United States District Court, D. Utah, Central Division
M. Warner Chief Magistrate Judge
MEMORANDUM DECISION AND ORDER
FREDERIC BLOCK UNITED STATES DISTRICT JUDGE
order assumes the parties' familiarity with the facts and
procedural history. Defendant Claud Koerber brings a motion
to dismiss for speedy trial violations, arguing the speedy
trial clock elapsed during the period after his mistrial was
declared. His motion is denied.
event of a mistrial, the Speedy Trial Act requires the new
trial to begin “within seventy days from the date the
action occasioning the retrial becomes final.” 18
U.S.C. § 3161(e). However, certain “periods of
delay shall be excluded . . . in computing the time within
which the trial” must begin, including “[a]ny
period of delay resulting from a continuance granted by any
judge . . . 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). When granting such a continuance, the judge
must set forth reasons supporting his decision that the ends
of justice outweigh the interests of the public and the
defendant. 18 U.S.C. § 3161(h)(7)(B); United States
v. Toombs, 574 F.3d 1262, 1268 (10th Cir. 2009).
Judge Warner issued a December 18, 2017 order granting a
continuance that excluded the time between that date and the
new trial date of June 4, 2018. Koerber argues this order was
ineffective because an initial trial date within the 70-day
timeframe had not yet been set. He argues that because there
was no initial trial date to continue, the granted
continuance was a legal nullity. In other words, he views the
law as requiring the continuance to be granted from a
preexisting trial date within the 70-day timeframe. Because
the order was ineffective, Koerber concludes the speedy trial
clock ran in the interim period and exceeded the 70-day
is wrong on the law. Nothing in the Speedy Trial Act requires
that a continuance be calculated from a formally scheduled
trial date within the initial 70-day period. Nor would that
make sense - the trial date is the end date of the
70-day period, not the beginning. Instead, the continuance is
calculated from the day the speedy trial clock begins to run.
In this case, the clock began to run on October 16, 2017, the
date the mistrial was declared. 18 U.S.C. § 3161(e).
Judge Warner's order properly granted a continuance of
the 70-day time period which began on this date.
addition, Koerber mischaracterizes the relevant proceedings.
The continuance was granted at his request. At a December 6,
2017 scheduling conference, Judge Warner offered Koerber a
January 8, 2018 trial date, within the speedy trial
timeframe. Koerber requested a delay until September or
October 2018 because he wanted new counsel. At a December 8,
2017 conference, with new counsel for Koerber present, Judge
Warner offered a compromise trial date of June 4, 2018.
aware of Koerber's long history of pushing for delays in
the proceedings and then using those delays to claim speedy
trial violations, Judge Warner addressed Koerber directly
about the speedy trial clock:
THE COURT: I am prepared - and this is important, Mr.
Koerber, for you to hear this, so please refrain from talking
to Mr. Hunt for just a moment here because I want you to hear
what I'm about to say. I am prepared to set this within
the speedy trial time period, which would be early January by
our calculations. . . .
Now that's to comply with the speedy trial statute.
Obviously, there's reasons why that doesn't work to
your advantage, primarily from the standpoint of your counsel
being able to prepare and get up to speed. . . .
So let me address you, Mr. Hunt, since Mr. Koerber is now
represented. . . . [D]o you have any objection to me
continuing this matter until June 4th for trial? And if I do,
I will be excluding the time between today and then for the
purposes of speedy trial.
MR. HUNT: Mr. Koerber did have some - THE COURT: Yo u 're
free to talk to him now, but I just wanted to make sure you
people were ...