On Saturday, I spoke with Martin Gottesfeld, the “guardian hacktivist” who was jailed for allegedly bringing down the Boston Children’s Hospital website with a coordinated DDoS campaign after discovering that the hospital was possibly abusing then-14-year-old Justina Pelletier.
Gottesfeld is set to begin trial shortly, but he and his legal team have filed a motion to dismiss the case pursuant to the “Speedy Trial Act.” Gottesfeld claims that the government held him without indictment for longer than is allowed according to the law, among other things.
18 U.S. Code 3161 subsection (b) states in part: “Any information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges.”
Subsection (h)(7)(A) further states:
Any 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 such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial. No such period of delay resulting from a continuance granted by the court in accordance with this paragraph shall be excludable under this subsection unless the court sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial.
Gottesfeld brought my attention to an alleged “secret docket” on which the prosecution claims to have received extensions to the 30-day rule. The “secret docket” wasn’t publicly available until March 21, 2018, shortly after Martin Gottesfeld’s attorney requested that his client’s case be dismissed under the Speedy Trial Act.
Gottesfeld and his attorney proffer three arguments for the dismissal of the case:
1. “Secret” Docket
First, because the docket containing the alleged multiple 30-day extensions wasn’t available to be seen “in the record of the case,” which subsection (h)(7)(A) of 18 U.S.C. 3161 specifically states, the case should be dismissed.
In a document filed on April 20, Gottesfeld’s attorney writes:
On March 8, 2018, when represented by attorney Raymond Gillespie, Mr. Gottesfeld filed a pro se Motion to Dismiss alleging various violations of the Speedy Trial Act 18 U.S.C. 3161 and 3162, and the Speedy Trial clause of the Sixth Amendment to the Constitution. (D-122). On March 20, 2018, attorney Gillespie filed a Motion to Dismiss alleging Speedy Trial violations.
On March 21, 2018, in a previously sealed civil docket, 16-mc-90164-ADB, before a different judge, District Judge Allison Burroughs, the government filed a Motion to Unseal. ... In an electronic order that same day, Judge Burroughs allowed the government's motion to unseal. ...
In sum, this recently unsealed civil docket reveals that from March 1, 2016 through September 23, 2016, the government filed six (6) "assented-to" motions to exclude time from the pre-indictment speedy trial clock.
The first “motion to exclude” request, which was filed on March 1, 2016, reads in part:
Under the Speedy Trial Act, "[a]ny information or indictment charging the commission of an offense shall be filed within 30 days from the date on which such individual was arrested or served with a summons in connection with the charges." 18 U.S.C. 3161(b). Therefor, any information or indictment in this case would need to be filed by March 18.
The government seeks an extension of time to file an indictment or information until April 22, 2016. As grounds, the government states that the parties need additional time to discuss a possible plea agreement and information. That is particularly true because the defendant is currently in transit from Florida, in Marshals' custody, and may not arrive in Massachusetts for several weeks. A resolution of this case through a plea agreement and information would be in the interests of both parties and the interests of justice.
The second, filed on April 11, 2016, is similar:
On March 1, 2016, Judge Burroughs allowed the government's Assented-To motion to exclude the time from March 18 through April 22, 2016.
The government now seeks an extension of time to file an indictment or information until May 27, 2016. As grounds, the government states that the parties need additional time to discuss a possible plea agreement and information. That is particularly true because the defendant has only just arrived in Massachusetts and because his detention hearing is scheduled for April 27, 2016. A resolution of this case to a plea agreement and information would be in the interests of both parties and in the interests of justice.
246 days and four “motions to exclude” later, Gottesfeld was indicted on October 19, 2016.
It wasn’t until March 21, 2018 (518 days after the October 19, 2016 indictment) that the “previously sealed civil docket” was unsealed. As such, Gottesfeld and his attorney argue that the motions to exclude were not “in the record of the case” because they were not in the primary case docket.
The phrase “in the record of the case,” which is found in the Speedy Trial Act, is important because legal language matters. Gottesfeld’s attorney cites a Supreme Court case (United States v. Bloate, 2010) in which Justice Clarence Thomas referenced a quote from Matthew Bacon's “A New Abridgment of the Law.” The quote states: “A statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.”
Gottesfeld's attorney continues:
Judge Burroughs' orders were not “in the record of the case.” All of her orders were in a sealed civil docket; the case at issue is an unsealed criminal docket before a different judge. These matters are not the same case. The requirement of 18 U.S.C. 3161 (h)(7)(A) that the Court's findings be “in the record of the case” was unmet.
2. Rubber Stamp
Gottesfeld and his attorney’s second argument pertains once again to the Speedy Trial Act.
Subsection (h)(7)(A) states in part: “No such period of delay resulting from a continuance granted by the court in accordance with this paragraph shall be excludable under this subsection unless the court sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial.”
Gottesfeld’s attorney asserts:
... the Court did not “set forth ... orally or in writing, it's reasons finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial” in any of the orders in 16-mc-90164-ADB, as required by 18 U.S.C. 3161 (h)(7)(A); see also Zedner v. United States, 126 S.Ct. 1976 (2006).
The first “assented-to” motion granted by the Court purported to exclude the period from March 18, 2016 through April 22, 2016. However, the judge did not issue any oral or written findings on the record. Instead, the judge simply signed a prepared line in the motion stating “The above motion is GRANTED, and the period of March 18, 2016 through April 22, 2016 is excluded from all Speedy Trial Act calculations.” A grant, by itself, is not a statement of reasons for the order.
This appears to be accurate:
SCOTUS Justice Samuel Alito wrote in the majority opinion in Zedner v. United States (2006):
But §3161(h)(8)(A) is explicit that “[n]o … period of delay resulting from a continuance granted by the court in accordance with this paragraph shall be excludable … unless the court sets forth … its reasons for [its] finding[s].” Thus, without on-the-record findings, there can be no exclusion under §3161(h)(8).
NOTE: In the years after the Zedner decision, the law was apparently modified, and section (h)(8)(A) has become (h)(7)(A), which is clear when reading the text quoted by Alito.
3. The Clock
The third argument being made by Gottesfeld and his attorney is that on multiple occasions, Judge Burroughs granted the alleged extensions after the date on which they were intended to cover.
... on two occasions Judge Burroughs purported to exclude time through improper backdating. The motion filed on April 11, 2016 requested exclusion of “the period from April 22, 2016 through May 27, 2016.” However, Judge Burroughs only granted the motion on May 5, 2016. Similarly, the motion filed on July 22, 2016 requested exclusion from “the period from August 1 to September 9, 2016.” However Judge Burroughs only granted the motion on August 2, 2016. This backdating was error.
Gottesfeld’s attorney quotes the 1983 Seventh Circuit Court of Appeals decision in United States v. Janik, in which it is written: “[T]he continuance itself must be granted before the period sought to be excluded begins to run.”
The claim appears to be accurate:
Gottesfeld’s attorney further writes:
The first instance of backdating from April 22 through May 4, 2016 is [14 days], inclusive. The second instance of backdating is for August 1, 2016, one day.
After these 15 days of improper backdating are added to the 20 days of non-excludable time from February 17 to March 17, 2016...there are 35 days of non-excludable time – justification alone to dismiss the indictment.u
The 20 days to which Gottesfeld’s attorney refers are the days between February 17, 2016 and March 17, 2016. The law allows for “ten days” to be expunged for the transportation of Gottesfeld from Florida to Maryland, leaving 20 days of non-excludable time.
While the government asked for the first “motion to exclude” on March 1, 2016, and it was granted on March 1, 2016 on the previously sealed docket, the excluded time requested was from “March 18, 2016 through April 22, 2016.” Minus the ten days allotted for transportation, that still leaves the 20 days between February 27 and March 17 (the 27th and the 17th are counted in that time).
Additionally, the final “motion to exclude” only dates to October 9, 2016. Gottesfeld wasn’t indicted until October 19, which adds ten more days to the non-excludable time, for a total of 44 days.
There are several smaller arguments to be found within the document, but the above are the primary demands. You can read the argument in its entirety here, but you must first create a Pacer.gov account.
According to Gottesfeld, if Nathaniel Gorton, the judge presiding over the case, chooses not to dismiss, Gottesfeld can take his case to the First Circuit Court of Appeals. If he chooses to do so, Gorton’s legal rulings on the Speedy Trial issue would be reviewed “de novo,” which, according to Cornell Law School’s Legal Information Institute, is “when a court decides an issue without deference to a previous court's decision.”
Additionally, if Gorton chooses to dismiss “without prejudice,” meaning the case could be tried again with a new team, Gottesfeld could still appeal to the First Circuit de novo for a “with prejudice” dismissal, meaning the case could not be tried again.
The government has two weeks to respond to Gottesfeld’s request for dismissal based on the Speedy Trial Act.
For more information on Martin Gottesfeld, visit FreeMartyG.com. Additionally, Gottesfeld, who is running for Elizabeth Warren’s seat in the United States Senate, recently penned an open letter to Massachusetts Republican delegates asking for their vote at the state convention despite the unusual nature of his candidacy.