United States District Court, D. Oregon, Medford Division
OPINION AND ORDER
Aiken, United States District Judge.
Donald Courtney Biggs moves to continue the date of his jury
trial, which is set for February 26, 2018. The government
opposes the motion to continue. I denied the motion orally
following the February 7, 2018, telephonic hearing on the
motion. This opinion and order further explains the reasons
behind that denial.
determining whether a continuance should be granted, I
consider (1) defendant's diligence in preparing his case;
(2) the likelihood the continuance would serve a useful
purpose; (3) whether the continuance would inconvenience the
parties, the court, or other witnesses; and (4) whether
defendant would be prejudiced by the denial of a continuance.
United States v. Mejia, 69 F.3d 309, 314
(9th Cir. 1995). I also bear in mind that child victims and
witnesses have general and special rights to reasonably
prompt judicial proceedings under federal law.
carefully considered the relevant factors and conclude that a
continuance is not warranted. The first factor favors a
continuance, as defendant, through defense counsel Terry
Kolkey, has been diligent in preparing his case.
to the second factor, the nature of this case and the fact
that Mr. Kolkey's trial preparation only began in earnest
in November (after the parties' plea agreement fell
through) suggest that granting a continuance might serve a
useful purpose. However, it appears that a continuance would
in fact have limited utility in this case. In his motion, Mr.
Kolkey cited three reasons that a continuance was necessary:
both he and his expert needed additional time to review the
forensic (video) evidence, which until now has been available
to him only on-site during limited hours at the Medford
Police station; he needed additional time to review
documentary evidence and contact witnesses related to
out-of-state trips that form the foundation of the interstate
travel counts of the indictment, in part because he did not
receive the contact information for potential witnesses until
February 2, 2018, due to a redaction error; and he
needed additional time to review evidence, including 2200
pages of text messages, related to the evidence described in
the government's 404(b) notice. In response to the motion
and on the record at the telephonic hearing, the government
agreed to address those concerns by, among other actions, (1)
making the forensic evidence available twenty-four hours a
day, seven days a week, both in Medford and in Portland,
where the defense expert is located; (2) dismissing the
interstate travel charges; and (3) permitting defense counsel
to use the government's technology to search the text
messages more quickly.
hearing on the motion convened at 10:30am on February 6. I
adjourned the hearing to permit the lawyers to discuss the
government's proposed accommodations. When the hearing
reconvened at 2:00pm, Mr. Kolkey and the Assistant United
States Attorneys explained that they had reached agreements
that would substantially narrow the issues to be adjudicated
at trial and, consequently, the evidence Mr. Kolkey would
have to review and develop before trial. Mr. Kolkey did not
withdraw the request for a continuance, but represented to
the Court that he believed he could, with diligent
preparation, be ready by February 26. In reliance on that
representation and in recognition of the government's
willingness to take Mr. Kolkey's motion seriously and
offer pragmatic solutions, I conclude that any useful purpose
served by a continuance would be very limited.
third factor weighs heavily against a continuance. This case
involves minors who the government plans to call as
witnesses; the government represents that some of those
individuals will graduate from high school this spring, which
means that they may no longer live in the area if this case
is delayed four to six months, per the request for a
continuance. The trial is set to begin more than two and a
half years after defendant was indicted in this case. I have
already granted one continuance over the government's
objection. The government and court staff have rearrangement
their schedules and made travel arrangements to be available
for a two-week trial. Jury summonses have already issued. In
short, a continuance would significantly inconvenience the
witnesses, the government, and the Court.
fourth and most important factor is prejudice to the
defendant. I conclude that defendant will not be prejudiced
by the denial of the request for a continuance. Although the
concerns Mr, Kolkey raised were valid, the government stepped
up to meet those concerns; as a result, the scope of disputed
issues in this case narrowed considerably, such that Mr.
Kolkey stated that he believes he can be ready by February
26. I note that in addition to the accommodations made by the
government, the Court has agreed to delay pretrial filing
deadlines by two full weeks, with pretrial motions briefing
now due to be completed just four days before the pretrial
conference. That delay further alleviates the risk of
prejudice to defendant by giving Mr. Kolkey more time to
review the evidence before filing those motions.
I note that granting a continuance at this juncture would
risk violating the rights of the minor victims and witnesses.
Crime victims have "the right to proceedings free from
unreasonable delay." 18 U.S.C. § 3771(a)(7).
Moreover, because this is a proceeding in which children will
be called to give testimony, the government has requested
that this case be designated as "of special public
importance, " pursuant to 18 U.S.C. § 3509(j). Such
designation requires the Court to "ensure a speedy trial
in order to minimize the length of time the child must endure
the stress of involvement with the criminal process."
Id. I agree with the government that this case is of
special public importance and the request for designation is
granted. The statutory rights outlined above and the
designation of this case as of special importance further
weigh against granting a continuance.
motion to continue trial (doc. 82) is DENIED. Trial will