IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA,

 Plaintiff,

v.

MICHELE DiCOSOLA,

 Defendant.

Case No. 12 CR 0446

Hon. Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER

The Defendant, Michele DiCosola, has moved the court to

dismiss the indictment pursuant to 18 U.S.C. § 3161 et seq. He

contends that the court did not properly exclude time under the act

so that his constitutional rights will be violated if the court

fails to dismiss the indictment with prejudice. The Motion is

denied for the following reasons.

The case got off to a rocky start on July 31, 2012, with the

presentation of a Motion by the Defendant to discharge his

attorney. The Motion was granted. The Defendant was given until

August 30, 2012, to obtain new counsel. The time was excludable

under Section 3161(h)(7)(B)(iv).

On August 30, 2012, the Defendant had not obtained counsel and

his pretrial motions were held in abeyance while he continued to

attempt to obtain counsel. The case was next set for status on
September 27, 2012. The time was excluded again in the interest of

justice for the Defendant to obtain counsel. 

On September 27, 2012, the Defendant had not obtained counsel

and told the Court that he was going to proceed pro se. The matter

was continued until November 6, 2012, at which time the Court would

consider the Defendant’s competency to proceed pro se. The time

was again excluded in the interests of justice.

On November 6, 2012, the court appointed a Federal Defender to

assist the Defendant on a stand-by basis. The matter was continued

to December 12, 2012, at which time the Defendant presented a

Motion for a Bill of Particulars. This Motion was denied. The

Court then allowed the Defendant to present his other motions for

consideration by the court. A briefing schedule was adopted which

culminated by setting the date of January 10, 2013 for Defendant’s

Reply to the Government’s brief. The Court set the date of

February 12, 2013 for ruling on the Defendant’s motions. The time

was excluded through February 12, 2013, to allow the Court time to

consider and rule on the motions. 

On February 12, 2013, the Court entered a Memorandum Opinion

and Order, ruling on all of the Defendant’s pretrial motions.

On February 27, 2013, the Court held a status hearing. At

this hearing the Defendant presented a number of oral motions which

were denied in open court. The Defendant contended that there were

many more motions that the Court had not ruled on. The Court

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admonished Defendant that to be considered it was necessary for him

to present the motions in open court which he had not done. The

Defendant indicated that there were many more motions he intended

to file and the Court advised him that the time for filing pretrial

motions had elapsed but if he wanted the Court to consider

additional motions he could ask leave of court to do so. The

Defendant objected to stand-by counsel. The Court then stated that

it was the Court’s intention to set the case for trial. The

following colloquy occurred:

THE DEFENDANT: Your Honor, I object to that. I’m not

ready for trial. There are pretrial

motions that have not been answered. 

There’s an objection in there.

* * * 

THE COURT: All right. Here’s what I’m going to do. 

I’m going to set the case for trial but

I’ll put the matter over a week. 

[Standby counsel was on trial and was not

available.]

THE DEFENDANT: Oh, Your Honor, I object. We don’t have

all the pretrial motions all yet–all

resolved.

* * *

THE COURT: All right. We’ll set the case for trial.

MR. MADDEN (the Prosecutor): Could we maybe do it

toward the end of the end

of the year, Your Honor,

so he has additional time

to prepare.

THE DEFENDANT: Okay, I thought that was over with here.

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THE COURT: No, I’m going to set the case for trial. 

How about September 16th?

THE DEFENDANT: Okay, I object.

The Court then excluded time until September 16, 2013 in the

interests of justice to allow Defendant time to prepare for trial.

On February 28, 2013, the next day, the Defendant filed an

Interlocutory Appeal to the Seventh Circuit Court of Appeals. The

Appeal remained pending until it was dismissed for lack of

jurisdiction on June 10, 2013. Thus, there existed an independent

reason to exclude time under Section 3161(h)(c).

On June 26, 2013, the Government filed a Motion to test

Defendant’s competency to represent himself. The Motion was

presented in court on June 26, 2013. On that date, the Defendant’s

father appeared and advised the Court that the Defendant had taken

ill and was in the hospital for possible gall bladder surgery. 

The case was continued for status until July 10, 2013. The time

was excludable due to the Defendant’s illness. 

On July 10, the status was held and the Defendant presented

this Motion to Dismiss. The Government also presented its Motion

to determine the Defendant’s competency, to which the Defendant

objected. The Defendant also advised the Court that he was being

advised by an attorney who was not available to enter his

appearance until after July 31, 2013. The Court then set a status

date for August 20, 2013, to enable Defendant’s attorney to appear. 

The time is excludable for continuity of counsel.

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The Defendant takes the position that the Court, in granting

exclusions based on the interest of justice, failed to make

detailed findings as to the balancing between the interests of

justice, and the public’s and the defendant’s right to a speedy

trial. However, as explained in United States v. Wasson, 679 F.3d

938 (7th Cir. 2012), the ends-of-justice factors need not be

articulated contemporaneously on the record. Although the record

does adequately show the various reasons while the case has been

continued from time to time, the Court will now expand on the

reasons why the continuance met the ends-of-justice standard. 

The Defendant has been without legal counsel since he

discharged his retained attorney at the first status hearing before

the Court. The next three continuances were granted to give the

Defendant time to hire new counsel if he chose to do and to make

the determination whether the Defendant could competently waive his

right to counsel. The Defendant has taken the position that he

cannot be forced to have a standby counsel appointed to assist him

but in taking this position he states that he is not waiving his

right to counsel. The Court set a trial date some six months in

advance over the strenuous objection of the Defendant who stated

that this did not allow him sufficient time to prepare for trial. 

In addition, as pointed out above, the Defendant took an

interlocutory appeal which took almost four months to resolve. The

net result of all of the above is that there is approximately two

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weeks of time to date that has run on the speedy trial clock, i.e.,

(1) the time between the rendering of the courts Memorandum Opinion

and Order denying Defendant’s Pretrial Motions on February 12,

2012; and (2) February 27, 2013, when the Court held the first

post-Order status. 

One final note. Although this case is not particularly

complicated from the standpoint of an experienced criminal defense

attorney, the Court finds that from the standpoint of a pro se

defendant, the case is complicated and hence, the Court, when

setting the case for trial, picked a date approximately seven (7)

months out in the interests of justice to give the Defendant

sufficient time to prepare.

Because there was no error committed by the Court in excluding

time the Motion to Dismiss the Indictment is denied.

 

Harry D. Leinenweber, Judge

United States District Court

Date:7/11/2013

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