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Joseph D. Johnson, Joseph D. Johnson, Chtd., Charles D. Dedmon, Office of Federal Public Defender, Topeka, KS, for Jessie Ailsworth, Jr.
F.G. Manzanares, Jerold E. Berger, Topeka, KS, for Undra P Mock.
James G. Chappas, Jr., Topeka, KS, for Kenneth R. Torain.
Mark L. Bennett, Jr., Bennett & Dillon, Topeka, KS, Benjamin C. Wood, Lawrence, KS, for Arnett Louise Rice.
Matthew B. Works, Works, Works & Works, P.A., Amy C. Bixler, Alan G. Warner, Topeka, KS, for Terence J. Douglas.
Stephen W. Kessler, Topeka, KS, for George Stewart, Jr.
Jeannine D. Herron, William K. Rork, Rork Law Office, Topeka, KS, for Calvin Lee Conway.
Gregory G. Hough, Office of United States Attorney, Topeka, KS, for U.S.

MEMORANDUM AND ORDER

CROW, District Judge.
*1 On May 7, 1996, the court entered a memorandum and order denying the defendant's requests for specific performance of the plea agreements but allowing each of the defendants, Jessie Ailsworth, Jr., Undra P. Mock, George Stewart, Jr., and Calvin Conway, to withdraw their respective pleas. See United States v. Ailsworth, 1996 WL 306805 (D.Kan. May 7, 1996). [FN1] 18 U.S.C. § 3161(i) provides:

FN1. That memorandum and order contains a complete summary of the lengthy history of this case.

If trial did not commence within the time limitation specified in section 3161 because the defendant had entered a plea of guilty or nolo contendere subsequently withdrawn to any or all charges in an indictment or information, the defendant shall be deemed indicted with respect to all charges therein contained within the meaning of section 3161, on the day the order permitting withdrawal of the plea becomes final.
Assuming no excludable time, selection of the jury must commence on or before July 16, 1996.
On June 3, 1996, the court held a conference with counsel to discuss setting the matter for trial on June 17, 1996. Trial is anticipated to take approximately one month. Although some of defendant's counsel had conflicts, both personal and professional, with that date, none specifically lodged an objection to commencing trial on that date. The government, however, requested a continuance of the matter as its case agent had already purchased nonrefundable tickets for two separate trips during the time trial is scheduled. The defendants opposed the government's oral request. The court denied the government's oral motion, but indicated that the government could file a written motion which the court would consider.
On June 4, 1996, the government filed a written motion for continuance of trial pursuant to 18 U.S.C. §§ 3161(h)(3) and 3161(h)(8), until after July 20, 1996. See (Dk. 646). In that motion, the government indicated that Special Agent James K. Hernandez of the U.S. Department of Agriculture, the case agent, is an essential witness. According to the government's motion, SA Hernandez is scheduled to travel out-of-state and has purchased prepaid non- refundable airline tickets. The government contended that it could not proceed without the testimony of SA Hernandez.
At the June 10, 1996, status conference, the court heard argument from the parties regarding the government's motion. The defendants opposed the government's motion. After considering the arguments of counsel, the relevant facts and circumstances, and the applicable law, the court denied the government's motion. See (Dk. 655).
On June 11, 1996, Undra P. Mock entered a plea of guilty. As part of the plea agreement, Mock agreed to testify against his alleged coconspirators. If appropriate, the government agreed to file a § 5K1.1 motion on behalf of Mock for his substantial assistance.
On June 11, 1996, the government filed its second motion for a continuance. See (Dk. 653). In that motion, the government indicated that SA Hernandez was not merely going on vacation, but was instead eloping and going on his honeymoon. The government also indicated that the polygraph examiner and another witness also had weddings scheduled during trial. On June 11, 1996, by minute order the court denied the government's motion for continuance. See (Dk. 654).
*2 On June 12, 1996, George Stewart, Jr., entered a guilty plea. Like Mock's plea agreement, Stewart agreed to testify against his alleged coconspirators. If appropriate, the government agreed to file § 5K1.1 motion on behalf of Stewart for his substantial assistance.
On June 12, 1996, the government filed its third motion for continuance. See (Dk. 660). The government's motion for continuance incorporated by reference all of the arguments included in its two prior motions for continuance. In addition, the government contended that in light of the intervening pleas of both Mock and Stewart that it would be unable to debrief, polygraph [FN2] and otherwise prepare for trial on June 17, 1996. Proceeding to trial on June 17, 1996, would therefore preclude the government from utilizing the testimony of Mock and Stewart and thereby preclude those defendants from having the opportunity to assist the government in the prosecution of their codefendants and alleged coconspirators.

FN2. In regard to their first debriefing following their first plea, both Mock and Stewart were given polygraph examinations. The government indicates that it will be necessary to debrief and perform another polygraph examination of each defendant again as each defendant has now agreed to provide additional, previously undisclosed information.

During the afternoon that the government filed its third motion for continuance, the court conducted a phone conference with counsel for the government, Ailsworth and Conway. The defendants opposed the government's motion. Amongst the other arguments advanced by the defendants, the defendants noted that they have been incarcerated for a substantial amount of time and that they are ready to proceed to trial on June 17, 1996. Over the defendants' objections, the court granted the government's motion in part. Selection of the jury will commence on July 8, 1996. [FN3] Presentation of evidence will commence on July 22, 1996. This memorandum and order sets forth the factual and legal basis for the court's decision to continue the matter until July 8, 1996.

FN3. The court simply notes that July 8, 1996, falls within seventy days of May 7, 1996.

Continuances in General

"District courts have broad discretion in matters of continuances, even when Sixth Amendment issues are implicated, United States v. Mendoza-Salgado, 964 F.2d 993, 1016 (10th Cir.1992), and such decisions only will be reviewed for abuse of discretion, Scott v. Roberts, 975 F.2d 1473, 1475 (10th Cir.1992)." United States v. Nelson, 54 F.3d 1540, 1546 (10th Cir.1995). In evaluating a movant's request for a continuance, the court should consider all relevant facts and circumstances including the diligence of the party requesting the continuance, the likelihood that the continuance, if granted would accomplish the purpose underlying the movant's expressed need for the continuance; the inconvenience to the opposing parties, their witnesses, and the court resulting from the continuance; the need asserted for the continuance and the harm that the movant might suffer as a result of the denial. See United States v. West, 828 F.2d 1468, 1470 (10th Cir.1987).

Speedy Trial

Under the Speedy Trial Act, a defendant's trial must commence "within seventy days from the filing date (and making public) of the ... indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs." 18 U.S.C. § 3161(c)(1). The Act specifically provides for certain exclusions from the seventy-day period, including periods of delay resulting from continuances, provided "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)(8)(A). Among the factors a court may consider in granting an ends of justice continuance are "[w]hether the failure to grant such a continuance ... 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...." 18 U.S.C. § 3161(h)(8)(B)(iv).
*3 We have said that these findings may be " 'entered on the record after the fact.' " Pasquale, 25 F.3d at 952 (quoting United States v. Doran, 882 F.2d 1511, 1516 (10th Cir.1989)). They may not, however, be " 'made after the fact.' " Id. (quoting Doran, 882 F.2d at 1516). Thus, it must be "clear from the record that the trial court struck the proper balance when it granted the continuance." Doran, 882 F.2d at 1516. Courts need not necessarily expressly conduct a balancing or use particular language, so long as the court gives "some indication, contemporaneous with the grant of the continuance, to which the later findings referred." Id. at 1517.
United States v. Spring, 80 F.3d 1450, 1456 (10th Cir.1996). Under § 3161(h)(8)(B), among the other factors the court may consider in determining whether to grant a continuance under subparagraph (h)(8)(A), is "[w]hether the failure to grant such a continuance in the proceeding would be likely to make a continuance of such proceeding impossible, or result in a miscarriage of justice." 18 U.S.C. § 3161(h)(8)(B)(i).

Unavailable Witness

18 U.S.C. § 3161(h)(3) provides:
(A) Any period of delay resulting from the absence or unavailability of the defendant or an essential witness.
(B) For purposes of subparagraph (A) of this paragraph, a defendant or an essential witness shall be considered absent when his whereabouts are unknown and, in addition, he is attempting to avoid apprehension or prosecution or his whereabouts cannot be determined by due diligence. For purposes of such subparagraph, a defendant or an essential witness shall be considered unavailable whenever his whereabouts are known but his presence for trial cannot be obtained by due diligence or he resists appearing at or being returned for trial.
Is the witness "essential?"
In United States v. Hamilton, 46 F.3d 271 (3rd Cir.1995), the Third Circuit discussed the meaning of the term "essential" as used in § 3161(h)(3):
We believe a witness may be deemed "essential" for the purposes of 18 U.S.C. § 3161(h)(3)(A) even though the government could possibly obtain a conviction without that witness's testimony. The Senate Judiciary Committee report accompanying the Speedy Trial Act defined an "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." 1974 S.Rep. No. 93-1021, 93d Cong., 2d Sess. 37 (1974), reprinted in Anthony Partridge, Legislative History of Title I of the Speedy Trial Act of 1974, at 123 (1980) (emphasis added). The legislative history of the Speedy Trial Act therefore suggests that the government need not demonstrate impossibility of conviction without the witness before that witness may be deemed "essential." A witness may also be treated as "essential" if, in the absence of that witness's testimony, a miscarriage of justice may likely occur. See United States v. Tedesco, 726 F.2d 1216, 1222 (7th Cir.1984) (a witness may be deemed "essential" for Speedy Trial Act purposes "even when the Government could convict without his testimony").
*4 We therefore join with the Court of Appeals of the Eighth Circuit in holding that where a witness is unquestionably important to the prosecution's case, and the government has a good faith belief that it will use that witness's testimony at trial, the district court may treat that witness as "essential" for Speedy Trial Act purposes. See Eagle Hawk, 815 F.2d at 1218. On the other hand, if the witness's testimony will be merely cumulative or substantially irrelevant, the witness should not be deemed essential. Id.
46 F.3d at 276-77.
It appears, and apparently the defendants concede, that SA Hernandez is an essential witness within the meaning of § 3161(h)(3). The government indicates, and the defendants do not dispute for purposes of this motion, that SA Hernandez was intimately involved in the purported illegal transactions.
Is the witness unavailable?
Absent some clairvoyant or prescient powers, SA Hernandez could not have known of foreseen that the court would permit the defendants to withdraw their pleas and that the court would reset the matter for trial during the months of June and July, 1996. Nor would it be reasonable to expect SA Hernandez to block out the rest of 1996 in the event the court permitted the defendants to withdraw their pleas and reset the matter for trial. However, the court originally concluded that the defendants' interest in a speedy trial trumped SA Hernandez' vacation plans. Upon reconsideration, and now with the understanding that SA Hernandez' vacation plans were actually plans for a wedding and honeymoon, the court concludes that SA Hernandez is unavailable within the meaning of § 3161(h)(3). Under like circumstances, the courts have considered such circumstances to warrant a continuance and to exclude the time under the Speedy Trial Act. See United States v. Meyer, 803 F.2d 246, 247-48 (6th Cir.1986), cert. denied, 480 U.S. 936 (1987).

Miscarriage of Justice

Although SA Hernandez' unavailability as a witness would serve as an independent basis for the government's request for a continuance, the court further finds that a miscarriage of justice will occur if the case is not continued until July 8, 1996. Based upon the intervening pleas of both Mock and Stewart, the government cannot reasonably be expected to be prepared for trial on June 17, 1996. In this same vein, commencing trial on June 17, 1996, may have the unfortunate effect of precluding both Mock and Stewart from testifying for the government as the government is apparently unwilling to simply place the defendants on the witness stand without debriefing the defendants and verifying the information that they provide. Such a possibility would potentially impair the jury's search for the truth, lengthen the number of days of trial, [FN4] and cause Mock and Stewart to miss their opportunity to receive the benefit of their bargain. In short, the court concludes that it would be a miscarriage of justice to not grant the government's motion.

FN4. The government indicates that the information that Mock and Stewart appear willing to provide may obviate the need to call several witnesses and shorten the length of trial.

Summary

*5 In granting the government's motion for continuance, the court recognizes that each of the defendants is currently detained. The court also recognizes the substantial amount of time that has passed between the time the defendants were originally detained and now. Nevertheless, the court concludes that the ends of justice served a by continuance in this matter outweighs the best interests of the public and the defendants in a speedy trial.
IT IS THEREFORE ORDERED that the government's third motion to continue this matter, pursuant to 18 U.S.C. §§ 3161(h)(3) and 3161(h)(8) (Dk. 660) is granted.
D.Kan.,1996.
END OF DOCUMENT

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