United States District Court, D. Colorado
ORDER GRANTING ENDS OF JUSTICE CONTINUANCE
A. BRIMMER United States District Judge.
matter comes before me on the Third Unopposed Motion for an
Ends of Justice Continuance of Trial Pursuant to 18 U.S.C.
§ 3161(h)(7)(A) [Docket No. 90] and the Unopposed Motion
for an Ends of Justice Continuance of Trial Pursuant to 18
U.S.C. § 3161(h)(7)(A) [Docket No. 92], wherein
defendants Anwar Yusuf and Ahmedin Mohamed request that the
Court exclude another 90 days from the Speedy Trial period.
The United States does not oppose the motions. Docket No. 99
at 5. Defendant Yirdaw has filed a notice of disposition.
Docket No. 87. Defendant Dendana did not respond to the
October 28, 2016, the Court granted Mr. Yusuf's first
motion for an ends of justice continuance, excluding 90 days.
See Docket No. 66. On January 17, 2017, the Court
granted Mr. Yusuf's second motion for an ends of justice
continuance and excluded 90 days from the speedy trial
period. See Docket No. 83. The trial in this matter
is currently set for June 5, 2017. Id. at 5. Based
upon Mr. Dendana's initial appearance on October 3, 2016
and the previous two exclusions of time, I find that there
are 62 days left in the Speedy Trial Act period.
Yusuf's and Mr. Mohamed's motions are based on the
need for defense counsel to review a very large amount of
electronic discovery that the government made available in
late March 2017, consisting of 1.8 terabytes of data. Docket
No. 90 at 2; Docket No. 92 at 1. This is a portion of the
discovery referred to in my January 17, 2017 ends of justice
order. Docket No. 83 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.
motions implicate the Speedy Trial Act of 1974, codified at
18 U.S.C. §§ 3161-3174. Specifically, the motions
implicate 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 trial itself within the time limits
established by [the Act];
(iii) Whether, in a case in which arrest precedes indictment,
delay in the filing of the indictment is caused because the
arrest occurs at a time such that it is unreasonable to
expect return and filing of the indictment within the period
specified in section 3161(b), or because the facts upon ...