Opinion
04-CR-260A.
February 14, 2005
ORDER
Section 3161(h)(1)(J) of Title 10, U.S.C. permits the exclusion of 30 days once a motion is taken "under advisement" by the court. A motion is taken under advisement "once the court has everything it expects from the parties prior to making its decision." United States v. Piteo, 726 F.2d 50, 52 (2d Cir. 1984); United States v. Bufalino, 683 F.2d 639, 642-44 (2d Cir. 1982), cert. denied, 459 U.S. 1104 (1983). In this case, that occurred with respect to Defendant's omnibus motion (Doc. Nos. 10, 11, 12); Government response (Doc. No. 13) followed by oral argument on January 6, 2005 at which time a briefing schedule was set for Defendant to submit authority re: Defendant's motion to strike sentencing allegation by January 14, 2005 and the Government to file its response by January 21, 2005. It has come to the court's attention the Government did not file a response as Defendant has withdrawn his motion to strike the sentencing allegations from the Indictment. Therefore, the court's decision on the pending motion is due February 14, 2005 (February 12 and 13, 2005 being a Saturday and Sunday respectively).
I have reviewed Defendant(s) motion papers, memoranda/affidavits, my notes of the hearing in connection therewith, and the papers submitted on the government's behalf, in some detail and have made substantial progress toward a decision on the omnibus motions. It now appears that full consideration of the motions made on behalf of the defendant will take time beyond the 30 day advisement period and that "it is . . . open to . . . [the court] to find that the interest of justice is best served by granting a continuance under § 3161(h)(8) for the excess period,. . . ." United States v. Bufalino, 683 F.2d at 645.
Therefore, on the basis of my findings that the motion(s) is/are complex, that the court is currently engaged in an examination of the several issues presented by the motion(s), and further upon my findings that the interest of justice in a continuance overrides the Defendant and public's interest in a speedy trial, a continuance is granted pursuant to § 3161(h)(8)(A) until March 16, 2005 for the purpose of rendering a decision.
This order "puts defense counsel on notice that the speedy trial clock has been stopped," and it ensures a timely determination, "[i]f for any reason counsel believes that . . . [an exclusion] is inappropriate, [of] an objection . . . [timely] raised and [upon] a record made at that time." United States v. Tunnesen, 763 F.2d 74, 78 (2d Cir. 1985). See also, United States v. Kiszewski, 877 F.2d 210, 215 (2d Cir. 1989) (prosecutors are responsible along with the court in paying attention to Tunnesen.)
CONCLUSION
The foregoing constitutes a decision and order pursuant to 28 U.S.C. § 636(b)(1)(A), and the Speedy Trial Act.
SO ORDERED.