United States v. Chavez-Gutierrez

          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 ...