Case No.: 17-cr-00068-EJD

ORDER DENYING DEFENDANT MARTINEZ-FLORES’S MOTION TO DISMISS

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Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

v.

VELARMINO ESCOBAR-AYALA et al.,

Defendants.

Case No. 17-cr-00068-EJD 

ORDER DENYING DEFENDANT 

MARTINEZ-FLORES’S MOTION TO 

DISMISS

Re: Dkt. No. 97

Defendant Alexander Martinez-Flores—one of twelve defendants charged in the 

government’s April 5, 2018 Superseding Indictment that includes counts of conspiracy to commit 

racketeering violations, conspiracy to commit murder in aid of racketeering, and conspiracy to 

commit extortion by force, Dkt. No. 101—moves to dismiss the extortion conspiracy charge under 

the Speedy Trial Act, 18 U.S.C. § 3161. Dkt. No. 97 (“Mot.”). Mr. Martinez-Flores argues that 

more than seventy days have been excluded without any legitimate justification. The Court 

disagrees and DENIES Mr. Martinez-Flores’s motion to dismiss.

I. BACKGROUND

The original Indictment was returned on February 7, 2017. Dkt. No. 1. Mr. MartinezFlores made his initial appearance before Magistrate Judge van Keulen on February 21, 2017. 

Dkt. No. 35. The last of the ten defendants charged in the original Indictment made his initial 

appearance on March 8, 2017. Dkt. No. 60.

Between February 21, 2017 and the present, the Court has held many status conferences to 

receive updates from counsel about the progress of the case. The specifics of each of those 
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conferences are discussed in more detail below. Notably, both the government and the defendants 

have represented that this case involves “voluminous” discovery, including but not limited to 

audio recordings. Dkt. Nos. 58, 81. Especially in light of that concern, the Court has granted 

multiple continuances and excluded time under the Speedy Trial Act to allow for effective 

preparation of counsel. In most instances, none of the defendants have objected to these 

continuances and exclusions of time.

On March 20, 2018, Mr. Martinez-Flores filed a motion to dismiss the only count that he 

was charged with in the original Indictment—conspiracy to commit extortion by force. See Mot. 

On April 5, 2018, a Superseding Indictment was returned. Dkt. No. 101. In addition to the 

extortion conspiracy count, Mr. Martinez-Flores was charged with conspiracy to commit 

racketeering violations and conspiracy to commit murder in aid of racketeering. Id. On May 4, 

2018, the government opposed Mr. Martinez-Flores’s motion to dismiss. Dkt. No. 115 (“Opp.”). 

Mr. Martinez-Flores filed a reply on May 14, 2018. Dkt. No. 116 (“Reply”).

II. LEGAL STANDARD

The Speedy Trial Act dictates that a criminal defendant’s trial must begin within seventy 

days of indictment or initial appearance, whichever occurs later. 18 U.S.C. § 3161(c)(1); Bloate v. 

United States, 559 U.S. 196, 198–99 (2010). If trial does not commence within the requisite time 

period and the defendant moves for dismissal prior to trial, the court must dismiss the indictment. 

18 U.S.C. § 3162(a)(2); United States v. Lewis, 611 F.3d 1172, 1175 (9th Cir. 2010). The statute 

further provides, however, that delays caused by certain enumerated events are to be excluded 

from the calculation of the seventy-day period. 18 U.S.C. § 3161(h); United States v. Romero, 

833 F.3d 1151, 1153 (9th Cir. 2016), cert. denied, 138 S. Ct. 192 (2017). Three of those statutory 

exclusions of time are relevant here.

The first excludable category includes “[a]ny period of delay resulting from other 

proceedings concerning the defendant[.]” 18 U.S.C. § 3161(h)(1). This includes, but is not 

limited to:
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ORDER DENYING DEFENDANT MARTINEZ-FLORES’S MOTION TO DISMISS

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(A) delay resulting from any proceeding, including any examinations, to 

determine the mental competency or physical capacity of the defendant;

(B) delay resulting from trial with respect to other charges against the defendant;

(C) delay resulting from any interlocutory appeal;

(D) delay resulting from any pretrial motion, from the filing of the motion through 

the conclusion of the hearing on, or other prompt disposition of, such motion;

(E) delay resulting from any proceeding relating to the transfer of a case or the 

removal of any defendant from another district under the Federal Rules of 

Criminal Procedure;

(F) delay resulting from transportation of any defendant from another district, or 

to and from places of examination or hospitalization, except that any time 

consumed in excess of ten days from the date an order of removal or an order 

directing such transportation, and the defendant’s arrival at the destination shall 

be presumed to be unreasonable;

(G) delay resulting from consideration by the court of a proposed plea agreement 

to be entered into by the defendant and the attorney for the Government; and

(H) delay reasonably attributable to any period, not to exceed thirty days, during 

which any proceeding concerning the defendant is actually under advisement by 

the court.

Id.

A second excludable category of time entails “[a] reasonable period of delay when the 

defendant is joined for trial with a codefendant as to whom the time for trial has not run and no 

motion for severance has been granted.” Id. § 3161(h)(6).

The third relevant category is the so-called “ends of justice” exclusion:

Any period of delay resulting from a continuance granted by any judge on his 

own motion or 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. No such period 

of delay resulting from a continuance granted by the court in accordance with this 

paragraph shall be excludable under this subsection unless the court sets forth, in 

the record of the case, either orally or in writing, its 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.
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Id. § 3161(h)(7)(A). The Speedy Trial Act lays out several non-exhaustive factors for a judge to 

consider in determining whether to grant a continuance under this section:

(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 this section.

(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.

Id. § 3161(h)(7)(B).

III. DISCUSSION

The Court has excluded time from the date of Mr. Martinez-Flores’s initial appearance on 

February 21, 2017 to the present day. Mr. Martinez-Flores challenges the propriety of those

exclusions. For ease of analysis, the Court breaks down the total time into the following periods:

A. February 21, 2017 to March 6, 2017: 13 days

B. March 6, 2017 to April 24, 2017: 49 days

C. April 24, 2017 to June 12, 2017: 49 days

D. June 13, 2017 to August 14, 2017: 62 days

E. August 14, 2017 to October 16, 2017: 63 days

F. October 16, 2017 to December 11, 2017: 56 days

G. December 11, 2017 to December 28, 2017: 17 days
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H. December 28, 2017 to February 5, 2018: 39 days

I. February 5, 2018 to March 2, 2018: 25 days

J. March 2, 2018 to March 20, 2018: 18 days

K. March 20, 2018 to Present: 79 days

The Court examines each of these separate periods in turn.

A. February 21, 2017 to March 6, 2017

Judge van Keulen found that the time from February 21, 2017 through March 6, 2017 was 

excludable. Dkt. No. 35. That time is clearly excludable under § 3161(h)(6) for joinder-based 

delay. Under the Supreme Court’s interpretation of § 3161(h)(6), “[a]ll defendants who are joined 

for trial generally fall within the speedy trial computation of the latest codefendant.” Henderson v. 

United States, 476 U.S. 321, 323 (1986). The Ninth Circuit has been even more explicit: “If 

several defendants are joined, the 70-day limit is measured from the date the last codefendant is 

arraigned.” United States v. Butz, 982 F.2d 1378, 1382 (9th Cir. 1993). Here, the arraignment of 

the last defendant charged in the original Indictment did not take place until March 8, 2017, Dkt. 

No. 60, a reasonable span of fifteen days after Mr. Martinez-Flores’s arraignment. Accordingly, 

Mr. Martinez-Flores’s speedy-trial clock did not begin to run until March 8, 2017, and the time 

between his arraignment and that date was properly excluded.

B. March 6, 2017 to April 24, 2017

This Court held the first status conference on March 6, 2017. Dkt. No. 58. That 

proceeding marked the first time that all ten defendants charged in the original Indictment had 

appeared before the Court. At the hearing, the government advised the Court that there would be 

“voluminous discovery in this matter which includes audio recordings.” Id. The government also 

recommended “the possibility of a discovery coordinator or counsel utilizing a joint paralegal to 

assist with the voluminous discovery.” Id. The Court ordered counsel to “meet and confer and 

agree on a plan for efficient disclosure of evidence,” including by setting a “protocol as to how 

[the defendants] are to receive discovery for their review.” Id. The Court continued the case to 
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April 24, 2017 for a further status conference and excluded that time as necessary for effective 

preparation of counsel. Id. No defendant objected to this exclusion. Id.

Under § 3161(h)(7)(A), a court may exclude periods of trial continuance “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.” The Ninth 

Circuit has instructed that “[c]ontinuances under [this] section must be specifically limited in 

time.” United States v. Hardeman, 249 F.3d 826, 828 (9th Cir. 2000). Moreover, as the statute 

makes clear, the district court must “set[] forth, in the record of the case, either orally or in writing, 

its reasons” for finding that the ends of justice outweigh other interests. Zedner v. United States, 

547 U.S. 489, 506 (2006) (quoting 18 U.S.C. § 3161(h)(7)(A)). The timing for making on-therecord findings is unclear but must occur before ruling on a motion to dismiss under the Speedy 

Trial Act. Id. at 507. An ends-of-justice continuance may be warranted to permit “counsel for the 

defendant or the attorney for the Government the reasonable time necessary for effective 

preparation.” 18 U.S.C. § 3161(h)(7)(B)(iv).

Here, the Court provided an adequate on-the-record explanation for granting an ends-ofjustice continuance from March 6, 2017 to April 24, 2017. Specifically, the government 

represented that the discovery in the case would be “voluminous” but that it was prepared to turn 

over the discovery to defense counsel. Dkt. No. 58. The Court informed the lawyers about its 

“expectations with regards to discovery protocol” and tasked counsel with setting up a procedure 

for defendants to receive the discovery. Id. Because neither defendants nor their counsel had yet 

reviewed the discovery, id., a continuance was necessary for effective preparation of counsel. 

Thus, the time from March 6, 2017 to April 24, 2017 was appropriately excluded.1

 

1

The Court also notes that the time from March 6, 2017 to March 8, 2017 is excluded on another 

ground discussed above—namely, because the last codefendant charged in the original Indictment 

was not arraigned until March 8, 2017.
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C. April 24, 2017 to June 12, 2017

The Court held another status conference on April 24, 2017. Dkt. No. 74. By that time, 

the government had produced a first round of discovery consisting of 195 pages. Id. The parties 

also had a plan for the “next phase” of discovery: the government would produce “the audio 

recordings and controlled [buy] reports” on or before May 15, 2017. Id. Indeed, the government 

disclosed over seventy hours of audio recordings on May 15, 2017. Opp. at 6. To allow for the 

production and review of this large amount of discovery, this Court granted the request of counsel

to continue the case to June 12, 2017 for a further status conference. Id. The Court also ordered 

time excluded, with only defense counsel for Mr. Martinez-Flores noting that he did not join in the 

exclusion of time. Id.

Despite Mr. Martinez-Flores’s objection, the Court offered a sufficient on-the-record 

rationale for granting an ends-of-justice continuance from April 24, 2017 to June 12, 2017. Since 

the prior status conference, the parties had progressed into a new phase of discovery in which the 

government planned to turn over quantitatively and qualitatively important evidence—namely,

audio and video recordings. Id. In light of that pending production and review, the Court found 

that a continuance was needed to allow “the reasonable time necessary for effective preparation.” 

18 U.S.C. § 3161(h)(7)(B)(iv).

D. June 13, 2017 to August 14, 2017

Before the impending status conference, the government submitted a status brief on June 6, 

2017. Dkt. No. 76. In that filing, the government detailed the discovery that had already taken 

place and noted that it was “currently processing an additional approximately forty hours of audio 

and video recordings,” which were expected to be produced within two weeks. Id. At the June 

13, 2017 hearing,2the government updated the Court on the status of completed and ongoing 

discovery. Dkt. No. 77. Importantly, government and defense counsel had “discussed the priority 

 

2 Although the hearing was initially scheduled to take place on June 12, 2017, the Court continued 

the hearing one day to June 13, 2017. Dkt. No. 75.
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of the remaining discovery to be produced.” Id. That discovery included “remaining audio 

recordings, surveillance video and a stipulation to use transcript working copies of the transcripts 

as they are available.” Id. At the request of counsel, the Court granted a two-month continuance 

to August 14, 2017 for a further status conference and excluded the time for effective preparation 

of counsel. Id. No defendant objected to this exclusion. Id.

Again, the Court put on the record its justification for affording an ends-of-justice 

continuance from June 13, 2017 to August 14, 2017. Government and defense counsel had 

identified specific pieces of discovery that were forthcoming and represented that an exchange 

would happen soon after the June 13, 2017 status conference. See Dkt. Nos. 76, 77. Such 

circumstances neatly fit within the “reasonable time necessary for effective preparation” factor 

supporting exclusion. 18 U.S.C. § 3161(h)(7)(B)(iv).

E. August 14, 2017 to October 16, 2017

The government filed a status brief on August 10, 2017 before the August 14, 2017 

conference. Dkt. No. 79. That brief highlighted the discovery that had been propounded in the 

time since the June 13, 2017 conference. Id. In particular, the United States had produced 

seventy-eight additional audio recordings (totaling 13 hours) as well as approximately 2,830 still 

images. Id. The government also provided concrete plans for future productions. First, the 

government would “process[] approximately 3,800 pages of draft transcripts of the recordings”

and produce them by August 11, 2017. Id. Next, the government would “re-process[]

approximately two hundred pages of investigative reports” to reduce redactions and “process[] 

approximately thirty minutes of video surveillance” with a projected production date of August 

18, 2017. Id. The parties were still in the process of working out how to provide copies of the 

audio recordings to the defendants to review in custody. Id. The government thus “anticipate[d] 

proposing that a further status date be set for October 16, 2017, to give defense counsel time to 

review [this] voluminous, substantive discovery.” Id. At the August 14, 2017 hearing, the 

government reiterated its planned productions on August 18, 2017. Dkt. No. 80. The Court 
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granted a continuance (and excluded time) to October 16, 2017 for a further status conference. Id. 

No defendant raised any objection. Id.

Like with the previous three time periods analyzed above, the Court placed the required 

description on the record in granting a continuance from August 14, 2017 to October 16, 2017. 

The government once more identified a substantial production that was imminent and would need 

to be reviewed by the defendants. Id. In fact, as the defendants later confirmed in a stipulation 

filed on August 31, 2017, the “discovery in th[e] case [wa]s voluminous” and the review process 

was still continuing. Dkt. No. 81. Based on the parties’ representations before and during the 

August 14, 2017 hearing, the Court had a sufficient basis to grant a continuance in order to 

provide the “reasonable time necessary for effective preparation.” 18 U.S.C. § 3161(h)(7)(B)(iv). 

It is worth noting that Mr. Martinez-Flores’s motion comes close to conceding that the entire 

period of delay from March 6, 2017 to October 16, 2017—i.e., the “early exclusions based on 

counsel’s need to review newly produced discovery”—was permissibly excluded from the speedytrial calculation. Mot. at 5.

F. October 16, 2017 to December 11, 2017

The true dispute between the parties appears to lie with the period extending from October 

16, 2017 to December 11, 2017. In the time before the October 16, 2017 conference, the 

government made multiple significant discovery productions. On August 15, 2017, the 

government produced almost 2,500 pages of draft transcripts and translations of the recordings 

already produced. Dkt. No. 83. On August 23, 2017, the government produced additional reports 

and video recordings. Id. Finally, on October 2, 2017, the government disclosed additional 

reports and transcripts of audio recordings. Id. In its status brief, the government did not 

articulate that any further discovery would occur. Id.

Instead, the government’s status brief and the October 16, 2017 hearing focused on the 

possibility of a Superseding Indictment. In its brief, the government indicated that “it d[id] not 

anticipate any additional charges being filed against the defendants prior to the status conference 

scheduled for October 16, 2017.” Id. Similarly, at the hearing, the government stated that “it d[id] 
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not anticipate that the posture of th[e] case w[ould] change nor [that] a Superseding Indictment 

w[ould] be forthcoming.” Dkt. No. 84. As the minutes from the hearing explain, “[c]ounsel 

requested the matter be continued to meet and confer and confirm that there will be no change in 

the posture of the case.” Id. The Court granted a continuance to December 11, 2017 for a further 

status conference and excluded time for “effective preparation of counsel” to which no defendant 

objected. Id.

Mr. Martinez-Flores contends that it is legally improper to exclude time to allow the 

government to investigate charges that have yet to be filed. Mot. at 7. He argues that the purpose 

of the Speedy Trial Act is to ensure that criminals are brought to justice promptly on pending 

charges. Reply at 2. The government responds that a continuance may be granted to allow further 

investigation with the aim of superseding the indictment, at least on the facts of this case. Opp. at 

8. In the government’s view, such a continuance was essential here “to prevent the duplication of 

effort, the strain on witnesses, and the waste of judicial resources that would necessarily 

accompany two trials of the same ten defendants involving common facts and evidence.” Id.

At this juncture, however, the Court need not resolve this dispute between the parties.3 For 

the reasons discussed above, the time up to October 16, 2017 is excluded. For the reasons 

discussed below, the time after December 11, 2017 is also excluded. Thus, even if the fifty-six 

days from October 16, 2017 to December 11, 2017 count toward the seventy-day limit, there has 

been no violation of the Speedy Trial Act. Because the Court would reach the same conclusion on 

Mr. Martinez-Flores’s motion to dismiss regardless whether the time between October 16, 2017 

and December 11, 2017 can be excluded, the Court does not rule on this issue.

G. December 11, 2017 to December 28, 2017

On December 11, 2017, this Court held a further status conference. Dkt. No. 87. At the 

hearing, the government stated its intention to supersede the indictment by late March or early 

 

3

The Court also presently declines to address the government’s separate, but related, contention 

that the April 5, 2018 Superseding Indictment reset the speedy-trial clock. See Opp. at 13–14.
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April. Opp., Ex. B at 7:2–6. However, the government indicated its willingness to set a trial date 

on the original Indictment. Id. at 9:6–9. The Court agreed with Mr. Martinez-Flores’s counsel’s 

suggestion that a trial date be set in order to keep the case progressing and avoid potential speedytrial concerns. Id. at 10:1–7. At that point, the task became finding a trial date that could 

accommodate defense counsel’s schedules.

The Court offered two possibilities: February or early May. Id. at 10:15–16. No defendant 

requested a February trial date. Counsel for four of Mr. Martinez-Flores’s codefendants expressed 

scheduling concerns in light of their other trial responsibilities. For example, one attorney 

requested “something at the end of May” because he had a trial in January and a three-month trial 

beginning at the end of February. Id. at 11:20–12:1. Another attorney similarly advised that the 

end of May would be preferred. Id. at 14:3–4. Based on these timing conflicts, the Court selected 

May 22, 2018 as the trial date that worked best for all counsel. Id. at 15:2–5. The Court made the 

following finding in excluding time to that date:

[T]he exclusion is because I have set a trial date of May 22nd, and I am going to 

allow for effective preparation of counsel to prepare for that trial, and the Court 

finds that it is appropriate to exclude time in the interests of these defendants as to 

their speedy trial is not impinged by the fact that counsel need to prepare and it 

outweighs any public interests as to a speedy trial.

Id. at 17:15–21. Mr. Martinez-Flores’s attorney (and one other defense attorney) objected to this 

exclusion of time. Id. at 14:24–15:1, 16:23–25, 17:23–18:10.

At a subsequent hearing on February 12, 2018, the Court revisited and reiterated the basis 

for granting an ends-of-justice continuance and exclusion until the May 22, 2018 trial date. Dkt. 

No. 93. Recognizing the need to balance the defendants’ and public’s interests in a speedy trial 

against the ends of justice served by a continuance, the Court said:

[Defense] counsel have been patient. I think [the government] and [its] team 

recognize the patience that they’ve had, and I think [the government] also 

recognize[s], perhaps, as they recognize, constraints that [were] mentioned 

earlier on the grand jury proceedings, but I think [the government] can recognize 

the patience and perhaps loss of patience or concern they have for their clients’ 

due process interests and their clients’ families in proceeding this case as best as 

possible.
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And, I would like to find the balance of both of those things, such that the case 

can proceed in an orderly manner, in such that the due process interest of the 

defendant accused here can be recognized, as well as the public and the 

community’s interest in reaching decisions in their criminal cases as they are 

prosecuted by the government.

So, that’s what I’m trying to find, a balance here, but balance not at the expense 

of any due process rights that the defendant might enjoy.

Opp., Ex. C at 9:8–24. The Court then detailed that excluding time from December 11, 2017 to 

May 22, 2018 was necessary because multiple defense attorneys were unavailable to try the case 

before May 2018. Id. at 10:2–11:6, 11:19–12:16. The Court concluded that time was excluded 

for the effective preparation of counsel, who would not be in a position to begin preparing until 

May after the end of other trial obligations. Id. at 12:8–16. Counsel for Mr. Martinez-Flores 

repeated his objection. Id. at 25:1–4.

The December 11, 2017 and February 12, 2018 explanations for the exclusion may be 

taken into account. United States v. Jordan, 915 F.2d 563, 565 (9th Cir. 1990) (“[T]he indictment 

does not have to be dismissed if the district court fails to make a contemporaneous record of the 

support for a finding of complexity justifying an ends of justice exclusion, so long as the court sets 

forth the reasons for the finding at some point.”). And both explicitly weigh the “ends of justice 

served”—specifically, “continuity of counsel” and “the reasonable time necessary for effective 

preparation”—against the “best interest of the public and the defendant in a speedy trial.” 18 

U.S.C. § 3161(h)(7)(A), (B)(iv). Unlike the previous challenged period of exclusion, this 

exclusion did not revolve around the government’s decision whether to supersede the indictment. 

Instead, counsel and the Court engaged in an iterative process of selecting an agreeable trial date. 

Due to other pending litigation matters, defense counsel needed until May 22, 2018 to be able to 

adequately prepare to represent their clients at trial in this case.

This analysis does not change simply because Mr. Martinez-Flores’s counsel may have 

been ready and willing to go to trial before May 22, 2018. At a minimum, the exclusion applied 

with full force to Mr. Martinez-Flores’s codefendants, and the Court may exclude “[a] reasonable 

period of delay when the defendant is joined for trial with a codefendant as to whom the time for 
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trial has not run and no motion for severance has been granted.” 18 U.S.C. § 3161(h)(6). Mr. 

Martinez-Flores did not offer any alternative dates beyond the Court’s proposals of February or 

May. And the record supports that no date before May would have worked, as counsel for one of 

the codefendants had a “trial set in the beginning of January and then a homicide [trial] set at the 

end of February,” which would last for “two to three months.” Opp., Ex. B at 11:20–24. Nor does 

Mr. Martinez-Flores identify any actual prejudice that he suffered as a result of the delay. United 

States v. Hall, 181 F.3d 1057, 1062 (9th Cir. 1999). Therefore, the exclusion was “reasonable,” 

especially when viewed against Congress’s recognition that joinder of multiple defendants would 

often effectuate the swift and efficient dispensation of criminal justice. See United States v. King, 

483 F.3d 969, 974 (9th Cir. 2007). Accordingly, the Court corroborated with on-the-record factual 

findings its legitimate justification for excluding time from December 11, 2017 to May 22, 2018.

H. December 28, 2017 to February 5, 2018

In addition to the ends-of-justice continuance until May 22, 2018, the 39 days from 

December 28, 2017 to February 5, 2018 are automatically excluded from the speedy-trial 

calculation under § 3161(h)(1)(D), which covers “delay resulting from any pretrial motion, from 

the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, 

such motion.” Specifically, Mr. Martinez-Flores filed a pretrial motion for bail or severance on 

December 28, 2017. Dkt. No. 88. Briefing on Mr. Martinez-Flores’s motion concluded on 

January 29, 2018, Dkt. No. 91, and the motion was argued and denied at a hearing before the 

Court on February 5, 2018, Dkt. No. 92. Accordingly, the period from December 28, 2017 to 

February 5, 2018 during which the motion was live is automatically excluded.

I. February 5, 2018 to March 2, 2018

For the reasons set forth above, this period is excluded based on the ends-of-justice 

continuance granted from December 11, 2017 to May 22, 2018.

J. March 2, 2018 to March 20, 2018

The ends-of-justice continuance until May 22, 2018 is not the only basis for excluding the 

period from March 2, 2018 to March 20, 2018. During that time, there was also a pending pretrial 
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motion to sever filed by one of Mr. Martinez-Flores’s codefendants and joined by two other 

codefendants. Dkt. Nos. 94, 95, 96. As noted above, “delay resulting from any pretrial motion” is 

automatically excluded under § 3161(h)(1)(D) “through the conclusion of the hearing on, or other 

prompt disposition of, such motion.” And the Ninth Circuit has construed § 3161(h)(6) to provide 

that “an exclusion to one defendant applies to all co-defendants.” Butz, 982 F.2d at 1381 (quoting 

United States v. Edwards, 627 F.2d 460, 461 (D.C. Cir.), cert. denied, 449 U.S. 872 (1980)). To 

be sure, “[t]he attribution of delay to a codefendant . . . is limited by a reasonableness 

requirement.” United States v. Messer, 197 F.3d 330, 336 (9th Cir. 1999). But here, the short 

length of the delay combined with the fact that it was necessary to preserve the possibility of a 

joint trial render the delay reasonable. See id. at 337–38. This joinder-based delay provides an 

extra reason for excluding time from March 2, 2018 to March 20, 2018.

K. March 20, 2018 to Present

Finally, two independent bases merit exclusion of time from March 20, 2018 to the 

present. First, and most simply, time has been excluded since Mr. Martinez-Flores filed the 

instant motion to dismiss on March 20, 2018. Dkt. No. 97. The parties agreed on the briefing 

schedule, Dkt. Nos. 107, 108, and the motion has remained pending until its resolution in this 

order. Section 3161(h)(1)(D) provides for the automatic exclusion of time throughout the duration 

of the motion’s pendency, from filing through hearing or disposition. Thus, the clock has 

remained stopped from March 20, 2018 through the issuance of this order.

Second, the Court has granted a valid exclusion for an ends-of-justice continuance, though 

the circumstances are slightly complicated and require some explanation. As detailed above, on 

December 11, 2017, the Court granted an exclusion through the start of trial on May 22, 2018. 

However, things changed when the Superseding Indictment came down on April 5, 2018. The 

Superseding Indictment charged two new defendants and several new counts. Dkt. No. 101. With 

respect to Mr. Martinez-Flores, the Superseding Indictment added counts for conspiracy to 

commit racketeering violations and conspiracy to commit murder in aid of racketeering on top of 

the original count for conspiracy to commit extortion by force. Id. This change in the scope of the 
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case also prompted a request from counsel on April 10, 2018 to vacate the motions hearing, 

pretrial conference, and trial dates and to set a further status conference for May 21, 2018. Dkt. 

No. 102. The parties stipulated to an exclusion of time until that date “for effective preparation of 

counsel, given the new charges contained in the superseding indictment and the anticipated 

production of new discovery relating to those charges.” Id. at 2. The same day, the Court granted 

the stipulation and set the next status conference for May 21, 2018. Dkt. No. 104.4

At the May 21, 2018 hearing, the government “informed the Court that partial discovery 

production has been made” and asked for “additional time to continue to review and redact 

information as to additional discovery to be produced.” Dkt. No. 130. The parties further noted 

that they were working on a protective order. Id. Counsel requested, and the Court granted, a 

continuance to August 13, 2018 for a further status conference. Id. The Court excluded time to 

August 13, 2018, finding that “the case is complex due to the number of defendants in the action 

and the volume of discovery.” Id. No defendant lodged any objection. Id.

This Court’s exclusion of time from March 20, 2018 to the present for an ends-of-justice 

continuance is well-supported and not expressly challenged. The first portion falls under the 

exclusion for the May 22, 2018 trial date. The second portion is grounded in two separate factors 

under § 3161(h)(7)(B). First, “the case is so unusual or so complex, due to the number of 

defendants [or] the nature of the prosecution . . . that it is unreasonable to expect adequate 

preparation for pretrial proceedings or for the trial itself within the time limits established by this 

section.” 18 U.S.C. § 3161(h)(7)(B)(ii). Other courts in this district have granted continuances 

based on the complexity of the litigation in equally large racketeering cases. See, e.g., United 

States v. Williams, No. 13-CR-00764-WHO, 2017 WL 4877131, at *4–5 (N.D. Cal. Oct. 30, 

2017). Second, “failure to grant such a continuance . . . would deny counsel for the defendant or 

the attorney for the Government the reasonable time necessary for effective preparation, taking 

 

4

The Court further observes that the March 2, 2018 motion to sever was pending until April 10, 

2018. As part of their April 10, 2018 stipulation, the parties agreed that the motion to sever should 

be denied as moot in light of the Superseding Indictment. Id.
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into account the exercise of due diligence.” 18 U.S.C. § 3161(h)(7)(B)(iv). On this point, the 

government noted that it had more discovery to turn over and requested additional time to review 

and produce redacted versions of the remaining information. This ends-of-justice continuance 

serves as another ground (over and above the pendency of Mr. Martinez-Flores’s motion to 

dismiss) for excluding time from March 20, 2018 to the present.

L. Conclusion

In sum, Mr. Martinez-Flores’s Speedy Trial Act right to be brought to trial within seventy 

unexcluded days of his initial appearance in the case has not been violated. At most, Mr. 

Martinez-Flores identifies fifty-six days that have accrued toward his speedy-trial clock. 

Critically, the Court has otherwise unquestionably found that “each ‘ends of justice’ continuance 

[was] justified with reference to the facts as of the time the delay [was] ordered.” Jordan, 915 

F.2d at 566. Accordingly, the Court will not dismiss Mr. Martinez-Flores’s charge for conspiracy 

to commit extortion by force at this time.

IV. ORDER

For the foregoing reasons, Mr. Martinez-Flores’s motion to dismiss is DENIED.

IT IS SO ORDERED.

Dated: June 7, 2018

______________________________________

EDWARD J. DAVILA

United States District Judge