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United States v. Perry

United States District Court, W.D. North Carolina, Charlotte Division

October 24, 2014



GRAHAM C. MULLEN, District Judge.


THIS MATTER is before the Court upon Defendant's Motion to Dismiss for Violation of the Speed[y] Trial Act (Doc. No. 684) and Memorandum in Support (Doc. No. 684-1), the United States' Memorandum in Opposition (Doc. No. 716), and Defendant's Reply (Doc. No. 728). For the reasons stated below, Defendant's Motion is DENIED.


On July 26, 2012, a Grand Jury charged Defendant John Wayne Perry, Jr. and a number of co-conspirators in a seventy-five page Bill of Indictment. Defendant Perry was charged with one count of racketeering conspiracy in violation of Title 18 U.S.C. § 1962(d) and one count of money laundering conspiracy in violation of Title 18 U.S.C. § 1956(h). On April 18, 2013, the Grand Jury returned a Superseding Indictment, now eighty-four pages long, which describes the nature of an alleged $75 million RICO enterprise that operated from 2005 until 2012.

The Court held a docket call in this matter on January 7, 2013 where it granted several pending motions to continue and set trial to begin in October 2013. On May 16, 2013, this case was reassigned to the undersigned Judge; on the same day, Defendant Perry filed a motion to continue the trial date (Doc. No. 213). The Court held a status conference on August 15, 2013, where it indicated that it would grant Defendant's motion to continue and asked the Government to submit revised proposed trial groupings. On September 6, 2013, the Court issued an order placing Defendant Perry in the third trial grouping (Doc. No. 316); it later set that trial to begin on February 3, 2014 ( see Doc. No. 440).

On January 25, 2014, just over a week before trial was to begin, Defendant Perry filed a second motion to continue (Doc. No. 473). That motion detailed the complex nature of this case and represented that counsel for Defendant was simply not prepared to try the case. The Court conducted a hearing on January 29, 2014 and reluctantly continued the case once more, over the Government's objections.

Trial commenced on June 9, 2014; however, counsel for Defendant requested a recess so that she could prepare for the testimony of a particular witness, despite having known about his testimony for many months. The Court reluctantly agreed, and the trial resumed the next day. The Court charged the jury on June 13, and on June 16 the jury informed the Court that it was hopelessly deadlocked and could not reach a verdict on any counts. The Court declared a mistrial pursuant to Federal Rule of Criminal Procedure 31(b)(3), and invited the parties to discuss dates for Defendant's retrial.

That same day, the Court contacted the parties via e-mail and requested proposed dates for Defendant Perry's retrial. Defense counsel responded that she had "no trials scheduled in the fall so I am fairly open except for a few days here and there, " and noted that she would contact the Government to discuss specific dates. The parties convened and later contacted the Court, proposing a trial date sometime in October or November, with the exception of the weeks of October 6, October 13, and November 3. The Court thereafter worked to find a date that met the parties' request, and eventually arrived at November 17, 2014. The Court attempted to contact the parties on August 19 and 20 to make certain that this date worked for the parties. The Government responded affirmatively, and Defendant did not immediately provide a response.[1] The Court issued an Order to Continue (Doc. No. 652) on August 20 and set trial for November 17, 2014.

On October 23, 2014, the Court, in an abundance of caution, issued a Supplemental Order (Doc. No. 737) to its Order to Continue, supplementing the reasons for its continuance on August 20. Therein, the Court described the complex and unusual nature of this case, as well as its concerns about continuity of counsel in this case, as a reflection of the factors it considered at the time of the continuance.


In his Motion, Defendant argues that the charges against him should be dismissed (1) for a violation of the Speedy Trial Act, 18 U.S.C. § 3161 et seq.; and (2) because his rights under the Sixth Amendment have been violated. As set forth below, the Court finds that both of these contentions are without merit.

A. Speedy Trial Act

The Speedy Trial Act requires that, "if a defendant is to be tried again following a declaration by the trial judge of a mistrial..., the trial shall commence within seventy days from the date the action occasioning the retrial becomes final." 18 U.S.C. § 3161(e). This section also sets forth some exceptions to this rule, including that "[t]he periods of delay enumerated in section 3161(h) are excluded in computing the time limitations specified in this section." Id. Section 3161(h) enumerates several categories of exceptions, including "[a]ny period of delay resulting from a continuance granted by any judge on his own motion or at the request of the defendant or his counsel or at the request of the attorney for the Government, if the judge granted a continuance on the basis of his finding that the ends of justice served by taking such action ...

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