IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge Robert E. Blackburn

Criminal Case No. 11-cr-00408-REB

UNITED STATES OF AMERICA,

Plaintiff,

v.

1. LYDIA L. WHITE,

Defendant.

ORDER GRANTING UNOPPOSED MOTION FOR 

AN ENDS OF JUSTICE EXCLUSION OF TIME AND CONTINUANCE OF TRIAL 

Blackburn, J. 

The matter before me is the defendant’s Unopposed Motion To Exclude Time

And for Ends of Justice Continuance Under the Speedy Trial Act [#14] filed October

26, 2011. I heard the motion on November 1, 2011. This written order memorializes,

confirms, and supplements the findings of fact, conclusions of law, deadlines, settings,

and orders entered from the bench during the hearing. 

In determining a motion to continue a trial, the Tenth Circuit has established the

following relevant factors:

(1) the diligence of the party requesting the continuance; (2)

the likelihood that the continuance, if granted, would

accomplish the purpose underlying the party's expressed

need for the continuance; (3) the inconvenience to the

opposing party, its witnesses, and the court resulting from the

continuance: [and] (4) the need asserted for the continuance

and the harm that [defendant-movant] might suffer as result

of the district court's denial of the continuance.

United States v. Rivera, 900 F.2d 1462, 1475 (10th Cir. 1990) (quoting United States v.

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West, 828 F.2d 1468, 1470 (10th Cir. 1987)). The fourth and final factor is "by far the

most important." Id. at 1476. I have considered carefully each of these factors and find

that on balance they weigh heavily in favor of a continuance of the trial, which is now set

to commence December 19, 2011. 

Defendant’s motion implicates also the Speedy Trial Act of 1974, codified at 18

U.S.C. §§ 3161-3174. Specifically, the motions implicate 18 U.S.C. § 3161(h) which

provides, in relevant part:

The following periods of delay shall be excluded . . . in

computing the time within which the trial of any such offense

must commence:

. . . .

(7)(A) Any period of delay resulting from a continuance

granted by any judge . . . 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.

18 U.S.C. § 3161(h)(7)(A).

The Speedy Trial Act is “designed to protect a defendant's constitutional right to

a speedy indictment and trial, and to serve the public interest in ensuring prompt

criminal proceedings.” United States v. Hill, 197 F.3d 436, 440 (10th Cir. 1999). It

requires that a criminal defendant's trial commence within 70 days after his indictment

or initial appearance, whichever is later. See 18 U.S.C. § 3161(c)(1); United States v.

Lugo, 170 F.3d 996, 1001 (10th Cir. 1999). Certain periods of delay are excluded and

do not count toward the seventy-day limit. See 18 U.S.C. § 3161(h)(1)-(9). Specifically,

“the Act excludes any period of delay ‘resulting from a continuance granted by any judge

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. . .on the basis of its 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.’” Hill, 197

F.3d at 440-441 (10th Cir. 1999) (quoting 18 U.S.C. § 3161(h)(7)(A)).

In order for a continuance to qualify as an excludable "ends-of-justice"

continuance under section 3161(h)(7)(A), certain prerequisites must be satisfied. Id. at

441. First, I must consider the following factors listed in section 3161(h)(7)(B):

(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 [the Act];

(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(h)(7)(B)(i) - (iv). 

After considering these factors, I must then set forth, "in the record of the case,

either orally or in writing, [my] reasons for finding that the ends of justice served by the

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granting of such continuance outweigh the best interests of the public and the defendant

in a speedy trial." Id., § 3161(h)(7)(A). Although my findings “‘may be entered on the

record after the fact, they may not be made after the fact.’” Hill, 197 F.3d at 441 (quoting

United States v. Doran, 882 F.2d 1511, 1516 (10th Cir.1989)). “Instead, ‘[t]he balancing

must occur contemporaneously with the granting of the continuance because Congress

intended that the decision to grant an ends-of-justice continuance be prospective, not

retroactive[.]’” Id. (quoting Doran, 882 F.2d at 1516). I have discharged these duties.

The motion is unopposed. Thus, the foundational and predicate facts averred in

the motion is deemed established, and I need not reiterate them here. Defendant’s

motion, as supplemented by counsel on the record during the hearing, describe in

reasonable detail the various factors that counsel believe necessitate a continuance of

the trial and the filing deadlines in this case. I adopt and incorporate those facts and the

concomitant findings of fact that I entered during the hearing on November 1, 2011.

Defense counsel has been working diligently to review discovery and otherwise

investigate in this matter. Notwithstanding, defense counsel needs a reasonable,

additional time to organize and analyze discovery; conduct investigation (including

identifying, locating, and interviewing witnesses); prepare pretrial motions; prepare for

pretrial hearings; react to my rulings on anticipated pretrial motions; and finalize

preparation for trial, which is estimated reasonably to require seven days. At the hearing

on November 1, 2011, the court and counsel analyzed and determined together in a

reticulated way the time reasonably necessary to complete each discrete step in the

orderly pretrial development of this case, and such analysis and the resultant

determinations and deadlines are incorporated by reference.

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I relied on the considerable professional experience and judgment of counsel

in fashioning a reasonable pretrial scheduling order. Additionally, I was sensitive to and

mindful of the teachings of relevant caselaw, including the principles and holdings in

United States v. Williams, 511 F.3d 1044 (10th Cir. 2007); United States v. Toombs,

574 F.3d 1262 (10th Cir. 2009); United States v. Larson, 627 F.3d 1198 (10th Cir. 2010);

Bloate v. United States, – U.S. –. 130 S.Ct. 1345, 176 L.Ed.2d 54 (2010); and United

States v. Tinklenberg, – U.S. –, 131 S.Ct. 2007, 179 L.Ed.2d 1080 (2011).

Based on the relevant record considered as a whole, I find that it would be

unreasonable to expect adequate preparation by the defendant, despite due diligence,

for pretrial or trial proceedings within the time initially allowed under 18 U.S.C. § 3161(c). 

I have considered the factors which I must under 18 U.S.C. § 3161(h)(7)(B)(i)-(iv). As

required by 18 U.S.C. § 3161(h)(7)(C), I have not predicated my ruling on congestion of

the court’s calendar or lack of diligent preparation by counsel. Accordingly, I conclude as

follows:

(1) That failure to grant a continuance of trial beyond the time prescribed by 18

U.S.C. § 3161(c) would likely result in a miscarriage of justice within the meaning of 18

U.S.C. § 3161(h)(7)(B)(i);

(2) That even considering due diligence, failure to grant the motion would deny

counsel for defendant the reasonable time necessary for effective pretrial and trial

preparation within the meaning of 18 U.S.C. § 3161(h)(7)(B)(iv);

(3) That an additional one hundred ninety-five (195) days from November 1,

2011, should be excluded from the computation of the time for speedy trial; and

(4) That, therefore, the ends of justice served by granting the motion outweighs

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the best interests of the public and defendant in a speedy trial within the meaning of 18

U.S.C. § 3161(h)(7)(A).

THEREFORE, IT IS ORDERED as follows:

1. That the defendant’s Unopposed Motion To Exclude Time And for Ends of

Justice Continuance Under the Speedy Trial Act [#14] filed October 26, 2011, is

GRANTED, insofar as it is consistent with the foregoing findings and conclusions and the

following orders;

2. That one hundred ninety-five (195) days from November 1, 2011, SHALL BE

EXCLUDED from the computation of speedy trial under the Speedy Trial Act of 1974, 18

U.S.C. §§ 3161-74;

3. That the extant deadlines for the filing of pretrial motions and responses are

VACATED;

4. That all non-CJA pretrial motions SHALL BE FILED by March 1, 2012;

5. That any response to a timely filed pretrial motion SHALL BE FILED within

twenty-one (21) days of the filing of the corresponding pretrial motion;

6. That any pretrial motion that the court determines should be set for hearing

SHALL BE SET during a telephonic motions setting conference on March 26, 2012, at

10:00 a.m. (MST), at which the defendant need not appear; provided, furthermore, that

counsel for the government SHALL ARRANGE and COORDINATE the conference call

necessary to facilitate the setting conference; 

7. That the Trial Preparation Conference, currently scheduled for December 16,

2011, as well as the trial, currently scheduled to commence on Monday, December 19,

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2011, are VACATED; 

8. That instead, and as agreed by all, the Trial Preparation Conference SHALL

BE HELD on Friday, May 4, 2012, at 2:00 p.m. (MDT);

9. That instead, and as agreed by all, trial by jury SHALL COMMENCE on

Monday, May 14, 2012, at 8:30 a.m. (MDT), in Courtroom A1001, Tenth Floor, Alfred A.

Arraj United States Courthouse Annex, 901 19th Street, Denver, Colorado 80294, with the

court reserving seven (7) days for trial, at which counsel and the defendant shall appear

without further notice, order, or subpoena; provided, furthermore, that to the extent

necessary, the United States Marshal Service for the District of Colorado shall assist the

court in securing the appearance of the defendant, if then in custody; and

10. That the Trial Preparation Conference Order [#15] entered October 26,

2011, is AMENDED and SUPPLEMENTED to the extent necessary to facilitate and

implement these orders.

Done in chambers November 3, 2011, at Denver, Colorado, to confirm,

supplement, and explicate the findings of fact, conclusions of law, and orders entered

from the bench following the hearing on November 1, 2011.

BY THE COURT:

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