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United States v. Davies

United States District Court, D. Colorado

December 5, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
6. BRADEN DAVIES, 7. SYED I. SHAH Defendants.

          ORDER DENYING GOVERNMENT'S MOTION FOR CONTINUANCE

          William J. Martínez United States District Judge.

         Now 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 denied.

         I. BACKGROUND

         The 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.

         In 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.

         As to 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.

         Defendants 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.[1] 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 trial date.

         II. ANALYSIS

         The 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).

         However, “[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.

         A. Absent or Unavailable Essential Witness-§ 3161(h)(3)

         First, 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 provision:

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.

         1. Detective Jeffers

         First, 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.)

         Other 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 ...


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