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United States v. Babichenko

United States District Court, D. Idaho

November 30, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
PAVEL BABICHENKO, GENNADY BABITCHENKO, PIOTR BABICHENKO, TIMOFEY BABICHENKO, KRISTINA BABICHENKO, NATALIE BABICHENKO, DAVID BIBIKOV, ANNA IYERUSALIMETS, MIKHAIL IYERUSALIMETS, ARTUR PUPKO, Defendants.

          MEMORANDUM DECISION AND ORDER

          B. LYNN WINMILL CHIEF U.S. DISTRICT COURT JUDGE

         INTRODUCTION

         The Court has before it the Government's Unopposed[1] Motion for Complex Case Designation Pursuant to 18 U.S.C. § 3161(h)(7)(ii)[2] and Trial Continuance (hereinafter, “Motion”). Dkt. 134. United States District Court Judge Lodge granted the Government's request for a ninety day continuance, but did not rule on the Government's request to (1) designate the case as complex pursuant to § 3161(h)(7)(B)(ii) and (2) continue the trial to October 2019.

         The Court now takes up the Government's requests to (1) designate this case as complex pursuant to § 3161(h)(7)(B)(ii) and (2) continue the trial to October 2019. For the reasons set forth herein, the Court will GRANT the Government's request to designate the case as complex. However, it will DENY the Government's request to continue the trial to October 2019. A trial in this case is hereby set to begin on June 3, 2019 at 9:00 AM MST in the Federal Courthouse in Boise, Idaho.

         BACKGROUND

         This case involves ten defendants, each of whom have been charged with multiple counts. Prior to filing its motion, the Government met and conferred with counsel for nine of the ten defendants to discuss designating the case as complex. According to the Government, defense counsel for nine of the ten defendants collectively represented that the Defendants agreed to (1) designate the case as complex and (2) agree to a one-year continuance. Dkt. 151 at 2. The Government subsequently filed its unopposed Motion on October 22, 2018. Dkt. 134.

         The “agreement” between the Government and Defense Counsel for nine of the ten defendants quickly fell apart. Defendant Gennady Babitchenko was the first to oppose the Government's request (Dkt. 135): he was quickly joined by eight of the other defendants (Dkts. 137, 138, 139, 140, 141, 143, 147, 148). All told, nine of the ten Defendants in the case oppose the Government's Motion.

         LEGAL STANDARD

         Pursuant to the Speedy Trial Act, a criminal trial must normally commence within seventy days of the filing of the indictment, information, or appearance of a defendant.18 U.S.C. § 3161(c)(1). However, there are certain circumstances under which a Court may exclude time from the seventy-day clock. 18 U.S.C. § 3161(h)(7)(B)(ii) allows the Court to order excludable time where:

Whether the case is so unusual or so complex, due to the number of defendants, the nature of the prosecution, or the existence of novel questions of fact or law, that it is unreasonable to expect adequate preparation for pretrial proceedings or for the trial itself within the time limits established by this section.[3]

         The United States Court of Appeals for the Ninth Circuit has framed the inquiry as whether “the complexity of the case, involving … [multiple] codefendants and multiple overt acts …, outweigh[s] the interests of individual defendants and that the continuance served ‘the ends of justice.'” United States v. Butz, 982 F.2d 1378, 1381 (9th Cir. 1993) (citation omitted). In Butz, the Ninth Circuit concluded that designating the case as complex was appropriate because it involved: (1) nine defendants, (2) a twenty-nine count indictment, (3) conduct in multiple states, (4) voluminous discovery in the form of hundreds of hours of wiretap evidence, and (5) witnesses from inside and outside the state in which the charges were brought. Id.

         ANALYSIS

         1. Application of the Factors Identified in Butz

         On the record before it, the Court concludes that this case is sufficiently complex that “the ends of justice served by [designating the case as complex and] … granting … [a] continuance outweigh the best interests of the public and the defendant[s] in a speedy trial.” § 3161(h)(7)(A). Each factor identified in Butz is present here. This case involves ten defendants and a thirty-four-count indictment related to a conspiracy that allegedly spanned a decade. Dkt. 151 at 4. From its base in the Treasure Valley, the conspiracy allegedly sourced the counterfeit products from as far away as China and Hong Kong. Id. ...


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