Opinion
No. 07-CR-1023-LRR.
December 10, 2007
ORDER
On December 6, 2007, the undersigned held a telephonic status and scheduling conference ("Hearing") in this matter. Assistant United States Attorney Stephanie M. Rose represented the government. Attorneys Richard J. Diaz, Alan S. Ross, Michael K. Lahammer, and Raphael M. Scheetz represented Defendants. Defendants were not personally present.
Trial is presently scheduled to commence at some point during the two-week period beginning on January 14, 2008. The Final Pretrial Conference is set for 8:30 a.m. on the first day of trial. A Status Hearing is set for January 3, 2008, at noon.
At the Hearing, the government and each Defendant except Defendant Orlando Birbragher made a joint oral motion to continue the trial. The court granted the motion.
The court finds that "[t]he ends of justice served by" continuing the trial date as to all Defendants in this case "outweigh[s] the best interest of the public and [D]efendant[s] in a speedy trial." 18 U.S.C. § 3161(h)(8)(A). The court makes such finding based upon the court's discussions with counsel, including the government's uncontested oral proffer to the court regarding the nature and size of the discovery materials that form the basis for the pending charges in the Indictment.
The Indictment charges five defendants in a complex criminal conspiracy with a nationwide scope. See Indictment (docket no. 2-1), passim. Specifically, the Indictment alleges that Defendants conspired to illegally distribute prescription drugs on the Internet through a company called "Pharmacom." Id. at ¶ 13. Pharmacom allegedly manufactured more than 246,000 "prescriptions" for controlled substances during the conspiracy period. Id. at ¶ 14. Such "prescriptions" resulted in the dispensing of more than 12.5 million Schedule III dosage units and more than 1.9 million Schedule IV dosage units. Id. The government alleges that criminal acts occurred throughout the country and proffers to the court that the discovery materials in this case exceed a terabyte of electronic information.
A terabyte is one trillion bytes or one thousand gigabytes.
The court finds that it is unreasonable to expect defense counsel to prepare adequately for the pending pretrial proceedings and for the trial itself within the time limits established by the Speedy Trial Act, 18 U.S.C. § 3161, et seq. The court is sensitive to the fact that Defendant Birbragher is detained without bond pending trial. See Order (docket no. 48). This circumstance, however, is outweighed by the complexity of the case and the sheer volume of the discovery materials. See 18 U.S.C. § 3161(h)(8)(B)(ii) and (iv); see, e.g., United States v. Gamboa, 439 F.3d 796, 803 (8th Cir. 2006) (affirming continuance of trial date); United States v. Fogarty, 692 F.2d 542, 546 (8th Cir. 1982) (affirming continuance of trial date as to all defendants where no motion for severance was granted and trial was continued on motion of co-defendants in a case involving seven co-defendants, ten unindicted co-conspirators, forty-five overt acts and seven states and foreign countries).
Trial is continued to July 6, 2008. The court has reserved the entire months of July and August for trial. The exact times of trial have not yet been determined and will be provided to the parties on a date closer to July 6, 2008.
The previously scheduled Status Conference and Final Pretrial Conference are cancelled. The court will hold a Final Pretrial Conference on June 13, 2008, at 10 a.m., in the Third Floor Courtroom. Pretrial motions are due on April 1, 2008.
Defendant Orlando Birbragher's "Motion to Allow Attorney Richard J. Diaz to Appear at the January 3, 2008 Status Hearing Through Attorney Alan Ross, Counsel for Co-Defendant Marshall Kanner, or to Appear by Phone, or Atltenatively [sic] to Reset the Status [sic] for Another Two Days" (docket no. 36) is DENIED AS MOOT.
IT IS SO ORDERED.