The opinion of the court was delivered by: Karen E. Schreier Chief Judge
DEFENDANT'S MOTION TO
VACATE COURT'S ORDER
Defendant, Patricio Guzman-Ortiz, moves to vacate the court's August 10, 2011, order granting co-defendant Rodney James Newcomb's motion to continue trial and deadline dates and, alternatively, to sever his trial from that of his co-defendants. The government resists. The motion to vacate is denied.
The pertinent facts to this order are as follows: The original indictment in this case dated January 5, 2010, charged Viengxay Chantharath and Vang Somsawat with conspiracy to distribute methamphetamine. Docket 1. In a second superseding indictment dated April 7, 2010, Guzman-Ortiz was added as a co-defendant in the conspiracy to distribute methamphetamine charge, along with Jeffrey Arthur Kriz, Mario Maldonado, and Aurelio Angel Solorio. Docket 54.
The third superseding indictment, dated May 4, 2010, added Jason Leach, Daniel Navarrette, and Kevin Boxdorfer as co-defendants in the conspiracy. Docket 111. The fourth superseding indictment, dated August 3, 2010, added Bruce Ross as a co-defendant in the conspiracy. Docket 194.
The fifth superseding indictment, dated March 2, 2011, added Rosendo Garcia-Navarro and one person not yet arrested as co-defendants in the conspiracy. Docket 366. The sixth superseding indictment, dated June 7, 2011, added Felicia Ann Omara, Michelle Cherie Feiss, Rodney James Newcomb, and two persons not yet arrested as co-defendants in the conspiracy. Docket 408.
Many of the co-defendants charged in this conspiracy have already pleaded guilty and some have already been sentenced. The remaining co-defendants are Chantharath, Maldonado, Guzman-Ortiz, Garcia-Navarro, Omara, Feiss, Newcomb, and the three persons not yet arrested. On August 9, 2011, Newcomb moved to continue the trial and motion deadline dates because his counsel needed additional time to adequately review the voluminous discovery produced in this case. The court granted the motion and continued the trial date that was set for September 13, 2011, to October 4, 2011. Docket 481.
Guzman-Ortiz contends that the court's August 10, 2011, continuance order violated his Speedy Trial Act and Sixth Amendment rights. The Speedy Trial Act provides that dismissal of an indictment is appropriate if a defendant is not brought to trial within the statutory time period. 18 U.S.C. § 3162(a)(2). The Eighth Circuit has held that "[t]he Speedy Trial Act requires that a federal criminal defendant be brought to trial within 70 days of his indictment or arraignment, whichever is later, . . . subject to excludable periods of time catalogued in the statute," namely in § 3161(c)(1) and § 3161(h). United States v. Elmardoudi, 501 F.3d 935, 941 (8th Cir. 2007).A defendant bears the burden to show that his Speedy Trial Act rights have been violated. United States v. Williams, 557 F.3d 943, 950 (8th Cir. 2009) (citing United States v. Cordova, 157 F.3d 587, 599 (8th Cir. 1998)).
Section 3161(h)(6) provides that time is excluded from the speedy trial clock for "[a] reasonable period of delay when the defendant is joined for trial with a co-defendant as to whom the time for trial has not run and no motion for severance has been granted." The last arraignments for the newly-added co-defendants from the sixth superseding indictment, Omara and Newcomb, occurred on July 5, 2011, Docket 452, which "reset" Guzman-Ortiz's speedy trial clock.
Even though Guzman-Ortiz's speedy trial clock was reset on July 5, 2011, the court had earlier granted a motion for a continuance setting the trial date to July 19, 2011. Docket 391. Continuances may be excluded from the speedy trial clock calculation:
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.
18 U.S.C. § 3161(h)(7)(A). Because the court found that the interests of justice were served by the continuance and no defendant, including GuzmanOrtiz, objected, the period from April 5, 2011, until July 19, ...