SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION UNITED STATES OF AMERICA V. CRIMINAL NO. 4:12-CR-00255 HENRI DESOLA MORRIS MOTION TO DISMISS FOR VIOLATION OF 18 U.S.C. 3161 TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, HENRI DESOLA MORRIS, by and through his attorneys of record, Dan Cogdell and Stanley G. Schneider, in the above styled and numbered cause and files this motion to dismiss with prejudice the charges against him based on the violation of 18 U.S.C. 3161 based on the Courts failure to rule on the Defendants unopposed motion for inspection of pills seized by law enforcement filed on June 7, 2013 and would show this Court the following: On February 27, 2012, Mr. Morris was stopped FBI personnel and FBI Houston Division Evidence Response Team at the Houston Intercontinental Airport. Mr. Morriss property was searched in a Houston Police Department office located within Terminal E. Some of the items of property seized from Mr. Morris included: Case 4:12-cr-00255 Document 103 Filed in TXSD on 09/17/14 Page 1 of 11 2 one sealed unmarked blister package containing four blue color, diamond shaped tablets with VGR 50stamped on each tablet [the listed Pfizer Inc. markings for the drug Viagra. one sealed blister package containing two yellow color, egg-shaped tablets, with the package marked as containing a physicians sample of 20 milligrams tablets of Tadalafil, also known as Cialis. one brown color pill bottle containing a total of five tablets - 2 blue color, oval shaped tablets imprinted with S25, 2 orange color, oval shaped tablets imprinted with a marking similar to the five face of a dice, and one white color, round shaped tablet. three fifty milliliter Jack Danielss whisky bottles, all containing a clear liquid. 2. On or about April 9, 2012, Mr. Morris was charged with the offense of transportation of women in interstate for illegal sexual activity. 3. Special Agent Gregory submitted all substances seized from Mr. Morris to the Drug Enforcement Administration South Central Laboratory for analysis. The results have been submitted to Mr. Morris. On May 28, 2013, the Government filed a notice of expert witnesses (Doc 56), which notified the Defendant that the Government intended to attempt to prove that the pills recovered on February 27, 2012, could be used to cause a person to loose consciousness. 4. In order to defend the allegations, Mr. Morris requested that he be allowed to have the tablets retested. The identity and chemical makeup of the Case 4:12-cr-00255 Document 103 Filed in TXSD on 09/17/14 Page 2 of 11 3 tablets are highly material to Morriss defense and will be an issue in this case. Based on the Governments notice of expert witnesses, the Defendant conferred with the Government regarding the re-testing of the tablets. The Government agreed but stated that the evidence could not be released for re-testing without a court order. The Defendant filed an unopposed motion for inspection of pills seized by law enforcement. (Doc. 57). During the summer of 2013, the Defendants attorneys contacted the Court regarding the status of the motion and spoke to the Government. In June, 2014, the Defendants attorney spoke to the Government concerning the fact that the unopposed motion had not been ruled on. To date, this Court has not ruled on the unopposed motion for testing. 5. On February 13, 2013, the Defendant filed an unopposed motion to continue the trial and scheduling order based on a need for additional time to receive discovery from the Government, and analyze that discovery. (Doc. 47). 6. The Defendant has a right to obtain an independent analysis of them in accordance to Rule 16(a)(1)(C). See United States v. Butler, 988 F.2d 537, 543 (5th Cir. 1993) (In cases involving a controlled substance, a concomitant part of the examination or inspection is the right of the accused to have an independent chemical analysis performed on the seized substance.). Case 4:12-cr-00255 Document 103 Filed in TXSD on 09/17/14 Page 3 of 11 4 7. In Bloate v. United States, 559 U.S. 196 ( 2010), the Supreme Court stated that the Speedy Trial Act of 1974 (Speedy Trial Act or Act), 18 U.S.C. 3161 et seq., requires that a criminal defendants trial commence within 70 days after he is charged or makes an initial appearance, whichever is later, see 3161(c)(1), and entitles him to dismissal of the charges if that deadline is not met, 3162(a)(2). The Act, however, excludes from the 70-day period delays due to certain enumerated events including the pendency of pretrial motion for which rulings are necessary. 18 U.S.C. 3161(h). Subparagraph (D) does not subject all pretrial motion-related delay to automatic exclusion. Instead, it renders automatically excludable only the delay that occurs from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of the motion. The Supreme Court has noted that prompt disposition means within 30 days of the filing of a response to a defense pleading. In Henderson v. United States, 476 U.S. 321, 327(1986), the Court stated that on its face, subsection (F) excludes [any] period of delay caused by any pretrial motion, from the filing of the motion through the conclusion of the hearing. The Court stated that Congress clearly envisioned that subsection (F)s exclusion to time that is reasonably necessary for the disposition of pretrial Case 4:12-cr-00255 Document 103 Filed in TXSD on 09/17/14 Page 4 of 11 5 motions. United States v. Janik, 723 F.2d 537, 543 (CA7 1983); United States v. Cobb, 697 F.2d 38, 41-42 (CA2 1982). But a reading of subsection (F) in connection with 3161(h)(1)(J) (subsection (J)) allows exclusion of up to 30 days while the district court has a motion under advisement, i.e., 30 days from the time the court receives all the papers it reasonably expects, undermines this conclusion. The Supreme Court noted that the phrase prompt disposition was intended to prevent a district court from using subsection (F) to exclude time after a motion is taken under advisement when that time fails to qualify for exclusion under subsection (J). Subsection (F) is written in the disjunctive, excludes time in two situations. The first arises when a pretrial motion requires a hearing: subsection (F) on its face excludes the entire period between the filing of the motion and the conclusion of the hearing. The second situation concerns motions that require no hearing and that result in a prompt disposition. The point at which time will cease to be excluded is identified by subsection (J), which permits an exclusion of 30 days from the time a motion is actually under advisement by the court. Without the promptness requirement in subsection (F), a court could exclude time beyond subsection (J)s 30-day under advisement provision simply by designating the additional period as time from the filing of the motion through its disposition under subsection (F). Case 4:12-cr-00255 Document 103 Filed in TXSD on 09/17/14 Page 5 of 11 6 The Supreme Court, in Henderson, concluded that for pretrial motions that require a hearing, the phrase or other prompt disposition in subsection (F) does not imply that only reasonably necessary delays may be excluded between the time of filing of a motion and the conclusion of the hearing thereon. See United States v. Lewis, 349 F.3d 1116 (9 2003); Clymer v. United States, 25 F.3d 824, th 830 (9 Cir. 1994). th In United States v. Stephens, 489 F.3d 647 (5 Cir. 2007), the Fifth Circuit th stated that the Speedy Trial Act is designed to protect a criminal defendants constitutional right to a speedy trial and to serve the public interest in bringing prompt criminal proceedings and requires that a defendants trial commence within seventy days from his indictment or initial appearance, whichever is later. See 18 U.S.C. 3161(c)(1); United States v. Johnson, 29 F.3d 940, 942 (5th Cir. 1994). Under 3161(h) however, certain delays are excluded in calculating the seventy-day period. 18 U.S.C. 3161(h)(1)-(9). If more than seventy non- excludable days pass between the indictment and the trial, the indictment shall be dismissed on motion of the defendant. Johnson, 29 F.3d at 942 (quoting 18 U.S.C. 3162(a)(2). Case 4:12-cr-00255 Document 103 Filed in TXSD on 09/17/14 Page 6 of 11 7 In United States v. Moss, 217 F.3d 426 (6 Cir. 2000), the court noted that th the Speedy Trial Act enumerates three factors that trial courts must consider when deciding whether to dismiss an action with or without prejudice: 1) the seriousness of the offense; 2) the facts and circumstances that led to the dismissal; and 3) the impact of reprosecution on the administration of the Speedy Trial Act and on the administration of justice. 18 U.S.C. 3162(a). The Sixth Circuit stated that the district court implied that Moss alone caused the delay instead of recognizing its own role in not issuing a ruling on Moss motion to suppress-which had been taken under advisement for approximately 10 months-the court simply quoted from the unpublished opinion, United States v. Pierce, 17 F.3d 146 6th Cir. 1994): Defendants who passively wait for the speedy trial clock to run have [a lesser right] to dismissal with prejudice than do defendants who unsuccessfully demand prompt attention.
In Moss, the Court stated that unlike the district court in Pierce which weighed its role in causing delay against the role of the defendant in causing delay, the district court in this case failed to acknowledge that the reason for ten months of the delay was that the motion to suppress was under advisement. And, the Court of Appeals acknowledged that under the Speedy Trial Act, 18 U.S.C. 3161(h)(1)(J), only thirty days are excludable from the speedy trial clock for a motion taken under advisement. The Court of Appeals noted that evidently, the district court in Moss was aware that the motion was still under advisement, as the Case 4:12-cr-00255 Document 103 Filed in TXSD on 09/17/14 Page 7 of 11 8 trial was adjourned a number of times for that reason. The Court of Appeal also mentioned that the Government had not alerted the court to the speedy trial clock. The Sixth Circuit stated that although Moss could have informed the court of the delay, a defendant has no duty to bring himself to trial and has no duty to bring any delay to the courts attention. Cf. United States v. Mundt, 29 F.3d 233, 235 (6 th Cir. 1994) (analyzing the Sixth Amendment right to a speedy trial (citing Doggett v. United States, 505 U.S. 647, 652 n.1 (1992))). In Johnson, supra., the Court clarified how Subsections F and J operate. See Johnson, 29 F.3d at 942-45 (applying Henderson, 476 U.S. at 328-31). The Court explained that when a motion requires a hearing, Subsection F operates to toll the speedy trial clock from the date the motion is filed through the date that the court holds a hearing on the motion. Id. at 942-43. Subsection F also implicitly excludes that time after a hearing needed to allow a trial court to assemble all papers reasonably necessary to dispose of the motion, e.g., the submission of post- hearing briefs. Id. at 943. At that point, the court is deemed to have taken the motion under advisement and has thirty excludable days under Subsection J in which to rule. Id. The clock begins to tick again at the end of that thirty-day period, regardless of whether the court has ruled on the motion. Id. Case 4:12-cr-00255 Document 103 Filed in TXSD on 09/17/14 Page 8 of 11 9 8. In the instant case, the Defendant filed his unopposed motion for drug testing on June 5, 2013. Under the Speedy Trial Act, this Court had 30 days to rule on the motion. The Defendant was re-indicted on August 5, 2013. At the end of September, 2013, the Court was notified that an agreement had been reached for the Defendant to enter a plea of guilty. Re-arraignment was scheduled for October 31, 2013. On May 15, 2014, this Court after reviewing the presentence report and after hearing victim impact evidence rejected the plea agreement and allowed the Defendant to withdraw the plea. Subsequent thereto, the Court, on its own motion, held a hearing after which, it revoked the Defendants $750,000 cash bond. The Defendant is set for trial on October 5, 2014. The Defendant has reminded the Government that the Court has not ruled on his unopposed motion to have the drugs retested. Given the totality of history of this case, more than 70 days have non-excludable days have passed between the indictment and the date of the trial. WHEREFORE, PREMISES CONSIDERED, Mr. Morris respectfully prays this Court grant this motion to dismiss based on the violation of the Speedy Trial Act. Case 4:12-cr-00255 Document 103 Filed in TXSD on 09/17/14 Page 9 of 11 10 Respectfully submitted, SCHNEIDER & McKINNEY, P.C. /s/ Stanley G. Schneider Stanley G. Schneider Texas Bar No. 17790500 440 Louisiana, Suite 800 Houston, Texas 77002 Office: 713-951-9994 Fax: 713-224-6008 Email: stans3112@aol.com /s/ Dan Cogdell DAN COGDELL TBN: 04501500 Cogdell Law Firm, LLC 402 Main St., 4th Floor Houston, Texas 77002 Office: 713-426-2244 Fax: 713-426-2255 Email: dan@cogdell-law.com Attorneys for Henri Morris Case 4:12-cr-00255 Document 103 Filed in TXSD on 09/17/14 Page 10 of 11 11 CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the attached and foregoing document has been served on the Assistant U.S. Attorneys assigned to this case by Electronic Filing on this 17 day of September, 2014. th /s/ Stanley G. Schneider Stanley G. Schneider CERTIFICATE OF CONFERENCE On September 17, 2014, I conferred with Assistant United States Attorney, John Jocker, in regards to this motion. Ms. Jocker is opposed to the granting of this motion. /s/ Stanley G. Schneider Stanley G. Schneider Case 4:12-cr-00255 Document 103 Filed in TXSD on 09/17/14 Page 11 of 11 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION UNITED STATES OF AMERICA
V. CRIMINAL NO. 4:12-CR-00255
HENRI DESOLA MORRIS
ORDER On this the day of ___________________, 2014, came to be heard the foregoing Motion of the Defendant. After due consideration of the same the Court finds that the Motion should in all things be: ________ GRANTED ________ DENIED SIGNED this _____ day of __________________, 2014. _______________________________ JUDGE PRESIDING Case 4:12-cr-00255 Document 103-1 Filed in TXSD on 09/17/14 Page 1 of 1
United States v. Anthony Campisi, Peter S. Campisi, Peter A. Campisi, Carman Charles Campisi. Appeal of Peter A. Campisi, 583 F.2d 692, 3rd Cir. (1978)