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United States v. Phillips

United States District Court, W.D. Virginia, Roanoke Division

April 19, 2018



          Elizabeth K. Dillon, United States District Judge.

         Defendant Douglas B. Phillips moves to dismiss the indictments against him, pursuant to the Speedy Trial Act, 18 U.S.C. § 3161 et seq. Compliance with the Speedy Trial Act in this case depends upon the interplay between and application of two excludable periods under the Act-one period for a delay resulting from mental competency evaluations, 18 U.S.C. § 3161(h)(1)(A), and the other period for delays resulting from transportation “to and from places of examination” where time in excess of ten days is presumed to be unreasonable, 18 U.S.C. § 3161(h)(1)(F). For the following reasons, the court will grant Phillips's motion (Dkt. No. 86) and dismiss the indictments against him without prejudice.

         I. BACKGROUND

         On January 12, 2017, a grand jury indicted Phillips on one count of failing to register as a sex offender, in violation of 18 U.S.C. § 2250. (Dkt. No. 19.) That offense became Count 1 in a superseding indictment issued by the same grand jury. (Dkt. No. 30.) Count 2 of the superseding indictment charged Phillips with possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). (Id.) On March 7, 2017, Phillips made his initial appearance on the superseding indictment. (Dkt. No. 36.) At the appearance, Phillips moved for a psychiatric examination, and Magistrate Judge Ballou ordered the United States Marshal Service (USMS) to transport Phillips to a federal facility for a mental health evaluation. (Id.)

         The Bureau of Prisons (BOP) designated the Federal Correctional Institution at Butner, North Carolina (Butner) as the facility for the evaluation. Marshal Sellers, Acting Marshal for the Western District of Virginia, testified that the standard operating procedure for transporting a defendant from Roanoke to Butner involves a number of steps (including flights to Oklahoma City and to Butner) and travel to locations outside of Virginia and North Carolina, rather than a direct route to Butner. Phillips arrived at Butner on March 23, 2017. (Dkt. No. 39.) The Warden at Butner requested additional time to evaluate Phillips, and the court granted an extension. (Id.)

         On June 9, 2017, the Warden sent Judge Ballou a letter, copying counsel for the government and Phillips, attaching the evaluation report and explaining that the USMS had been contacted to return Phillips to the Western District of Virginia. (Def.'s Ex. 1, Dkt. No. 96-1.) An employee at Butner sent a facsimile dated June 13, 2017, to a USMS satellite office. (Gov't Ex. 1, Dkt. No. 96-2.) The facsimile stated that Phillips was ready to be picked up from Butner and was stamped as received by the USMS in Roanoke, Virginia, on August 9, 2017. (Id.) The government represents that Phillips arrived in the Western District of Virginia on August 16, 2017. (Gov't Reply 13 n.4, Dkt. No. 93.)

         On August 28, 2017, Judge Ballou held a competency hearing and found Phillips competent to stand trial. (Dkt. No. 43.) Several continuances and excludable periods of time followed, but no one challenges those exclusions of time. This case was eventually transferred to the undersigned judge, and new counsel was appointed for Phillips.

         One week before trial, on April 2, 2018, Phillips moved to dismiss the indictments against him under the Speedy Trial Act, arguing that the government took an unreasonable amount of time to transport him from Butner following his competency evaluation. (Dkt. No. 86.) The court ordered that the government respond and held a hearing on the motion on April 6, 2018. The government concedes that Count 1 has not been brought within the time period required under the Speedy Trial Act, but argues that Count 2 is still timely because the government's delay in transporting Phillips to and from Butner resulted from reasonable institutional delays. (Gov't Reply 13 & n.4, 16-17.) The government further requests that any dismissal of either count be without prejudice. (Id. at 22.)


         Because the government has conceded that Count 1 violates the Speedy Trial Act, the two remaining issues are: (1) whether Count 2 violates the Speedy Trial Act, and (2) whether to dismiss Count 1 or all indictments with or without prejudice.

         A. Count 2

         The Speedy Trial Act provides that the trial of a defendant must commence within 70 days of the filing of an indictment or a defendant's first appearance before a judicial officer, whichever is later. 18 U.S.C. § 3161(c)(1). In calculating the 70-day period, the court may exclude certain delays.

         At issue in this case are the following two excludable periods:

(A) delay[s] resulting from any proceeding, including any examinations, to determine the mental competency or physical ...

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