Case 2:85—cr—00050-AVC Document 79-4 Filed 05/06/2008 Page 2 of 4 Z
U.S. v. Banks ;
Slip Copy, 2007 WL l520109 (D.Colo.)
Only the Westlaw citation is currently available. `
United States District Court,D. Colorado.
UNITED STATES of America, Plaintilf
v.
l. Cameo BANKS, a/k/a/ "Gig Gulp," a/l Jeremy Griflie, Jr., a/lr/a "Stress" 6. Ulises Gutierrez—Nunez, 7. lose Hernandez, a/lc/a “Sal
May 2 i, 2007. E
, Gregory Ivlayze Rhodes, Kathleen Melissa Tafoya, U.S. Attorney's Office, Denver, CO, for Plaintifli l
ORDER GRANTING UNOPPOSED MOTION FOR COMPLEXITY 1E•`Il\lD1NG AND MOTION FOR ENDS
OF JUSTICE CONTINUANCE AND EXCLUDABLE TIME ON GROUNDS OF COMPLEXITY ·
PURSUANT TO 'HTLE 18 U.S.C. § 316lgh;g8lgBggiig
BLACKBURN, J.
*1 The matter before me is the governments Unopposed Motion for Complexity Finding and Motion for an
Ends of Justice Continuance and Excludable Time on Grounds of Complexity Pursuant to Title 18 U.S.C. §
3161gl1pg83g mill) [# I22], tiled May 16, 2006. The motion is unopposed, welhtalcen, and granted.
The motion implicates the Speedy Trial Act of l974, codified at E3 U.S.C. §§ 3l6l—3l74, specifically, section
3 l6lgh)§S)§A3 and §B)giip which provide, 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:
(8)(A) Any period of delay resulting lrorn 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 ofthe public and the
defendant in a speedy trial.
(8)(B)(ii) the case is so unusual or so complex, due to the number of defendants, the nature of the prosecution
that it is unreasonable to expect adequate preparation for pretrial proceedings or the trial itself within the time limits
established [by § 3 l6l].
IS U.S.C. § 3l6l§hlg8lgAl and [B;gii.l.
The Speedy Trial Act is "designed to protect a defendants constitutional right to a speedy indictment and trial, and
to serve the public interest in ensuring prompt criminal proceedings."United States v. Hill, 197 F.3d 436, 440 glllth
Cir.l999;. It requires that a criminal defendants trial commence within 70 days alter his indictment or initial
appearance, whichever is later. Seel8 U.S.C. § 3l6l§c3§ll; United States v. Lugo, 170 F.3d 996, l000l {10th
Cir.l999;. Certain periods of delay are excluded and do not count toward the 70-day limit. Seelfl USC. §_
3l6l§hlgl)—§9). Specihcaliy, "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} " Hill, 197 F .3d at 440-44l {10th Ci.r.l999; (quoting l8 U.S.C. §
3l6l§hlg8)gA)).
In order for a continuance to qualify as an excludable "ends-of-_iustice" continuance under section 3l6lgh)g8lgAl,
certain prerequisites must be satisfied. Id at 441.First, I must consider the following factors listed in section
Case 2:85—cr—OOO50-AVC Document 79-4 Filed 05/06/2008 Page 3 of 4
3i6l§hp(8;gBl;
(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 ease is so unusual or so complex, due to the number of defendants, the nature ofthe 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];
*2 (iii) Whether, in a case in which arrest precedes indictment, delay in the tiling of the indictment is caused
because the arrest occurs at a time such that it is unreasonable to expect return and Eiing ofthe indictment within the
period specified in section 316lgb3, or because the facts upon which the gand 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.
18 U.S.C. § 3l6lgl,3)g8lgB)§i;-5 iv g. 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.â€Id .,§ 3l6lgl_;r;§S;§Al.
Although my findings " ‘may be entered on the record aiter 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, l5l6 gl0th Cir.l9893l. “l.nstead, ‘[t]he balancing must
occur contemporaneousiy with the granting ofthe continuance because Congress intended that the decision to grant
an ends—of—justice continuance be prospective, not retroactive {.]’ " Id (quoting Doran, 882 IF.2d at i5 I6 Q.
The allegations of fact set forth by the government in its motion are unopposed as a matter of fact by all
defendants.§Nel·Tiius, those foundational and predicate facts are deemed established. This case, which includes 14
defendants, is one of sixteen interrelated but separately tiled cases. The grand jury that returned the indictments
heard testimony over a period of six months, and the government estimates that the grand jury transcript alone will
run to some 1,300 pages. in addition, the other pretrial discovery in the case is exceptionally voluminous. The
documentary evidence alone includes wiretap and other electronic interception records, many of which remain to be
translated into English, gathered from approximately fifty individual telephones over a period of eleven months, as
well as numerous surveillance and photogaphic tiles, warrants, orders, and authorizations. The physical evidence
comprises firearms, currency, narcotics, and documents seized during the execution of more than forty search
warrants. The government anticipates that all non~electronic discovery can be scanned and made available to
defense counsel by June 1, .2007, alter which it is reasonably foreseeable that defense counsel will require no less
than sixty days to review the materials before they can determine how much additional time will be necessary to
draft and file appropriate pretrial motions and handle other pretrial matters.
l*`__i§; During the status conference on May l8, 2007, I specifically queried whether any defendant was
opposed to the relief sought by the government pursuant to this motion. I asked also whether any defendant
requested an opportunity to respond to this motion. No defendant lodged any such objection or requested
any such opportunity. It should be noted further that my use ofthe term, “aii defendantsf does not include
defendant no. 7, Jose Hernandez, because he is not yet before the court.
*3 Based on these agreed facts, I rind that the case is so complex due tothe number of defendants, the nature ofthe
prosecution, and the amount of discovery, and that it would be unreasonable to expect adequate preparation by either
the government or defendants for pretrial or trial proceedings within the time initially allowed under 18 U.S.C. §
3 i6l; cg. I have considered the factors which I must under 18 U.S.C. § 3 lélglgig 8 QQB ;§ig—§ iv g. As required by 18 US
.C. § 3l6l§ig]g8)gC3, 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 grant a continuance of trial beyond the time initially prescribed by ES U.S.C. § 3161gcl would
Case 2:85—cr—00050-AVC Document 79-4 Filed 05/06/2008 Page 4 of 4
likely result in amiscairiage of justice within the meaning of IS U.S.C. § 3 l61{lgp( 8 3513 ij 1);
(2) That the case is complex within the meaning of18 t.l.S.C. § 3 ltilglg 3g8;gBl§ ii 3;
(3) That even considering clue diligence, failure to grant the motion would deny counsel for both the government and
defendants the reasonable time necessary for effective pretrial and trial preparation within the meaning of 18 U.S.C.
§3i6l§lgl§8 [lBgliv);
(4) That, therefore, the ends of justice served by granting the motion outweigh the best interests ofthe public and all
defendants in a speedy trial within the meaning of lS U.S.C. § 3 l Glgli it 8 35A); and
(5) That the gover1unent's unopposed motion to declare this case complex should be granted.
THEREFORE, IT IS ORDERED as follows:
1. That the governments Unopposed Motion for Complexity Finding and Motion for an Ends of Justice
Continuanee and Excludable Time on Grounds of Complexity Pursuant to Title 18 U.S.C. § 316l§h)§8[gB)gii;
[tt l22], filed May E6, 2006, is GRANTED;
2. That the deadlmes established by the Speedy Trial Act are CONTINUED without date;
3. That counsel shall meet and confer and SHALL FILE a proposed joint or one or more proposed individual
scheduling orders by no later than close of business on August 1, 2007; and
4. That the court shall conduct a further status conference on August 17, 2007 at 2:30 p.m., at which all parties and
their counsel shall appear, unless otherwise excused by the court, without iurtlier notice or order of this court.
D.Colo.,2007.
U.S. v. Banks
Slip COPY, 2007 M 1520109 (D.Colo.)
END OF DOCUMENT
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