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ORDER -1-

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

UNITED STATES OF AMERICA,

Plaintiff,

v.

WADE B. COOK, and LAURA M. COOK,

Defendants.

No. CR05-424Z

ORDER

This matter comes before the Court on Defendants Wade and Laura Cook’s joint

motion to continue the trial date and to request a status conference, docket no. 80. Having

reviewed the Defendants’ motion, the government’s opposition and supplemental opposition,

docket nos. 81 and 82, and Defendants’ reply, docket no. 83, the Court enters the following

Order.

BACKGROUND

On April 7, 2006, the Court entered an Order Setting Trial Date (“Order”), which

stated in relevant part as follows:

The Court finds, pursuant to 18 U.S.C. § 1361(8)(B)(ii), that this case is

unusual and complex due to the nature of the prosecution demonstrated by the

large volume of discovery, the large number of witnesses, the number of tax

years involved, and the need for experts. In addition, counsel for the

defendants have several other trials already scheduled which limits their

availability. The continuance granted here is necessary to permit the

defendants’ continuity of counsel and lack of a continuance would deny those

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ORDER -2-

attorneys time necessary for effective preparation for this criminal trial, taking

into account the exercise of due diligence. As a result, it is unreasonable to

expect adequate preparation for trial within the time limits established under

the speedy trial act, 18 U.S.C. § 1361.

The Court therefore finds that the ends of justice served by continuing

this trial outweighs the best interest of the public and the defendants in a

speedier trial, and that the period of delay resulting from this continuance, from

March 13, 2006, until January 16, 2007, is exludable time pursuant to 18

U.S.C. § 3161(8)(A).

Docket no. 67. At the time the Court entered the Order, the Court was aware that the

discoverable materials included over 1800 boxes held at various locations by the United

States Attorney’s Office, along with several electronic hard drives and promotional materials

from Wade B. Cook seminars. See Calfo Decl.

Since issuing the Order, the government has come into possession of approximately

35-40 additional hard drives once owned by Wade Cook Financial Corporation (“WCFC”). 

Additionally, the government became aware of, and disclosed the existence of, an additional

storage facility containing 300-400 boxes of related documents. Also, the Court previously

made provisions for an electronic discovery database to allow the government and

Defendants easier access to the documentary evidence in this case; that database is now

scheduled for completion in mid-to-late October. Finally, since issuing the Order,

Defendants’ counsels’ trial schedule has opened up considerably. Defendant Wade Cook’s

counsel is no longer scheduled for what was anticipated to be a three-month trial

commencing in September 2006, and Defendant Laura Cook’s counsel anticipates that a trial

previously scheduled to begin on October 31, 2006, will be continued until Spring 2007.

DISCUSSION

The decision to grant or deny a requested continuance lies within the broad discretion

of the district court. United States. v. Flynt, 756 F.2d 1352, 1358 (9th Cir. 1985). “In

deciding whether to grant a continuance a district court must balance (1) whether the

continuance would inconvenience the witnesses, the court, counsel, or the parties; (2)

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ORDER -3-

whether other continuances have been granted; (3) whether legitimate reasons exist for the

delay; (4) whether the delay is the defendant's fault; and (5) whether a denial would

prejudice the defendant.” United States v. Fowlie, 24 F.3d 1059, 1069 (9th Cir. 1994). 

Additionally, “the Speedy Trial Act assigns district courts an independent responsibility to

protect both the defendant’s and the public’s strong interest in the timely administration of

justice.” United States v. Hall, 181 F.3d 1057, 1062 (9th Cir. 1999).

Defendants contend that a continuance of the trial date and/or the relevant pretrial

deadlines is necessary because of the newly disclosed evidence, the delay in completing the

electronic discovery database, and the government’s previous motion to review documents

selected for copying by Defendants. The government opposes the motion, arguing that

ample time remains to review all disclosed materials, the electronic database is not a

necessary tool of trial preparation, and Defendants will not be, and have not been,

prejudiced.

Having carefully reviewed the changes in circumstances since the Court issued the

Order in April 2006, the Court finds that no continuance is warranted. First, in setting the

January 2007 trial date, the Court took into account (1) the large volume of discovery, (2) the

large number of witnesses, (3) the number of tax years involved, (4) the need for experts, and

(5) Defendants’ counsel’s then-pending trial calendars, which included “several other trials

already scheduled which limits their availability.” See Order at 1. The Court finds that

counsel will not be overly-inconvenienced by the newly disclosed documents and electronic

materials. Second, the Court notes that it previously granted Defendants’ request for a

lengthy continuance of the trial date (over the government’s objection). Third, the Court

notes that, at the time of disclosure of the newly discovered materials, there remained

approximately six months before trial. Fourth, the Court has previously recognized the need

for experts. The government has, at this early date, disclosed all of its expert witnesses and

provided Defendants’ with the reports of those experts. Defendants have had, and will have,

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ORDER -4-

ample opportunity to procure experts. Finally, the Court finds that any potential prejudice

caused by the newly disclosed materials and delay in creating the electronic discovery

database is alleviated by the changes in Defendants’ counsels’ trial calendar. Moreover, the

materials in question are now apparently available for review, albeit not in the rapidlysearchable form Defendants’ suggest they need to proceed with this case. The Court finds

that the Defendants’ will not be prejudiced simply because they have to search some portion

of the existing documents in hard-copy form.

CONCLUSION

In sum, the Court concludes that the factors identified in Fowlie, along with the policy

favoring the public’s interest in the timely administration of justice, weigh heavily in favor of

maintaining the current trial date and pretrial deadlines. Accordingly, the Court DENIES

Defendants’ joint motion to continue the trial date and to request a status conference. 

Docket no. 80.

IT IS SO ORDERED.

DATED this 31st day of August, 2006.

AThomas S. Zilly

United States District Judge

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