Government’s Unopposed Motion to Extend and Exclude Time from the Speedy Trial Act’s Indictment Clock Based on Suspension of the Grand Jury — United States v. Middlebrook (Dkt. 20, C.D. Cal.)

Summary

The government's unopposed motion to extend and exclude time from the Speedy Trial Act's indictment clock based on suspension of the grand jury, with a declaration of AUSA Valerie L. Makarewicz, in United States v. Keith Lawrence Middlebrook, Case 2:20-mj-01341, in the U.S. District Court for the Central District of California, filed April 7, 2020 as Document 20. It states that a complaint filed March 25, 2020 charged the defendant with attempted wire fraud under 18 U.S.C. § 1349, that he was arrested that evening, and that on March 27, 2020 the court granted release on a $150,000 bond. Because grand jury proceedings were suspended, the government asks to extend the indictment deadline, and states that the defendant does not oppose.

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Case 2:20-mj-01341-DUTY Document 20 Filed 04/07/20 Page 1 of 12 Page ID #:114



 1   NICOLA T. HANNA
     United States Attorney
 2   BRANDON D. FOX
     Assistant United States Attorney
 3   Chief, Criminal Division
     VALERIE L. MAKAREWICZ (Cal. Bar No. 229637)
 4   JAMES C. HUGHES (Cal. Bar No. 263878)
     Assistant United States Attorneys
 5   Major Frauds Section
          1100 United States Courthouse
 6        312 North Spring Street
          Los Angeles, California 90012
 7        Telephone: (213) 894-0756/2579
          Facsimile: (213) 894-6265
 8        E-mail:     Valerie.makarewicz@usdoj.gov
                      James.Hughes2@usdoj.gov
 9
10   Attorneys for Plaintiff
     UNITED STATES OF AMERICA
11

12                           UNITED STATES DISTRICT COURT

13                     FOR THE CENTRAL DISTRICT OF CALIFORNIA

14   UNITED STATES OF AMERICA,               No. 20-mj-1341

15              Plaintiff,                   GOVERNMENT’S UNOPPOSED MOTION TO
                                             EXTEND AND EXCLUDE TIME FROM THE
16                    v.                     SPEEDY TRIAL ACT’S INDICTMENT
                                             CLOCK BASED ON SUSPENSION OF THE
17   KEITH LAWRENCE MIDDLEBROOK,             GRAND JURY; DECLARATION OF
                                             VALERIE L. MAKAREWICZ; PROPOSED
18              Defendant.                   ORDER

19
20         The United States of America, by and through its counsel of

21   record, Assistant United States Attorneys Valerie L. Makarewicz and

22   James C. Hughes, moves for an order extending and excluding time

23   from the Speedy Trial Act’s indictment clock until May 4, 2020.

24   Specifically, in light of the COVID-19 pandemic and the Central

25   District of California’s suspension of grand-jury proceedings until

26   May 4, 2020, the government requests an order extending and

27   excluding time from the 30-day period under 18 U.S.C. § 3161(b) in

28   which an indictment or information must be returned.

     Case 2:20-mj-01341-DUTY Document 20 Filed 04/07/20 Page 2 of 12 Page ID #:115



 1         Defendant does not oppose this request.         If grand-jury

 2   proceedings remain suspended past May 4, 2020, the government will

 3   move for further relief.

 4   I.    FACTUAL AND LEGAL BACKGROUND
 5         A.    Defendant’s Arrest and Initial Appearance
 6         On March 25, 2020, the United States filed a complaint against

 7   defendant charging him with a violation of 18 U.S.C. § 1349,

 8   attempted wire fraud. CR 1. A warrant for defendant’s arrest was

 9   issued by the Hon. John E. McDermott at approximately 4:00 p.m. on

10   March 25, 2020. See Declaration of AUSA Valerie L. Makarewicz

11   (“Decl.”), ¶ 2.

12         Defendant was arrested on March 25, 2020 at approximately 6:00

13   p.m., and made his initial appearance before the Court on March 26,

14   2020. Decl., ¶ 3. On March 27, 2020, the Court granted defendant

15   pretrial release upon the posting of a $150,000 bond secured by an

16   affidavit of surety signed by defendant’s mother, with $50,000 of

17   that amount to be secured by real property held by defendant’s

18   mother. Id.; CR 10.      As of the filing of this Motion, defendant has

19   not posted the bond and remains in custody.          Decl., ¶ 3.

20         B.    COVID-19 and the Central District of California’s Response
21         On March 31, 2020, in response to the continuing spread of the

22   COVID-19 pandemic, this Court suspended all grand-jury proceedings

23   until at least May 4, 2020, “pending further order of the Court.”

24   C.D. Cal. Order of the Chief Judge No. 20-044, In Re: Coronavirus

25   Public Emergency, Suspension of Grand Juries, at 3 (Mar. 31, 2020).

26   The last grand jury session in the Central District of California

27   was on March 25, 2020, and adjourned at approximately 4:30 p.m.

28   Decl., ¶ 4.

                                             2

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 1         This action followed a series of prior orders responding to the

 2   COVID-19 crisis.     On March 13, 2020, following the President’s

 3   declaration of a national emergency, the Court suspended jury

 4   selection and jury trials scheduled to begin before April 13, 2020.

 5   C.D. Cal. General Order No. 20-02, In Re: Coronavirus Public

 6   Emergency, Order Concerning Jury Trials and Other Proceedings (Mar.

 7   13, 2020).    The same day, the Court imposed health- and travel-

 8   related limitations on access to Court facilities.           C.D. Cal.

 9   General Order No. 20-03, In Re: Coronavirus Public Emergency, Order

10   Concerning Access to Court Facilities (Mar. 13, 2020).           On March 19,

11   2020, by Order of the Chief Judge, the Court instituted its

12   Continuity of Operations Plan (“COOP”), closing all Central District

13   of California courthouses to the public (except for hearings on

14   criminal duty matters) and taking other emergency actions.            C.D.

15   Cal. Order of the Chief Judge No. 20-042, In Re: Coronavirus Public

16   Emergency, Activation of Continuity of Operations Plan (Mar. 19,

17   2020).    On March 29 and 31, recognizing COVID-19’s continued spread

18   in the community, the Court took further action: implementing video-

19   teleconference and telephonic hearings and--as noted above--

20   suspending all grand-jury proceedings until May 4, 2020.            C.D. Cal.

21   Order of the Chief Judge No. 20-043, In Re: Coronavirus Public

22   Emergency, Use of Video and Telephonic Conference Technology in

23   Certain Criminal Proceedings (Mar. 29, 2020); Order of the Chief

24   Judge No. 20-044.

25         These orders were imposed based on (1) the California

26   governor’s declaration of a public-health emergency in response to

27   the spread of COVID-19, as well as (2) the Centers for Disease

28   Control’s advice regarding reducing the possibility of exposure to

                                             3

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 1   the virus and slowing the spread of the disease.          See General Order

 2   20-02, at 1.     The Chief Judge has recognized that, for at least

 3   eight weeks, all gatherings should be limited to no more than 10

 4   people; elderly, and other vulnerable people should avoid person-to-

 5   person contact altogether.       See Order of the Chief Judge No. 20-042,

 6   at 1-2.

 7         Local and state governments have adopted similar emergency

 8   procedures.    On March 19, 2020, both Los Angeles Mayor Eric Garcetti

 9   and California Governor Gavin Newsom issued emergency orders

10   requiring residents to “stay home,” subject to limited exceptions.

11   California Executive Order N-33-20 (Mar. 19, 2020); accord Safer at

12   Home, Public Order Under City of Los Angeles Emergency Authority ¶ 1

13   (Mar. 19, 2020).     Subject to similarly limited exceptions, all

14   travel is prohibited.      Safer at Home ¶ 4.     Non-essential businesses

15   requiring in-person attendance by workers have been ordered to cease

16   operations.    Id. ¶ 2.    All schools in the Los Angeles Unified School

17   District are closed through at least May 2020.

18         As these orders and protocols reflect, the COVID-19 pandemic is

19   a global emergency that is unprecedented in modern history.            The

20   virus is spreading through the United States community at an

21   alarming rate.     See Coronavirus Disease 2019 (COVID-19) in the U.S.,

22   Centers for Disease Control and Prevention (updated daily),

23   available at https://www.cdc.gov/coronavirus/2019-ncov/cases-

24   updates/cases-in-us.html; Coronavirus Disease 2019 (COVID-19),

25   California Department of Public Health (updated daily), available at

26   https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/Immunization/ncov201

27   9.aspx.    The death toll, across the world, is staggering.

28

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 1         C.    The Speedy Trial Act

 2         A defendant’s arrest triggers certain time clocks under the

 3   Speedy Trial Act.     Of relevance here, under 18 U.S.C. § 3161(b) (the

 4   “speedy-indictment clock”), an indictment must usually be returned

 5   within 30 days of a federal arrest or service of a summons based on

 6   a complaint.

 7         Here, section 3161(b) would typically require defendant to be

 8   indicted by April 24, 2020.

 9         Exceptions to these rules apply, however, and periods can be

10   excluded under 18 U.S.C. § 3161(h).

11               1.    18 U.S.C. § 3161(b) extends the speedy-indictment
                       clock to 60 days if no grand jury is in session
12

13         Under 18 U.S.C. § 3161(b), the speedy-indictment clock

14   automatically extends to 60 days if no grand jury is in session

15   during the 30 days following a defendant’s arrest or service with a

16   summons.    Specifically: “If an individual has been charged with a

17   felony in a district in which no grand jury has been in session”

18   during the “thirty days from the date on which such individual was

19   arrested or served with a summons,” then “the period of time for

20   filing the indictment shall be extended” from 30 to 60 days.            Id.

21         This provision applies to grand juries that have been

22   suspended--that is, juries which remain empaneled but do not sit

23   anywhere in the district for 30 days.         The Supreme Court has

24   referred to a grand jury being “not in session” to refer to the

25   grand jury’s “schedule,” not its empanelment.          Jaben v. United

26   States, 381 U.S. 214, 219 (1964); United States v. Towill, 548 F.2d

27   1363, 1367 (9th Cir. 1977) (“A close reading of Jaben convinces us

28   that the Court meant to equate ‘session’ with the current ‘grand

                                             5

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 1   jury schedule,’ not with the theoretical possibility of summoning a

 2   grand jury on short notice.”).       “In session,” under Federal Rule of

 3   Criminal Procedure 6(d)(1), similarly refers to a particular meeting

 4   of the grand jury; thus the Rule describes the “persons who may be

 5   present while the grand jury is in session[.]”          Id.

 6               2.    18 U.S.C. § 3161(h)(7)(A) allows exclusion of time
                       from the Speedy Trial Act--including the speedy-
 7                     indictment clock--to serve the ends of justice
 8
           In addition, the pandemic justifies excluding time from the
 9
     Speedy Trial Act, including the speedy-indictment clock, under 18
10
     U.S.C. § 3161(h)(7)(A).      See generally United States v. Ramirez-
11
     Cortez, 213 F.3d 1149, 1153–54 (9th Cir. 2000); United States v.
12
     Murray, 771 F.2d 1324, 1327 (9th Cir. 1985) (per curiam); United
13
     States v. Pollock, 726 F.2d 1456, 1461 (9th Cir. 1984).
14
           This is the same ends-of-justice provision that applies to the
15
     70-day post-indictment trial clock under the Speedy Trial Act.             It
16
     excludes “[a]ny period of delay resulting from a continuance granted
17
     by any judge . . . if the judge granted the continuance on the basis
18
     of his findings that the ends of justice served by taking such
19
     action outweigh the best interest in the public and the defendant in
20
     a speedy trial.”     18 U.S.C. § 3161(h)(7)(A).
21
           The provision has strict procedural requirements.          Zedner v.
22
     United States, 547 U.S. 489, 507, 509 (2006).          A court must
23
     (1) grant a continuance only for a “specific period of time,” and
24
     (2) make “findings in the record” that address “specific underlying
25
     factual circumstances” anchored to enumerated statutory factors.
26
     Pollock, 726 F.2d at 1461; United States v. Perez-Reveles, 715 F.2d
27
     1348, 1351–52 (9th Cir. 1983); see 18 U.S.C. § 3161(h)(7)(B)
28

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 1   (listing factors).     “[N]o continuance period may be excluded unless

 2   the court makes reasonably explicit findings that demonstrate that

 3   the ends of justice served by granting the continuance do, in fact,

 4   outweigh the best interests of the public and the defendant in a

 5   speedy trial.”     Perez-Reveles, 715 F.2d at 1352.

 6         Nevertheless, once procedural requirements are satisfied, the

 7   provision gives courts broad “discretion to deal with otherwise

 8   unavoidable delays in the indictment . . . process.”           Pollock, 726

 9   F.2d at 1461; see United States v. Murillo, 288 F.3d 1126, 1133 (9th

10   Cir. 2002) (ends-of-justice findings reviewed for clear error);

11   Murray, 771 F.2d at 1327 (same).

12   II.   REQUEST FOR SPEEDY-TRIAL ACT EXTENSION, EXCLUSION, AND FINDINGS

13         Here, the time between March 25, 2020, the date of defendant’s

14   arrest, and May 4, 2020, should be excluded from the Speedy Trial

15   Act for all purposes, thus tolling the speedy-indictment clock.

16         First, if all Central District of California grand juries

17   remain suspended for the entire 30 days following defendant’s arrest

18   (which occurred on March 25, 2020, but after the grand jury had

19   adjourned), then the speedy-indictment clock extends to 60 days.                18

20   U.S.C. § 3161(b).     This provision applies automatically; “[n]o

21   government motion is required.”        United States v. Mann, 701 F.3d

22   274, 285 (8th Cir. 2012).       However, as a matter of caution, the

23   government requests that the Court find that § 3161(b)’s 30-day

24   extension will apply if no grand jury in the Central District of

25   California sits before April 24, 2020.

26         Second, all Speedy Trial Act deadlines--including the speedy

27   indictment--should be tolled until May 4, 2020, under the ends-of-

28   justice provision.     See 18 U.S.C. § 3161(h)(7)(A).        Pending further

                                             7

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 1   order of the Chief Judge, grand juries have been suspended until

 2   that date.    C.D. Cal. Order of the Chief Judge No. 20-044 (Mar. 31,

 3   2020).

 4         The ends of justice amply justify excludable time under these

 5   circumstances.     As the President, the California governor, the Los

 6   Angeles mayor, and this Court’s General Orders have recognized, we

 7   are in the midst of a grave public-health emergency requiring people

 8   to take extreme measures to limit contact with one another.            This

 9   pandemic, like a natural disaster or other emergency, well justifies

10   an ends-of-justice exclusion.

11         “Although the drafters of the Speedy Trial Act did not provide

12   a particular exclusion of time for such public emergencies (no doubt

13   failing to contemplate, in the more innocent days of 1974, that

14   emergencies such as this would ever occur), the discretionary

15   interests-of-justice exclusion” certainly covers this situation.

16   United States v. Correa, 182 F. Supp. 326, 329 (S.D.N.Y. 2001)

17   (addressing Speedy Trial Act exclusion in the wake of the September

18   11 terrorist attacks).      Thus, Courts of Appeals across the country

19   have affirmed Speedy Trial Act exclusions under emergent

20   circumstances: after the eruption of Mt. St. Helens, see Furlow v.

21   United States, 644 F.2d 764, 767-69 (9th Cir. 1981); after a

22   prosecutor had a “family emergency,” United States v. Stallings, 701

23   F. App’x 161, 170-71 (3d Cir. 2017); where a case agent had a

24   “catastrophic family medical emergency,” United States v. Hale, 685

25   F.3d 522, 533-36 (5th Cir. 2012); after Hurricane Katrina, United

26   States v. Scott, 245 F. App’x 391, 394 (5th Cir. 2007); or even

27   after a “paralyzing blizzard” and the hospitalization of an

28

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 1   informant, United States v. Richman, 600 F.2d 286, 292, 293-94 (1st

 2   Cir. 1979).

 3         With respect to the speedy-indictment date, the pandemic falls

 4   under 18 U.S.C. § 3161(h)(7)(B)(iii), which allows a court excluding

 5   time to consider “[w]hether, in a case in which arrest precedes

 6   indictment, delay in the filing of the indictment is caused because

 7   the arrest occurs at a time such that it is unreasonable to expect

 8   return and filing of the indictment within the period specified in

 9   section 3161(b)[.]”      18 U.S.C. § 3161(h)(7)(B)(iii).       This Court’s

10   order suspending grand-jury proceedings makes indictment of this

11   case before May 4, 2020, not just “unreasonable to expect” but

12   impossible.    Id.   As the order recognizes, public health compels

13   that suspension.     See C.D. Cal. Order of the Chief Judge No. 20-044

14   (Mar. 31, 2020), at 1-2.      However, the order likewise reflects that,

15   because the ends-of-justice exclusion is available under 18 U.S.C.

16   § 3161(h)(7)(A), “an order suspending and continuing grand juries

17   will not prejudice matters for which a complaint has issued but a

18   grand jury has not had the opportunity to determine whether to

19   return an indictment.”      Id. at 2.       Similarly, a prior general order

20   found that the “ends of justice served by” extending Speedy Trial

21   Act deadlines “outweigh[ed] the interests of the parties and the

22   public,” and thus § 3161(h)(7)(A) applies.          C.D. Cal. General Order

23   No. 20-02, In Re: Coronavirus Public Emergency, Order Concerning

24   Jury Trials and Other Proceedings, at 2 ¶ 4 (Mar. 13, 2020).

25         Due to the restrictions imposed by current public-health

26   concerns, it is also unreasonable to expect adequate preparation for

27   pretrial proceedings or for the trial itself within the Speedy Trial

28   Act’s time limits.     Thus, denial of a continuance is likely to deny

                                             9

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 1    all counsel reasonable time necessary for effective preparation,

 2    taking into account the exercise of due diligence.          18 U.S.C.

 3    § 3161(h)(7)(B)(iv).

 4          Based on the foregoing, the Court should enter an order (1)

 5    finding that the Speedy Trial Act’s indictment clock will be

 6    extended to 60 days if no grand jury in the Central District of

 7    California sits before April 24, 2020, 18 U.S.C. § 3161(b); and (2)

 8    making case-specific findings excluding time from the Speedy Trial

 9    Act’s indictment clock under 18 U.S.C. § 3161(h)(7)(A).           Nothing in

10    the Court’s order should preclude a finding that other provisions of

11    the Speedy Trial Act dictate that other time periods are excluded.

12     Dated: April 7, 2020                Respectfully submitted,
13                                         NICOLA T. HANNA
                                           United States Attorney
14
                                           BRANDON D. FOX
15                                         Assistant United States Attorney
                                           Chief, Criminal Division
16

17                                               /s/
                                           VALERIE L. MAKAREWICZ
18                                         Assistant United States Attorney
19                                         Attorneys for Plaintiff
                                           UNITED STATES OF AMERICA
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 1                    DECLARATION OF AUSA VALERIE L. MAKAREWICZ

 2          I, Valerie L. Makarewicz, declare as follows:

 3          1.    I am an Assistant United States Attorney in the Central

 4    District of California.      I have knowledge of the facts set forth

 5    herein and could and would testify to those facts fully and

 6    truthfully if called and sworn as a witness.

 7          2.    On March 25, 2020, the United States filed a complaint

 8    against defendant Keith Lawrence Middlebrook charging him with a

 9    violation of 18 U.S.C. § 1349, attempted wire fraud.          A warrant for

10    defendant’s arrest was issued by the Hon. John E. McDermott at

11    approximately 4:00 p.m. on March 25, 2020.

12          3.    Defendant was arrested on March 25, 2020 at approximately

13    6:00 p.m., and made his initial appearance before the Court on March

14    26, 2020.    On March 27, 2020, the Court granted defendant pretrial

15    release upon the posting of a $150,000 bond secured by any affidavit

16    of surety signed by defendant’s mother, with $50,000 of that amount

17    to be secured by real property held by defendant’s mother. At the

18    time of this stipulation, defendant has not posted the bond and

19    remains in custody.

20          4.    As of the filing of this motion, the last grand jury

21    session in the Central District of California was March 25, 2020,

22    which adjourned at approximately 4:30 p.m.

23    //

24    //

25    //

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 1          5.   On April 6, 2020, I received an email from defense

 2    counsel, Ijeoma Eke, indicating that she had no objection to the

 3    Government’s motion.

 4          I declare under penalty of perjury under the laws of the United

 5    States of America that the foregoing is true and correct and that

 6    this declaration is executed at Santa Monica, California, on April

 7    7, 2020.

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                                                 VALERIE L. MAKAREWICZ
10                                               Assistant United States Attorney
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