Opinion
Case No. CR-08-002-E-BLW.
December 18, 2008
MEMORANDUM DECISION AND ORDER
On November 12, 2008, the defendant filed a motion to dismiss and a motion to continue the trial. In the motion to continue, the defendant argued that the motion to dismiss should be decided prior to trial, and that he would need additional time to prepare after that decision was rendered.
The Court granted the motion to continue, setting trial for March 30, 2009. The Court found that the period of time between the past trial date and the new trial date was excludable time under the Speedy Trial Act. See Order (docket no. 78). The Court also set a briefing schedule for the motion to dismiss, setting the final reply brief to be due on January 28, 2009.
In order to give the Court time to render a decision on the motion to dismiss, and give the defendant adequate time to prepare for trial after the decision was rendered, the Court again continued the trial until April 27, 2009. That decision was done by docket entry order. See Docket Entry Order #80. The Court finds that the period of time from the prior March 30, 2009, trial date to the new trial date of April 27, 2009, is excludable time under the Speedy Trial Act. This delay is resulting from the pendency of defendant's motion to dismiss, which must be decided prior to trial, and decided far enough in advance of trial to give defendant a full opportunity to prepare a defense. See U.S. v. Clymer, 25 F.3d 824, 830 (9th Cir. 1994) (holding that "[w]here delay in commencing a trial results from the pendency of a motion (as when the district court holds off trial pending a hearing on the motion), the delay will automatically be excluded from the Speedy Trial Act calculation, no matter how unreasonable or unnecessary that delay might seem.")