United States District Court, D. Colorado
ORDER GRANTING ENDS OF JUSTICE CONTINUANCE
A. BRIMMER United States District Judge
matter is before me on the Second Unopposed Motion for an
Ends of Justice Continuance of Trial Pursuant to 18 U.S.C.
§ 3161(h)(7)(A) [Docket No. 67], wherein defendant Anwar
Yusuf requests that the Court exclude another 90 days from
the Speedy Trial period. The United States does not oppose
the motion. Docket No. 67 at 4. Moreover, defendants Mohamad
and Yirdaw do not oppose the motion. Id.
October 28, 2016, the Court granted Mr. Yusuf's first
motion for an ends of justice continuance. See
Docket No. 66. The trial in this matter is set for February
Yusuf's motion is based on the need for defense counsel
to review discovery that the government produced on November
18, 2016 and December 23, 2016. The government produced 150
pages of FBI reports on November 18 and produced 100 pages
and numerous audio and video files on December 23. Docket No.
67 at 2. The audio and video files are approximately ten
hours in length. See Docket No. 81 at 1-2. Moreover,
the government expects to produce pen register data for six
telephones and three terabytes of information regarding
forensic data storage devices in the near future.
Id. at 2.
indictment charges the defendants with various counts related
to the distribution and/or possession with the intent to
distribute Khat, in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(C), and Title 18 U.S.C. § 2.
Yusuf'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
. . . .
(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. §
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 ...