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United States v. Marks

United States District Court, D. Colorado

November 23, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
TONY CURTIS MARKS, Defendant.

          ORDER GRANTING ENDS OF JUSTICE CONTINUANCE

          PHILIP A. BRIMMER United States District Judge

         The 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.

         Mr. 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 period.

         Mr. 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 needed.

         The 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.

         Defendant's 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 relevant part:

The following periods of delay shall be excluded . . . in computing the time within which the trial of any such offense must commence:
. . . .
(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).

         The 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)).

         In 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 ...

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