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28 Order Continuing Trial and Pretrial Motions Deadline

CR06-206RSM

The Honorable Ricardo S. Martinez

IN THE UNITED STATES DISTRICT COURT 

IN AND FOR THE WESTERN DISTRICT OF WASHINGTON

UNITED STATES OF AMERICA, ) CR06-0206RSM

 )

Plaintiff, ) ORDER ON

) AGREED MOTION FOR 

vs. ) EXTENSION OF TIME TO

) FILE PRETRIAL MOTIONS 

EDGARDO COLOSIO-DUSSAN, ) AND TO CONTINUE TRIAL

JACIEL ORANGA-ZUNIGA, )

OSVOLDO SORIANO-SILVA, )

DIOGENES AUSTUDILLO-ZINSER, and )

STEVEN BRUCE McKAY )

)

Defendants. ) 

THIS MATTER came before the Court upon the joint motion of Defendant Edgardo

Colosio-Dussan (1), through his attorney, Richard A. Smith, Defendant Jaciel Oranga-Zuniga (2),

through his attorney, Ken Kanev, Defendant Osvoldo Soriano-Silva (3), through his attorney,

Thomas Campbell, Defendant Diogenes Austudillo-Zinser (4), through his attorney, John Crowley,

and Defendant Steven McKay (9), through his attorney, Ralph Hurvitz, and the United States of

America, through Sarah Y. Vogel, Assistant United States Attorney, requesting an extension of time

in which to file pretrial motions and for continuance of the trial. 

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28 Order Continuing Trial and Pretrial Motions Deadline

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On January 3, 2007, the Court conducted a Status Conference to address this matter, at which

all defendants were present. At that Conference, the Court informed all of the defendants of their

right to a speedy trial. Counsel for all defendants, except counsel for Austudillo-Zinser who was not

present, indicated that they required additional time in order to prepare, and that their clients agreed

to the delay.

Having considered the unopposed motion, the statements of the attorneys at the status

conference, and all other the files and records herein, the Court makes the following specific

findings:

1. This is a complex case which requires thorough investigation and pretrial preparation. The

Government has already produced several thousands of pages of discovery, which defense

counsel must review and analyze in preparation for pretrial motions or any possible trial, and

the Government has informed the defense that, as more evidence is unearthed during the

investigation, more discovery may be produced prior to trial. 

2. DEA conducted a federal wiretap investigation in this case from March, 2006, until June,

2006. During that time, DEA intercepted several thousand calls which have been turned over

to the defense.

 3. This case involves evidence obtained from a number of different search locations and sources.

The government has provided the defendants with several wiretap and search warrant

affidavits, and the accompanying pleadings, as well as the DEA reports documenting the

investigation, arrests, and searches. In total, the government has produced more than 3,000

pages of documents, plus fifteen digital disks containing audio and video files, to date. 

3. In addition, there are approximately 100 disks presently in the Government’s possession

which were returned to them by the Federal Defender’s office at time of substitution of

counsel in the case of Edgardo Colosio-Dussan, which have yet to be reviewed by counsel.

Those disks contain additional photos, video, and audio recordings obtained by the

Government during their investigation. 

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28 Order Continuing Trial and Pretrial Motions Deadline

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4. The defendants are facing substantial penalties if convicted, given the amount of cocaine and

heroin and other items seized in this case. 

5. Four of the defendants are non-native English speakers, and their intercepted calls are in

Spanish, English, and Mixteco Bajo, a language indigenous to Southern Mexico for which it

is very difficult to find qualified translators. Transcript preparation for the Mixteco calls has

proven to be very time consuming. Only some of the Mixteco calls have been translated to

date. Once translations are complete, defense counsel will require additional time to review

and analyze the discovery and to investigate this case in order to properly represent their

respective defendants through any pretrial motions practice (including motions to suppress),

plea negotiations and/or trial. Defense counsel also desire additional time to conduct witness

interviews and other pretrial preparation.

6. There has been no motion for severance of defendants.

7. Counsel for Jaciel Oranga-Zuniga, Ken Kanev, was appointed in mid-December, 2006, and it

is unrealistic to expect him adequately to be prepared for a trial in less than two or three

months, given the facts specific to this case as discussed above.

8. All defendants have submitted or soon will submit valid written speedy trial waivers through

April 23, 2007.

9. The moving parties agree that a continuance is needed in order to give defense counsel the

reasonable time necessary for effective preparation, including to review the evidence and to

consider possible defenses, taking into account the exercise of due diligence. The moving

defendants agree that the time between the filing of the motion to continue and the new trial

date should be excluded for speedy trial purposes under 18 U.S.C. § 3161(h)(8)(A) and (B),

and agree to submit written waivers of speedy trial. 

BASED ON THESE FACTS, AND THOSE APPARENT FROM THE RECORD, THIS

COURT FINDS, pursuant to Title 18, United States Code, Section 3161(h)(8)(B)(i), that failure to

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grant such a continuance in the proceeding would likely make a continuation of such proceeding

impossible, or result in a miscarriage of justice;

THIS COURT FURTHER FINDS, pursuant to Title 18, United States Code,

Section 3161(h)(8)(B)(iv), that failure to grant the continuance in this case, would deny counsel for

the defendants the reasonable time necessary for effective preparation, due to counsels’ need for

more time to review the evidence and consider possible defenses and motions, taking into account the

exercise of due diligence;

THIS COURT FURTHER FINDS, pursuant to Title 18, United States Code,

Section 3161(h)(7), that this is a reasonable period of delay in that the defendants are joined for trial,

one defendant has newly-appointed counsel who cannot be expected to be prepared for trial for at

least two-three months, the remaining defendants’ attorneys have indicated that they need more time

to prepare for trial, and the defendants themselves have agreed that the delay is necessary;

THIS COURT FURTHER FINDS, therefore, that pursuant to Title 18, United States Code,

Section 3161(h)(8)(A), in light of the interest of the public in ensuring the accused adequate,

effective, and continued representation by counsel presently assigned, and the specific facts present

at this time in this case, the ends of justice served by granting a continuance outweigh the best

interest of the public and defendants in a speedy trial;

THIS COURT FURTHER FINDS that all of the time between the previous trial date and the

new trial date is necessary to provide counsel for the defendants the reasonable time necessary to

prepare for trial.

NOW, THEREFORE, IT IS HEREBY ORDERED that the trial date will be continued until

April 16, 2007, at 9:00 a.m., and that pretrial motions are due by February 22, 2007.

IT IS FURTHER ORDERED that time from the filing of the motion to continue through the

new trial date shall be excluded from computation under 18 U.S.C. §§ 3161(h)(8)(A),

3161(h)(8)(B)(i), and 3161(h)(8)(B)(ii) for all defendants because the failure to grant the requested

continuance would be likely to result in a miscarriage of justice, and because the case is so complex

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due to the number of defendants, the nature of the prosecution, and 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 Speedy Trial Act, and under 18 U.S.C. §

3161(h)(7), because the defendants are all joined for trial and no motion for severance has been

granted.

DATED this 18th day of January, 2007.

A

RICARDO S. MARTINEZ

UNITED STATES DISTRICT JUDGE 

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