that “[s]ection 3161(h)(8)(B) sets forth a non-exclusive list of factors which the district court shail
consider in deciding whether to grant an exclusion under § 3161(h)(8)(A).” 959 F.2d 637, 640 (7th
Cir. 1992). This language satisfies this court that factor (iii) is but one of the four non-exclusive
factors that the judge should consider in deciding whether to grant a pre-indictment extension.

In the hearing on the government's motion for an extension in this case, the Chief Judge
noted that there were a total of 34 defendants in the case at that point, some of whom were not yet
in custody. (Transcript of in camera Proceedings, October 17, 2002, at 2, 3.) The government
lawyers advised the court that they contemplated more than one indictment in the case. (/d. at 3.)
Upon hearing argument from Defendants’ attorneys, the Chief Judge declared his intent to grant
the government's motion, noting that the case was “larger than life,” and “in fairness to the
Government, with this massive information and the necessity to compartmentalize it and decide
what goes where and who goes where  . . | think will take some time sorting out.” (/d. at 4, 5.) In
his order dated October 17, 2002, Chief Judge Kocoras granted the government an extension of
time up to and including December 19, 2002, pursuant to Section 3161(h)(8)(A). The Chief Judge's
order stated that the ends of justice outweighed the need for a speedy trial because the failure to
grant an extension would result in a miscarriage of justice; and such a failure would deny the
government attorneys “reasonable time necessary for effective preparation, taking into account the
exercise of due diligence.” (Order of October 17, 2002, Under Seal, In Re Grand Jury Matter
Richard Epps et al.)

The Chief Judge’s written order and oral statements demonstrate that his decision was
supported by at least three of the four factors in Section 3161(h)(8)(B). Relevant to his decision
were factor (ii) (which asks whether the case is unusual or complex, due, among other things, to
the number of defendants, and whether it is unreasonable to expect adequate preparation for
pretrial proceedings); factor (iii) (which, as stated above, asks whether the facts upon which the
grand jury must base its determination are unusual or complex); and factor (iv) (which, among other

4


paths for a defendant seeking to reverse an order granting an extension; legal error or abuse of
discretion. Marin, 7 F.3d at 683.

The court observes, further, that the relevant question is not whether the Chief Judge had
all of the information in granting the extension, but whether the information he actually had at the
time of the order was sufficient to support his ruting. Marin, 7 F.3d at 684 (“the propriety of an
ends of justice continuance is directed to the district court’s exercise of discretion at the outset of
a proceeding”), quoting United States v. Vega, 860 F.2d 779, 787 (7th Cir. 1988) (emphasis in
original). At the time the Chief Judge granted the extension, he was correctly informed that the
case involved 34 defendants, including some individuals who were not in custody at the time, a
great deal of evidence (such as video and audio tapes), and the potential to yield more than one
indictment. The fact that the government had reviewed and organized some of the evidence
against Defendants does not support the conclusion that the case had at that point ceased to be
complex, barring the Chief Judge from granting the extension. The court finds, instead, that the
information before the Chief Judge provided him with a sufficient basis under the relevant factors
of Section 3161(h)(8) to grant an extension.

Lastly, the court must address Defendants’ argument that government attorneys pursued
the extension to compensate for their own lack of diligence. Specifically, Defendants argue that
the government sought the extension to allow for an Assistant United States Attorney to take a 30-
day vacation and to allow the government to garner more evidence. Although one of the three
prosecutors involved in this case was on paternity leave for 30 days during a portion of the 63-day
extension,’ this does not support a finding that the government acted in bad faith in pursuing an
extension. Two other prosecutors remained assigned to the case and presumably used this time

to further pursue the indictment.

° The court observes from experience that 30 days devoted to caring for a newborn,

while intensely joyful and satisfying, can hardly be characterized as a vacation.

7


The court disagrees. Section 3161(h)(8)(B) states that “[t]he factors, among others, which
a judge shall consider in determining whether to grant a continuance under subparagraph (A) of
this paragraph in any case are as follows.” Subparagraph A speaks to “any period of delay,” and
thus applies to both pre- and post-indictment situations. The words “among others” in
subparagraph B indicates that the four-factor list is not exclusive, and that a judge may consider
additional arguments against or in favor of granting an extension. For these reasons, the more
logical interpretation of factor (iti) is the one posed by the government: while factors (i) through (iv)
all apply in the pre-indictment context, factor (iii) by its terms does not apply in post-indictment
situations.

As Defendants themselves recognize, our Court of Appeals has repeatedly affirmed pre-
indictment extensions of time where the district court relied on factors other than factor (iii). See,
e.g., United States v. Marin, 7 F.3d 679, 683 (7th Cir. 1993) (affirming the district court’s grant of
a pre-indictment extension of sixty days where the district court based its decision on Sections
3161(h)(8)(B)(i) and (iii); United States v. Jean, 25 F.3d 588, 592-93 (7th Cir. 1994) (affirming
grant of a pre-indictment extension under Section 3161(h)(8)(B)(ii)). Defendants urge, however,
that because the Court of Appeals was not directly presented with the argument they make here
— that factor (iii) is the only one which may be considered by the court on a motion for a pre-
indictment extension — those earlier cases are not persuasive.

Although the Seventh Circuit has not explicitly considered the argument, it has, in this
court's view, implicitly adopted the government's interpretation of the Speedy Trial Act. In Marin,
the Court of Appeals stated that “[almong the factors a court must consider in determining whether
to grant an extension . .. are . . . the two factors [(i) and (iii)] that the government contends justify
the continuance it was granted in this case .. . .” 7 F.3d at 683 (emphasis added). Similarly, in
United States v. Leiva, the Court of Appeals affirmed a pre-indictment extension of time where the
district court had made findings relevant to factors (iii) and (iv); the Court of Appeals observed there

3


things, asks whether failure to grant an extension would deny the Government “the reasonable time
necessary for effective preparation, taking into account the exercise of due diligence.”), 18 U.S.C.
§ 3161(h)(8)(B)(ii), (iii), (iv). Notably, one of the possible bases of the court's decision was factor
(iii), the one Defendants argue he was required to apply. So even if that factor were the only valid
consideration here, as urged by Defendants, it appears likely the motion would have been granted
anyway. The Court of Appeals has clarified, however, that the court must analyze ali four factors
in deciding a pre-indictment extension motion, Marin, 7 F.3d at 683, and the Chief Judge apparently
did exactly that. For these reasons, the court concludes that Chief Judge Kocoras made no legal
error in granting the government a pre-indictment extension of time.

Absent legal error, the court will reverse the Chief Judge’s order granting the exclusion of
time on appeal only when there is an abuse of discretion and a showing of actual prejudice
resulting from the extension. Marin, 7 F.3d at 683. Assuming this court is to employ the same
standards, the court notes, first, that Defendants have not argued that the Chief Judge abused his
discretion in granting the extension. (Wilson Motion, at 10 n.9) (“Defendant is not asserting that
Judge Kocoras’ [sic] abused his discretion in granting the extension.”) Nor do Defendants assert
that they were prejudiced by the extension.

In any event, in this court’s view, the circumstances presented here defeat any abuse of
discretion argument. The Seventh Circuit has regularly affirmed orders granting an extension of
time in cases like this one, involving multiple defendants and extensive evidence. United States
v. Vega, 860 F.2d 779, 786-87 (7th Cir. 1994) (extension granted based on large number of
defendants, preservation of individual rights and complexity of charges); United States v. Jean, 25
F.3d at 595 (extension granted because of the complexity of the case and the fact that the
government had a large number of recorded phone conversations to review); United States v.
Thomas, 774 F.2d 807, 810 (7th Cir. 1985) (extension granted because case was complex and the
government had thousands of financial documents to review).

5


Nor is the court troubled by the fact that on October 30, 2002, two weeks after the extension
was granted, the government sent a letter to Defendants’ counsel seeking their cooperation in the
criminal investigation. (October 30, 2002 Letter from Eric Sussman to Defendants’ counsel, Exhibit
F to Defendants’ motion). Although Defendants argue that this letter demonstrates that the
government utilized the extension of time for a tactical advantage, the court recognizes that it is
permissible for the government to use an extension of time to do further investigation. See Marin,
7 F.3d at 683-84. The fact that the government sought Defendants’ cooperation in the effort simply
does not demonstrate that the government pursued the extension of time in bad faith.

CONCLUSION
Finding no error or abuse of discretion in the Chief Judge’s order granting the 63-day

extension, the court denies Defendants’ motion to dismiss the indictment.

ENTERED:

Dated: June 3, 2003



Minute Onder Form (06/97)
e eg Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Reber he Pallmeyer Sitting Judge if Other
or Magistrate Judge ~ ? than Assigned Judge
CASE NUMBER Ni CR 895 - 25 DATE 6/3/2003
CASE USA vs. Darryl L. Wilson
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented]

MOTION:

DOCKET ENTRY:

QQ) Oo Filed motion of [ use listing in “Motion” box above.]

(2) Oo Brief in support of motion due

(3) oO Answer brief to motion due___. Reply to answer brief due

(4) oO Ruling/Hearingon_. i setfor_— at.

() Oo Status hearing[held/continued to] [set for/re-set for]on___set for at.
(6) oO Pretrial conference[held/continued to] [set for/re-set for]on____——ssetfor at
(7) oO Trial[set for/re-set for]on_— at.

(8) oOo [Bench/Jury trial] [Hearing] held/continued to at _

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

CUFRCP4(m) OO Local Rule 41.1 CFRCP41(a)(1) [J FRCPA1(a)(2).

ao [Other docket entry] Enter Memorandum Opinion And Order. Defendants’ motion to dismiss the
indictment is denied.

a1) ff [For further detail see order attached to the original minute order.]

No notices required, advised in open court,

No notices required.

oY | Notices mailed by judge's staff.

Notified counsel by telephone.

Docketing to mail notices.

Mail AO 450 form, . ne
Copy to judge/magistrate judge. L¥f09 aoinssia sn 4
EIV deputy's 02:1 Hd €- NNT eO
initials

Onis te enn ey aa



The court notes, moreover, that Defendants are unable to show prejudice resulting from the
order granting an extension of time. In their motion, Defendants claim that all of the relevant
information was compiled by the government prior to their arrest. Essentially, Defendants argue
that the same indictment could have been issued earlier if the extension had not been granted;
assuming that is correct, however, may not be sufficient to demonstrate prejudice to Defendants.

United States v. Ousley, 100 F.3d 75, 78 (7th Cir. 1996) (defendant suffered “no cognizable
prejudice” simply because the same indictment could have been returned a month earlier). The
court notes, further, that the absence of prejudice to a defendant can serve as a basis for a court
to refuse to dismiss an indictment. /d.

Instead of arguing abuse of discretion and prejudice, Defendants argue that Chief Judge
Kocoras did not have ail of the relevant information when granting the extension and thus was “not
fully informed as to the complexity of the case.” (Wilson Reply, at 3.) Specifically, Defendants
argue that the investigation of Defendants had been completed nine months prior to the October
17, 2002 hearing and the government had already transcribed the tapes and determined the
charges for each Defendant by the time it asked for an extension.? Because the government failed
to inform Judge Kocoras of these facts, Defendants argue that this court should hold an
evidentiary hearing and review de novo whether the extension was proper. Although the
government has not addressed this issue, the court notes that Defendants have not provided any
legal authority supporting this court’s de novo review of an order granting an extension, nor has the

court located any such authority. In fact, the Seventh Circuit has stated that there are only two

2 To support these allegations, Defendants have provided a list of the Title II] phone

calls that were included in the affidavit, which demonstrate that the last wiretap was conducted on
December 5, 2001. (Listing of Title III calls included in the affidavit, Exhibit D to Defendants’
motion). Defendants have also provided a chart, created by the government, listing the different
Defendants in this case and the corresponding tapes compiled during the investigation. (Epps
Tapes, Exhibit E to Defendants’ motion). Defendants maintain that these materials were prepared
in pursuit of the criminal complaint.


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS y)
EASTERN DIVISION “y Bern,

UNITED STATES OF AMERICA,

Plaintiff,
v. No. 02 CR 895

DARRYL WILSON, et al., Judge Rebecca R. Pallmeyer

Defendants.

MEMORANDUM OPINION AND ORDER

Defendant Darryl L. Wilson filed this motion, joined by Defendant Willie Mobley (collectively,
“Defendants”), pursuant to 18 U.S.C. § 3162(a)(1), seeking dismissal of the indictment on the basis
of the government's alleged violation of the Speedy Trial Act. Defendants contend that Chief Judge
Kocoras erred in granting the government's motion for a 63-day extension of the time to seek an
indictment following Defendants’ arrests pursuant to criminal complaints. The government argues
that the extension was a proper exercise of the court’s discretion under Section 3161(h)(8)(A) of

the Act. For the reasons set forth below, the motion is denied.

DISCUSSION

The Speedy Trial Act requires that the government file an information or seek indictment
within thirty days of the defendant's arrest. 18 U.S.C. § 3161(b). The statute also provides for the
exclusion of certain periods of delay in the computation of the thirty-day “clock.” 18 U.S.C. §
3161(h). Of particular relevance here, this section provides that a delay may be allowed upon a
judge’s finding that “the ends of justice served by [granting an extension] outweigh the best interest
of the public and the defendant in a speedy trial.” 18 U.S.C. § 3161(h)(8)(A). The statute sets forth

four factors for the court to consider in determining whether the ends of justice will be served by

I


granting an extension.’

Defendants acknowledge that the factors set forth in Section 3161(h)(8)(B) relate to both
pre- and post-indictment extensions. They argue, however, that the statute mandates that the only
factor properly considered in a pre-indictment motion is factor (iii), which asks “[w]hether, 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.” 18 U.S.C. § 3161(h)(8)(B)(iii). Defendants
contend that because factor (iii) is the only one that specifically addresses itself to cases “in which

arrest precedes indictment,” it is the only factor relevant to a pre-indictment motion.

4

(B) The factors, among others, which a judge shall consider in determining whether to grant a
continuance under subparagraph (A) of this paragraph in any case are as follows:

(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.

18 U.S.C, § 3161