Opinion
Docket No. 2002M0421-RBC
July 17, 2002
Allison Burroughs, Asst. U.S. Atty., Boston, MA., Robert E. Wallace, Sr. Trial Atty. U.S. Dept. of Justice Criminal Division/ISS, Room 9422 1400 New York Ave., N.W. Washington, DC., Counsel for USA.
Thomas E. Dwyer, Jr., Esq. Dwyer Collora, LLP, Boston, MA, Peter B. Krupp, Esq. Lurie Krupp, LLP, Boston, MA, Dan Marmalefsky, Esq. Morrison Foerster, LLP, Los Angeles, CA, Eric M. Acker, Esq., Morrison Foerster, LLP, San Diego, CA., Counsel for Defendants.
ORDER RE: DEFENDANTS' WAIVER OF RIGHT, TO INDICTMENT IN 30 DAYS UNDER, 18 U.S.C. § 3161(b) AND WAIVER OF, RIGHT TO A PRELIMINARY EXAMINATION
The above-listed defendants appeared before the Court this date having been removed from the United States District Court for the Southern District of California. Both defendants were represented by counsel.
At the Court hearing, defendants' counsel filed a pleading entitled "Defendants' Waiver of Right to Indictment in 30 Days under 18 U.S.C. § 3161(b) and Waiver of Right to Preliminary Examination."
As to the "waiver of preliminary examination", the title of the motion is a misnomer. Defendants are not waiving their right to a preliminary examination per se; rather, they are waiving their right to have a preliminary examination within 20 days and are seeking a continuance of the preliminary examination for 180 days. A continuance of a preliminary examination beyond 20 days is governed by Rule 5(c), Fed.R.Crim.P., which provides, in pertinent part:
With the consent of the defendant, and and up upon on a showing of good cause, taking into account the public interest in the prompt disposition of criminal cases, time limits specified in this subdivision may be extended one or more times by a federal magistrate judge.
Emphasis supplied.
Accordingly, counsel is granted leave to file and serve a motion to continue the preliminary examination, which includes a showing of good cause for the continuance and the length of the continuance sought, or be for the close of business on Friday, July 26, 2002
The matter of waiver of indictment within 30 days is a different matter. As an initial matter, the waiver is ineffective. There is no provision of the Speedy Trial Act which permits the time limits to be extended merely by a defendant filing a waiver. This is because the Speedy Trial Act was also designed to serve the public's interest in a speedy trial of those charged with federal criminal offenses.
The 30-day time period ( 18 U.S.C. § 3161(b)) may be "extended" if there is a period of excludable delay during the period pursuant to 18 U.S.C. § 3161(h). Title 18 U.S.C. § 3161(h)(1)(G) would provide a period excludable delay from the date of the defendants' arrest in San Diego to their appearance in Massachusetts. Thus, the 30-day period within which an indictment or information must be filed commences today, July 17, 2002. To the extent that the defendants' seek a further extension, they must file a motion for a "continuance" pursuant to 18 U.S.C. § 3161(h)(8)(A). In order to grant such a "continuance", the Judge must make findings that ". . . the ends of justice served by granting the continuance outweigh the best interest of the defendant and the public in a speedy trial." Id. The findings must be set forth in writing in the record of the case. Id. The factors which the Court must take into account in deciding such a motion are listed in 18 U.S.C. § 3161(h)(8)(B).
Accordingly, in order to obtain an extension of the time within which an indictment or information must be filed beyond 30 days from today's date, defendants' counsel must file a motion pursuant to 18 U.S.C. § 3161(h)(8) and include in such motion any and all facts upon which the findings necessary to grant the continuance are to be based. Under the Speedy Trial Act Plan for the District of Massachusetts, the motion, although filed in the Magistrate Judge's case, has to be acted upon by the District Judge assigned to the Miscellaneous Business Docket.
If the defendants (or the defendants and the Government jointly) wish to file such a motion, it shall be filed and served on on or be for the close of business on Friday, July 26, 2002.