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165.

Proposed findings that can be used to support a complex case finding and exclusion of time under the Speedy Trial Act

FINDINGS AND ORDER OF EXCLUDABLE PERIOD UNDER SPEEDY TRIAL ACT

Based on the Motion of Defendant XXXXX XXXXXXXX XXXXXX, Jr., seeking a continuance herein, the United States' consent to the motion, and the entire file herein, the Court hereby finds as follows:

1. The seven defendants herein have been named in an Indictment setting forth a total of 34 counts. The Indictment charges all defendants with conspiring to violate various federal statutes, including the federal odometer tampering statue, 15 U.S.C. §§ 1984, 1988, and 1990c; the mail fraud statute, 18 U.S.C. § 1341; and the statue forbidding interstate transportation of forged or altered securities, 18 U.S.C. § 2314.

2. The Indictment also contains a number of substantive charges, specifically the Indictment charges that:

-Six of the defendants caused the odometers on 15 specified vehicles to be unlawfully altered, in violation of 15 U.S.C. §§ 1984 and 1990c, and 18 U.S.C. § 2 (Counts 2-16).
-Defendant XXXXX XXXXXX, Sr., failed to retain records as required by 15 U.S.C. §§ 1984 and 1990c, and 18 U.S.C. § 2 (Count 17).
-Six of the defendants provided false odometer disclosure statements to purchasers of the cars they sold, in violation of 15 U.S.C. §§ 1988 and 1990c, and 18 U.S.C. § 2 (Counts 18-22).
-All defendants devised a mail fraud scheme, and caused the mails to be used in defrauding purchasers of used cars, in violation of 18 U.S.C. §§ 1341 and 2 (Counts 23-27).
-Six of the defendants caused the transportation in interstate commerce, after receipt from Mississippi, of forged and altered securities, specifically, automobile title documents bearing false mileage claims in violation of 18 U.S.C. §§ 2314 and 2 (Counts 28-32).
-Defendant XXXXXXXX XXX XXXXXX made false, material statements under oath while testifying before a grand jury, in violation of 18 U.S.C. § 1623 (Counts 33-34).
3. The Indictment was returned on February 25, 1993. All defendants except XXXXXX XXXXXX, made their first appearance in this Court on these charges on March 8, 1993. XXXXXX XXXXXX, Sr., made his first appearance on March 16, 1993.

4. Defendant XXXXXX XXXXXXXX XXXXXX, has filed a motion to relax deadlines and a written waiver of his rights under the Speedy Trial Act. He has also represented in his motion that he contacted all counsel of record in this case, and none object to extending the existing deadlines. Only defendant XXXXXXXXXXX is in custody.

5. The Indictment charges a conspiracy that began "at least as early as 1988, and continu[ed] through at least August 1991[.]" (Count 1, ¶ 3.) The Indictment alleges that the defendants, as part of the conspiracy, "would purchase hundreds of used motor vehicles" and cause their odometers to be "rolled back" to lower false mileage readings. (Count 1, ¶ 4(a).)

6. The Indictment charges that the odometers on 15 specifically identified used motor vehicles were rolled back.

7. The facts underlying this Indictment are complex and will involve extensive pretrial preparation and discovery. The United States and the defendants are attempting to coordinate discovery without involving the Court. Nevertheless, discovery has entailed and will entail making available numerous documents the Untied States obtained from banks, auto auctions, car dealerships, and others. The defendants' analysis of this evidence is likely to be time consuming in that it will entail detailed examination of motor vehicle title histories and financial records relating the purchase and sale of individual vehicles. These records frequently show the purported mileage on a vehicle's odometer at the time of a transaction.

8. The United States has in its possession certain video and audio tapes which have been made available to one or more of the defendants. Copying of some of these materials for the defendants is in continuing. Review of these tapes may also be time consuming for the defense.

9. Most of the documentation which the United States has obtained in this case is physically located in Kansas City, Missouri. While the United States brought all relevant material to Houston for defendants' inspection, scheduling discovery was difficult because of the various schedules of counsel for the defendants. One counsel has, since the discovery session in Houston took place, sought to withdraw from this case.

10. Due to the unusual and complex nature of the case, it is unreasonable to expect adequate preparation for pretrial proceedings and the trial itself within the time limits established by the Speedy Trial Act.

11. The United States agrees with the defense that, under the circumstances, to proceed on the currently scheduled trial date of May 17, 1993, would significantly jeopardize defendants' ability to defend themselves against the pending charges.

12. The parties agree and the Court finds that the failure to grant a continuance in this case would deny defendants the reasonable time necessary for effective preparation, taking into account the exercise of due diligence, and would result in a miscarriage of justice.

13. The Court also finds that the ends of justice served by granting a continuance outweigh the best interest of the public and the defendants in a speedy trial.

THEREFORE, IT IS HEREBY ORDERED that the trial in this action be set for ________________________, 1993, to commence at ________ a.m.

IT IS FURTHER ORDERED that for purpose of computing the time under the Speedy Trial Act of 1974 within which the trial must commence, the period from the date of signing this Order to the trial date, ________________________, 1993, inclusive, shall be deemed an excludable period pursuant to 18 U.S.C. §§ 3161(h)(8)(A), 3161(h)(8)(B)(i), 3161(h)(8)(B)(ii), and 3161(h)(8)(B)(iv).

Dated: ______________________

_____________________________ LEE H. ROSENTHAL UNITED STATES DISTRICT JUDGE

[cited in USAM 4-8.310; Civil Resource Manual 164]