USA v. Chavez-Gutierrez et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Criminal Case No. 18-cr-00328-PAB
UNITED STATES OF AMERICA,
Plaintiff,
v.
1. OMAR CHAVEZ-GUTIERREZ,
2. LAURA LYNN JARAMILLO,
3. JOSE RODOLFO-PENA,
4. FIRST NAME UNKNOWN LAST NAME UNKNOWN,
5. REIDESEL LOPEZ-PARADA,
6. MICHAEL BENITEZ-LOPEZ,
7. CESAR OSVALDO GAMEZ-VERDUGO,
8. ANA CYNTIA RODRIGUEZ CHAVIRA,
9. JENNY BUSTILLOS-HERNANDEZ,
10. ALFREDO NAVARRETE-MOLINA,
11. MARTIN JUAREZ-VERA,
12. LOVEY CAMPANELLA,
13. JOSE MORENO-HERRERA,
Defendants.
ORDER GRANTING ENDS OF JUSTICE CONTINUANCE
The matter is before me on the Joint Partially Opposed Motion for a Second
Ends of Justice Exclusion of 60 Days From the Speedy Trial Calendar Pursuant to Title
18, United States Code, Sections 3161(h)(7)(A) and (B)(ii) and (iv) [Docket No. 140],
wherein the United States and defendant Omar Chavez-Gutierrez request that the
Court exclude an additional 60 days1 from the Speedy Trial period. Id. at 1-2. The
other defendants who have entered appearances approve the request. Id. at 2; Docket
1The motion refers to an exclusion of 50 days at one point, but this appears to be
a typographical error. See Docket No. 140 at 8.
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No. 141 at 1. Mr. Martin Juarez-Vera, who movants believed opposed the request, has
since indicated that he joins the motion. Docket No. 141. On November 8, 2018, on a
motion to exclude time filed by the United States, Docket No. 60, I entered a written
order finding that the case is complex due to the nature of the crimes charged and the
amount and nature of discovery. Docket No. 82. I ordered that 120 days from the date
of the order be excluded from the Speedy Trial computation. The 60 days remaining at
the time of that order remain now.
The government’s motion implicates the Speedy Trial Act of 1974, codified at 18
U.S.C. §§ 3161-3174. Specifically, the motion implicates 18 U.S.C. § 3161(h), which
provides in relevant part:
The following periods of delay shall be excluded . . . in computing the time
within which the trial of any such offense must commence:
. . . .
(7)(A) Any period of delay resulting from a continuance granted by any
judge . . . at the request of the defendant or his counsel or at the request
of the attorney for the Government, if the judge granted such continuance
on the basis of his findings that the ends of justice served by taking such
action outweigh the best interest of the public and the defendant in a
speedy trial.
18 U.S.C. § 3161(h)(7)(A).
The Speedy Trial Act serves two distinct interests: first, to protect a defendant’s
right to a speedy indictment and trial, and second, to serve the public interest in
ensuring prompt criminal prosecutions. United States v. Williams, 511 F.3d 1044, 1047
(10th Cir. 2007). The Act requires that a defendant’s trial commence within 70 days
after his indictment or initial appearance, whichever is later. See 18 U.S.C.
§ 3161(c)(1); Zedner v. United States, 547 U.S. 489, 497 (2006). Certain periods of
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delay are excluded and do not count toward the 70-day limit. See 18 U.S.C.
§ 3161(h)(1)-(8). Specifically, “the Act excludes any period of delay ‘resulting from a
continuance granted by any judge . . . on the basis of its findings that the ends of justice
served by taking such action outweigh the best interest of the public and the defendant
in a speedy trial.’” United States v. Hill, 197 F.3d 436, 440-41 (10th Cir. 1999) (quoting
former 18 U.S.C. § 3161(h)(8)(A)).
In order for a continuance to qualify as an excludable “ends-of-justice”
continuance under § 3161(h)(7)(A), certain prerequisites must be satisfied. Id. at 441.
First, I must consider the following factors listed in § 3161(h)(7)(B):
(i) Whether the failure to grant such a continuance in the proceeding
would be likely to make a continuation of such proceeding
impossible, or result in a miscarriage of justice;
(ii) 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 [the Act];
(iii) Whether, in a case in which arrest precedes indictment, delay in
the filing of the indictment is caused because the arrest occurs at a
time such that it is unreasonable to expect return and filing of the
indictment within the period specified in section 3161(b), or
because the facts upon which the grand jury must base its
determination are unusual or complex;
(iv) Whether the failure to grant such a continuance in a case which,
taken as a whole, is not so unusual or so complex as to fall within
clause (ii), would deny the defendant reasonable time to obtain
counsel, would unreasonably deny the defendant or the
Government continuity of counsel, or would deny counsel for the
defendant or the attorney for the Government the reasonable time
necessary for effective preparation, taking into account the
exercise of due diligence.
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18 U.S.C. § 3161(h)(7)(B)(i) - (iv). After considering these factors, I must then set forth,
“in the record of the case, either orally or in writing, [my] reasons for finding that the
ends of justice served by the granting of such continuance outweigh the best interests
of the public and the defendant in a speedy trial.” Id., § 3161(h)(7)(A). Although my
findings “‘may be entered on the record after the fact, they may not be made after the
fact.’” Hill, 197 F.3d at 441 (quoting United States v. Doran, 882 F.2d 1511, 1516 (10th
Cir.1989)). “Instead, ‘[t]he balancing must occur contemporaneously with the granting
of the continuance because Congress intended that the decision to grant an
ends-of-justice continuance be prospective, not retroactive[.]’” Id. (quoting Doran, 882
F.2d at 1516).
The indictment in this case involves 25 counts charged against 13 defendants.
The charges relate to the distribution of cocaine.
The conspiracy in Count One is alleged to have occurred between March 1,
2017 and April 1, 2018. Docket No. 1 at 2. T he investigation involved approximately 25
wiretaps. Docket No. 60 at 4. The government initially estimated that the discovery in
this case consisted of approximately 3000 pages of reports and photographs; pen
registers materials for approximately 25 telephones; 15,000 pages of materials related
to GPS applications and orders; 400 pages of materials regarding tracker warrants;
5000 pages of materials related to search warrants; 80 gigabytes of wiretap data,
including call transcripts and audio data; 49,000 pages of Title III line sheets; 1.5
terabytes of pole camera recordings; and 8,000 pages of miscellaneous materials. Id.
at 4-5. However, the volume of discovery has exceeded the initial prediction. Docket
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No. 140 at 7. In addition, the government shutdown between December 22, 2018 and
January 25, 2019 delayed the defendants’ investigations. Id.
Given the complexity of this case, the large amount of discovery, and the delay
occasioned by the shutdown, I find that the exclusion of an additional sixty days is
justified and is necessary to allow defense counsel adequate time to file and litigate
motions and to prepare for trial.
I find that this case is complex due to the nature of the crimes charged and the
amount and nature of discovery and that it would be unreasonable to expect adequate
preparation by defendants, despite due diligence, for pretrial or trial proceedings within
the time available pursuant to the Court’s November 8, 2018 order. I have considered
the factors which I must under 18 U.S.C. § 3161(h)(7)(B)(i)-(iv). As required by 18
U.S.C. § 3161(h)(7)(C), I have not predicated my ruling on congestion of the Court’s
calendar or lack of diligent preparation by counsel.
Accordingly, I conclude as follows:
(1) That failure to exclude an additional sixty days from Speedy Trial would likely
result in a miscarriage of justice within the meaning of 18 U.S.C. § 3161(h)(7)(B)(i);
(2) That this case is complex within the meaning of 18 U.S.C. § 3161(h)(7)(B)(ii);
(3) That, even considering due diligence of defense counsel, failure to grant the
motion would deny counsel for defendants the reasonable time necessary for effective
pretrial and trial preparation within the meaning of 18 U.S.C. § 3161(h)(7)(B)(iv);
(4) That an additional 60 days from March 9, 2019 should be excluded from the
computation of speedy trial; and
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(5) That, therefore, the ends of justice served by granting the motion outweigh
the best interests of the public and defendants in a speedy trial within the meaning of
18 U.S.C. § 3161(h)(7)(A).
THEREFORE, it is:
1. ORDERED that the Joint Partially Opposed Motion for a Second Ends of
Justice Exclusion of 60 Days From the Speedy Trial Calendar Pursuant to Title 18,
United States Code, Sections 3161(h)(7)(A) and (B)(ii) and (iv) [Docket No. 140] is
GRANTED. It is further
2. ORDERED that all pretrial motions shall be filed by May 10, 2019 and
responses to these motions shall be filed by May 24, 2019. A hearing on motions is set
for June 6, 2019 at 1:30 p.m. for one-half day. It is further
3. ORDERED that a Trial Preparation Conference will be set on July 12, 2019 at
1:30 p.m. and the trial set for July 15, 2019 at 8:00 a.m. for six days. The Court
typically does not hold trial on Fridays. It is further
4. ORDERED that an additional sixty days from March 9, 2019 shall be
excluded from the computation of the speedy trial deadlines under the Speedy Trial Act
of 1974, 18 U.S.C. §§ 3161 - 3174.
DATED February 26, 2019.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
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