The opinion of the court was delivered by: Consuelo B. Marshall United States District Judge
ORDER DENYING DEFENDANT'S MOTION FOR CONTINUANCE
The matter before the Court is Defendant Travis Zipper's Motion for a Continuance of the Trial (the "Motion"). [Doc. No. 170.] The parties appeared before the Court for oral argument and upon consideration of the papers and arguments presented, the Court DENIES Defendant's Motion. This Order is consistent with the Court's ruling from the bench on March 3, 2009.
Defendants Brian Martin ("Martin") and Travis Zipper ("Zipper") are accused of participating in a conspiracy to extort money by threats and force from various individuals in connection with the collection of a loan. The indictment in this case was filed on October 30, 2007. [Doc. No. 14.] On May 7, 2008, the Government filed a First Superseding Indictment. [Doc. No. 55.] The operative indictment in this case is the Second Superseding Indictment, which was filed on January 23, 2009. [Doc. No. 139.]
A. Differences Between the First Superseding Indictment and Second Superseding Indictment
The primary difference between the First Superseding Indictment and the Second Superseding Indictment is that the Second Superseding Indictment contains 8 additional counts based on the same facts and circumstances involved in the previous two indictments. There are 6 new counts against Martin alone alleging violations of 18 U.S.C. § 894 (Extortionate Extension of Credit Act) and 18 U.S.C. § 880 (knowingly receiving the proceeds of extortion). There are 2 new counts against both Martin and Zipper alleging violations of these same statutes.
B. Requests for Continuance
This case has been continued four times since the initial trial date of December 18, 2007 was set, each time at the request of Defendants, with no opposition from the Government. [Doc. Nos. 41, 51, 71, and 88.] Trial is presently set to commence on March 3, 2009.
On February 11, 2009, Zipper filed a Request for Approval of Substitution of Attorney, substituting in Ronald Richards for Richard Schonfeld, which the Court granted on February 17, 2009 (the "Motion for Substitution"). [Doc. Nos. 158, 163.] During the hearing on the Motion for Substitution, Mr. Richards stated that Zipper would like for him to substitute in regardless of whether the Court grants any continuance and further represented that he would be ready to go to trial on "any trial date the Court deems fit." In his Motion, Mr. Richards reiterates that he would be ready for trial as long as his client's rights under 18 U.S.C. § 3161 (alleged entitlement to 30-day continuance pursuant to Speedy Trial Act based on return of Second Superseding Indictment) and United States v. Garrett, 179 F.3d 1143 (9th Cir. 1999) (alleged entitlement to continuance for newly- retained counsel to prepare for trial) were preserved. (Mot. at 3:1-3.)*fn1 During the hearing, Mr. Richards specifically represented that if the Court found against Zipper on the Speedy Trial Act issue and the Garrett issue, he would be ready for trial on March 3, 2009.
The Speedy Trial Act "does not require that the 30-day trial preparation period of [18 U.S.C.] § 3161(c)(2) be restarted upon the filing of a superseding indictment." United States v. Karsseboom, 881 F.2d 604, 607 (9th Cir. 1989). However, the district court has discretion to grant a continuance if the filing of a superseding indictment prejudices a defendant. United States v. Rojas-Contreras, 474 U.S. 231, 234-37 (1985); see 18 U.S.C. 3161(h)(7).
Specifically, Section 3161(h)(7)(A)*fn2 of the Speedy Trial Act authorizes the district court to grant an "ends of justice" continuance when the government seeks a superseding indictment that operates to prejudice a defendant. Rojas-Contreras, 474 U.S. at 236 (quoting 18 U.S.C. § 3161(h)(8)(A)). The Act sets forth four factors, "among others, which a judge shall consider" in determining whether to grant a continuance:
(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 ...