Memorandum and Order — United States v. Dorian Henry (D. Md., Dkt. 23, May 24, 2024)

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A Memorandum and Order signed by James K. Bredar, United States District Judge, in United States v. Dorian Henry, CRIM. NO. JKB-23-0466, Case 1:23-cr-00466-JKB, Document 23, filed May 24, 2024, in the U.S. District Court for the District of Maryland. It addresses the Government's Motion for Exclusion of Time from Speedy Trial Computations (ECF No. 22), which asks for an additional toll from May 17, 2024 through July 17, 2024. The Court discusses the Speedy Trial Act, 18 U.S.C. § 3161, and Fourth Circuit authority that an ends of justice continuance may not be granted nunc pro tunc. It grants the motion in part, with the excluded period running to July 17, 2024, and directs the Parties to provide briefing or a stipulation on or before June 6, 2024.

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Case 1:23-cr-00466-JKB Document 23 Filed 05/24/24 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

UNITED STATES OF AMERICA *

v. * CRIM. NO. JKB-23-0466
DORIAN HENRY, ,

Defendant. *

* * * x * * * x x x x *

MEMORANDUM AND ORDER

Pending before the Court is a Motion for Exclusion of Time from Speedy Trial
Computations. (ECF No. 22.) The Court will grant the Motion in part as specified below and will
seek additional input from the parties.

I. Factual and Procedural Background

An indictment was filed against Dorian Henry on December 19, 2023. (ECF No. 1.) He
is charged with possession of a firearm by a prohibited person. (/d.) His initial appearance was
on January 17, 2024. (ECF No. 6.)

On January 26, 2024, the Government filed a Motion for Exclusion of Time, which sought
the exclusion of January 17, 2024 through March 17, 2024. (ECF No. 14.) The Motion was
granted on January 29, 2024. (ECF No. 17.) On March 8, 2024, the Government filed another
Motion for Exclusion of Time, which sought the exclusion of March 17, 2024 through May 17,
2024. (ECF No. 20.) The Court granted this Motion on March 18, 2024. (ECF No. 21.)

Now pending is another Motion for Exclusion of Time, which was filed on May 22, 2024.
(ECF No. 22.) In it, the Government explains that it “requests an additional toll from May 17,

2024 through July 17, 2024” and that “[c]ounsel for the Defendant does not object to a 60-day
Case 1:23-cr-00466-JKB Document 23 Filed 05/24/24 Page 2 of 4

exclusion from May 20, 2024 moving forward” but that “[c]ounsel for the Defendant does not
consent to a retroactive exclusion of time.” (/d.)
II. Speedy Trial Act

The Speedy Trial Act generally requires a criminal trial to begin within seventy days of the
filing of an indictment or the defendant’s initial appearance, whichever is later. 18 U.S.C. §
3161(c)(1). The Act provides for the exclusion of certain delays when computing this seventy-
day period. 18 U.S.C. § 3161(h). Some periods of delay are automatically excludable (and thus
may be excluded without district court findings), while others are “excludable only if the district
court makes certain findings enumerated in the statute.” Bloate v. United States, 559 U.S. 196,
203 (2010) (citing 18 U.S.C. § 3161(h)(7)). 18 U.S.C. § 3161(h)(7) provides that a court may
grant an “ends of justice” continuance. “[T]ime spent engaging in plea negotiations is not
automatically excluded under the Act.” United States v. Hart, 91 F.4th 732, 739 (4th Cir. 2024).
Rather, the delay caused by time spent engaging in plea negotiations may be excludable under 18
U.S.C. § 3161(h)(7). See id. at 739-40.

The Fourth Circuit has “made clear that the district court may not grant an ends of justice
continuance nunc pro tunc.” United States v. Keith, 42 F.3d 234, 237 (4th Cir. 1994). The Fourth
Circuit has explained that “nunc pro tunc or retroactive continuances that are made after the
expiration of the time within which the defendant should have been tried for reasons the judge did
not consider before lapse of the allowable time are inconsistent with the Act.” United States v.
Carey, 746 F.2d 228, 230 (4th Cir. 1984). Further, several other circuit courts have explained that
a continuance must be granted before the period sought to be excluded begins. See United States
v. Suarez-Perez, 484 F.3d 537, 542 (8th Cir. 2007) (“[T]he district court should not enter an ‘ends

of justice’ continuance after the period sought to be excluded begins to run.”); United States v.
Case 1:23-cr-00466-JKB Document 23 Filed 05/24/24 Page 3 of 4

Brenna, 878 F.2d 117, 122 (3d Cir. 1989) (explaining that “an ends of justice continuance . . .
cannot be entered nunc pro tunc” and “[t]he order continuing the case must be entered before the
days to be excluded”); United States v. Janik, 723 F.2d 537, 545 (7th Cir. 1983)

(“[T]he continuance itself must be granted before the period sought to be excluded begins to run”).
Il. Analysis

The Court finds that an exclusion of time is warranted for the reasons provided in the
Government’s Motion. (See ECF No. 22.) However, the Government seeks for the exclusion of
May 17, 2024 to July 17, 2024. (/d.) The foregoing caselaw suggests that the Court cannot grant
a retroactive continuance (even if the 70 days has not yet run). This calls into question both the
Government’s request for a continuance dating back to May 17, 2024, as well as the January 29,
2024 continuance granted in this matter, which purported to exclude the time period of January
17, 2024 through March 17, 2024. (ECF Nos. 14, 17.) Therefore, the Court will grant the
continuance (tolling), but only from today, May 23, 2024, through July 17, 2024.

The Court will seek additional briefing or a stipulation from the Parties. The Court notes
that it appears that only the period between January 17, 2024 through January 26, 2024 and May
18, 2024 through May 22, 2024 are in question. This period of time is far less than the 70 days
afforded by the statute. Accordingly, the Parties may consider stipulating as to the exact number
of days that have elapsed, i.e., fifteen days or greater, rather than providing the requested briefing.
To the extent the Parties choose to brief this issue, they shall address whether the periods from
January 17, 2024 through January 26, 2024 (ten days) and May 18, 2024 through May 22, 2024

(five days) may properly be excluded under 18 U.S.C. § 3 161(h)(1).
Case 1:23-cr-00466-JKB Document 23 Filed 05/24/24 Page 4 of 4

IV. Conclusion

Accordingly, it is ORDERED that:

1. The Motion for Exclusion of Time is GRANTED IN PART, and it is ORDERED pursuant
to 18 U.S.C. § 3161(h)(1) that the period from May 22, 2024 to July 17, 2024 shall be
excluded from computation under the Speedy Trial Act; and

2. The Parties are DIRECTED to provide the above-described briefing (or stipulation) on or

before June 6, 2024.

DATED this 2 7 day of May, 2024.
BY THE COURT:

James K. Bredar
United States District Judge


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