IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

United States of America

v. Case No. 2:11-cr-171

Marco Estrada, et al.

ORDER

The government has filed a motion (Doc. 30) to amend the

indictment to correct the spelling of defendant Batten’s last name. 

His last name is spelled “Batton” in the indictment, and the

correct spelling is “Batten,” as defense counsel indicated in

pretrial proceedings.

Pursuant to Fed.R.Crim.P. 36, this court may correct errors in

the record arising from oversight or omission. It is also

generally held that misnomers are usually mistakes of form which

may be corrected by amending the indictment. See, e.g., United

States v. Mason, 869 F.2d 414, 417 (8th Cir. 1989)(district court

properly ordered amendment of indictment to reflect the true middle

initial of the defendant’s name; amendment did not change the

substance of the indictment and defendant was not prejudiced by the

amendment); United States v. Perez, 776 F.2d 797 (9th Cir.

1985)(indictment may be amended to correct the name of the

defendant). Here, the proposed amendment does not alter the nature

of the charged offense. Correcting the defendant’s name will

ensure that the court’s records are accurate and that the

defendant’s case is correctly processed through the legal system. 

The motion is granted, and the indictment and other records in this

case are hereby amended to substitute the name “Batten” in place of

the name “Batton.”

Defendant Batten has filed a motion (Doc. 31) to extend the

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time for filing motions, for holding pretrial hearings and for

trial, which is currently scheduled on September 7, 2011. Counsel

states that additional time is needed to complete discovery, to

investigate the case, and to interview witnesses. The government

does not oppose the request for a continuance.

The court finds pursuant to 18 U.S.C. §3161(h)(7) that a

continuance is warranted in the interests of justice and that the

need for a continuance outweighs the best interests of the

defendant and the public in a speedy trial. Additional time is

required to complete discovery and to investigate the case. The

court also notes that the instant case involves four defendants

charged with conspiracy to distribute in excess of one thousand

kilograms of marijuana over almost a one-year period. Considering

the significant and complex nature of the charge, it is

unreasonable to expect adequate consideration of discovery or

preparation for pretrial proceedings and trial prior to the current

trial date or the time limits established by 18 U.S.C. §3161. 

Defense counsel requires additional time to obtain and review

discovery materials and to prepare for trial despite the exercise

of due diligence. The failure to grant a continuance would deny

counsel the time reasonably necessary to adequately and effectively

prepare for trial. The motion is granted, and the trial will be

continued as to all defendants joined in the indictment. The trial

is continued to November 14, 2011, at 9:00 a.m. Pretrial motions

shall be filed on or before September 30, 2011. Responses to

motions shall be filed on or before October 17, 2011.

Date: August 8, 2011 s/James L. Graham 

 James L. Graham

 United States District Judge

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