UNITED STATES DISTRICT COURT F I L E D
FOR THE DISTRICT OF COLUMBIA JUN 21 2019

 

UNITED STATES OF AMERICA, *** PUBLIC ***

V. Crim. Action No. 18-0323 (ABJ)

WILLIAM J. PHINIZY,

Defendants.

Se a a a a i a ae

 

MEMORANDUM OPINION AND ORDER

On October 22, 2018, defendant William J. Phinizy, a forty-nine-year-old decorated Army
Sergeant, drove a car into a vehicle entry barrier at the White House, causing damage to the barrier.
Agents of the United States Secret Service arrested him on the scene, charging him with assaulting,
resisting, or impeding certain officers or employees in violation of 18 U.S.C. §§ 111(a)(1) and (b);
destruction of government property in violation of 18 U.S.C. § 1361; and physical violence against
property in any restricted building or grounds in violation of 18 U.S.C. §§ 1752(a)(4) and (b)(1).
Compl. [Dkt. # 1]. At the time of his arrest, defendant stated to the Secret Service agent at the
scene that “he was trying to get away from people that were chasing him, and that this was his last
hope.” Aff. of Wyatt Griffith [Dkt. # 1-1] 7. He “also stated that he had bugs inside of him.”
Id.

Following a forensic screening, on October 31, 2018, the Magistrate Judge committed
defendant to the custody of the Attorney General for a competency evaluation at a federal facility
pursuant to 18 U.S.C. §§ 4241 and 4247(b) and Local Criminal Rule 57.17(a)(14). Order [Dkt.
#7]; Min. Entry (Oct. 31, 2018). As a result of a number of distinct circumstances, it took
approximately eighty-four days to transport defendant to the facility that would conduct the

evaluation. Defendant then moved to dismiss the indictment on the grounds that his rights under

Clerk, U.S. District & Bankruptcy
Courts for the District of Columbia
the Speedy Trial Act had been violated; he emphasized that pursuant to 18 U.S.C. § 3161(h)C1 )(F),
a delay for purposes of transportation that exceeds ten days is presumed to be unreasonable. Def.’s
Mot. to Dismiss Case for Speedy Trial Act Violation [Dkt. # 10] (“Def.’s Mot.”) at 5.!

The Court has now reviewed the entire record of materials submitted by both parties. While
the government has not adequately justified all of the delays and errors made along the way, the
Court finds that some of the delays were reasonable and should be excluded from the Speedy Trial
calculation, and the arithmetic that arises out of this analysis leads to the conclusion that the
seventy days has not yet expired. Therefore, the motion to dismiss will be denied.

BACKGROUND

On October 23, 2018, during defendant’s initial appearance in front of a Magistrate Judge,
the government moved for temporary detention (three-day hold) and for a forensic screening to be
conducted by the Department of Behavioral Health. Min. Entry (Oct. 23, 2018). The motions
were granted. Jd. On October 25, 2018, the grand jury returned an indictment charging defendant
with destruction of government property and physical violence against property, but not with the
assault on the officers. Indictment [Dkt. # 4]. The next day, the Court continued the arraignment
to October 31, 2018, because the Department of Behavioral Health had not completed its forensic
screening. See Min. Entry (Oct. 26, 2018). The government then moved for pretrial detention and
to commit defendant to the custody of the Attorney General for a full competency evaluation.
Gov.’s Mem. in Supp. of Pretrial Detention and for Competency Hearing [Dkt. # 5] (“Gov.’s

Pretrial Mot.”). On October 30, 2018, the Department of Behavioral Health submitted the forensic

 

1 Defendant was in custody at the time the motion was filed, but on February 26, 2019,
defendant was released to the third-party custody of his parents. See Order Setting Conditions of
Release [Dkt. # 17] (‘Conditions of Release”) at 2.
screening report to the Court, see Forensic Report [Dkt. # 6], and the next day, the Magistrate
Judge granted the government’s motion to commit defendant to the custody of the Attorney
General for a psychological competency evaluation. Min. Entry (Oct. 31, 2018). The Magistrate
Judge stayed the motion for pretrial detention pending the resolution of the question of defendant’s
competency. Id.

On January 21, 2019, defendant moved to dismiss the indictment based upon a violation
of the Speedy Trial Act. See Def.’s Mot. Defendant asserted that eighty-seven days had passed
since the Magistrate Judge had ordered that he be transported for the competency evaluation,” and
he argued that since he had not been brought to trial within the seventy-day time period required
by the Speedy Trial Act, the case must be dismissed. Jd. at 5, citing 18 U.S.C. § 3161.3

In its opposition to the motion, the government took the position that there had been no
Speedy Trial Act violation because a motion for pretrial detention had been pending since
defendant’s first appearance, and the Speedy Trial Act excludes the time resulting from “any

pretrial motion.” Gov.’s Opp. to Def.’s Mot. [Dkt. # 13] (‘Gov.’s Opp.”) at 7. The government

 

2 Defendant originally argued that eighty-seven days had elapsed. Def.’s Mot. at 5. But in
the supplement to his motion, defendant contends that eighty-four days have elapsed. Def.’s
Suppl. in Supp. of Mot. to Dismiss [Dkt. #59] (“Def.’s Suppl.”) at 1. As explained below, the
Court agrees that eighty-four days have elapsed.

3 The Magistrate Judge originally stayed the hearing on the detention motion pending the
results of the competency examination. Min. Order (Feb. 22, 2019). The Court vacated the stay,
Min. Order. (Feb. 25, 2019), and the Magistrate Judge then assigned to the case conducted the
hearing on February 26. See Min. Entry (Feb. 26, 2019). At that time, the Magistrate Judge had
the benefit of a letter summarizing the outcome of the examination but not the full report. The
motion was denied, and defendant was released to the third-party custody of his parents in North
Carolina on the conditions that he stay away from the White House complex in Washington, D.C.
and that he obtains mental health treatment and comply with all treatment recommendations and
protocols. Conditions of Release at 2.
also pointed out that defendant did not formally enter his not guilty plea until February 26, 2019,
and it argued that under the Act, the Speedy Trial clock did not begin to run until that time. See
Gov.’s Response to Court Order [Dkt. # 18] (‘Gov.’s Resp.”) at 3. Finally, the government
maintained that the time it took to transport defendant to the competency evaluation was
reasonable and should be excluded from the Speedy Trial Act calculation. Gov.’s Opp. at 8-9.

On March 18, 2019, the Court issued an Order rejecting the government’s first two
contentions. Order [Dkt. # 29]. The Order noted that while under the Speedy Trial Act, any
delay “resulting from” a pretrial motion may be excluded, the delay in transporting defendant to a
federal facility while the detention motion was pending did not result from the motion. /d. at 3.
The Court further explained that while the entry of a not guilty plea triggers the applicability of
the Speedy Trial Act, the date the plea is entered is not the “start date” for purposes of calculating
how many days have passed. Jd. at 3-4. In connection with the determination of the
reasonableness of the delay, the Court ordered the government to submit any records substantiating
the asserted grounds for the delay by March 22. Jd. at 5.

Over the week of March 22, 2019, the government submitted twelve exhibits. Gov.’s
Response to Mar. 18, 2019 Court Order [Dkt. # 33]; Gov.’s Suppl. [Dkt. # 35]. At a status
conference on March 25, the Court indicated its intention to rule based on the record before it, but
the defense requested an opportunity to file an additional submission in June addressing the periods
of delay in more detail. On June 5, 2019, defendant submitted a supplement to his motion to
dismiss, arguing that the time it took to transfer defendant to his competency evaluation was
unreasonable. Def.’s Suppl. at 3. The government replied to this supplement on June 14, 2019.

Gov.’s Reply to Def.’s Suppl. [Dkt. # 62] (‘Gov.’s Reply”).
ANALYSIS

The Speedy Trial Act states:

In any case in which a plea of not guilty is entered, the trial of a defendant
charged in an information or indictment with the commission of an offense
shall commence within seventy days from the filing date (and making
public) of the information or indictment, or from the date the defendant has
appeared before a judicial officer of the court in which such charge is
pending, whichever date last occurs.

18 U.S.C. § 3161(c)(1).

There are various reasons why delays may be excluded from the computation of the seventy
days. For example, “[a]ny period of delay resulting from other proceedings concerning the
defendant, including but not limited to — delay resulting from any proceeding, including any
examinations, to determine the mental competency or physical capacity of the defendant” may be
excluded. § 3161(h)(1)(A). In addition, “delay resulting from transportation of any defendant
from another district, or to and from places of examination or hospitalization” is excludable,
“except that any time consumed in excess of ten days from the date an order of removal or an order
directing such transportation, and the defendant’s arrival at the destination shall be presumed to be
unreasonable[.]” § 3161 (h)(1)(F).

Furthermore, “{ijf a defendant is not brought to trial within” seventy days, taking into
account the exclusions of time permitted by § 3161(h), “the information or indictment shall be
dismissed on motion of the defendant.” § 3162(a)(2). When considering “whether to dismiss the
case with or without prejudice, the court shall consider, among others, each of the following
factors: the seriousness of the offense; the facts and circumstances of the case which led to the

dismissal; and the impact of a reprosecution on the administration of this chapter and on the

administration of justice.” Jd.
On October 25, 2018, the grand jury returned defendant’s indictment. Indictment. This
date triggers the Speedy Trial Act clock but does not count towards the calculation.* United States
v. Stoudenmire, 74 F.3d 60, 63 (4th Cir. 1996) (holding that the day of the event that triggers the
clock is not included in the calculation; “the clock begins to run the following day”). From October
26 to October 30, the Department of Behavioral Health conducted its examination of defendant
and on October 30, it provided the Court with a report [nn
aa. Forensic Report. Since these days were dedicated to an examination of defendant to
determine his mental competency, they are properly excluded. 18 U.S.C. § 3161(h)(1)(A).

On October 31, 2018, the Magistrate Judge granted the government’s motion for a full
competency evaluation and ordered that he be committed to the custody of the Attorney General
for placement in a suitable federal facility. Order Committing Defendant to the Custody of the
Attorney General [Dkt. #7]. Because the days preceding October 31 are properly excluded, it is
from this date that the Court calculates how many days have elapsed under the Speedy Trial Act.
The parties also start the calculation on this date. See Def.’s Suppl. at 1-2. (starting calculation on
October 31); Gov.’s Opp. at 8 (asserting that October 26 to October 30 is excluded, and it took
eighty-four days to transport defendant to the evaluation).

On November 1, 2018, the U.S. Marshals Service submitted information concerning the
Magistrate Judge’s order to the Bureau of Prisons, and the next day, defendant was designated to
the Federal Correctional Institution (“FCI”) in Butner, North Carolina, but the Marshals

mistakenly thought he was designated to the Metropolitan Correctional Center in New York

 

4 Defendant appeared in front of a judicial officer on October 23, 2018. Min. Entry (Oct.
23, 2018). The indictment was filed two days later, on October 25, 2018. Indictment. The Speedy
Trial Act states trial must commence within seventy days from the filing of the indictment or from
the date defendant appeared in front of a judicial officer, whichever is later. 18 U.S.C.
§ 3161(c)(1). Therefore, the date of the filing of the indictment controls.

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(“MCC NY”). Gov.’s Opp. at 4. On November 6, the U.S. Marshals Service requested that the
defendant be moved to New York. /d. He was scheduled to be airlifted on November 14, 2018,
but the Marshals refused to transport him because he had a rash on his body. /d. at 5. He was not
cleared to travel until December 6, 2018. Ex. A to Gov.’s Opp. [Dkt. # 34-1] at 1.

On December 10, defendant was scheduled to be airlifted again, but there was a snow storm
in the area and all travel was canceled. See Ex. G to Gov.’s Opp. [Dkt. # 33-4] at 1-2. Defendant
was airlifted to Oklahoma Federal Transfer Center (“FTC”) on December 13, and on December
17, the U.S. Marshals Service corrected its designation from MCC NY to FCI Butner. See Gov.’s
Opp. at 4-5.

On December 18, defendant was exposed to chicken pox, and pursuant to Bureau of Prisons
(“BOP”) policy, he was quarantined for twenty-one days. See Ex. D to Gov.’s Opp. [Dkt. # 33-2]
at 1. That quarantine was lifted on January 8, 2019, and on January 11, he was airlifted from
Oklahoma to Atlanta Penitentiary. Jd; Gov.’s Opp. at 5. On January 15, defendant was supposed
to board a bus to FCI Butner, where the examination was to be conducted, but a bus lieutenant
refused to let him board because he did not have the necessary paperwork in his possession. Gov.’s
Opp. at 5. Finally, on January 23, 2019, defendant arrived at Butner for his evaluation. Id.

In sum, eighty-four days elapsed between October 31, 2018 and January 23, 2019, and
according to the statute, any time in excess of ten days is presumed to be unreasonable. 18 U.S.C.
§ 3161(h)C1)(F). Thus, the government has taken the approach that it is required to justify only
seventy-four days. See United States v. Wasik, 956 F. Supp. 2d 175, 178-79 (D.D.C. 2013) (where
the delay was twenty days, ten days were automatically excluded from the calculation, but ten

were deemed presumptively unreasonable and could not be excluded).
The government contends that four periods of time, amounting to fifty-two of the days, are
reasonable and should be excluded from the Speedy Trial calculation:

(1) the twenty-two days between November 14 and December 6, when defendant was not
cleared to travel due to a rash on his body;

(2) the three-day delay due to inclement weather between December 10 and December 13;

(3) the twenty-one days between December 18 and January 8, when defendant was
quarantined for exposure to chicken pox; and

(4) the six-day delay due to missing paper work between January 15 and January 21.
Gov.’s Reply. at 3-4. The government offers no explanation for any of the other delays that
account for the remaining 32 days of the time period between October 31 and January 23;
therefore, the Court cannot find any of them to be reasonable. But according to the government,
since the statute permits that up to ten days may be expended on defendant’s transportation, only
twenty-two of the seventy days have elapsed and defendant’s Speedy Trial rights have not yet been
violated.

Defendant points to section 3161(h)(1)(F) and argues that the Speedy Trial Act requires
that a defendant must be transported within ten days, and that the statute was violated since the
government did not do so ~ or point to circumstances that justified its failure to do so — within the
first ten days after the examination was ordered. See Def.’s Suppl. at 5 (“No portion of the delay
that followed can be excluded from the STA calculations based on circumstances that occurred
after the ten days from the date of the order. ... The statute does not permit the government to
exclude portions of the delay that occurred after the ten-day period or avoid the presumption of
unreasonableness for a delay beyond ten days based on events that occurred after the ten-day
period.”’). But the defense does not point to any case authority that has adopted this interpretation

of the provision. Moreover, defendant’s reading is not consistent with the text of the Act, which
simply states that “/a/ny period of delay resulting from other proceedings concerning the
defendant,” including “delay resulting from transportation” to the place of examination “shall be
excluded,” “except that any time consumed in excess of ten days from the date [of] .. . an order
directing such transportation, and the defendant’s arrival at the destination shal] be presumed to be
unreasonable.” 18 U.S.C. § 3161(h)(1)(F) (emphasis added). The presumption of
unreasonableness certainly applies in this case, but the government may rebut this presumption by
offering an explanation for the delay. See United States v. Noone, 913 F.2d 20, 26 (1st Cir. 1990).
But the presumption of unreasonableness applies to any time consumed in the transportation that
exceeds ten days, and there is no requirement that absent an explanation for the lapse during the
first ten days, no other delays may be justified.

Thus, the Court is required to determine the reasonableness of the four periods for which
the government has offered an explanation. The Court agrees that a flight delay due to weather
conditions was reasonable, but only one day of delay is supported by the record. See Ex. G to
Gov.’s Opp. [Dkt. # 33-4] at 1-2 (email from Catherine Beard, a Transportation Specialist, who
confirmed that inmate travel was suspended on December 10, 2018). The government has not
shown why an additional two days were needed after the airlift was canceled on December 10.
See Noone, 913 F.2d at 26 (finding that unexplained delays do not rebut the presumption of
unreasonableness); see also United States v. Taylor, 821 F.2d 1377, 1384 (9th Cir. 1987), rev’d on
other grounds, 487 U.S. 326 (1988) (finding that a delay to accommodate the U.S. Marshals
Service, in its desire to effect economical transportation of prisoners in larger groups, was
unreasonable). And the Court agrees with defendant that the six-day delay due to missing
paperwork does not rebut the presumption of unreasonableness; the logistics of the defendant’s

transportation were within the control of the U.S. Marshals and surely not the defendant himself.
See United States v. Bauer, 286 F. Supp. 2d 31, 34 (D.D.C. 2003) (finding unreasonable a delay
caused by a mistake in paperwork); United States v. Jervey, 630 F. Supp. 695, 697 (S.D.N.Y. 1986)
(finding “ordinary institutionalized delay is not an excuse,” and when the Speedy Trial Act “was
passed Congress knew all about the customs and practices of the prison bus”).

As to the delay caused by the exposure to chicken pox, the Court finds that the twenty-one-
day delay was reasonable. The government submitted exhibits confirming that defendant was part
of the inmate population at the Oklahoma FTC that was exposed to chicken pox, and pursuant to
BOP policy, he was quarantined for twenty-one days. See Ex. D to Gov.’s Opp. [Dkt. # 33-2] at
1 (email from Oklahoma FTC Clinical Director, George R. Petry, M.D., confirming defendant’s
exposure and quarantine); Ex. F. to Gov.’s Opp. [Dkt. # 33-3] (-BOP VZV Infections Policy”) at
15 (designating quarantine period as twenty-one days). Defendant urges the Court to deem the
time to be unreasonable because BOP did not adhere to its internal policies governing infectious
diseases. He asserts that the policy states that any person who has had contact with chicken pox
must be tested for immunity; defendant was not tested; and if he had been tested, he would have
been cleared more expeditiously. Def.’s Suppl. at 8-10. But the policy does not state that every
inmate exposed to the chicken pox must be tested for immunity. Rather, the policy states that

inmates cannot be discharged or moved until immunity is confirmed or the twenty-one-day

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incubation period has elapsed.” The government has supplied an email from Chad Ralls, the
Infection Control Coordinator from the FTC in Oklahoma, who explains that due to staffing
shortages and resources involved, the facility was unable to perform individual blood tests on all
of the inmates who were exposed, which was over ninety people. Ex. H to Gov.’s Opp. [Dkt. #
35-1] (“Due to staffing shortages we were not able to go draw labs on 90 something people so our

clinical director thought it best to wait out the 21 day varicella incubation period before he allowed

inmates to move.”); see also Ex. A. to Gov.’s Opp. at 2 (
Ee

adoption of another approach might have been faster and more desirable, it was not unreasonable

for prison officials faced with a potential outbreak of a communicable disease to decide to wait

 

5 The Policy states:

Housing unit contacts and other identified contacts with “significant
exposure” who are scheduled to be transferred to another correctional
facility or to Residential Reentry during their incubation period shall not be
moved until it has been determined that the contact has confirmation of
immunity (i.e., VZV IgG positive). Varicella contacts should be placed on
“Medical Hold” and not be transferred until 21 days after their exposure
ended or until a positive IgG result is obtained.

BOP VZV Infections Policy at 15. In addition, the government submitted an email from the
Regional Infectious Disease Specialist for the Bureau of Prisons to the Oklahoma FTC, outlining
recommendations sent to the Oklahoma FTC regarding the chicken pox outbreak. The email also
indicated that the Oklahoma FTC did not

complete mass lab draws due to the incubation period and the resources
involved. If inmate movement was necessary, we completed lab draws
(varicella IgG) as needed to allow inmates to move only if notified by
Receiving and Discharge (R&D) staff the inmate was required to be
transported. If Health Services was not made aware of the impending
transfer, the Varicella IgG was not completed.

Ex. C to Gov.’s Opp. [Dkt. # 33-1] at 1-2.

1]
out the incubation period, rather than to expend the resources to test every individual for immunity.
Indeed, the record does not reflect how long it would have taken to gather the samples and obtain
the results, so while defendant is proceeding on the assumption that it would have been fewer than
twenty-one days, we do not know if it would have taken one, five, ten, or even fifteen days. Here,
exposure to an infectious disease is an extraordinary event and, therefore, the twenty-one-day
quarantine was reasonable.

Thus, pursuant to section 3161(h)(1)(F), out of the eighty-four days that have elapsed, the
Court will exclude ten days of permissible delay resulting from the transportation of defendant to
the place of examination from the Speedy Trial calculation, and, of the days consumed in excess
of the ten days, it finds that the government has rebutted the presumption with respect to one day
for the weather delay and twenty-one days for the quarantine. In other words, without considering
or excluding any of the twenty-two days attributed to defendant’s skin condition, thirty-two of the
eighty-four days have been excluded. This means that only fifty-two days, and not seventy, have
elapsed, and the Speedy Trial Act has not been violated.

Although based on these findings, the Court is not required to dismiss the indictment, it
will also address the reasonableness of the twenty-two-day delay between November 14 and
December 6 that occurred when the transporting officials were alarmed by their observation of a
rash on defendant’s arms and legs. Defendant argues that this delay was not reasonable because
the government had become aware of the defendant’s skin condition before he was scheduled to

travel; defendant was medically evaluated at the D.C. Jail; and a skin condition was noted in late
October. Def.’s Suppl. at 6—7; see also Ex. | to Def.’s Suppl. [Dkt. # 61-1] at 5 f

RE) s.2 10 Des Suppl. (Dk. # 61-2} 3 TT
I :02, on November 8, 2018,

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defendant was medically cleared for federal transfer. Ex. 3 to Def.’s Suppl. [Dkt. # 61-3] at 6.
But, when defendant arrived at Piedmont Regional Jail, his paperwork did not contain any

reference to the skin condition. Ex. A to Gov.’s Opp. at 1. The officers present at the flight line

had no way to verify whether the condition was infectious, and Pe

Ex. J to Gov.’s Opp [Dkt. # 36-1] (“Medical Scratch Rpt.”) at 1. Therefore, defendant was turned
away for travel, and he was not cleared to travel until December 6. Gov.’s Reply at 3-4.

Because the transport officials had not been provided with the documentation explaining
defendant’s troubling skin condition, and given defendant’s own description of the cause of the
rash ee . it was not unreasonable for the officers immediately
responsible for his transportation to pause and make further inquiries as to the potentially
infectious nature of the rash. See Ex. A to Gov.’s Opp.; Medical Scratch Rpt. at 1. But, because
defendant had already undergone an examination, after which he had been cleared to travel, Ex. 3
to Def.’s Suppl. at 6, it was not reasonable for the government to take more than three weeks to
resolve this issue. The Court finds that the government should have been able to ascertain that
there was medical information about the condition available and determine whether anything had
changed within a week, and it will exclude only seven more days from the Speedy Trial calculation.
This means that thirty-nine of the eighty-four days that have elapsed have been excluded, and that
forty-five, but not all, of the statutory seventy days have been spent. But, as noted above, even if
the Court were to find none of the days attributable to the rash to be reasonable and excludable, it

would still not be required to dismiss the indictment.

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CONCLUSION
For the reasons set forth above, defendant’s motion to dismiss [Dkt. # 10] is DENIED.

SO ORDERED.

 

Any B Sick
Y

AMY BERMAN JACKSON
United States District Judge

DATE: June 21, 2019

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