The opinion of the court was delivered by: B. Lynn Winmill Chief Judge United States District Court
MEMORANDUM DECISION AND ORDER
In this decision, the Court will raise issues regarding the Speedy Trial Act and the custody clock, although these issues have not been raised by counsel. The Court shares responsibility with counsel to affirmatively protect the rights of society and criminal defendants to a speedy trial. United States v. Lam, 251 F.3d 852, 861 n. 11 (9th Cir.2001). In this decision, the Court simply identifies potential issues without resolving them, and directs counsel to file briefing on the issues. The Court will not resolve these issues until counsel have had a full opportunity for briefing.
For the purpose of presenting the issue in its simplest form, the Court will assume that the Speedy Trial clock started ticking on December 21, 2010, when the three defendants were arraigned on the Indictment.*fn1 The Speedy Trial Act required trial within 70 days, and that period expired on March 1, 2011.
The Indictment charged the three defendants -- Macedo, Sanchez-Elorza, and JaimesOliveros -- with conspiracy to distribute methamphetamine and with four other related counts. There were no motions filed between December 21st and March 1st that affected the running of the Speedy Trial clock.*fn2 The Superseding Indictment was filed on December 14, 2010. It added a single charge -- felon-in-possession -- against an existing defendant, Jaimes Oliveros.
The defendants were all arraigned on the Superseding Indictment on December 21st and given a new trial date of March 28, 2011. That is 27 days beyond the original Speedy Trial deadline of March 1, 2011. No excludable time findings were made in the minute sheet of that arraignment. 30-Day Preparation Period
Was this 27-day period necessary under 18 U.S.C. § 3161(c)(2) because the defendants were entitled to thirty days to prepare for the new charge contained in the Superseding Indictment? The Supreme Court has held that § 3161(c)(2) does not apply to superseding indictments:
The statute [§ 3161(c)(2)] clearly fixes the beginning point for the trial preparation period as the first appearance through counsel. It does not refer to the date of the indictment, much less to the date of any superseding indictment. Given this unambiguous language, we have no choice but to conclude that Congress did not intend that the 30-day trial preparation period begin to run from the date of filing of a superseding indictment.
US v Rojas-Contreras, 474 U.S. 231, 234 (1985). The Supreme Court noted, however, that a judge could grant a continuance under the "ends-of-justice" provisions of the Speedy Trial Act, which "should take care of any case in which the Government seeks a superseding indictment which operates to prejudice a defendant." Id. at 236. "Ends-Of-Justice" Continuance
The Court has authority to grant -- on its own motion -- an "ends of justice" continuance if it finds that holding all parties to the existing trial date would be prejudicial. See 18 U.S.C. § 3161(h)(7)(A) (authorizing continuance of trial if "the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial"). In the present case, however, there is no indication in the minutes of the arraignment hearing that an "ends-of-justice" continuance was ordered. A continuance on this ground requires the court to "set forth, in the record of the case, either orally or in writing, its reasons . . . ." See 18 U.S.C. § 3161(h)(7)(A). That was not done.
It is too late to do it now -- continuances based on the "ends-of-justice" provision cannot be retroactively granted. Clymer, 25 F.3d at 829 (holding that "[t]he [Speedy Trial] Act's carefully-crafted exclusions would be rendered wholly irrelevant if a district court could invoke the "ends of justice" provision retroactively, to validate any delay that occurred prior to trial"). These findings would have to ...