; that Defendant waived indictment; and that the Defendant sought to plead guilty to the charge. Transcript of March 9, 2018 Initial Appearance before Magistrate Judge Wells at pages 4-5 and 9-10. Defendant was arraigned on the Felony Information on March 9, 2018.

         On April 12, 2018, the court scheduled a Change of Plea Hearing to be heard before Judge Kimball on May 8, 2018. At the May 8, 2018 hearing, Mary Corporon, the Defendant's counsel at the time, moved to withdraw as counsel. Jay M. Philpot requested to be substituted in as counsel for the Defendant. Mr. Philpot informed the court that his client did not intent to plead guilty to the Felony Information as anticipated. Mr. Philpot explained that he was trying to get up to speed as quickly as possible. Mr. Philpot requested a trial date in November of 2018 because he had pretrial motions he wanted to file and because he had a two-month federal jury trial beginning in September. The Court expressed concern about Speedy Trial problems with a November trial setting. Mr. Philpot agreed that the time between May 8, 2018 and the new trial date should be excluded for purposes of the Speedy Trial calculations based upon the “ends of justice” if the trial was pushed back to November. The court stated, “I think your suggestion is a good one.” May 8, 2018 Transcript at pages 5-6.

         Defendant was indicted by a Grand Jury on May 16, 2018. The Indictment charged Defendant with two counts. Count 1 alleges a violation of 26 U.S.C. § 5861(a), Unlawfully Engaging in the Business of Importing and Dealing Machineguns; Count 2 alleges a violation of 18 U.S.C. § 922(o), Illegal Possession and Transfer of Machineguns. The United States moved to dismiss the Felony Information on June 14, 2018 and the court granted the motion that same day.

         Defendant appeared before Magistrate Judge Paul M. Warner on June 13, 2018. Defendant was arraigned on the Indictment. Mr. Philpot asked Magistrate Judge Warner for a trial date “at least” as early as November 2018. Mr. Philpot cited reasons related to continuity of counsel. Mr. Philpot stated, “I'm not sure if this is helpful, but we would understand and agree that the time would be waived.” The Magistrate Judge declined the request for a continuance and scheduled the trail on August 20, 2018.

         The United States filed proposed jury instructions, a proposed verdict form, and a proposed witness list on July 16, 2018. On July 17, 2018, counsel for the United States informed Mr. Philpot that he had yet to formally enter his appearance. On July 19, 2018, Chambers emailed the parties asking that Mr. Philpot file a notice of appearance right away. On July 22, 2018, Mr. Philpot entered his formal appearance.

         On August 17, 2018, Defendant filed a motion to continue the August 20, 2018 jury trial. That same day the United States filed a supplemental motion to exclude time for purposes of Speedy Trial computation. On August 20, 2018, the court granted the motion to continue and excluded time between July 30, 2018 and December 10, 2018.

         DISCUSSION

         The Defendant argues that: (1) the Speedy Trial clock began to run on March 9, 2018, when the Defendant was arraigned; and (2) the Speedy Trial clock did not reset when the government filed a new indictment.

         (1) The Speedy Trial Time Is Excluded Between March 9, 2018, and May 8, 2018, Because of the Defendant's Intent to Plea Guilty.

         The Speedy Trial computation commences at the filing of the information or indictment, or when the defendant first appears before the court, whichever is later. 18 U.S.C. § 3161(c)(1). Defendant first appeared on March 9, 2018, after the filing of a Felony Information. At his Initial Appearance, Defendant and the United States jointly moved for a Change of Plea hearing, which tolled the Speedy Trial clock. More specifically, the parties informed the court that they had reached a negotiated pre-indictment settlement; that Defendant waived indictment; and that Defendant sought to change his plea to guilty. Magistrate Judge Wells explained what the Defendant was agreeing to in waiving the indictment and the Defendant agreed on the record to waive the indictment. Magistrate Judge Wells left it to counsel to schedule a Change of Plea hearing before Judge Kimball and to execute a written waiver of indictment.

         A motion for a Change of Plea hearing tolls the Speedy Trial clock pursuant to 18 U.S.C. § 3161(h)(1)(D) and (G). “A defendant's request to change his plea clearly constitutes a pretrial motion, a motion which automatically triggers an exclusion of time.” United States v. Loughrin, 710 F.3d 1111, 1120 (10th Cir. 2013)(internal citation and quotations omitted). “A contrary conclusion… would create an incentive for defendants to file ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.