United States District Court, N.D. Oklahoma
OPINION AND ORDER
E. DOWDELL DISTRICT JUDGE.
before the Court is Defendant's Motion to Continue All
Dates (Doc. 128). Defendant requests a new scheduling order
including continuance of the jury trial now set for March 20,
2017. The United States does not object to this motion but
defendant Jesus Coronado does object. Defendant Donna
Hernandez has taken no position in the motion.
September 7, 2016, a sealed eighteen-page indictment was
returned alleging a drug conspiracy, four counts of
distribution of methamphetamine, one count of possession of
methamphetamine with intent to distribute, one count of
conspiracy to possess firearms in furtherance of drug
trafficking, and two counts of possession of firearms in
furtherance of drug trafficking. Several of the counts
require minimum mandatory sentences and two requires that
such sentences be consecutive to any other sentence.
Forfeiture allegations were also included in the Indictment.
All but one of the defendants have been arraigned and most
have been detained pending trial.
October 13, 2016, an unopposed motion to declare this matter
complex (Doc. 92) was granted and a scheduling order was
issued, setting February 6, 2017, for the filing of pretrial
motions and March 20, 2017, for trial. (Doc. 118).
Court determined in its July 15, 2016, order that the case
was complex due to the number of defendants, the substantial
amount of discovery to be disclosed, the nature of the
discovery including voluminous discovery involving Title III
wiretaps many of which are in Spanish, and the issuance of a
protective order to be issued.
that time, delays have occurred in the disclosure of
discovery to the defendants due to the number of
interceptions and the time needed to transcript the calls and
text messages. A second discovery production was made
available on January 23, 2017, and contained the wav (audio)
files and transcripts of the conversations and text messages
intercepted. In the case of defendant Gerardo Hernandez whose
phone was the target of the Title III order, every session of
the 2, 836 sessions directly involves him. The other
defendants are involved in the interceptions to varying
request for a continuance falls under § 3161(h)(7)(A) of
the Speedy Trial Act. This section permits a federal district
court to exclude any period of delay resulting from a
continuance 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). A court must orally or in writing set forth
its reasons for granting an ends of justice continuance and
make findings that a continuance is in the best interest of
the defendant and the public. Id. The statute
permits a court to consider whether “the failure to
grant such a continuance . . . would deny counsel for the
defendant . . . the reasonable time necessary for effective
preparation, taking into account the exercise of due
diligence.” Id. at § 3161(h)(7)(B)(iv).
The Tenth Circuit has been clear that an ends of justice
continuance should not be granted “cavalierly”
and it was intended to be a “rarely used tool.”
United States v. Williams, 511 F.3d 1044, 1048-1049
(10th Cir. 2007).
United States v. Toombs, 574 F.3d 1262
(10th Cir. 2009), the Tenth Circuit limited the
circumstances in which an ends of justice continuance can be
granted and emphasized that this should be a rarely used
procedural tool. The parties must provide the district court
a sufficient record to determine why the facts stated in a
motion for continuance “result in the need for
additional time.” Id. at 1271. This requires
the parties to provide specific information about the need
for a continuance, and the district court may need to hold a
hearing before granting an ends of justice continuance.
Id. at 1272-73. A district court must also give
significant weight to the public's interest in a speedy
trial, and the public's interest is generally served by
strict adherence to the requirements of the Speedy Trial Act.
Id. at 1273.
asks the Court to continue all deadlines in the present
scheduling order for 90 days to allow discovery review to be
completed, for defendants and counsel to review the
discovery, for counsel to conduct investigation and confer
with their clients, to prepare pretrial motions, and to
prepare for trial. The case is currently set for trial on
March 20, 2017, which is not adequate time for defendants to
prepare for trial.
Court finds that Defendant's request for a 90 day
extension of all deadlines is reasonable and the request for
an ends of justice continuance should be granted. In addition
to the interests of the Defendants, the Court has considered
the public's interest in the speedy resolution of
criminal case and finds that a limited ends of justice
continuance will not subvert the public's interest in the
prompt prosecution of criminal matters.
IS THEREFORE ORDERED that Defendants' Motion to
Continue All Scheduling Dates (Doc. 128) is granted and that
the scheduling order entered on October 13, 2016 (Doc. 118)
IS FURTHER ORDERED that the following scheduling
order be entered:
6/6/2017 at 1:30 p.m.
Voir dire, jury instructions, and trial briefs due;
6/19/2017 at 9:30 a.m.
FURTHER ORDERED that time between March 20, 2017, and June
19, 2017 is excludable pursuant to ...