United States District Court, D. Colorado
ORDER GRANTING ENDS OF JUSTICE CONTINUANCE
Philip
A. Brimmer Judge
The
matter is before me on the Joint Partially Opposed Motion for
a Second Ends of Justice Exclusion of 60 Days From the Speedy
Trial Calendar Pursuant to Title 18, United States Code,
Sections 3161(h)(7)(A) and (B)(ii) and (iv) [Docket No. 140],
wherein the United States and defendant Omar Chavez-Gutierrez
request that the Court exclude an additional 60
days[1]
from the Speedy Trial period. Id. at 1-2. The other
defendants who have entered appearances approve the request.
Id. at 2; Docket No. 141 at 1. Mr. Martin
Juarez-Vera, who movants believed opposed the request, has
since indicated that he joins the motion. Docket No. 141. On
November 8, 2018, on a motion to exclude time filed by the
United States, Docket No. 60, I entered a written order
finding that the case is complex due to the nature of the
crimes charged and the amount and nature of discovery. Docket
No. 82. I ordered that 120 days from the date of the order be
excluded from the Speedy Trial computation. The 60 days
remaining at the time of that order remain now.
The
government'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
No. 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 which
the grand jury must base its determination are unusual or
complex;
(iv) Whether the failure to grant such a continuance in a
case which, taken as a whole, is not so unusual or so complex
as to fall within clause (ii), would deny the defendant
reasonable time to obtain counsel, would unreasonably deny
the defendant or the Government continuity of counsel, or
would deny counsel for the defendant or the attorney for the
Government the reasonable time necessary for effective
preparation, taking into account the exercise of due
diligence.
18 U.S.C. § 3161(h)(7)(B)(i) - (iv). After considering
these factors, I must then set forth, “in the record of
the case, either orally or in writing, [my] reasons for
finding that the ends of justice served by the granting of
such continuance outweigh the best interests of the public
and the defendant in a speedy trial.” Id.,
§ 3161(h)(7)(A). Although my findings “‘may
be entered on the record after the fact, they may not be made
after the fact.'” Hill, 197 F.3d at 441 (quoting
United States v. Doran, 882 F.2d 1511, 1516 (10th
Cir.1989)). “Instead, ‘[t]he balancing must occur
contemporaneously with the granting of the continuance
...