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United States v. Dendana

United States District Court, D. Colorado

January 17, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
1. ABRAHALE DENDANA, 2. AHMEDIN MOHAMED, 3. BEGASHAW YIRDAW, and 4. ANWAR YUSUF, Defendants.

          ORDER GRANTING ENDS OF JUSTICE CONTINUANCE

          PHILIP A. BRIMMER United States District Judge

         The 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.

         On 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 13, 2017.

         Mr. 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.

         The 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.

         Defendant 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 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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