Opinion
Criminal Case No. 10-cr-00164-REB
12-21-2011
UNITED STATES OF AMERICA, Plaintiff, v. 1. RICHARD SANTIAGO, and 2. SILVESTRE MAYORQUI RIVERA, Defendants.
Judge Robert E. Blackburn
ORDER EXCLUDING TIME UNDER THE SPEEDY TRIAL ACT
(18 U.S.C. § 3161(h)(7)(A))
Blackburn , J.
The matter is before me sua sponte to consider the exclusion of time under the Speedy Trial Act of 1974, 18 U.S.C. §§ 3161-74 (the Act). Based on the analysis below, I exclude 180 days from the hearing on November 2, 2011,from the computation of time for a speedy trial under the Act.
On November 2, 2011, I issued my ruling granting the respective motions to sever [#349 and #350]. At the conclusion of the hearing, I also discussed with counsel the necessity and propriety of excluding not less than an additional 180 days from November 2, 2011, from the computation of time for a speedy trial under the Act. I found then that a failure to exclude such additional time "would not allow sufficient time for ongoing analysis of discovery, ongoing pretrial investigation, the ongoing development and consummation of a strategy to identify and then prepare and file appropriate pretrial motions, and for other related matters." I then gave the parties a reasonable, albeit brief, time to respond to my findings.
In their papers all parties agree to an exclusion of at least 180 days from the computation of time for a speedy trial under the Act. Additionally, in response to my orders, the parties have submitted their proposed schedules for the filing and marshaling of pretrial motions.
At the hearing on November 2, 2011, the government agreed to the exclusion of 180 days. The government reiterated its concurrence in its papers [#449] and [#450] filed November 10, 2011. Mr. Santiago concurred expressly in his paper [#448] filed November 9, 2011. Mr. Mayorqui-Rivera concurred implicitly in his paper [#458] filed November 25, 2011.
In these circumstances, I reiterate and ratify the relevant findings I made on November 2, 2011. These findings ineluctably cause me to conclude that the failure to exclude an additional 180 days would shorten the time for a speedy trial; thus, depriving counsel for the defendants of the time reasonably necessary for pretrial and trial preparation with the concomitant risk of a miscarriage of justice. Section 3161(h)(7)(B)(i) and (iv). Additionally, the failure to exclude an additional 180 days in this complex capital case would make it unreasonable to expect adequate preparation for pretrial and trial proceedings in the time otherwise allocated for a speedy trial under the Act. Section 3161(h)(7)(B)(ii). Thus, I conclude ultimately that the ends of justice by excluding an additional 180 days outweigh the best interests of the public and the defendants in a speedy trial. Section 3161(h)(7)(A).
Although my findings "'may be entered on the record after the fact, they may not be made after the fact.'" United States v. Hill, 197 F.3d 436, 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 because Congress intended that the decision to grant an ends-of-justice continuance be prospective, not retroactive[.]'" Id. (quoting Doran, 882 F.2d at 1516). I have discharged these duties.
THEREFORE, IT IS ORDERED as follows:
1. That an additional 180 days from November 2, 2011, SHALL BE EXCLUDED under 18 U.S.C. § 3161(h)(7)(A) from the time for a speedy trial under the Speedy Trial Act of 1974; and
The exclusion of this period in no way affects the exclusion of some or all of this same time or additional time under other provisions of the Act, e.g., § 3161(h)(1)D) (delay resulting from other pending pretrial motions.)
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2. That any party that objects to the foregoing findings, conclusions, or orders shall file its objections by January 4. 2012.
Dated December 21, 2011, at Denver, Colorado.
BY THE COURT:
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Robert E. Blackburn
United States District Judge