USA v. NORDEAN et al

1:21-cr-00175-TJK

2022 | Cited 0 times | District of Columbia | June 20, 2022

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Criminal Action No. 21-175 (TJK) UNITED STATES OF AMERICA,

v. ETHAN NORDEAN et al.,

Defendants.

MEMORANDUM OPINION AND ORDER On February 3, 2021, Ethan Nordean was arrested for his alleged role in the events of January 6. He was released on home detention one month later, but on April 20, 2021, this Court revoked his release and ordered him detained. Between then and now Nordean has filed 13 mo- tions, 15 supplements to those motions, and two appeals. The Government has also filed many motions, as have The Government has been steadily producing discovery born of ECF No. 120-1 at 2. And in March 2022, the Grand Jury returned the Second Superseding Indictment, adding two new codefendants and several new charges. 1

That month, based on that new indictment and the status of discovery, the Court vacated a previously set May trial date. It then set a June deadline for discovery to be completed and scheduled trial for August, on the first date available for all counsel. Nordean now moves for his immediate release under the Speedy Trial Act, claiming that the 90- day clock to start his trial has already run. The Court disagrees, and so it will deny his motion.

1 Although not relevant here, the Grand Jury has since returned a Third Superseding Indictment. ECF No. 380.

I. Legal Background

The Speedy Trial Act . See 18 U.S.C. § 3164(a). T d has been designated by the attorney for the Government as being of should start no later than 90 Id. § 3164(a) (b). I -

day window, Court must Id. § 3164(c). start within the 90- Id. And -day dead- line. Id.

criminal cases vary widely and that there are valid reasons for greater delay in particular cases. To provide the necessary flexibil- ity, the Act includes a long and detailed list of periods of delay that are excluded in computing the time within which trial must start. Zedner v. United States, 547 U.S. 489, 497 (2006). And those exclusions found at 18 U.S.C. § 3161(h) apply to the 90-day trial clock for detainees and des- ignated releasees. 18 U.S.C. § 3164(b). Relevant here, the excludable periods include such as

. They also include e defendant is joined for trial with a codefendant Id. § ance

. . . if the judge granted such continuance on the basis of his findings that the ends of justice served

Id. § 3161(h)(7). II. Analysis

Nordean argues that he should be released under Section 3164 because he has been detained for 90 nonexcludable days without trial or will soon hit that 90-day mark. ECF No. 343 at 1. 2

But after considering motions, the post-hearing supplements to those motions, the ends-of-justice findings related to the enormous amount of discovery in this case and COVID-19 the Court bility to hold trials consistent with the public health, that deadline is still a ways off. All in all, the Court finds that there have been no nonexcludable days In fact, almost all the days at issue are excluded on three to five separate and independent grounds.

A. To begin with, the Court must determine when No -day clock started to run. Nordean argues that it started on February 3, 2021, when he was first arrested, not on April 20, 2021, when the Court ordered him detained. ECF No. 343 at 16. The Court disagrees.

As explained above, Section 3164 provides that the 90-

2 Nordean also claims at times that his detention violates his due process rights. But he makes no arguments in support of those claims. And it is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel s work Schneider v. Kissinger, 412 F.3d 190, 200 n.1 (D.C. Cir. 2005) Johnson v. Panetta, 953 F. Supp. 2d 244, 250 (D.D.C. 2013).

, released person who is awaiting trial and has been designated by the attorney for the Government

18 U.S.C. § 3164(a) (b). Neither No risk. Thus, The answer is April

20, 2021, when the Court ordered him detained and he reported for that detention. ECF No. 65; ECF No. 70. That is the only date from when Nordean has been and still is tained. Thus, that is end by releasing

Nordean, which is what Section 3164 envisions and he himself seeks. See 18 U.S.C. § 3164(b) . . shall commence not later than ninety days following the begin-

after the expiration of such ninety-

Nordean makes two arguments in response, neither of which is persuasive. First, he argues that he was, in fact, . He points out that he was held from February 3 until March 3, when before the case was assigned to the under- signed the Chief Judge of this Court ordered him released with conditions, effectively affirming determination along the same lines. ECF No. 343 at 17. He then argues that he was ed him on conditions that amounted to home detention. Id.

To make this argument, Nordean points to subsection (c), which states o - the automatic review by the and after the expiration of such ninety- 18 U.S.C. § 3164(c). According to Nordean,

requiring at the 90-day mark both the release of detainees from custody and automatic review of d in [Section 3164] cannot be it must also include some form of release for review. ECF No. 343 at 17. He then argues that this reading tracks plain meaning detention, which he describes as any Id. at 17 (emphasis added).

reading does not withstand scrutiny. To begin with, it ignores the repeated way in which the concepts of detention and release are used in the two related statutory schemes at issue U.S.C. § 3164. And under the Bail Reform Act which governs the detention of defendants pre-

trial the relevant question is whether the defendant is detained or released. See 18 U.S.C. § 3142. Indeed, detention there specifically means that no of release can Id. § 3142(e). Given that context, it would make no s here as including a form of release with certain conditions, as Nordean urges.

In addition , part of the definition. ECF No. 343 at 17. Detention includes person in custody. Detention, (11th ed. 2019).

Bail Reform Act 3142(i); see also Pretrial Detention, Dictionary The holding of a defendant before trial on criminal charges either

because the established bail could not be posted or because release was denied. The Court will

not read detention to mean one thing under one statute and another under the next, especially when the two are as closely linked as the Bail Reform Act and the Speedy Trial Act.

True, Section 3164(c) instructs courts to review defendant detained without trial for more than 90 days. But that does not mean that a can include someone who has been released with conditions. Instead, the statute appears to assume that if any the court must both review his conditions of release and release him from custody. See 18 U.S.C. § 3164(c); see also Godwin v. United States, No. 19-14273-E, 2020 WL 6342962, at *3 (11th Cir. July 13, 2020) The remedy for a violation of the 90-day rule is an automatic review of the conditions of release and release from further custody pending trial. Courts have made sense of that dual instruction by reading the statute to allow courts releasing

detainees to at the same time consider what conditions of release would be appropriate. See, e.g., United States v. Knight, 157 F. Supp. 2d release, of course, may include stringent conditions placed on the terms of the release under the

. In the end, no court has adopted the alternative reading Nordean proposes, and this Court will not be the first.

Second, Nordean claims that, in the alternative, No. 343 at 18 n.6. But, for one thing, Nordean was not detained on April 19. The Court had yet

to enter its detention order; nor had Nordean reported for that detention. See ECF No. 65. Both things happened on April 20. Id.; see also ECF No. 70. More importantly, the Court cannot join those two separate periods of detention for purposes of the 90-day clock, which is what Nordean seemingly requests. Under Section 3164, the 90-day clock runs from start of con- tinuous 3164(b) (emphasis added). Yes, Nordean was detained for one

on March 3, 2021. ECF No. 23. And a resume; that would defy the plain meaning

space or time; uninterrupted; unbroken Continuous, Dictionary 577 (2d ed. 1959). If Congress wanted courts to combine different periods of detention

Thus, the relevant on April 20, 2021. 3

Again, it does not ap- pear that any court has ever adopted reading of the statute, and again, this Court will not be the first.

3 Even if the Court considered February -day clock, the Court would still deny his motion because only 12 nonexcludable days occurred between then and April ds of justice findings, only February 19 through February 22 and March 4 through March 11 would be nonexcludable under the Speedy Trial Act. See ECF No. 16 at 29 (noting Govern- id. at 29 30 (noting argument on detention motion and order of release on February 8); compare id. at 25 (ordering transfer of Nordean on February 8) and ECF No. 13 at 7 (reporting that, as of February 23, Nordean had not been transferred yet), with see also ECF No. 14); ECF No. 2021 Minute Entry (denying as ment on superseding indictment); Mar. 15, 2021 Minute Order (granting ECF No. 29); ECF No. 27 uperseding indictment); 2021 Minute Entry (noting ends of justice exclusion for March 23 through April 1); Apr. 6, 2021 Minute Entry (noting ends of justice exclusion for April 6 through April 9); Apr. 19, 2021 Minute Entry (noting grant of ECF No. 30 and ends of justice exclusion for April 19 through May 4).

B. Excludable Time With the April 20 start date established, the Court next turns to how many nonexcludable days have elapsed since then under the Speedy Trial Act. Simply put, there are none. Over the last 14 or so months, there have been multiple overlapping periods of delay justifiable under the Speedy Trial Act. And when considered together, no days have elapsed. The Court will address these periods of delay by category.

1. Nordean-Related Motions The Court first considers the delay stemming from own pretrial motions and the directed at Nordean. Under the Speedy Trial Act, -day clock. United States v. Van Smith, 530 F.3d 967, 969 (D.C. Cir. 2008); see 18 U.S.C. § 3161(h)(1)(D), (H). The exclusion is automatic. See United States v. Wilson, 835 F.2d 1440, 1443 (D.C. Cir. 1987), abrogated on other grounds by Bloate v. United States, 559 U.S. 196 (2010). And contrary to Nordean claims, ECF No. 343 at 16 n.5, any no matter the subject, and 18 U.S.C. § 3161(h)(1)(D) (emphasis added); see United States v. Hemphill, 514 F.3d 1350, 1357 (D.C. Cir. 2008) We have interpreted this phrase to mean what it says: any motion will toll the clock. Indeed, a defendant s motion to dismiss for a speedy trial violation will itself stop the clock. see also United States v. Lattany, 982 F.2d 866, 872 tention and bond are pretrial motions for speedy trial purposes and thus excludable from the

; United States v. Schiavo, 94 F.3d 640, 1996 WL 490008, at *7 (1st Cir. 1996) (Table)

That said, there are some limits on the time that gets excluded by the filing of a motion. the Act excludes the period of time between the filing of the motion and the day the court receives all the papers it reasonably expects to help it decide th Van Smith, 530 F.3d at 969 Id. If, on the other hand, the court

and the conclusion of the hearing, whether or not consideration of the motion caused actual delay

of the trial, and whether or not the amount of delay that Id. (cleaned up). under advisement Id. 4

One wrinkle, relevant here, is how supplements filed after the hearing affect the excludable period of delay. The Supreme Court where a district court awaits additional filings from the parties that are needed for proper disposi- Henderson v. United States, 476 U.S. 321, 331 (1986). The Court explained for Congress to exclude automatically all the time prior to the hearing on a motion and 30 days after the motion is taken under advisement, but not the time during which the court remains unable to rule because it is awaiting the submission by counsel of additional

4 Nordean repeatedly disputes that an additional 30 days may be excluded when a court takes a motion under advisement after a hearing on it. ECF No. 331 at 6 n.4; ECF No. 343 at 2 3. That argument simply ignores the precedent of this Circuit to the contrary. See, e.g., Van Smith, 530 F.3d at 969; United States v. Harris, 491 F.3d 440, 444 (D.C. Cir. 2007); United States v. Saro, 24 F.3d 283, 292 (D.C. Cir. 1994); Wilson, 835 F.2d at 1442; see also United States v. Sutter, 340 F.3d 1022, 1030 (9th Cir. 2003); United States v. Scott, 270 F.3d 30, 55 (1st Cir. 2001); United States v. Davenport, 935 F.2d 1223, 1228 (11th Cir. 1991); United States v. Mentz, 840 F.2d 315, 326 (6th Cir. 1988).

materials. Id. Other courts have read that decision if the court requires further filings at the hearing, then the 30-day period runs from the date of the last filing. United States v. Scott, 270 F.3d 30, 55 (1st Cir. 2001). The same is true for when the court realizes for additional filings early in -day consideration Id.

at 57; see also United States v. Janik, 723 F.2d 537, 544 (7th Cir. 1983) the requirement of prompt disposition . . . may not be circumvented by . . . ordering the hearing reopened more than 30 days after the matter has been taken under advisement

As far as the Court can tell, no court has addressed what happens when a party files within the 30-day, post-hearing consideration window an unexpected supplement to the pending motion. no extra time is excluded. He argues that the above cases limit the exclusion of additional time to when the court requests supplemental filings at the hearing or within 30 days afterward. See ECF No. 343 at 4 6. Thus, time is not excluded, he says, when the Court does not expect the materials, even if a defendant files supplements day after day that he urges the Court to consider. Id. In the that makes no sense. Act does not countenance such game- United States v. Ntube, No. 93-cr-3222 (HHG), 1996 WL 808068, at *8 (D.D.C. Dec. 9, 1996).

The approach most consistent with the Speedy Trial Act the above case law is for the 30-day consideration period to restart when a supplement is filed at least if the supple- ment is filed during the governing 30-day consideration period. 5

That is so because the provisions of the [Speedy Trial] Act are designed to exclude all time that is consumed in placing the trial

5 The Court need not address the question of what happens if a new supplement is filed more than 30 days after the hearing or last filing because each supplement or request for supplemental brief- ing here was filed within 30 days of the hearing or last supplemental filing.

court in a position to dispose of a motion. Henderson, 476 U.S. at 331. And a court is not immediately positioned to dispose of a motion when a party presents it with a new supplemental filing that the party urges it consider in resolving the motion. 6

Thus, the Court determines that the Speedy Trial Act automatically excludes up to 30 days after the Court took each supplemental filing under advisement. 18 U.S.C. § 3161(h)(1)(H). As a result, the following periods are ex- cluded -day clock: 7

From May 19, 2021, when Nordean moved for a bill of particulars, ECF Nos. 88 & 89, until August 16, 2021, 30 days after the argument, July 15, 2021 Minute Entry. 8

From June 3, 2021, when Nordean moved to dismiss, ECF No. 94, until December 28, 2021, when the Court denied the motion, ECF No. 262. On top of the supplement Nordean filed before the hearing, he filed two supplements less than a month after the September 21 motion hearing. ECF Nos. 201 & 207. And the Court requested additional briefing within 30 days of the later supplement. See Nov. 3, 2021 Minute Order. That additional briefing was complete by

6 Another way to view these supplemental filings is as supplemental motions for identical relief. After all, the other party may oppose them and they are Van Smith, 530 F.3d at 971. Indeed, unlike a purely informative notice many reports on the status of discovery in this case the supplements filed here were a form of le or order directing some Melendez v. United States, 518 U.S. 120, 126 (1996) (cited by Harris, 491 F.3d at plements sought an order either dismissing the indictment or reopening his detention hearing, de- pending on the supplement. Similarly, t

7 Even if the supplemental filings did not toll time under the Speedy Trial Act, there would still be no nonexcludable days given the time tolled because of other motions, appeals, codefendant-re- lated proceedings, and ends-of-justice findings. 8 Because 30 days would technically fall on August 14, 2021, a Saturday, Federal Rule of Criminal Procedure 45(a) applied, which made Monday, August 16, 2021, the 30th day. See United States v. Bell, 925 F.3d 362, 374 (7th Cir vious versions of Rule 45 did not expressly apply to statutes and did not comport with common- United States v. Tinklenberg, 563 U.S. 647, 661 (2011), and Fed. R. Crim. P. 45(a)). From here on, the Court will note the end of any excludable period as the day dictated by Rule 45(a).

December 6, 2021, ECF No. 238, and Nordean filed another supplement on December 12, 2021, ECF No. 248. 9

From June 28, 2021, when the Government moved for a temporary protective order, ECF No. 102, until June 29, 2021, when the Court granted the motion, ECF No. 103.

From July 20, 2021, when Nordean moved to reopen his bond hearing, ECF No. 122, until December 14, 2021, when the Court denied the motion, Dec. 14, 2021 Minute Entry. Nordean filed five supplements to this motion before the hearing and six after the hearing, all within 30 days of the last. See ECF Nos. 166, 174, 182, 197, 206, 217. 10

And the Court noted at the No- vember 3 status conference that it would need to consider the additional motion-to-dismiss briefing it was ordering when deciding the bond motions. ECF No. 219 at 4 5.

From July 29, 2021, when Nordean moved to remove the sensitivity designation of certain video exhibits, ECF No. 129, until September 20, 2021, 30 days after the Court had all the filings since there was no hearing on this motion, ECF No. 146.

From September 14, 2021, when Nordean moved for access to the sealed transcript, ECF No. 164, until September 16, 2021, when the Court granted the motion, Sept. 16, 2021 Minute Entry.

From December 22, 2021, when Nordean filed a renewed motion for bond under 18 U.S.C. § 3142(i), ECF No. 258; see also ECF No. 340 at 23:21 23 (construing filings as renewed motions), until January 21, 2022, when the Court denied it, ECF No. 281.

From December 29, 2021, when Nordean moved for discovery in support of his selec- tive prosecution claims, ECF No. 267, the motion, Feb. 8, 2022 Minute Entry.

From December 29, 2021, when Nordean moved under seal, ECF No. 266, until May 12, 2022, when the Court granted the motion in part and denied it in part without prejudice, ECF No. 354. The Court had granted the motion in part on February 10, 2022, just days after the hearing. ECF No. 289. But the Court told the parties it needed more information before it resolved the remaining issues. Id. Although delayed by that additional information, see infra, the Court finally had the information by March 11, 2022. ECF No. 313. The Court informed the parties that it needed a hearing on the outstanding issues on April 5, 2022, and that hearing took place on April 21, 2022. Apr. 5, 2021 Tr. at 37, 42.

9 ir function was the same: they aimed to provide the Court with additional information and arguments in support s motion. 10

From February 9, 2022, when the Government moved for an order allowing temporary sealing, ECF No. 287, until the Court granted the motion that same day, Feb. 9, 2022 Minute Order.

From February 22, 2022, when Nordean moved under seal about the above sealed mo- tion, ECF No. 294, until March 8, 2022, when the Court denied the motion, ECF No. 310.

From February 22, 2022, when the Government moved under seal, ECF No. 295, until February 23, 2022, when the Court granted the motion, Feb. 23, 2022 Minute Entry.

From March 6, 2022, when the Government moved under seal, ECF No. 299, until March 7, 2022, when the Court granted the motion in part, Mar. 7, 2022 Minute Entry.

From March 21, 2022, when the Government moved to vacate the trial date, ECF No. 314, until April 12, 2022, when the Court granted the motion, ECF No. 338.

From March 25, 2022, when Nordean moved to sever, ECF No. 321, until April 12, 2022, when the Court denied the motion, ECF No. 339.

From April 5, 2022, when Nordean filed this motion, ECF No. 331, until May 20, 2022, 30 days after the Court had all the filings, ECF No. 343.

From May 19, 2022, when Nordean moved for an order requiring the Government to identify Brady materials, ECF No. 365, through today, as the hearing on this motion was not until June 9, 2022, June 9, 2022 Minute Entry.

From June 9, 2022, when Defendants jointly moved to modify the scheduling order, ECF No. 387, until June 12, 2022, when the Court granted the motion in part, June 12, 2022 Minute Order.

2. [a]ny period of delay . . . resulting from any interloc- Courts appear to agree that this period of delay starts when a party files its notice of appeal and ends the date the mandate issues from the Circuit. See United States v. Yunis, 705 F. Supp. 33, 34 35 (D.D.C. 1989) (describing the excludable period as mandate ; see also United States v. Pete, 525 F.3d 844, 848 49 (9th Cir. 2008) (footnotes omitted) (same); United States v. Arrellano-Garcia, 471 F.3d 897, 900 (8th Cir. 2006) (same); United States v. Rivera, 844 F.2d 916, 919 20 (2d Cir. 1988) (same); United States v. Ferris, 751 F.2d 436, 439 (1st Cir. 1984)

(same). Although the D.C. Circuit has yet to address the precise contours of when the period of delay begins and ends, that approach makes sense. able periods of delay is to remove from the trial-clock calculation periods when the district court jus United States v. Felton, 811 F.2d 190, 198 (3d Cir. 1987). Thus, w] Id. No case of which the Court is aware suggests otherwise.

Nordean, however, contends that neither of his two interlocutory appeals can toll time un- der the Speedy Trial Act detention decisions. ECF No. 343 at 13. He argues

the prejudice his ongoing detention caused. Id. Thus, he reasons, excluding time for his interloc- utory appeals would conflict with his Sixth Amendment speedy trial right. Id. at 13 14. But treating appeals differently under the Speedy Trial Act based on the nature of the issue of appealed would contravene the explicit requirement any be excluded. 18 U.S.C. § 3161(h)(1)(C) (emphasis added). Moreover, the Circuit has already con- firmed that the statute means what it says by noting in United States v. Young, 428 F. App x 9, 10 (D.C. Cir. 2011), that the district court had appeal over his bond status was pending. exclusion of this time does not conflict with Sixth Amendment speedy trial right; he

may make a constitutional speedy trial argument no matter whether any period is excluded under the statute.

does not ipso facto United States v. Rice, 746 F.3d 1074, 1081 (D.C. Cir. 2014). 11

In the end, because any - trial clock, 18 U.S.C. § 3161(h)(1)(C) (emphasis added), the following periods are excludable:

From April 22, 2021 mandate issued, ECF No. 145.

From December 27, 2021 not to reopen his bond hearing, ECF No. 260, until mandate issued, United States v. Nordean, No. 21-3096 (D.C. Cir. Apr. 26, 2022). 12

3. Codefendant-Related Delay The Speedy Trial Act also allows for excludable periods of delay relating to codefendants. Under the statute,

is joined for trial with a codefendant as to whom the time for trial has not run and no motion for 6). when defendants with -trial clock is synchronized with the United States v. Johnson, No. 21-cr-0332 (PLF), 2021 WL 3207044, at *1 (D.D.C. July 29, 2021) (cleaned up). Thus, first, tion of a new co- Van Smith, 530 F.3d at 970. And s ies to all codefend- Saro, 24 F.3d at 292 (quoting United States v. Edwards, 627 F.2d 460, 461 (D.C. Cir.

11 At times in this motion, Nordean cites the Sixth Amendment. But he makes no affirmative arguments about such a violation, or for relief from it. Indeed, the remedy for a violation of the Speedy Trial Clause is dismissal United States v. Homaune, 898 F. Supp. 2d 153, 168 (D.D.C. 2012), and Nordean seeks only his release. 12 The mandate does not yet appear on .

1980)); see also Johnson, - proceedings is excluded under [18 U.S.C. § 3161(h)( (cleaned up).

Both effects of this provision of the Speedy Trial Act are relevant here. First, Enrique Tarrio was arrested and added as a codefendant on March 7, 2022 about 13 months after Nordean was first arrested. ECF No. 305. 13

So under the Speedy Trial Act, -trial clock , regardless of the effect of any other basis to exclude time. Van Smith, 530 F.3d at 970. be no excludable delay based on his addition. ECF No. 343 at 19. But this Court already found

the delay reasonable, and Nordean makes no new arguments on this point. See ECF No. 338 at 2. 14

Second, filed many motions, and taken their own appeals, that have resulted in excludable delay applicable to Nordean as well. Nordean argues that these periods do not affect his speedy-trial clock. His rationale is that exclusions are not automatic ; they .

And this Court has yet to find Id. at 8 9. Fair enough. See Henderson, 476 U.S. at 327; but see United States v. Lopesierra-Gutierrez, 708 F.3d 193, 203 (D.C. Cir. 2013) (suggesting that Section 3161(h)(6) exclusions are automatic). But nothing bars the Court from determining that they are reasonable now. Unlike other exclusion

13 Dominic Pezzola, who was previously charged, was also joined as a codefendant in March 2022. See ECF No. 305. 14 In addition, in Van Smith Van Smith, 530 F.3d at 972 (comparing delay for new defendants to delay r motions made by a co- that all defendants who are joined for trial generally fall within the speedy trial computation of the

latest codefendant, and [it saw] no reason to de Id. (cleaned up).

United States v. Cordova, 157 F.3d 587, 599 (8th Cir. 1998). Nordean does not argue otherwise. Nor does he even try to argue that the delay attendant to his was unreasonable.

proaches. Some circuits have interpreted [Section 3161(h)(6)] as requiring a defendant to file a motion for severance in order to challenge the reasonableness of the delay on appeal. United States v. Maryea, 704 F.3d 55, 67 (1st Cir. 2013) (citing United States v. Howard 596, 598 (2d Cir. 2011), and United States v. Culpepper, 898 F.2d 65, 67 (6th Cir. 1990)). Others view id., looking trial, or . . . the actual prejudice suffered by United States v. Messer, 197 F.3d 330, 337 (9th Cir. 1999); see also United States v. Franklin, 148 F.3d 451, 457 (5th Cir. 1998); United States v. Tobin, 840 F.2d 867, 870 (11th Cir. 1988). on which approach it finds correct. United States v. Shaw, 510 F. Supp. 2d 148, 151 (D.D.C.

2007). But that does not matter here; the below periods of delay are reasonable under any meth- odology.

To begin with, Nordean did not move to sever until this past March, and even then, he only moved to sever from Tarrio and Pezzola. See ECF No. 321. 15

He has never moved to sever his trial from that of codefendants Joseph Biggs, Zachary Rehl, or Charles Donohoe. On top of that, Nordean and those three of his codefendants often filed either closely related motions or motions

15 The Court denied his motion without prejudice. See ECF No. 339.

from which they could all benefit. Many arguments made by Biggs, Rehl, and Donohoe about the propriety of their bond status applied to the other defendants, including Nordean. Biggs, Rehl, and See infra. And Nordean suggested recently that he has waited to see if other defendants would file a motion before doing so himself. See May 19, 2022 Tr. at 59 (noting that he was waiting for Rehl to file a motion on a certain issue). Put simply, many motions were attributable to only one defendant (the movant) as a technical matter, but not as a practical one. In addition, it is hard to see how excluding any one of the below periods of delay would prejudice Nordean given that much of the same the periods are already excluded both on account of his own motions and appeals and based on -of-justice findings. See infra. In sum, the Court concludes, the periods of delay fendants are reasonably attributable to Nordean as well. 16

Thus, whjoinder, the following periods of delay are excluded from 90-day clock: 17

From ECF No. 67, until August 18, 2021, when the mandate issued, ECF No. 145.

From April 29, 2021, when the Government moved for an order that Donohoe be trans- ported to North Carolina, ECF No. 78, until April 30, 2021, when the Court granted the motion, ECF No. 80.

16 Nordean points repeatedly in his opening brief to United States v. Theron, 782 F.2d 1510, 1516 (10th Cir a different meaning and application under [Section] 3164 than under [Section] 3161, because of

tion. Perhaps. But even if the Court agreed with the Tenth Circuit, in finding the above periods of delay reasonable, the Court does The- ron conclusion here. 17 The Court does not include here any periods of delay caused by Government motions that also concerned Nordean; rather, it included those periods in the list of Nordean-related motions. See supra.

From May 3, 2021, when Donohoe moved for the Court to revoke his detention order, ECF No. 81, until June 23, 2021, when the Court heard argument and then denied the motion, ECF No. 101; see also June 23, 2021 Minute Entry.

From May 4, 2021, when the Government moved for a protective order as to Biggs, Rehl, and Donohoe, and the Court granted that motion. ECF Nos. 82 & 83.

From July 1, 2021, when Biggs moved to join No 105, until July 15, 2021, when the Court granted the motion, July 15, 2021 Minute Order.

From ECF No. 108, until November 22, 2021, when the mandate issued, ECF No. 247.

From July 6, 2021, when the Government moved to seal certain exhibits as to Donohoe, ECF No. 110, until July 8, 2021, when the Court granted the motion, July 8, 2021 Minute Order.

From July 21, 2021, when Donohoe moved to substitute counsel, ECF No. 123, until July 26, 2021, when the Court granted the motion, July 26, 2021 Minute Order.

From July 26, 2021, when Rehl moved to continue his status conference, ECF No. 125, until July 27, 2021, when the Court granted the motion, July 27, 2021 Minute Order.

From ECF No. 128, until July 29, 2021, when the Court granted the motion, July 29, 2021 Minute Order.

From August 8, 2021, w ECF No. 137, until December 14, 2021, when the Court denied the motion, Dec. 14, 2021 Minute replied after the hearing. ECF No. 169. He then filed two additional supplements the first 11 days after the reply, ECF No. 187, and the second seven days after that, ECF No. 196. Then, 30 days after the second supplement, the Court ordered additional briefing on the defendants motion to dismiss, which the Court said it would also consider when deciding the bond motions. See ECF No. 219 at 4. The additional briefing was complete by December 6, 2021. ECF No. 238.

From August 23, 2021, when the Government moved to transport Rehl, ECF No. 149, until October 21, 2021, which was 30 days after the Court heard had a hearing on the motion, Sept. 21, 2021 Minute Entry.

From August 26, 2021, aw, ECF No. 153, until September 6, 2021, when the Court granted the motion, Sept. 6, 2021 Minute Order.

From September 16, 2021, when Rehl moved to redact part of a filing, ECF No. 167, and the Court granted the motion, Sept. 16, 2021 Minute Order.

From September 25, 2021, when Rehl moved for a bill of particulars, ECF No. 184, until November 24, 2021, which was 30 days after Rehl replied, ECF No. 212.

From September 26, 2021, when Rehl moved for a subpoena, ECF No. 186, until Oc- tober 15, 2021, when the see ECF No. 188, that the motion was moot, ECF No. 208.

From September 30, 2021, when Rehl moved to reopen his detention decision, ECF Nos. 190, 191, & 192, until December 14, 2021, when the Court denied the motion, Dec. 14, 2021 Minute Entry. One day after the Court held a hearing on s motion, the Court ordered addi- tional Court indicated it would consider when deciding the bond motions. See ECF No. 219 at 4. The additional briefing was complete by December 6, 2021. ECF No. 238.

From October 1, 2021, when Rehl moved for a waiver of certain formatting rules, ECF No. 194, until October 4, 2021, when the Court denied the motion, Oct. 4, 2021 Minute Order.

From October 10, 2021, when Rehl moved to compel the production of certain docu- ments, ECF No. 204, until November 24, 2021, which was 30 days after Rehl replied, ECF No. 212.

From November 12, 2021, when Rehl moved for leave to file a letter from his wife, ECF Nos. 223 & 228, until November 15, 2021, when the Court denied the motion, Nov. 15, 2021 Minute Order.

From No. 225, until November 19, 2021, when the Court granted the motion, Nov. 19, 2021 Minute Order.

From November 23, 2021, when Rehl moved for discovery of grand jury transcripts and for a hearing, ECF Nos. 230, 231, & 232, until December 21, 2021, when the Government planned to withdraw the motions, ECF No. 256.

From November 25, 2021, when Rehl moved to compel Brady disclosures, ECF No. planned to withdraw the motion, ECF No. 256.

From December 5, 2021, when Rehl filed a motion about his attorney, ECF No. 237, attorney was appointed, Dec. 14, 2021 Minute Entry.

From decision not to reopen his bond hearing, ECF No. 261, until April 26, 2022, when the mandate issued, United States v. Biggs, No. 2 -3097 (D.C. Cir. Apr. 26, 2022). 18

18 The mandate

From reopen his bond hearing, ECF No. 264, until today as the mandate still has not issued, United States v. Rehl, No. 21-3098 (D.C. Cir.).

From December 30, 2021, when Biggs renewed his motion for release under 18 U.S.C. § 3142(i), ECF No. 270, until January 21, 2022, when the Court denied the motion, ECF No. 281.

From , ECF No. 286, until February 9, 2022, when the Court granted the motion in part, Feb. 9, 2022 Minute Order.

From March 2, 2022, when Biggs moved t 297, until March 4, 2022, when this Court granted the motion, Mar. 4, 2022 Minute Order.

From March 25, 2022, when this Court appointed conflicts counsel for Biggs and Tar- rio, Mar. 25, 2022 Minute Order, until today as the conflicts counsel is not due until June 30, 2021, Apr. 13, 2022 Minute Order. While the appointment of counsel is Bloate, 559 U.S. at 208.

From April 18, 2022, when Tarrio moved to revoke the detention decision, ECF No. 341, until May 27, 2022, when the Court denied the motion, ECF No. 369.

From April 21, 2022, when Rehl moved to compel the Government to provide notice, ECF No. 344, until June 9, 2022, when the Court denied the motion, June 9, 2022 Minute Order.

From May 2, 2022, when Tarrio moved to change venue, ECF No. 349, until today because to which the Government must respond, ECF Nos. 384, 386, & 399.

From May 19, 2022, when Biggs moved for an order that he be provided a laptop, ECF No. 363, until June 2, 2022, when Biggs agreed with the Court that the motion should be denied as moot, June 2, 2022 Tr. at 35 36.

From Brady motion, ECF No. 375, until June 3, 2022, when the Court granted the motion, June 3, 2022 Minute Order.

From release, ECF No. 377, until June 16, 2022, when the Court denied the motion, June 16, 2022 Mi- nute Order.

From leave to respond, ECF No. 383, until June 10, 2022, when the Court granted the motion, June 10, 2022 Minute Order.

From June 9, 2022, when No. 384, until June 10, 2022, when the Court granted the motion, June 10, 2022 Minute Order.

From June 9, 2022, when the Government moved for leave to file a sur-reply, ECF No. 385, until June 10, 2022, when the Court granted the motion, June 10, 2022 Minute Order.

From No. 386, until June 10, 2022, when the Court granted the motion, June 10, 2022 Minute Order.

From June 11, 2022, when Rehl moved for an order that the Government designate and produce any images, video and audio recordings, out-of-court statements, transcripts and summary charts it will use in trial before the deadline for filing pretrial motions, ECF No. 391, until today, as the Court did not have a hearing on this motion until June 16, 2022, see June 14, 2022 Minute Order.

From June 15, 2022, when Rehl moved to reopen his detention, ECF No. 401, until today, as the Government still needs to respond to the motion.

From June 16, 2022, when Biggs and Pezzola moved to continue the trial, ECF No. 403, until today, as the Court still needs to hear from the other Defendants, see June 17, 2022 Minute Order.

4. Ends-of-Justice Continuances Finally, the Speedy Trial Act further on the basis of his findings that the ends of justice served by taking such action outweigh the best

interest of the public and the defendant in a speedy trial set forth his in the record 18 U.S.C. § 3161(h)(7)(A).

Rice, 746 F.3d at 1078. United States v. Bikundi, 926 F.3d 761, 776 (D.C. Cir. 2019) (quoting Zedner, 547 U.S. at 509).

Those findings must nu- Id. at 776 77 (cleaned up). And this Court has made a series of such findings, most often because of the unprecedented volume of discovery related to this case.

Nordean, in turn, makes two arguments about those findings: (1) that the Court cannot exclude the 22 days for which it made retroactive ends-of-justice findings because the Speedy Trial

Act does not allow courts to make ends-of-justice findings nunc pro tunc, ECF No. 331 at 4, and (2) that at times were insufficient, id. at 5 6; ECF No. 343 at 18 20. Even if he is right on the first point, he is wrong on the second.

Nordean specifically argues that the period from June 3, 2021, until July 15, 2021, was not 3161(h)(7)(B) factors, omplexity plus multiple defendants are not enough for an ends-of-

5 6 (internal quotation marks omitted). He also argues that the Court should not have granted two other ends-of-justice contin- uances from March 23, 2022, until April 5, 2022, and then from April 5, 2022 until April 21, 2022, over his objection, based on the complexity of the trial and the number of defendants. ECF No. 343 at 19 20. 19

But starting with the period from June 3, 2021, to July 15, 2021, the record shows that the Court Bikundi, 926 F.3d at 777 (cleaned up). On June 3, the

consent of the other regard to the

116 at 28 29. And the Court made clear that it would not keep granting continuances on these Id. at 29.

19 -of-justice findings without objecting to them. See ECF No. 331 at 5 8; see also ECF No. 343 at 18 nunc pro tunc findings and the March 23, 2022, ends-of-justice findings).

Such findings mirror those the Circuit has found sufficient. See, e.g., Bikundi, 926 F.3d at 777 -of-justice findings were adequate where it found that the interests of justice outweighed the interests of the parties and the public in a speedier trial be- cause the purpose of the continuance was to permit defense counsel and the government time to both produce discovery and review discovery . True, Nordean opposed this exclusion, but the Court took that into account when weighing the interests at stake. ECF No. 116 at 26 29. Besides, -of-justice continuance invalid. Cf. United States v. Herbst, 666 F.3d 504, 510 (8th Cir. 2012) (rejecting argument that, -of-justice continuance was invalid, because he plain language of section 3161(h)(7)(A) does not require a defendant s consent to the continuance if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the cleaned up)).

Nordea arguments about the two continuances from March 23, 2022, through April 21, 2022, are also meritless. On March 23, t at

hearing filed motion to vacate the May trial date. ECF No. 322 at 38. The Court also noted that time was properly excluded until April 5, 2022, because of the reasons detailed just the day before at the status conference with the other defendants. Id. at 37 38. At that time, the Court best interests of the public and the defendant in a speedy trial, because

the continuance gave the recently added Tr. at 36. And that continuance was applicable to Nordean under Section 3161(h)(6) because it was when the defendant is joined for trial with a co-defendant as to at 37 38. Then on April 5, the Court found that a continuance was

repeatedly in past findings. Apr. 5, 2022 Tr. at 49; see Bikundi, 926 F.3d at 778 (finding sufficient -of-justice continuance contin- court to repeat all of the details of its findings on the record each time it grants an ends-of-justice

continuance These findings all show that this Court seriously weighed the need for delay fundamental concern Rice, 746 F.3d at 1079 (cleaned up). 20

Thus, even without the 22 days for which the Court made retroactive findings days ex- cludable for other reasons, see supra the -of-justice findings under Section 3161(h)(7)(A) resulted in the following excludable periods:

From April 19, 2021, until May 4, 2021. See ECF No. 71 at 80.

20 Nordean also suggests in his opening brief that, under the logic of Theron - of- -day clock because Section 3164 concerns pretrial detention, so a different weighing of the interests is warranted. But Section 3164 does not require a separate or different analysis. As the Ninth Circuit concluded in United States v. Torres, 995 F.3d 695, 707 (9th Cir. 2021), the analysis under Section 3161 is no different because Section 3161( Id. And that is precisely what the Court did in this case. his] request free from prolonged pretrial detention when it considered whether the ends of justice justified a continuance. Id. ither the result nor the reasoning of Theron is inconsistent Id. at 707.

From May 4, 2021, until June 3, 2021. See ECF No. 333 at 22 23. From June 3, 2021, until July 15, 2021. See ECF No. 116 at 28 29. From July 15, 2021, until September 21, 2021. See ECF No. 154 at 79. From September 21, 2021, until October 26, 2021. See ECF No. 274 at 81 82. From November 3, 2021, until December 7, 2021. See Nov. 3, 2021 Minute Order. From December 14, 2021, until January 11, 2022. See ECF No. 252 at 42 43. 21 From February 8, 2022, until March 8, 2022. See ECF No. 311 at 26. 22 From March 23, 2022, until April 5, 2022. See ECF No. 322 at 38. From April 5, 2022, until April 21, 2022. See Apr. 5, 2022 Tr. at 49. From April 21, 2022, until May 19, 2022. See ECF No. 347 at 24. From May 19, 2022, until June 2, 2022. See May 19, 2022 Tr. at 64. From June 2, 2022, until June 9, 2022. See June 2, 2022 Tr. at 46. From June 9, 2022, until June 16, 2022. See June 9, 2022 Tr. at 81.

* * * Because of the often-overlapping grounds that warrant exclusion of the time under the Speedy Trial Act, 21

This time, one Court found that giving his new a the defendants in a speedy trial. ECF No. 252 at 43. Excluding time on those grounds applies to

Nordean too because when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been

22 At this time, the [wa]s relatively And, again, that exclusion applies to Nordean under Section 3161(h)(6).

in April 2021. just about every day since Nordean was detained is excluded on three to five separate and independent grounds. Thus, his 90-day speedy-trial clock has not lapsed. III. Conclusion and Order

For all these reasons, it is hereby ORDERED that Motion for Release Pursuant to 18 U.S.C. § 3164, ECF No. 331, is DENIED.

SO ORDERED.

/s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge Date: June 20, 2022

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Criminal Action No. 21-175 (TJK) UNITED STATES OF AMERICA,

v. ETHAN NORDEAN et al.,

Defendants.

MEMORANDUM OPINION AND ORDER On February 3, 2021, Ethan Nordean was arrested for his alleged role in the events of January 6. He was released on home detention one month later, but on April 20, 2021, this Court revoked his release and ordered him detained. Between then and now Nordean has filed 13 mo- tions, 15 supplements to those motions, and two appeals. The Government has also filed many motions, as have The Government has been steadily producing discovery born of ECF No. 120-1 at 2. And in March 2022, the Grand Jury returned the Second Superseding Indictment, adding two new codefendants and several new charges. 1

That month, based on that new indictment and the status of discovery, the Court vacated a previously set May trial date. It then set a June deadline for discovery to be completed and scheduled trial for August, on the first date available for all counsel. Nordean now moves for his immediate release under the Speedy Trial Act, claiming that the 90- day clock to start his trial has already run. The Court disagrees, and so it will deny his motion.

1 Although not relevant here, the Grand Jury has since returned a Third Superseding Indictment. ECF No. 380.

I. Legal Background

The Speedy Trial Act . See 18 U.S.C. § 3164(a). T d has been designated by the attorney for the Government as being of should start no later than 90 Id. § 3164(a) (b). I -

day window, Court must Id. § 3164(c). start within the 90- Id. And -day dead- line. Id.

criminal cases vary widely and that there are valid reasons for greater delay in particular cases. To provide the necessary flexibil- ity, the Act includes a long and detailed list of periods of delay that are excluded in computing the time within which trial must start. Zedner v. United States, 547 U.S. 489, 497 (2006). And those exclusions found at 18 U.S.C. § 3161(h) apply to the 90-day trial clock for detainees and des- ignated releasees. 18 U.S.C. § 3164(b). Relevant here, the excludable periods include such as

. They also include e defendant is joined for trial with a codefendant Id. § ance

. . . if the judge granted such continuance on the basis of his findings that the ends of justice served

Id. § 3161(h)(7). II. Analysis

Nordean argues that he should be released under Section 3164 because he has been detained for 90 nonexcludable days without trial or will soon hit that 90-day mark. ECF No. 343 at 1. 2

But after considering motions, the post-hearing supplements to those motions, the ends-of-justice findings related to the enormous amount of discovery in this case and COVID-19 the Court bility to hold trials consistent with the public health, that deadline is still a ways off. All in all, the Court finds that there have been no nonexcludable days In fact, almost all the days at issue are excluded on three to five separate and independent grounds.

A. To begin with, the Court must determine when No -day clock started to run. Nordean argues that it started on February 3, 2021, when he was first arrested, not on April 20, 2021, when the Court ordered him detained. ECF No. 343 at 16. The Court disagrees.

As explained above, Section 3164 provides that the 90-

2 Nordean also claims at times that his detention violates his due process rights. But he makes no arguments in support of those claims. And it is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel s work Schneider v. Kissinger, 412 F.3d 190, 200 n.1 (D.C. Cir. 2005) Johnson v. Panetta, 953 F. Supp. 2d 244, 250 (D.D.C. 2013).

, released person who is awaiting trial and has been designated by the attorney for the Government

18 U.S.C. § 3164(a) (b). Neither No risk. Thus, The answer is April

20, 2021, when the Court ordered him detained and he reported for that detention. ECF No. 65; ECF No. 70. That is the only date from when Nordean has been and still is tained. Thus, that is end by releasing

Nordean, which is what Section 3164 envisions and he himself seeks. See 18 U.S.C. § 3164(b) . . shall commence not later than ninety days following the begin-

after the expiration of such ninety-

Nordean makes two arguments in response, neither of which is persuasive. First, he argues that he was, in fact, . He points out that he was held from February 3 until March 3, when before the case was assigned to the under- signed the Chief Judge of this Court ordered him released with conditions, effectively affirming determination along the same lines. ECF No. 343 at 17. He then argues that he was ed him on conditions that amounted to home detention. Id.

To make this argument, Nordean points to subsection (c), which states o - the automatic review by the and after the expiration of such ninety- 18 U.S.C. § 3164(c). According to Nordean,

requiring at the 90-day mark both the release of detainees from custody and automatic review of d in [Section 3164] cannot be it must also include some form of release for review. ECF No. 343 at 17. He then argues that this reading tracks plain meaning detention, which he describes as any Id. at 17 (emphasis added).

reading does not withstand scrutiny. To begin with, it ignores the repeated way in which the concepts of detention and release are used in the two related statutory schemes at issue U.S.C. § 3164. And under the Bail Reform Act which governs the detention of defendants pre-

trial the relevant question is whether the defendant is detained or released. See 18 U.S.C. § 3142. Indeed, detention there specifically means that no of release can Id. § 3142(e). Given that context, it would make no s here as including a form of release with certain conditions, as Nordean urges.

In addition , part of the definition. ECF No. 343 at 17. Detention includes person in custody. Detention, (11th ed. 2019).

Bail Reform Act 3142(i); see also Pretrial Detention, Dictionary The holding of a defendant before trial on criminal charges either

because the established bail could not be posted or because release was denied. The Court will

not read detention to mean one thing under one statute and another under the next, especially when the two are as closely linked as the Bail Reform Act and the Speedy Trial Act.

True, Section 3164(c) instructs courts to review defendant detained without trial for more than 90 days. But that does not mean that a can include someone who has been released with conditions. Instead, the statute appears to assume that if any the court must both review his conditions of release and release him from custody. See 18 U.S.C. § 3164(c); see also Godwin v. United States, No. 19-14273-E, 2020 WL 6342962, at *3 (11th Cir. July 13, 2020) The remedy for a violation of the 90-day rule is an automatic review of the conditions of release and release from further custody pending trial. Courts have made sense of that dual instruction by reading the statute to allow courts releasing

detainees to at the same time consider what conditions of release would be appropriate. See, e.g., United States v. Knight, 157 F. Supp. 2d release, of course, may include stringent conditions placed on the terms of the release under the

. In the end, no court has adopted the alternative reading Nordean proposes, and this Court will not be the first.

Second, Nordean claims that, in the alternative, No. 343 at 18 n.6. But, for one thing, Nordean was not detained on April 19. The Court had yet

to enter its detention order; nor had Nordean reported for that detention. See ECF No. 65. Both things happened on April 20. Id.; see also ECF No. 70. More importantly, the Court cannot join those two separate periods of detention for purposes of the 90-day clock, which is what Nordean seemingly requests. Under Section 3164, the 90-day clock runs from start of con- tinuous 3164(b) (emphasis added). Yes, Nordean was detained for one

on March 3, 2021. ECF No. 23. And a resume; that would defy the plain meaning

space or time; uninterrupted; unbroken Continuous, Dictionary 577 (2d ed. 1959). If Congress wanted courts to combine different periods of detention

Thus, the relevant on April 20, 2021. 3

Again, it does not ap- pear that any court has ever adopted reading of the statute, and again, this Court will not be the first.

3 Even if the Court considered February -day clock, the Court would still deny his motion because only 12 nonexcludable days occurred between then and April ds of justice findings, only February 19 through February 22 and March 4 through March 11 would be nonexcludable under the Speedy Trial Act. See ECF No. 16 at 29 (noting Govern- id. at 29 30 (noting argument on detention motion and order of release on February 8); compare id. at 25 (ordering transfer of Nordean on February 8) and ECF No. 13 at 7 (reporting that, as of February 23, Nordean had not been transferred yet), with see also ECF No. 14); ECF No. 2021 Minute Entry (denying as ment on superseding indictment); Mar. 15, 2021 Minute Order (granting ECF No. 29); ECF No. 27 uperseding indictment); 2021 Minute Entry (noting ends of justice exclusion for March 23 through April 1); Apr. 6, 2021 Minute Entry (noting ends of justice exclusion for April 6 through April 9); Apr. 19, 2021 Minute Entry (noting grant of ECF No. 30 and ends of justice exclusion for April 19 through May 4).

B. Excludable Time With the April 20 start date established, the Court next turns to how many nonexcludable days have elapsed since then under the Speedy Trial Act. Simply put, there are none. Over the last 14 or so months, there have been multiple overlapping periods of delay justifiable under the Speedy Trial Act. And when considered together, no days have elapsed. The Court will address these periods of delay by category.

1. Nordean-Related Motions The Court first considers the delay stemming from own pretrial motions and the directed at Nordean. Under the Speedy Trial Act, -day clock. United States v. Van Smith, 530 F.3d 967, 969 (D.C. Cir. 2008); see 18 U.S.C. § 3161(h)(1)(D), (H). The exclusion is automatic. See United States v. Wilson, 835 F.2d 1440, 1443 (D.C. Cir. 1987), abrogated on other grounds by Bloate v. United States, 559 U.S. 196 (2010). And contrary to Nordean claims, ECF No. 343 at 16 n.5, any no matter the subject, and 18 U.S.C. § 3161(h)(1)(D) (emphasis added); see United States v. Hemphill, 514 F.3d 1350, 1357 (D.C. Cir. 2008) We have interpreted this phrase to mean what it says: any motion will toll the clock. Indeed, a defendant s motion to dismiss for a speedy trial violation will itself stop the clock. see also United States v. Lattany, 982 F.2d 866, 872 tention and bond are pretrial motions for speedy trial purposes and thus excludable from the

; United States v. Schiavo, 94 F.3d 640, 1996 WL 490008, at *7 (1st Cir. 1996) (Table)

That said, there are some limits on the time that gets excluded by the filing of a motion. the Act excludes the period of time between the filing of the motion and the day the court receives all the papers it reasonably expects to help it decide th Van Smith, 530 F.3d at 969 Id. If, on the other hand, the court

and the conclusion of the hearing, whether or not consideration of the motion caused actual delay

of the trial, and whether or not the amount of delay that Id. (cleaned up). under advisement Id. 4

One wrinkle, relevant here, is how supplements filed after the hearing affect the excludable period of delay. The Supreme Court where a district court awaits additional filings from the parties that are needed for proper disposi- Henderson v. United States, 476 U.S. 321, 331 (1986). The Court explained for Congress to exclude automatically all the time prior to the hearing on a motion and 30 days after the motion is taken under advisement, but not the time during which the court remains unable to rule because it is awaiting the submission by counsel of additional

4 Nordean repeatedly disputes that an additional 30 days may be excluded when a court takes a motion under advisement after a hearing on it. ECF No. 331 at 6 n.4; ECF No. 343 at 2 3. That argument simply ignores the precedent of this Circuit to the contrary. See, e.g., Van Smith, 530 F.3d at 969; United States v. Harris, 491 F.3d 440, 444 (D.C. Cir. 2007); United States v. Saro, 24 F.3d 283, 292 (D.C. Cir. 1994); Wilson, 835 F.2d at 1442; see also United States v. Sutter, 340 F.3d 1022, 1030 (9th Cir. 2003); United States v. Scott, 270 F.3d 30, 55 (1st Cir. 2001); United States v. Davenport, 935 F.2d 1223, 1228 (11th Cir. 1991); United States v. Mentz, 840 F.2d 315, 326 (6th Cir. 1988).

materials. Id. Other courts have read that decision if the court requires further filings at the hearing, then the 30-day period runs from the date of the last filing. United States v. Scott, 270 F.3d 30, 55 (1st Cir. 2001). The same is true for when the court realizes for additional filings early in -day consideration Id.

at 57; see also United States v. Janik, 723 F.2d 537, 544 (7th Cir. 1983) the requirement of prompt disposition . . . may not be circumvented by . . . ordering the hearing reopened more than 30 days after the matter has been taken under advisement

As far as the Court can tell, no court has addressed what happens when a party files within the 30-day, post-hearing consideration window an unexpected supplement to the pending motion. no extra time is excluded. He argues that the above cases limit the exclusion of additional time to when the court requests supplemental filings at the hearing or within 30 days afterward. See ECF No. 343 at 4 6. Thus, time is not excluded, he says, when the Court does not expect the materials, even if a defendant files supplements day after day that he urges the Court to consider. Id. In the that makes no sense. Act does not countenance such game- United States v. Ntube, No. 93-cr-3222 (HHG), 1996 WL 808068, at *8 (D.D.C. Dec. 9, 1996).

The approach most consistent with the Speedy Trial Act the above case law is for the 30-day consideration period to restart when a supplement is filed at least if the supple- ment is filed during the governing 30-day consideration period. 5

That is so because the provisions of the [Speedy Trial] Act are designed to exclude all time that is consumed in placing the trial

5 The Court need not address the question of what happens if a new supplement is filed more than 30 days after the hearing or last filing because each supplement or request for supplemental brief- ing here was filed within 30 days of the hearing or last supplemental filing.

court in a position to dispose of a motion. Henderson, 476 U.S. at 331. And a court is not immediately positioned to dispose of a motion when a party presents it with a new supplemental filing that the party urges it consider in resolving the motion. 6

Thus, the Court determines that the Speedy Trial Act automatically excludes up to 30 days after the Court took each supplemental filing under advisement. 18 U.S.C. § 3161(h)(1)(H). As a result, the following periods are ex- cluded -day clock: 7

From May 19, 2021, when Nordean moved for a bill of particulars, ECF Nos. 88 & 89, until August 16, 2021, 30 days after the argument, July 15, 2021 Minute Entry. 8

From June 3, 2021, when Nordean moved to dismiss, ECF No. 94, until December 28, 2021, when the Court denied the motion, ECF No. 262. On top of the supplement Nordean filed before the hearing, he filed two supplements less than a month after the September 21 motion hearing. ECF Nos. 201 & 207. And the Court requested additional briefing within 30 days of the later supplement. See Nov. 3, 2021 Minute Order. That additional briefing was complete by

6 Another way to view these supplemental filings is as supplemental motions for identical relief. After all, the other party may oppose them and they are Van Smith, 530 F.3d at 971. Indeed, unlike a purely informative notice many reports on the status of discovery in this case the supplements filed here were a form of le or order directing some Melendez v. United States, 518 U.S. 120, 126 (1996) (cited by Harris, 491 F.3d at plements sought an order either dismissing the indictment or reopening his detention hearing, de- pending on the supplement. Similarly, t

7 Even if the supplemental filings did not toll time under the Speedy Trial Act, there would still be no nonexcludable days given the time tolled because of other motions, appeals, codefendant-re- lated proceedings, and ends-of-justice findings. 8 Because 30 days would technically fall on August 14, 2021, a Saturday, Federal Rule of Criminal Procedure 45(a) applied, which made Monday, August 16, 2021, the 30th day. See United States v. Bell, 925 F.3d 362, 374 (7th Cir vious versions of Rule 45 did not expressly apply to statutes and did not comport with common- United States v. Tinklenberg, 563 U.S. 647, 661 (2011), and Fed. R. Crim. P. 45(a)). From here on, the Court will note the end of any excludable period as the day dictated by Rule 45(a).

December 6, 2021, ECF No. 238, and Nordean filed another supplement on December 12, 2021, ECF No. 248. 9

From June 28, 2021, when the Government moved for a temporary protective order, ECF No. 102, until June 29, 2021, when the Court granted the motion, ECF No. 103.

From July 20, 2021, when Nordean moved to reopen his bond hearing, ECF No. 122, until December 14, 2021, when the Court denied the motion, Dec. 14, 2021 Minute Entry. Nordean filed five supplements to this motion before the hearing and six after the hearing, all within 30 days of the last. See ECF Nos. 166, 174, 182, 197, 206, 217. 10

And the Court noted at the No- vember 3 status conference that it would need to consider the additional motion-to-dismiss briefing it was ordering when deciding the bond motions. ECF No. 219 at 4 5.

From July 29, 2021, when Nordean moved to remove the sensitivity designation of certain video exhibits, ECF No. 129, until September 20, 2021, 30 days after the Court had all the filings since there was no hearing on this motion, ECF No. 146.

From September 14, 2021, when Nordean moved for access to the sealed transcript, ECF No. 164, until September 16, 2021, when the Court granted the motion, Sept. 16, 2021 Minute Entry.

From December 22, 2021, when Nordean filed a renewed motion for bond under 18 U.S.C. § 3142(i), ECF No. 258; see also ECF No. 340 at 23:21 23 (construing filings as renewed motions), until January 21, 2022, when the Court denied it, ECF No. 281.

From December 29, 2021, when Nordean moved for discovery in support of his selec- tive prosecution claims, ECF No. 267, the motion, Feb. 8, 2022 Minute Entry.

From December 29, 2021, when Nordean moved under seal, ECF No. 266, until May 12, 2022, when the Court granted the motion in part and denied it in part without prejudice, ECF No. 354. The Court had granted the motion in part on February 10, 2022, just days after the hearing. ECF No. 289. But the Court told the parties it needed more information before it resolved the remaining issues. Id. Although delayed by that additional information, see infra, the Court finally had the information by March 11, 2022. ECF No. 313. The Court informed the parties that it needed a hearing on the outstanding issues on April 5, 2022, and that hearing took place on April 21, 2022. Apr. 5, 2021 Tr. at 37, 42.

9 ir function was the same: they aimed to provide the Court with additional information and arguments in support s motion. 10

From February 9, 2022, when the Government moved for an order allowing temporary sealing, ECF No. 287, until the Court granted the motion that same day, Feb. 9, 2022 Minute Order.

From February 22, 2022, when Nordean moved under seal about the above sealed mo- tion, ECF No. 294, until March 8, 2022, when the Court denied the motion, ECF No. 310.

From February 22, 2022, when the Government moved under seal, ECF No. 295, until February 23, 2022, when the Court granted the motion, Feb. 23, 2022 Minute Entry.

From March 6, 2022, when the Government moved under seal, ECF No. 299, until March 7, 2022, when the Court granted the motion in part, Mar. 7, 2022 Minute Entry.

From March 21, 2022, when the Government moved to vacate the trial date, ECF No. 314, until April 12, 2022, when the Court granted the motion, ECF No. 338.

From March 25, 2022, when Nordean moved to sever, ECF No. 321, until April 12, 2022, when the Court denied the motion, ECF No. 339.

From April 5, 2022, when Nordean filed this motion, ECF No. 331, until May 20, 2022, 30 days after the Court had all the filings, ECF No. 343.

From May 19, 2022, when Nordean moved for an order requiring the Government to identify Brady materials, ECF No. 365, through today, as the hearing on this motion was not until June 9, 2022, June 9, 2022 Minute Entry.

From June 9, 2022, when Defendants jointly moved to modify the scheduling order, ECF No. 387, until June 12, 2022, when the Court granted the motion in part, June 12, 2022 Minute Order.

2. [a]ny period of delay . . . resulting from any interloc- Courts appear to agree that this period of delay starts when a party files its notice of appeal and ends the date the mandate issues from the Circuit. See United States v. Yunis, 705 F. Supp. 33, 34 35 (D.D.C. 1989) (describing the excludable period as mandate ; see also United States v. Pete, 525 F.3d 844, 848 49 (9th Cir. 2008) (footnotes omitted) (same); United States v. Arrellano-Garcia, 471 F.3d 897, 900 (8th Cir. 2006) (same); United States v. Rivera, 844 F.2d 916, 919 20 (2d Cir. 1988) (same); United States v. Ferris, 751 F.2d 436, 439 (1st Cir. 1984)

(same). Although the D.C. Circuit has yet to address the precise contours of when the period of delay begins and ends, that approach makes sense. able periods of delay is to remove from the trial-clock calculation periods when the district court jus United States v. Felton, 811 F.2d 190, 198 (3d Cir. 1987). Thus, w] Id. No case of which the Court is aware suggests otherwise.

Nordean, however, contends that neither of his two interlocutory appeals can toll time un- der the Speedy Trial Act detention decisions. ECF No. 343 at 13. He argues

the prejudice his ongoing detention caused. Id. Thus, he reasons, excluding time for his interloc- utory appeals would conflict with his Sixth Amendment speedy trial right. Id. at 13 14. But treating appeals differently under the Speedy Trial Act based on the nature of the issue of appealed would contravene the explicit requirement any be excluded. 18 U.S.C. § 3161(h)(1)(C) (emphasis added). Moreover, the Circuit has already con- firmed that the statute means what it says by noting in United States v. Young, 428 F. App x 9, 10 (D.C. Cir. 2011), that the district court had appeal over his bond status was pending. exclusion of this time does not conflict with Sixth Amendment speedy trial right; he

may make a constitutional speedy trial argument no matter whether any period is excluded under the statute.

does not ipso facto United States v. Rice, 746 F.3d 1074, 1081 (D.C. Cir. 2014). 11

In the end, because any - trial clock, 18 U.S.C. § 3161(h)(1)(C) (emphasis added), the following periods are excludable:

From April 22, 2021 mandate issued, ECF No. 145.

From December 27, 2021 not to reopen his bond hearing, ECF No. 260, until mandate issued, United States v. Nordean, No. 21-3096 (D.C. Cir. Apr. 26, 2022). 12

3. Codefendant-Related Delay The Speedy Trial Act also allows for excludable periods of delay relating to codefendants. Under the statute,

is joined for trial with a codefendant as to whom the time for trial has not run and no motion for 6). when defendants with -trial clock is synchronized with the United States v. Johnson, No. 21-cr-0332 (PLF), 2021 WL 3207044, at *1 (D.D.C. July 29, 2021) (cleaned up). Thus, first, tion of a new co- Van Smith, 530 F.3d at 970. And s ies to all codefend- Saro, 24 F.3d at 292 (quoting United States v. Edwards, 627 F.2d 460, 461 (D.C. Cir.

11 At times in this motion, Nordean cites the Sixth Amendment. But he makes no affirmative arguments about such a violation, or for relief from it. Indeed, the remedy for a violation of the Speedy Trial Clause is dismissal United States v. Homaune, 898 F. Supp. 2d 153, 168 (D.D.C. 2012), and Nordean seeks only his release. 12 The mandate does not yet appear on .

1980)); see also Johnson, - proceedings is excluded under [18 U.S.C. § 3161(h)( (cleaned up).

Both effects of this provision of the Speedy Trial Act are relevant here. First, Enrique Tarrio was arrested and added as a codefendant on March 7, 2022 about 13 months after Nordean was first arrested. ECF No. 305. 13

So under the Speedy Trial Act, -trial clock , regardless of the effect of any other basis to exclude time. Van Smith, 530 F.3d at 970. be no excludable delay based on his addition. ECF No. 343 at 19. But this Court already found

the delay reasonable, and Nordean makes no new arguments on this point. See ECF No. 338 at 2. 14

Second, filed many motions, and taken their own appeals, that have resulted in excludable delay applicable to Nordean as well. Nordean argues that these periods do not affect his speedy-trial clock. His rationale is that exclusions are not automatic ; they .

And this Court has yet to find Id. at 8 9. Fair enough. See Henderson, 476 U.S. at 327; but see United States v. Lopesierra-Gutierrez, 708 F.3d 193, 203 (D.C. Cir. 2013) (suggesting that Section 3161(h)(6) exclusions are automatic). But nothing bars the Court from determining that they are reasonable now. Unlike other exclusion

13 Dominic Pezzola, who was previously charged, was also joined as a codefendant in March 2022. See ECF No. 305. 14 In addition, in Van Smith Van Smith, 530 F.3d at 972 (comparing delay for new defendants to delay r motions made by a co- that all defendants who are joined for trial generally fall within the speedy trial computation of the

latest codefendant, and [it saw] no reason to de Id. (cleaned up).

United States v. Cordova, 157 F.3d 587, 599 (8th Cir. 1998). Nordean does not argue otherwise. Nor does he even try to argue that the delay attendant to his was unreasonable.

proaches. Some circuits have interpreted [Section 3161(h)(6)] as requiring a defendant to file a motion for severance in order to challenge the reasonableness of the delay on appeal. United States v. Maryea, 704 F.3d 55, 67 (1st Cir. 2013) (citing United States v. Howard 596, 598 (2d Cir. 2011), and United States v. Culpepper, 898 F.2d 65, 67 (6th Cir. 1990)). Others view id., looking trial, or . . . the actual prejudice suffered by United States v. Messer, 197 F.3d 330, 337 (9th Cir. 1999); see also United States v. Franklin, 148 F.3d 451, 457 (5th Cir. 1998); United States v. Tobin, 840 F.2d 867, 870 (11th Cir. 1988). on which approach it finds correct. United States v. Shaw, 510 F. Supp. 2d 148, 151 (D.D.C.

2007). But that does not matter here; the below periods of delay are reasonable under any meth- odology.

To begin with, Nordean did not move to sever until this past March, and even then, he only moved to sever from Tarrio and Pezzola. See ECF No. 321. 15

He has never moved to sever his trial from that of codefendants Joseph Biggs, Zachary Rehl, or Charles Donohoe. On top of that, Nordean and those three of his codefendants often filed either closely related motions or motions

15 The Court denied his motion without prejudice. See ECF No. 339.

from which they could all benefit. Many arguments made by Biggs, Rehl, and Donohoe about the propriety of their bond status applied to the other defendants, including Nordean. Biggs, Rehl, and See infra. And Nordean suggested recently that he has waited to see if other defendants would file a motion before doing so himself. See May 19, 2022 Tr. at 59 (noting that he was waiting for Rehl to file a motion on a certain issue). Put simply, many motions were attributable to only one defendant (the movant) as a technical matter, but not as a practical one. In addition, it is hard to see how excluding any one of the below periods of delay would prejudice Nordean given that much of the same the periods are already excluded both on account of his own motions and appeals and based on -of-justice findings. See infra. In sum, the Court concludes, the periods of delay fendants are reasonably attributable to Nordean as well. 16

Thus, whjoinder, the following periods of delay are excluded from 90-day clock: 17

From ECF No. 67, until August 18, 2021, when the mandate issued, ECF No. 145.

From April 29, 2021, when the Government moved for an order that Donohoe be trans- ported to North Carolina, ECF No. 78, until April 30, 2021, when the Court granted the motion, ECF No. 80.

16 Nordean points repeatedly in his opening brief to United States v. Theron, 782 F.2d 1510, 1516 (10th Cir a different meaning and application under [Section] 3164 than under [Section] 3161, because of

tion. Perhaps. But even if the Court agreed with the Tenth Circuit, in finding the above periods of delay reasonable, the Court does The- ron conclusion here. 17 The Court does not include here any periods of delay caused by Government motions that also concerned Nordean; rather, it included those periods in the list of Nordean-related motions. See supra.

From May 3, 2021, when Donohoe moved for the Court to revoke his detention order, ECF No. 81, until June 23, 2021, when the Court heard argument and then denied the motion, ECF No. 101; see also June 23, 2021 Minute Entry.

From May 4, 2021, when the Government moved for a protective order as to Biggs, Rehl, and Donohoe, and the Court granted that motion. ECF Nos. 82 & 83.

From July 1, 2021, when Biggs moved to join No 105, until July 15, 2021, when the Court granted the motion, July 15, 2021 Minute Order.

From ECF No. 108, until November 22, 2021, when the mandate issued, ECF No. 247.

From July 6, 2021, when the Government moved to seal certain exhibits as to Donohoe, ECF No. 110, until July 8, 2021, when the Court granted the motion, July 8, 2021 Minute Order.

From July 21, 2021, when Donohoe moved to substitute counsel, ECF No. 123, until July 26, 2021, when the Court granted the motion, July 26, 2021 Minute Order.

From July 26, 2021, when Rehl moved to continue his status conference, ECF No. 125, until July 27, 2021, when the Court granted the motion, July 27, 2021 Minute Order.

From ECF No. 128, until July 29, 2021, when the Court granted the motion, July 29, 2021 Minute Order.

From August 8, 2021, w ECF No. 137, until December 14, 2021, when the Court denied the motion, Dec. 14, 2021 Minute replied after the hearing. ECF No. 169. He then filed two additional supplements the first 11 days after the reply, ECF No. 187, and the second seven days after that, ECF No. 196. Then, 30 days after the second supplement, the Court ordered additional briefing on the defendants motion to dismiss, which the Court said it would also consider when deciding the bond motions. See ECF No. 219 at 4. The additional briefing was complete by December 6, 2021. ECF No. 238.

From August 23, 2021, when the Government moved to transport Rehl, ECF No. 149, until October 21, 2021, which was 30 days after the Court heard had a hearing on the motion, Sept. 21, 2021 Minute Entry.

From August 26, 2021, aw, ECF No. 153, until September 6, 2021, when the Court granted the motion, Sept. 6, 2021 Minute Order.

From September 16, 2021, when Rehl moved to redact part of a filing, ECF No. 167, and the Court granted the motion, Sept. 16, 2021 Minute Order.

From September 25, 2021, when Rehl moved for a bill of particulars, ECF No. 184, until November 24, 2021, which was 30 days after Rehl replied, ECF No. 212.

From September 26, 2021, when Rehl moved for a subpoena, ECF No. 186, until Oc- tober 15, 2021, when the see ECF No. 188, that the motion was moot, ECF No. 208.

From September 30, 2021, when Rehl moved to reopen his detention decision, ECF Nos. 190, 191, & 192, until December 14, 2021, when the Court denied the motion, Dec. 14, 2021 Minute Entry. One day after the Court held a hearing on s motion, the Court ordered addi- tional Court indicated it would consider when deciding the bond motions. See ECF No. 219 at 4. The additional briefing was complete by December 6, 2021. ECF No. 238.

From October 1, 2021, when Rehl moved for a waiver of certain formatting rules, ECF No. 194, until October 4, 2021, when the Court denied the motion, Oct. 4, 2021 Minute Order.

From October 10, 2021, when Rehl moved to compel the production of certain docu- ments, ECF No. 204, until November 24, 2021, which was 30 days after Rehl replied, ECF No. 212.

From November 12, 2021, when Rehl moved for leave to file a letter from his wife, ECF Nos. 223 & 228, until November 15, 2021, when the Court denied the motion, Nov. 15, 2021 Minute Order.

From No. 225, until November 19, 2021, when the Court granted the motion, Nov. 19, 2021 Minute Order.

From November 23, 2021, when Rehl moved for discovery of grand jury transcripts and for a hearing, ECF Nos. 230, 231, & 232, until December 21, 2021, when the Government planned to withdraw the motions, ECF No. 256.

From November 25, 2021, when Rehl moved to compel Brady disclosures, ECF No. planned to withdraw the motion, ECF No. 256.

From December 5, 2021, when Rehl filed a motion about his attorney, ECF No. 237, attorney was appointed, Dec. 14, 2021 Minute Entry.

From decision not to reopen his bond hearing, ECF No. 261, until April 26, 2022, when the mandate issued, United States v. Biggs, No. 2 -3097 (D.C. Cir. Apr. 26, 2022). 18

18 The mandate

From reopen his bond hearing, ECF No. 264, until today as the mandate still has not issued, United States v. Rehl, No. 21-3098 (D.C. Cir.).

From December 30, 2021, when Biggs renewed his motion for release under 18 U.S.C. § 3142(i), ECF No. 270, until January 21, 2022, when the Court denied the motion, ECF No. 281.

From , ECF No. 286, until February 9, 2022, when the Court granted the motion in part, Feb. 9, 2022 Minute Order.

From March 2, 2022, when Biggs moved t 297, until March 4, 2022, when this Court granted the motion, Mar. 4, 2022 Minute Order.

From March 25, 2022, when this Court appointed conflicts counsel for Biggs and Tar- rio, Mar. 25, 2022 Minute Order, until today as the conflicts counsel is not due until June 30, 2021, Apr. 13, 2022 Minute Order. While the appointment of counsel is Bloate, 559 U.S. at 208.

From April 18, 2022, when Tarrio moved to revoke the detention decision, ECF No. 341, until May 27, 2022, when the Court denied the motion, ECF No. 369.

From April 21, 2022, when Rehl moved to compel the Government to provide notice, ECF No. 344, until June 9, 2022, when the Court denied the motion, June 9, 2022 Minute Order.

From May 2, 2022, when Tarrio moved to change venue, ECF No. 349, until today because to which the Government must respond, ECF Nos. 384, 386, & 399.

From May 19, 2022, when Biggs moved for an order that he be provided a laptop, ECF No. 363, until June 2, 2022, when Biggs agreed with the Court that the motion should be denied as moot, June 2, 2022 Tr. at 35 36.

From Brady motion, ECF No. 375, until June 3, 2022, when the Court granted the motion, June 3, 2022 Minute Order.

From release, ECF No. 377, until June 16, 2022, when the Court denied the motion, June 16, 2022 Mi- nute Order.

From leave to respond, ECF No. 383, until June 10, 2022, when the Court granted the motion, June 10, 2022 Minute Order.

From June 9, 2022, when No. 384, until June 10, 2022, when the Court granted the motion, June 10, 2022 Minute Order.

From June 9, 2022, when the Government moved for leave to file a sur-reply, ECF No. 385, until June 10, 2022, when the Court granted the motion, June 10, 2022 Minute Order.

From No. 386, until June 10, 2022, when the Court granted the motion, June 10, 2022 Minute Order.

From June 11, 2022, when Rehl moved for an order that the Government designate and produce any images, video and audio recordings, out-of-court statements, transcripts and summary charts it will use in trial before the deadline for filing pretrial motions, ECF No. 391, until today, as the Court did not have a hearing on this motion until June 16, 2022, see June 14, 2022 Minute Order.

From June 15, 2022, when Rehl moved to reopen his detention, ECF No. 401, until today, as the Government still needs to respond to the motion.

From June 16, 2022, when Biggs and Pezzola moved to continue the trial, ECF No. 403, until today, as the Court still needs to hear from the other Defendants, see June 17, 2022 Minute Order.

4. Ends-of-Justice Continuances Finally, the Speedy Trial Act further on the basis of his findings that the ends of justice served by taking such action outweigh the best

interest of the public and the defendant in a speedy trial set forth his in the record 18 U.S.C. § 3161(h)(7)(A).

Rice, 746 F.3d at 1078. United States v. Bikundi, 926 F.3d 761, 776 (D.C. Cir. 2019) (quoting Zedner, 547 U.S. at 509).

Those findings must nu- Id. at 776 77 (cleaned up). And this Court has made a series of such findings, most often because of the unprecedented volume of discovery related to this case.

Nordean, in turn, makes two arguments about those findings: (1) that the Court cannot exclude the 22 days for which it made retroactive ends-of-justice findings because the Speedy Trial

Act does not allow courts to make ends-of-justice findings nunc pro tunc, ECF No. 331 at 4, and (2) that at times were insufficient, id. at 5 6; ECF No. 343 at 18 20. Even if he is right on the first point, he is wrong on the second.

Nordean specifically argues that the period from June 3, 2021, until July 15, 2021, was not 3161(h)(7)(B) factors, omplexity plus multiple defendants are not enough for an ends-of-

5 6 (internal quotation marks omitted). He also argues that the Court should not have granted two other ends-of-justice contin- uances from March 23, 2022, until April 5, 2022, and then from April 5, 2022 until April 21, 2022, over his objection, based on the complexity of the trial and the number of defendants. ECF No. 343 at 19 20. 19

But starting with the period from June 3, 2021, to July 15, 2021, the record shows that the Court Bikundi, 926 F.3d at 777 (cleaned up). On June 3, the

consent of the other regard to the

116 at 28 29. And the Court made clear that it would not keep granting continuances on these Id. at 29.

19 -of-justice findings without objecting to them. See ECF No. 331 at 5 8; see also ECF No. 343 at 18 nunc pro tunc findings and the March 23, 2022, ends-of-justice findings).

Such findings mirror those the Circuit has found sufficient. See, e.g., Bikundi, 926 F.3d at 777 -of-justice findings were adequate where it found that the interests of justice outweighed the interests of the parties and the public in a speedier trial be- cause the purpose of the continuance was to permit defense counsel and the government time to both produce discovery and review discovery . True, Nordean opposed this exclusion, but the Court took that into account when weighing the interests at stake. ECF No. 116 at 26 29. Besides, -of-justice continuance invalid. Cf. United States v. Herbst, 666 F.3d 504, 510 (8th Cir. 2012) (rejecting argument that, -of-justice continuance was invalid, because he plain language of section 3161(h)(7)(A) does not require a defendant s consent to the continuance if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the cleaned up)).

Nordea arguments about the two continuances from March 23, 2022, through April 21, 2022, are also meritless. On March 23, t at

hearing filed motion to vacate the May trial date. ECF No. 322 at 38. The Court also noted that time was properly excluded until April 5, 2022, because of the reasons detailed just the day before at the status conference with the other defendants. Id. at 37 38. At that time, the Court best interests of the public and the defendant in a speedy trial, because

the continuance gave the recently added Tr. at 36. And that continuance was applicable to Nordean under Section 3161(h)(6) because it was when the defendant is joined for trial with a co-defendant as to at 37 38. Then on April 5, the Court found that a continuance was

repeatedly in past findings. Apr. 5, 2022 Tr. at 49; see Bikundi, 926 F.3d at 778 (finding sufficient -of-justice continuance contin- court to repeat all of the details of its findings on the record each time it grants an ends-of-justice

continuance These findings all show that this Court seriously weighed the need for delay fundamental concern Rice, 746 F.3d at 1079 (cleaned up). 20

Thus, even without the 22 days for which the Court made retroactive findings days ex- cludable for other reasons, see supra the -of-justice findings under Section 3161(h)(7)(A) resulted in the following excludable periods:

From April 19, 2021, until May 4, 2021. See ECF No. 71 at 80.

20 Nordean also suggests in his opening brief that, under the logic of Theron - of- -day clock because Section 3164 concerns pretrial detention, so a different weighing of the interests is warranted. But Section 3164 does not require a separate or different analysis. As the Ninth Circuit concluded in United States v. Torres, 995 F.3d 695, 707 (9th Cir. 2021), the analysis under Section 3161 is no different because Section 3161( Id. And that is precisely what the Court did in this case. his] request free from prolonged pretrial detention when it considered whether the ends of justice justified a continuance. Id. ither the result nor the reasoning of Theron is inconsistent Id. at 707.

From May 4, 2021, until June 3, 2021. See ECF No. 333 at 22 23. From June 3, 2021, until July 15, 2021. See ECF No. 116 at 28 29. From July 15, 2021, until September 21, 2021. See ECF No. 154 at 79. From September 21, 2021, until October 26, 2021. See ECF No. 274 at 81 82. From November 3, 2021, until December 7, 2021. See Nov. 3, 2021 Minute Order. From December 14, 2021, until January 11, 2022. See ECF No. 252 at 42 43. 21 From February 8, 2022, until March 8, 2022. See ECF No. 311 at 26. 22 From March 23, 2022, until April 5, 2022. See ECF No. 322 at 38. From April 5, 2022, until April 21, 2022. See Apr. 5, 2022 Tr. at 49. From April 21, 2022, until May 19, 2022. See ECF No. 347 at 24. From May 19, 2022, until June 2, 2022. See May 19, 2022 Tr. at 64. From June 2, 2022, until June 9, 2022. See June 2, 2022 Tr. at 46. From June 9, 2022, until June 16, 2022. See June 9, 2022 Tr. at 81.

* * * Because of the often-overlapping grounds that warrant exclusion of the time under the Speedy Trial Act, 21

This time, one Court found that giving his new a the defendants in a speedy trial. ECF No. 252 at 43. Excluding time on those grounds applies to

Nordean too because when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been

22 At this time, the [wa]s relatively And, again, that exclusion applies to Nordean under Section 3161(h)(6).

in April 2021. just about every day since Nordean was detained is excluded on three to five separate and independent grounds. Thus, his 90-day speedy-trial clock has not lapsed. III. Conclusion and Order

For all these reasons, it is hereby ORDERED that Motion for Release Pursuant to 18 U.S.C. § 3164, ECF No. 331, is DENIED.

SO ORDERED.

/s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge Date: June 20, 2022

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