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UNITED STATES DISTRICT COURT


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:
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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
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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.).
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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
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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).
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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,
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830 (9 Cir. 1994).
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In United States v. Stephens, 489 F.3d 647 (5 Cir. 2007), the Fifth Circuit
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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).
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In United States v. Moss, 217 F.3d 426 (6 Cir. 2000), the court noted that
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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
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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
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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.
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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.
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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
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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.
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/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
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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
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