United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE
jury indicted defendant Joseph Romero on one count of
conspiring to distribute more than 500 grams of
methamphetamine. (Docket 1). Defendant was brought into
federal custody by a writ of habeas corpus ad prosequendum on
October 31, 2017. (Docket 10). United States Magistrate Judge
Daneta Wollmann ordered defendant detained on November 1.
that date, trial has been delayed by pretrial motions and
continuances. Defendant filed a motion for a bill of
particulars and a motion to suppress. (Dockets 26, 52 &
57). After defendant's motions were resolved,
co-defendant Robert Cook moved for a continuance, which was
granted, and then filed his own suppression motion. (Dockets
93, 95, 96, 111 & 112). On August 19, 2019, after
co-defendant Cook's suppression motion was resolved and
he pled guilty, the court issued a new scheduling order
pertaining solely to defendant. (Docket 154). Trial was set
for September 17. Id. The government now moves to
continue the trial to allow it time to secure necessary
witnesses. (Docket 155) Defendant opposes the motion. (Docket
156). The court grants the motion.
witness is ‘essential' if he is
‘unquestionably important' to the case and the
government has a ‘good faith belief that it will use
that witness's testimony at trial.” United
States v. Porchay, 651 F.3d 930, 939 (8th Cir. 2011)
(citing United States v. Eagle Hawk, 815 F.2d 1213,
1218 (8th Cir. 1987). “A witness is
‘unavailable' whenever ‘his whereabouts are
known but his presence for trial cannot be obtained by due
diligence.' ” Id. (citing 18 U.S.C. §
3161(h)(3)(B)). “While ‘essential witness' is
not defined, the Eighth Circuit has relied on the Senate
Judiciary Committee report accompanying the Speedy Trial Act
bill defining essential witness as ‘a witness so
essential to the proceeding that continuation without the
witness would either be impossible or would likely result in
a miscarriage of justice.' ” United States v.
Rupp, No. CR18-15, 2019 WL 93272, at *15 (N.D. Iowa Jan.
3, 2019) (citing Eagle Hawk, 815 F.2d at 1218; citation to
the Congressional Record omitted).
government asserts trial of this matter will require
testimony by coconspirators currently in the custody of the
Bureau of Prisons (“BOP”). (Docket 155 at p. 1).
It further asserts these incarcerated coconspirators are
essential witnesses because “their anticipated
testimony will show the scope and nature of the
defendant's actions related to the charge in the
Indictment against him.” Id. at p. 2. Without
these witnesses, the government argues “a miscarriage
of justice could occur[.]” Id. The government
believes it could take up to 45 days for BOP to produce the
witnesses. Id. at p. 1. It asks the court to
continue the trial and set it for a date certain.
Id. at p. 2.
response, defendant asserts he has been incarcerated awaiting
trial for approximately two years and that he did not consent
to co-defendant Cook's continuance or suppression
motions. (Docket 156 at p. 1). Providing only a string
citation to out-of-circuit cases, he cursorily argues his
pretrial detention violates the Fifth Amendment. Id.
Defendant further contends “it is not unreasonable to
expect adequate preparation for trial” within the time
permitted by the Speedy Trial Act. Id. at p. 2.
Defendant does not dispute the incarcerated coconspirators
are essential government witnesses.
court finds the incarcerated coconspirators are essential
government witnesses because they “are crucial to the
prosecution of this matter[, ]” an assertion conceded
by the defense. (Docket 158 at p. 2). The court further finds
they are currently unavailable, as their “whereabouts
are known but [their] presence for trial cannot be obtained
by due diligence[, ]” given the time it takes for BOP
to produce incarcerated witnesses. 18 U.S.C. §
3161(h)(3)(B). Accordingly, the court will grant the
government's motion for a continuance.
period of delay resulting from the continuance of this trial
is excluded in computing the time within which the trial must
commence under the Speedy Trial Act. Id. at §
3161(h)(3)(A). The court also concludes the time from the
date of this order through the new date for trial is excluded
because the “ends of justice served by taking such
action outweigh the best interest of the public and the
defendant in a speedy trial.” Id. §
reasons given above, it is ORDERED that the government's
motion for a ...