Defendant Fabian Leonte has moved to dismiss his indictment with prejudice based on violations of the Speedy Trial Act of 1974 ("STA" or "the Act"), and specifically the Act's requirement that trial commence within seventy days of return of the indictment or first appearance, not counting properly excluded time. 18 U.S.C. §§ 3161, et seq. Defendants Maria Sefora Santa, Virgil Sever Santa and Candit Cipri Sava, Jr. each join in defendant Leonte's motion. (ECF 184, 185, 186.) The government opposes defendants' motions. (ECF 172.) Oral argument was held on January 30, 2012, with James Greiner arguing for the defense and Dominique Thomas arguing for the government. The matter was submitted on February 2, 2012, upon defendant Leonte's filing of his supplemental response as allowed by the court. (ECF 197, 200.) For the reasons set forth below, defendants' motions are DENIED.
I. THE SPEEDY TRIAL ACT AND THIS COURT'S LOCAL CODES
The STA mandates that a criminal defendant proceed to trial within seventy days of being charged or making an initial appearance, whichever occurs later. 18 U.S.C. § 3161(c)(1). "[T]he Act recognizes that criminal cases vary widely and that there are valid reasons for greater delay in particular cases"; therefore, Congress set forth several mechanisms in the STA for excluding time from the seventy day period. Zedner v. United States, 547 U.S. 489, 497 (2006); see generally 18 U.S.C. § 3161(h). The Act allows for discretionary exclusions under section 3161(h)(7) where the court articulates on the record its reasons for finding a continuance is justified. See 18 U.S.C. § 3161(h)(7). "Both the Act and its legislative history establish that no continuance period may be excluded [under § 3161(h)(7)] unless the court makes reasonably explicit findings that demonstrate that the ends of justice served by granting the continuance do, in fact, outweigh the best interests of the public and the defendant in a speedy trial." United States v. Perez-Revelez, 715 F.2d 1348, 1352 (9th Cir. 1983). The Act provides factors for the court to consider in determining whether the ends of justice are served by a continuance. These include the complexity of the case, the time needed for preparation of counsel and the presence of novel questions of fact or law. See 18 U.S.C. § 3161(h)(7)(B)(i)-(iv).
Section 3161(h)(7)*fn1 provides courts with necessary "flexibility in accommodating unusual, complex, and difficult cases"; however, in order to prevent the exception from consuming the STA's rule requiring speedy resolution of criminal proceedings, section 3161(h)(7) "counteract[s] substantive openendedness with procedural strictness" by requiring on the record findings justifying an exclusion. Zedner, 547 U.S. at 508-09. In sum, section 3161(h)(7) "permits a district court to grant a continuance and to exclude the resulting delay if the court, after considering certain factors, makes on-the-record findings that the ends of justice served by granting the continuance outweigh the public's and defendant's interests in a speedy trial. This provision gives the district court discretion -- within limits and subject to specific procedures -- to accommodate limited delays for case-specific needs." Id. at 489.
By General Order, the Eastern District of California has adopted local codes to be used as shorthand references to corresponding STA provisions. See General Order No. 479, In Re: Plan for Prompt Disposition of Criminal Cases Pursuant to Speedy Trial Act of 1974, last updated October 15, 2009. The General Order states, "[i]n order to facilitate the recording of excludable time on the record and in docket entries, the court has developed Excludable Delay Codes with arabic numerals corresponding to specific statutory provisions of 18 U.S.C. § 3161(h) to be used at the discretion of each judge." By way of example, local codes "T2" and "T4" correspond to sections 18 U.S.C. § 3161(h)(7)(B)(ii) and (iv), respectively. These codes typically are used by judges of this district as a shorthand method identifying a factor under subsection (h)(7)(B) that the judge has determined justifies an (h)(7) continuance.
Defendants carry the burden of proving a STA violation. See 18 U.S.C. § 3162(a)(2); see also United States v. Medina, 524 F.3d 974, 980 (9th Cir. 2008) (paraphrasing 18 U.S.C. § 3162(a)(2)). "If the defendant carries this burden, the indictment 'shall be dismissed,' and the district court must then consider whether to dismiss the case with or without prejudice." Id. at 980-81.
The present action has been pending since March 6, 2008. The last defendants were joined in March of 2009, with Leonte joined on March 19, 2009. (ECF 49.) Since then, time under the Act has been tolled under 18 U.S.C. § 3161(h)(7) ("section (h)(7)"), among others.*fn2 Defendants challenge the exclusions made under section (h)(7) as invalid because (1) the court did not make an explicit "ends of justice" finding prior to each exclusion; and (2) the record lacks factual findings sufficient to support the statutory exclusion referenced by the presiding judge. If such exclusions are invalid on either ground, then defendants argue the appropriate remedy is dismissal with prejudice.
A. Ends of Justice Findings Argument
With respect to the first argument, defendants contend section (h)(7) requires the court to explicitly state on the record that the "the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial" in accordance with subsection 3161(h)(7)(A). This court has previously held that ends of justice language need not be recited verbatim for an exclusion of time to be proper. See United States v. Head, et al., Nos. CR 08--0116 KJM, CR 08--0093 KJM, CR 05--0368 KJM, CR 09--0407 KJM, 2011 WL 6780936 (E.D. Cal. Dec. 27, 2011). In sum, the court has found that defendants' first argument does not properly recognize the importance of factual justifications for an (h)(7) exclusion, but rather places undue emphasis on rote recitation of statutory language. Id. at *4. As explained in Head, defendants' position is inconsistent with the language of the statute as well as Supreme Court and Circuit precedent. Id. The defendants have not presented any new arguments here so as to justify revisiting the topic. The court confirms its prior decision, and incorporates its reasoning by reference, that recitation of exact statutory language is not required for an (h)(7) exclusion to be valid.
B. Factual Finding Argument
With respect to the second argument, defendants are correct that a court's (h)(7) exclusionary finding must be supported by the factual record before the court.*fn3 However, on the record of this case, the court finds that all previous exclusions of time have been supported by findings as required.
1. Co-defendants "It is well established that an exclusion from the Speedy Trial clock for one defendant applies to all co-defendants." United State v. Messer, 197 F.3d 330, 336 (9th Cir. 1999). "All defendants who are joined for trial generally fall within the speedy trial computation of the ...