MOTION TO CONTINUE TRIAL DUE TO COMPLEXITY

The defendant, *, by undersigned counsel, hereby moves this Honorable Court, pursuant to 18 U.S.C. § 3161(h)(8)(A) and (B), to continue the trial of this case due to its complexity. As grounds for this motion, defendant states as follows:

1. The defendant, *, along with four others, is charged in a one count indictment (plus a forfeiture count) with conspiracy to export cocaine from the United States to Canada.

2. Of the five defendants, only * is currently before the Court set for trial. Two of the codefendants, Paul Larue and Ashley Castaneda, have previously pled guilty to the indictment. The other two codefendants, Salvatore Cazzetta and Nelson Fernandes, have not yet appeared before the Court.

3. This case is set for trial during the trial term set to commence on September 6, 1994.

4. This case is involved and complex. It involves allegations of international negotiations between members of the conspiracy and undercover operatives to bring cocaine from the United States to Canada.

5. In order to provide the defendant with effective representation, more time is needed to prepare for trial. Witnesses in the United States and Canada need to be located and

interviewed. Further, there is a good deal of material that must be reviewed and digested in order to prepare the defense.

6. Additionally, an issue exists regarding the manner in which * was brought before the Court. * was in the process of resisting the United States Government's efforts to extradite him to the United States. His appeal of the Canadian court's extradition order was pending before the Supreme Court of Canada. On July 6, 1994, without notice to * or his Canadian lawyer, Jacques Norrnandeau, he was removed from his prison cell in Quebec and put on a plane to the United States. *'s Canadian lawyer is appealing this action, both through judicial and political channels. A continuance is needed while the matter of the propriety of *'s appearance before this Court is adjudicated.

7. The stakes in this case for *, who is 51 years old, are extremely high. If he is convicted he will, in all likelihood, spend most if not all of the rest of his life in prison.

8. By this motion, it is the defendant's request that the Court, in the interests of justice, continue this case to the December, 1994 trial term.

9. * understands his constitutional and statutory rights to a speedy trial. For the reasons stated above, he deems it in his best interest to waive those rights. A Waiver of Speedy Trial form, executed by * and undersigned counsel, is attached to this motion.

10. Assistant U.S. Attorney Ernst Mueller does not oppose this motion.

MEMORANDUM OF LAW

Normally, the trial of an individual charged with a criminal offense must commence within 70 days from the filing of the indictment or the defendant's first appearance before a judicial officer of the court, whichever date last occurs. 18 U.S.C. § 3161(c)(1). However, in promulgating the Speedy Trial Act, 18 U.S.C. §§ 3161-3174, the drafters recognized that unusual and complex cases would come before the court requiring more than the ordinary amount of time to prepare. A continuance beyond the 70- day limit is permissible if the court determines that "the ends of justice served by [granting a continuance] outweigh the best interest of the public and the defendant in a speedy trial." 18 U.S.C. § 3161(h)(8)(A). For the reasons outlined above, this is such a case.

18 U.S.C. § 3161(h)(8)(B) sets out some of the factors to be considered in determining whether to grant a continuance. These factors, in pertinent part, 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.

. . .

(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.

Here, a miscarriage of justice would result if a continuance is not granted because of the lack of available preparation time. This is an unusual and complex case within the meaning of 18 U.S.C. § 3161 (h)(8)(B)(ii). It alleges an international conspiracy involving witnesses in the United States and Canada. Additionally, a good deal of material must be reviewed and digested in order to effectively prepare for trial. Also, an issue exists regarding whether the defendant was brought to the United States before he had exhausted his Canadian appellate remedies regarding his extradition.

Finally, even if the Court determines that 18 U.S.C. § 3161(h)(8)(B)(ii) does not apply, failure to grant a continuance "would deny counsel for the defendant...the reasonable time necessary for effective preparation, taking into account the exercise of due diligence." 18 U.S.C. § 3161(h)(8)(B)(iv).

For the foregoing reasons, this Court should grant the requested continuance.

Respectfully submitted,

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