Opinion
Case No. 3:13-cr-198-BLW
12-23-2013
UNITED STATES OF AMERICA, Plaintiff, v. DELBERT DANIEL GEORGE, Defendant.
MEMORANDUM DECISION AND
ORDER
Trial in this case is presently set for January 13, 2014. The Government seeks a continuance arguing that the defendant agreed to one in the plea agreement. But the defendant has withdrawn his plea and so the validity of the plea agreement is questionable. Moreover, a defendant may not prospectively waive his or her rights under the Speedy Trial Act, such as by agreeing to a continuance. Zedner v. U.S., 547 U.S. 489 (2006).
The Government points out that the case agent is unavailable until January 6, 2014. No further detail is provided. If he is simply on vacation, and will be return a week prior to trial, there is no cause for continuance. See 18 U.S.C. § 3161(h)(3)(B) (essential witness not unavailable where presence can be obtained by due diligence); § (h)(7)(C) (no excludable time for Government's failure to obtain available witnesses).
The Government's main argument is that it will seek a superseding indictment (adding additional felony charges) before the grand jury meeting on January 14, 2013, and January 22, 2014. The Government cites no authority that its intent to seek a superseding indictment in the future warrants a finding of excludable delay today. Such a continuance might be permitted under 18 U.S.C. § 3161 (h)(7)(A). But the Court need not resolve this issue, and so expresses no opinion on it. The Court will reserve ruling on the Government's motion because it may be unnecessary to do so if the defendant files a motion to continue.
If the defendant needs additional time to prepare, the defendant is free to file a motion to continue. The Court will set a deadline of January 3, 2014, for any motion to continue filed by the defendant.
ORDER
In accordance with the Memorandum Decision above,
NOW THEREFORE IT IS HEREBY ORDERED, that the Court hereby RESERVES RULING on the Government's motion to continue (docket no. 38).
IT IS FURTHER ORDERED, that if the defendant is going to file a motion to continue, that it be filed on or before January 3, 2014.
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B. Lynn Winmill
Chief Judge
United States District Court