United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER
A. KIMBALL, United States District Judge
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
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,
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.
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.
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.
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.
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.
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.
The Speedy Trial Time Is Excluded Between March 9, 2018, and
May 8, 2018, Because of the Defendant's Intent to Plea
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.
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 ...