Opinion
Case No. 2: 03 CR 640 DKW
December 5, 2003
PAUL M. WARNER, Salt Lake City, Utah, for United States of America
CHAD L. PLATT, Salt Lake City, Utah, for United States of America
Ronald J. Yengich, for Defendant
FINDINGS AND ORDER SETTING TRIAL AND EXCLUDING TIME FROM APPLICABILITY OF THE SPEEDY TRIAL ACT
THE ABOVE CAPTIONED MATTER came before the Court, pursuant to a scheduling conference. Based upon the representations of counsel, and the stipulation of the Defendant, as well as upon the status of this matter as reflected in the case file, and the pleadings and files before this court, good cause appearing in every respect therefore, the Court now makes and enters the following:
Findings of Fact
1. The instant Indictment was returned against the Defendant on August 13, 2003. Defendant was arraigned during a first appearance before Magistrate Judge Samuel Alba on August 26, 2003.
2. Defendant was represented by counsel, Ronald J. Yengich. At arraignment, defendant was released to pre-trial supervision, and a trial date of November 3 and 4, 2003 was set, which was within the time required by the Speedy Trial Act.
3. Subsequently, counsel for the Defendant and counsel for the government spoke, with forthcoming defense motions and/or further negotiations being anticipated.
4. Counsel for the defendant subsequently went out of town the week of October 20, 2003, returning on or around October 28, 2003, just days before the tial in this matter was set to begin.
5. Communication was had with the clerk of the Court suggesting that a defense motion was still anticipated, and the matter was set for a scheduling conference on November 17, 2003 at 9:00 a.m., with the trial date sticken.
6. The scheduling conference previously set for November 17, 2003, was re set by this Court for December 5, 2003 at 8:30 a.m.
7. The ends of justice will be and are served by excluding all time since October 28, 2003, up to and including the date of the new trial on Feb. 5 and 6, 2004, as set during the scheduling conference on December 5, 2003, from the Speedy Trial Act time requirements, and these ends are outweighed by the best interests of the public and the defendant in a speedy trial.
8. The ends of justice will be and are served by excluding all time since October 28, 2003, up to and including the date of trial, Feb. 5 and 6, 2004 at 8.30 a.m., from the Speedy Trial Act time requirements, in that the delay and exclusion of time is necessary and appropriate:
a) to allow defense counsel to fully prepare for possible negotiations, pretrial proceedings, pretrial motions and for trial;
b) the failure to exclude time will result in a miscarriage of justice;
and
c) failure to exclude time will unreasonably deny the Defendant a reasonable time necessary for effective case evaluation, pretrial proceedings and trial preparation, and to effectuate the continuation of counsel without interruption.
BASED UPON THE FOREGOING FINDINGS OF FACT, THE COURT MAKES AND ENTERS THE FOLLOWING ORDER:
IT IS HEREBY ORDERED:
1. The Trial of this matter is now set to begin on Feb. 5 and 6, 2004 at 8.30 a.m., before this Court.
2. All time since October 28, 2003, up to and including the new trial date on Feb. 5 and 6, 2004, is excluded from the the Speedy Trial Act time requirements, pursuant to 18 U.S.C. § 3161(h)(1)(A), (h)(1)(F), (h)(1)(G), (h)(1)(J), (h)(7), (h)(8)(A) and (h)(8)(B)(i-ii).