United States District Court, D. Colorado
ORDER DENYING GOVERNMENT'S MOTION FOR
William J. Martínez United States District Judge.
before the Court in this drug conspiracy and money laundering
case is the Government's Motion for Ends-of-Justice
Continuance of Trial Pursuant to 18 U.S.C. § 3161. (ECF
No. 192.) For the reasons explained below, this Motion is
Government initiated this case on September 10, 2014,
charging 24 counts against eight co-conspirators. As a
general summary, the Government alleges that Defendant
Fernandez and his co-conspirators sent drugs from Canada for
sale in the United States, including in Colorado, then
returned proceeds from those drug sales to Canada, including
through wire transfers to various bank accounts in Canada,
including accounts controlled by Defendants Davies and Shah.
Count 1, the Indictment charges conspiracy to distribute, and
to possess with intent to distribute,
methylenedioxymethamphetamine and methylenedioxy-amphetamine
(i.e., MDMA and Ecstasy), in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(C) & 846. (ECF No. 1.)
Other counts of the Indictment charge related individual drug
transactions. None of these drug distribution counts are
charged against Defendants Davies or Shah.
the money laundering counts, the Indictment charges both
Davies and Shah in Count 2 with conspiracy to engage in
financial transaction(s) representing proceeds of illegal
distribution of a controlled substance, 18 U.S.C.
§§ 1956(a)(1)(B) & 1956(h). In addition, Davies is
charged in Count 9 with committing, or aiding and abetting, a
money laundering transaction that occurred on or about May
21, 2013, in violation of §§ 1956(a)(1)(B) & 2.
Shah is similarly charged in Count 18 with a single violation
of §§ 1956(a)(1)(B) & 2, occuring on or about
February 17, 2014.
Solan, Melgar-Recinos, and Wortman were previously arrested,
appeared, and entered plea agreements, and this case
terminated as to those three defendants in 2015.
(See ECF Nos. 80, 113, 116, 106, 143, 145.) However,
Davies and Shah, and other named co-defendants, are residents
of Canada, and extradition proceedings and related appeals
have been ongoing since 2014 or 2015. (ECF No. 192 at 2.)
Defendant Fernandez evidently remains a
fugitive. As further detailed in Part II.B. below,
both Davies and Shah were extradited from Canada earlier in
2017, and were jointly set for a trial to commence on
December 18, 2017. The Government now seeks to continue that
Speedy Trial Act is “designed to protect a
defendant's constitutional right to a speedy indictment
and trial, and to serve the public interest in ensuring
prompt criminal proceedings.” United States v.
Hill, 197 F.3d 436, 440 (10th Cir. 1999). It requires
that a criminal defendant's trial commence within 70 days
after his indictment or initial appearance, whichever is
later. See 18 U.S.C. § 3161(c)(1); United
States v. Lugo, 170 F.3d 996, 1001 (10th Cir. 1999).
“[s]everal ‘enumerated events' are excluded
from the statute's prescribed seventy-day period, thus
tolling the speedy-trial clock.” United States v.
Margheim, 770 F.3d 1312, 1318 (10th Cir. 2014); 18
U.S.C. § 3161(h)(1)-(8). Here, the Government seeks
exclusion of time and a resulting continuance under three of
these statutory grounds. Although the parties' arguments
tend to blur the lines between these statutory bases, the
Court addresses each in turn.
Absent or Unavailable Essential Witness-§
the Government cites § 3161(h)(3)(A), which excludes
“[a]ny period of delay resulting from the absence or
unavailability of the defendant or an essential
witness.” (ECF No. 192 at 6.) For purposes of this
a defendant or an essential witness shall be considered
absent when his whereabouts are unknown and, in addition, he
is attempting to avoid apprehension or prosecution or his
whereabouts cannot be determined by due diligence. . . . a
defendant or an essential witness shall be considered
unavailable whenever his whereabouts are known but his
presence for trial cannot be obtained by due diligence or he
resists appearing at or being returned for trial.
18 U.S.C. § 3161(h)(3)(B). The Government raises
problems with three witnesses, but none have an unknown
whereabouts (i.e., an “absent” witness).
Therefore the only relevant determination is whether any are
“unavailable” within the meaning of §
3161(h)(3)(B). The Government has not shown that they are.
the Government argues that DEA Task Force Officer Brian
Jeffers, a detective with the Denver Police Department, is
scheduled for training during the time now set for trial, and
that “[w]hile his presence could be compelled with a
subpoena, such would jeopardize his employment as a police
officer.” (ECF No. 192 at 6.)
than representing that Detective Jeffers is the “case
agent, ” and that he worked undercover to investigate
this case, the Government seems to take it for granted that
he is an “essential witness, ” offering no
explanation what testimony he would offer or why the relevant
facts could not be presented through other means. Thus, the