Opinion
CRIMINAL ACTION 10-00273-KD.
February 7, 2011
ORDER
This action is before the Court on the joint motion to continue the trial of defendant Bruce Edward McDonald (doc. 54). Upon consideration of the motion and the grounds stated therein, the Court finds that pursuant to 18 U.S.C. § 3161(h)(7)(A), "the ends of justice served by taking such action outweighs the best interest of the public and the defendant in a speedy trial." Specifically, the Court finds that the request to continue the trial for defense counsel to recover from a medical condition and adequately prepare for trial is reasonable under the circumstances. See 18 U.S.C. § 3161(h)(7)(B)(iv) (requiring consideration of whether failure to grant a continuance "would deny counsel for defendant or the attorney for the Government the reasonable time necessary for effective preparation, taking into account the exercise of due diligence.")
The United States did not oppose this motion to continue and also noted "that the jointly indicted defendants should be tried together" (doc. 59). Defendant Timothy Wayne Seabury opposed the continuance and alternatively moved to sever his trial (doc. 60). The issue of whether the trial will be continued as to Seabury will be addressed at the hearing scheduled for Tuesday, February 8, 2011 at 10:00 a.m.
For purposes of the Speedy Trial Act, any delay resulting from this continuance is excludable pursuant to 18 U.S.C. § 3161(h)(7)(A) (excluding "[a]ny period of delay resulting from a continuance granted by any judge . . . 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.").
However, this continuance is contingent upon defendant Bruce Edward McDonald filing a written waiver of his right to a speedy trial, signed by McDonald, not later than Tuesday, February 8, 2011 at 3:00 p.m.
Accordingly, provided that defendant files his waiver of speedy trial, the motion to continue trial (doc. 54) is GRANTED and this action as to defendant McDonald is continued to the March 2011 criminal trial term with jury selection to be held on February 28, 2011.
The Clerk of the Court is directed to refer this action to the appropriate Magistrate Judge to reschedule a pretrial conference.
DONE and ORDERED this February 7, 2011.