BetonSports Matter Finally Going to Trial

Written by:
C Costigan
Published on:

Gary's renewed motions to be released on bond filed last May and October of 2008 were denied by the District Judge on Thursday.

Further, Judge Jackson has scheduled a hearing next Wednesday (18th) to finally schedule a trial date. should point out that the interesting thing is that the judge did not deny the motion for bail based on the merits of Gary's motion, which were that the family had established ties in the St. Louis community for almost 2 years, some of the charges (Tax) were dropped, his assets were frozen by the gov't, and some defendants had already made deals for lesser offenses. Instead, she denied the motion "because Gary's Speedy Trial rights were not yet violated"  On the 28th of this month he will have been in jail for 2 years without bond.



This matter is before the Court upon the motion and renewed motion of

defendant Gary Kaplan for release from custody based on an alleged violation of

the Speedy Trial Act, 18 U.S.C. § 3164.  The United States has filed a

memorandum in opposition, and the issues are fully briefed.

I. Background

Defendant Gary Kaplan is one of ten individuals, together with several

corporations, facing charges related to operating an illegal sports gambling

enterprise.  The Court has previously designated this case as "complex" pursuant

to 18 U.S.C. § 3161(h)(8)(A), due to the number of defendants, the nature of the

prosecution, the location or evidence and witnesses, and the length of time that

may be required to obtain documents from other countries.  The parties have filed

a multitude of pretrial motions, several of which are still pending.  Kaplan contends

that because he has been detained without trial for more than 90 days he should

be released from custody pursuant to 18 U.S.C. § 3164.  A trial date has not yet

been set.  Additional procedural background will be incorporated into the Court's

analysis below.

II. Discussion

According to a provision of the Speedy Trial Act, 18 U.S.C. § 3164, the trial

of a defendant being "held in detention solely because he is awaiting trial...shall

commence not later than ninety days following the beginning of such continuous

detention."  18 U.S.C. § 3164(a)(1)-(b).  The Act further provides that "[n]o

detainee...shall be held in custody pending trial after the expiration of such ninety-

day period required for the commencement of his trial."  18 U.S.C. § 3164(c).

Some periods of delay are excluded from calculation of the 90-day period.

Under a provision relevant here, the Act specifically excludes any "delay resulting

from any pretrial motion, from the filing of the motion through the conclusion of the

hearing on, or other prompt disposition of, such motion."1  18 U.S.C.

§ 3161(h)(1)(F).  The Act also allows an "exclusion of up to 30 more days for the

court to consider the motions."  Long, 900 F.2d at 1274.  Periods of delay caused

by the filing of an interlocutory appeal also toll the speedy trial clock.  18 U.S.C.

When a pretrial motion does not require a hearing, the excludable

period runs from the date of filing until the court receives all of the parties

submissions on the motion.  United States v. Long, 900 F.2d 1270, 1274

(8th Cir. 1990). 

§ 3161(h)(1)(E).  The Act further excludes a "reasonable period of delay when the

defendant is joined for trial with a codefendant as to whom the time for trial has

not run and no motion for severance has been granted." 18 U.S.C. § 3161(h)(7).

Finally, the Act excludes up to a ten day delay for the transportation of a defendant

from another district.  18 U.S.C. § 3161(h)(1)(H).    

The parties agree that Kaplan has been continuously detained since his arrest

on March 28, 2007.  The parties disagree on whether certain blocks of time within

this period are excludable under 18 U.S.C. § 3164.

A) Pretrial Motions Filed by Kaplan's Co-Defendants

Much of the parties' disagreement lies in their differing interpretations of

which excludable time periods, in this multi-defendant case, pertain  to Kaplan.

Defendant believes that the exclusions of 18 U.S.C. §3161(h) should be applied

more narrowly to section 3164.  Specifically, Kaplan suggests that any periods of

delay related to pretrial motions filed by Kaplan's co-defendants are inapplicable

to the calculation of his 90-day period.  He notes that, because he is the only

detained defendant, none of his co-defendants share his motivation to move the

case to a speedy trial.

The Eighth Circuit has consistently held that, in a multi-defendant case, "all

of the defendants are subject to one controlling speedy trial clock and any time

periods excluded from the speedy trial calculations for one defendant will be

applicable to the other defendants."  United States v. Lightfoot, 483 F.3d 876, 886

(8th Cir. 2007); see also United States v. Shepard, 462 F.3d 847, 864 (8th Cir.

2006)(rejecting the defendant's argument that his speedy trial clock should

continue to run because he was not responsible for the motions filed by his co-


Kaplan, however, cites to United States v. Theron, 782 F.2d 1510 (10th Cir.

1986), in support of his proposition that he should not be responsible for the

motions filed by his co-defendants.  In that case, Theron was indicted with eleven

co-defendants, ten of whom were released on bond.  Id. at 1511.  Theron filed only

a motion for severance, and asserted his speedy trial rights; his co-defendants filed

a motion for a continuance which Theron opposed.2  Id. at 1511-12.  He thereafter

sought a writ of mandamus directing the district court to either begin his trial or

release him from custody.  The court of appeals found that the period of delay

resulting from the continuance requested by the co-defendants could not be

attributed to Theron.  Id. at 1512-13.  The court found that the co-defendants'

need for additional time to prepare for trial, the complexity of the case and the

desirability of a joint trial were insufficient to outweigh Theron's interest in a

speedy trial. Id.  Significant to court's reasoning were the facts that Theron had

filed only one pretrial motion, he had not joined in any of the co-defendants'

motions, and he had "used all means available to him to secure an immediate

trial." Id. at 1513. 

218 U.S.C. § 3161(h)(8)excludes from speedy trial calculation any delay

resulting from a continuance granted by the district court, if the court made

findings that the ends of justice served by the continuance outweigh interest of the

defendant in a speedy trial. 

The circumstances involved in Theron are inapposite to those of the  instant

case.  Unlike the defendant in that case, Kaplan has filed multiple pretrial motions

and has joined in at least one of the motions filed by several of his co-defendants.

Additionally, the United States filed a superseding indictment in September 2008,

which resulted in the filing of further pretrial motions by the defendants---including

Kaplan---which were addressed in Reports and Recommendations issued by a

magistrate judge.  The last Report and Recommendation addressing Kaplan's

motions was filed on December 15, 2008.   Kaplan filed objections, the government

filed a response and Kaplan filed a reply on January 6, 2009.   

The law is clear that, under the § 3161(h)(1)(F) exclusion, motions filed by

co-defendants toll the speedy trial clock as to all defendants.  See Lightfoot, 483

F.3d at 886.  The law is equally clear that the periods of delay outlined in section

3161(h), including the pretrial motion exclusion, are excluded under section 3164

as well.  See 18 U.S.C. § 3164(b). 

There is no legal support, either in the text of

the statute or in relevant case law, to support Kaplan's contention that pretrial

motions filed by his co-defendants do not toll his section 3164 speedy trial clock.

That Kaplan's period of detention is lengthened by the filing of his co-defendants'

pretrial motions is "an unavoidable consequence of Congress' application of the

Section 3161(h) exclusions to Section 3164 detainees."  United States v. Leon, 614

F.Supp. 156, 158-59 (D.C. N.Y. 1985)(rejecting argument that exclusions under

§ 3161(h) are applied differently under § 3164).  Pretrial motions filed by Kaplan's

co-defendants in this matter will toll the speedy trial clock as to Kaplan as well.

B) Kaplan's Interlocutory Appeal

Kaplan filed a notice of appeal on October 12, 2007, appealing his detention

order.  His appeal was denied and mandate was  issued on December 28, 2007.

Pursuant to 18 U.S.C. § 3161(h)(1)(E), any "delay resulting from any interlocutory appeal" is excludable.  Despite this statutory language, Kaplan contends that his

interlocutory appeal did not result in any delay, and therefore does not result in

excludable time.  Kaplan notes that, during the time that his appeal was pending,

fifty entries were made on the docket record, including eleven orders.

The Court concludes that filing an interlocutory appeal triggers an automatic

speedy trial exclusion, regardless of whether the appeal actually delayed the trial.

Indeed, numerous courts have found that the filing of a pretrial motion

automatically results in an exclusion under section 3161(h)(1)(F).  See United

States v. Brim, 630 F.2d 1307, 1312-13 (8th Cir. 1980); United States v. Van

Brandy, 726 F.2d 548, 551 (9th Cir. 1984); United States v. Cobb, 697 F.2d 38,

43-46 (2nd Cir. 1982). There is no plausible reason why this interpretation is not

equally applicable to section 3161(h)(1)(E), regarding interlocutory appeals.  See

United States v. Weber, 1997 WL 61442 at *5 (W.D. Mo. 1997)("The time from the

filing of the interlocutory appeal to the district court's receipt of its mandate is

automatically excluded from the speedy trial computation..."). Defendant Kaplan's

filing of an interlocutory appeal tolled the 90-day Speedy Trial Act period. C) Excludable Periods of Delay

In assessing whether a Speedy Trial Act violation has occurred, the Court has

reviewed the docket report in this case.  Based on that review, the Court has

determined that excludable periods of delay have resulted from (1) the

transportation of Kaplan from the district of Puerto Rico to the Eastern District of

Missouri (18 U.S.C. § 3161(h)(1)(H)); (2) the filing, hearing and disposition of pretrial motions by Kaplan and by the do-defendants (18 U.S.C. § 3161(h)(1)(F));

(3) a period not exceeding thirty days during which proceedings concerning Kaplan

or another defendant were under advisement (18 U.S.C. § 3161(h)(1)(J); and (4)

Kaplan's interlocutory appeal (18 U.S.C. § 3161(h)(1)(E).  Based on this review,

the Court concludes that Kaplan's detention has not exceeded the 90-day limit of

18 U.S.C. § 3164.  Therefore, his request for release is denied.

D) Request to Set Trial Date

Defendant Kaplan also moves for a hearing and order on his motions for

release.  In light of the foregoing, this motion is moot.  Finally, Kaplan asks that

the Court schedule a pretrial conference in order to set a trial date.   A scheduling

conference has been set for March 18, 2009.  Therefore, this request is also moot.


IT IS HEREBY ORDERED that the motion and renewed motion of defendant

Gary Kaplan [Doc. #640 and #706] for release from custody under 18 U.S.C.

§ 3164 are denied.








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