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Emily D. Swoboda

Kaplan Files Motion for Release

20 May 2008

Attorneys for Gary S. Kaplan, the jailed founder of BetonSports, on Monday filed a motion for his release from custody, citing two sections of the United States Code.

Mr. Kaplan's attorneys argued that under U.S.C. Section 3161, a k a the Speedy Trial Act of 1974, and U.S.C. Section 3164 -- statutes that guarantee a defendant's protection from unreasonable lengthy incarceration prior to trial -- Mr. Kaplan is due a "review by the court and should be released from pretrial detention."

According to court documents, Mr. Kaplan's lawyers argued that because he has been continuously detained since his arrest on March 28, 2007 -- "over one year without bail, trial or a determination of his guilt or innocence" -- the court is in violation of both statutes.

Under the Speedy Trial Act, defendants must be indicted within 30 days of arrest and tried within 70 days of indictment, or the day they appear before the court -- whichever is later.

U.S.C. Section 3164, meanwhile, dictates that defendants being held solely because they are awaiting trial must be guaranteed a trial within 90 days of detention.

Mr. Kaplan's attorneys argued that according to their calculations of excludable time, Mr. Kaplan has been incarcerated for more than 90 days of the excludable time period.

Excludable time constitutes any period of time between court activity -- the time when a motion is filed until it is ruled on, for example.

However, under Section (h)(1)(F) of the Speedy Trial Act, any delay in the case resulting from pretrial motions -- including motions from co-defendants and the prosecution -- is excluded from the time in which the trial must begin.

Mark P. Rankin, an assistant federal public defender with Carlton Fields, a Florida-based firm, explained to Interactive Gaming News the circumstances which could cause a delay under Section (h)(1)(F) of the Speedy Trial Act.

"Typically, if the defense files motions, that's going to stop the clock," Mr. Rankin said. "Often times the court can even find for the administration of justice that the clock needs to be stopped if it's an overly complicated case."

According to court documents, each of the co-defendants in the case, as well as the government, has filed multiple pretrial motions since the commencement of the case.

Mr. Kaplan's attorneys argued, however, it is unreasonable to hold this statute to Mr. Kaplan as he is the only defendant in custody, making him more motivated to bring the case to trial.

Incidentally, the other co-defendants waived their right to a speedy trial, according to court documents.

Mr. Rankin said some defendants will want a speedy trial from the start, while others will want time to prepare their case, which will stop the clock.

"You can't file motions and have the government responding, taking up all of their time doing that and expect to go to trial in 70 days," he said.

In the event Mr. Kaplan's motion for release from custody is denied, his attorneys have asked for a pretrial conference in order to schedule a date for the trial.

In April, United States District Court Judge Mary Ann Medler recommended the U.S. government drop charges of tax evasion and obstruction against Mr. Kaplan.

While Judge Medler's recommendation awaits a final ruling from District Judge Carol E. Jackson, the government has not filed any objections to Judge Medler's recommendations.

The attorneys for the government could not be reached for comment.

Click here to view Mr. Kaplan’s Motion for Release.

Kaplan Files Motion for Release is republished from
Emily D. Swoboda
Emily D. Swoboda