United States District Court, D. Colorado
ORDER GRANTING ENDS OF JUSTICE CONTINUANCE
A. BRIMMER United States District Judge
matter is before me on the Motion for Second Ends of Justice
Continuance and to Exclude 90 Days from the Speedy Trial Act
[Docket No. 29], wherein defendant Tony Curtis Marks requests
that the Court exclude an additional 90 days from the speedy
trial period and continue the January 23, 2017 trial. The
United States and co-defendant Deshay Isham Stevenson do not
oppose the motion. Docket No. 29 at 3.
Stevenson made his initial appearance in this case on August
8, 2016. On September 19, 2016, Mr. Stevenson filed a motion
to exclude 120 days from the speedy trial period. Docket No.
17. On October 3, 2016, I granted Mr. Stevenson's motion
in part, excluding 90 days from the speedy trial period and
setting the trial for January 23, 2016. Docket No. 18. On
October 17, 2016, Mr. Marks made his initial appearance. The
effect of Mr. Marks' appearance would ordinarily be to
re-set the 70 day speedy trial period, see 18 U.S.C.
§ 3161(h)(6); however, there were still 103 days left in
the Speedy Trial Act period at that time. Mr. Marks filed his
motion to exclude time on November 1, 2016. Assuming that
motion does not toll speedy trial since it was filed during a
period of exclusion as opposed to the original speedy trial
period, there are currently 81 days left in the speedy trial
Marks' motion is based on the need for his defense
counsel to review the discovery. On August 24, 2016, the
government provided 750 pages of discovery and 28 audio files
consisting of 9.5 hours of recordings to Mr. Stevenson.
Docket No. 17 at 2. Counsel for Mr. Marks entered his
appearance on October 19, 2016. Docket No. 24. Based on the
review that defense counsel has completed to date, defendant
anticipates the following tasks need to be completed: (a)
finish reviewing the discovery; (b) identify witnesses among
the people mentioned in the discovery; and (c) obtain and
review the fingerprint examination, DNA testing, and hair
testing referred to in the discovery and retain experts as
indictment charges Mr. Marks and Mr. Stevenson with one count
of theft of firearms from a federal firearms licensee in
violation of 18 U.S.C. §§ 922(u) and 2 and one
count of conspiracy to commit the same in violation of 18
U.S.C. § 371.
motion implicates the Speedy Trial Act of 1974, codified at
18 U.S.C. §§ 3161-3174. Specifically, the motion
implicates 18 U.S.C. § 3161(h), which provides in
The following periods of delay shall be excluded . . . in
computing the time within which the trial of any such offense
. . . .
(7)(A) Any period of delay resulting from a continuance
granted by any judge . . . 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.
18 U.S.C. § 3161(h)(7)(A).
Speedy Trial Act serves two distinct interests: first, to
protect a defendant's right to a speedy indictment and
trial, and second, to serve the public interest in ensuring
prompt criminal prosecutions. United States v.
Williams, 511 F.3d 1044, 1047 (10th Cir. 2007). The Act
requires that a defendant's trial commence within 70 days
after his indictment or initial appearance, whichever is
later. See 18 U.S.C. § 3161(c)(1); Zedner
v. United States, 547 U.S. 489, 497 (2006). Certain
periods of delay are excluded and do not count toward the
70-day limit. See 18 U.S.C. § 3161(h)(1)-(8).
Specifically, “the Act excludes any period of delay
‘resulting from a continuance granted by any judge . .
. on the basis of its 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.'”
United States v. Hill, 197 F.3d 436, 440-41 (10th
Cir. 1999) (quoting former 18 U.S.C. § 3161(h)(8)(A)).
order for a continuance to qualify as an excludable
“ends-of-justice” continuance under §
3161(h)(7)(A), certain prerequisites must be satisfied.
Id. at 441. First, I must consider the following
factors listed in § 3161(h)(7)(B):
(i) Whether the failure to grant such a continuance in the
proceeding would be likely to make a continuation of such
proceeding impossible, or result in a miscarriage of justice;
(ii) Whether the case is so unusual or so complex, due to the
number of defendants, the nature of the prosecution, or the
existence of novel questions of fact or law, that it is
unreasonable to expect adequate preparation for pretrial
proceedings or for the ...