                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

_________________________________________
                                          )
UNITED STATES OF AMERICA,                 )
                                          )
      Plaintiff,                          )
                                          )
              v.                          )                Criminal No. 15-188 (APM)
                                          )
JAMES MARVIN REED,                        )
                                          )
      Defendant.                          )
_________________________________________ )

                           MEMORANDUM OPINION AND ORDER

        Before the court is the Government’s First Motion for Continuance, which requests that

the court (1) move the trial presently set for June 13, 2017, to a date in October 2017, and

(2) exclude the intervening days from the 70-day period in which Defendant James Marvin Reed

must receive a trial, pursuant to the Speedy Trial Act, 18 U.S.C. §§ 3161–3174. As grounds for

these requests, the Government submits that four of its essential witnesses are unavailable on either

the present trial date—June 13, 2017—or the alternative trial date recently proposed by the court,

August 14, 2017. Defendant, who is detained pending trial on two counts of engaging in illicit

sexual activity with minor victims while in the Philippines, opposes the Motion and asserts his

right to a speedy trial.

        For the reasons that follow, the court grants in part and denies in part the Government’s

Motion. The court will continue the trial to August 14, 2017, but will not exclude any time under

the Speedy Trial Act.
I.     BACKGROUND

       On December 15, 2015, a grand jury indicted Defendant James Marvin Reed on one count

of traveling in foreign commerce and engaging in illicit sexual conduct, in violation of 18 U.S.C.

§ 2423(c). See Indictment, ECF No. 1; Arrest Warrant, ECF No. 9. On August 3, 2016, the

Philippines’ Immigration Authority arrested Defendant, and the U.S. Department of Homeland

Security subsequently took him into custody and transported him to the United States. See Def.’s

Resp. to Gov’t’s Mot. to Continue Trial, ECF No. 28 [hereinafter Def.’s Opp’n], at 1. Defendant

appeared before a Magistrate Judge in the Central District of California on September 16, 2016, in

Los Angeles, California, whereupon he was ordered held without bond. See Order of Detention

After Hearing, ECF No. 8, at 12–15. Defendant made his initial appearance and was arraigned in

this District Court on October 4, 2016, and a Magistrate Judge again ordered him held without

bond. See Minute Order, Oct. 4, 2016. Defendant’s 70-day Speedy Trial period began to run as

of that date. See 18 U.S.C. § 3161(c)(1) (providing that the 70-day period commences “from the

filing date (and making public) of the information or indictment, or from the date the defendant

has appeared before a judicial officer of the court in which such charge is pending, whichever date

last occurs”).

       At subsequent hearings, Defendant moved to exclude days from the Speedy Trial

calculation. Defendant’s first hearing before this court took place on October 17, 2016, at which

point 13 days had run on the Speedy Trial clock following his arraignment. See id. At that

hearing, Defendant moved to exclude the time between October 18 and November 17, 2016, from

the 70 days allowed under the Act, which the court granted in the interest of justice. See Order,

ECF No. 11; 18 U.S.C. § 3161(h)(7). Similarly, at a status conference held on November 12,

2016, Defendant moved to exclude the time between November 18, 2016, and January 18, 2017,

                                                2
which the court again granted in the interest of justice. See Order, ECF No. 12; 18 U.S.C.

§ 3161(h)(7). Once more, at a status conference held on January 18, 2017, Defendant moved to

exclude the time between January 19 and March 20, 2017, which the court granted in the interest

of justice. See Order, ECF No. 14; 18 U.S.C. § 3161(h)(7). Thus, as of March 20, 2017, only 13

days of Defendant’s Speedy Trial time had run.

         The Speedy Trial clock re-started on March 21, 2017, after Defendant declined to toll any

additional time during a status hearing held on the previous day. See Hr’g Tr., Mar. 20, 2017.

The court entered a Pretrial Order on March 21, 2017, that directed Defendant to file his pretrial

motions on or before April 3, 2017, and set trial to begin on June 13, 2017. See Pretrial Order,

ECF No. 15. Defendant moved for an extension of time to file his pretrial motions on March 31,

2017, which the court granted the same day. See Def.’s Mot. for Ext. of Time, ECF No. 16;

Minute Order, Mar. 31, 2017.1 The court ordered Defendant to file his pretrial motions on or

before April 12, 2017, and excluded the days from April 4 to April 12, 2017, in computing the

Speedy Trial time. See Minute Order, Mar. 31, 2017. 2 Between March 21 and April 3, 2017, an

additional 13 days ran on the Speedy Trial clock, meaning that, as of April 3, 2017, a total of 26

days had run on the 70-day period. Defendant filed three pretrial motions, including two motions



1
  The court does not treat the Speedy Trial clock as tolled on March 31, 2017, because the court ruled on Defendant’s
Motion on the same day it was filed. Cf. 18 U.S.C. § 3161(h)(1)(D).
2
  The court mistakenly tolled the Speedy Trial clock as of Monday, April 4, 2017, instead of Saturday, April 1, 2017.
In any event, the court takes this opportunity to augment the record with respect to the Minute Order entered on March
31, 2017, which did not identify the basis for tolling the time from April 4 to April 12, 2017, while Defendant prepared
his pretrial motions. See Zedner v. United States, 547 U.S. 489, 507 (2006) (allowing the district court to put its
findings on the record any time prior to ruling on the defendant’s motion to dismiss under 18 U.S.C. § 3162(a)(2)).
That time was not automatically tolled under 18 U.S.C. § 3161(h)(1)(D). See Bloate v. United States, 559 U.S. 196,
203–04, 215 (2010). Instead, the court determined—and now commits to the record—that the interests and ends of
justice were best served, and outweighed the interests of the public and Defendant in a speedy trial, by excluding those
days from the Speedy Trial calculation. See 18 U.S.C. § 3161(h)(7)(A). The roughly one-week extension of time
was necessary because the motions involve complex legal questions and failure to provide the continuance would have
denied defense counsel adequate time to prepare and serve his client, resulting in a miscarriage of justice. Id.
§ 3161(h)(7)(B). Accordingly, the court granted the continuance and excluded the time from April 4 to April 12,
2017. See Minute Order, Mar. 31, 2017.
                                                           3
to dismiss the indictment, on April 12, 2017, thereby halting the Speedy Trial clock. See 18

U.S.C. § 3161(h)(1)(D); Def.’s Mot. for Bill of Particulars, ECF No. 17; Def.’s Mot. to Dismiss

Indictment Due to Pre-Indictment Delay, ECF No. 18; Def.’s Mot. to Dismiss the Indictment, ECF

No. 19. After the court granted the Government’s two unopposed motions for extensions of time,

see Minute Order, Apr. 20, 2017; Minute Order, Apr. 26, 2017, the Government filed three

opposition briefs on May 1, 2017. See Gov’t’s Resp. to Def.’s Mot. for Bill of Particulars, ECF

No. 23; Gov’t’s Resp. to Def.’s Mot. to Dismiss Indictment Due to Pre-Indictment Delay, ECF

No. 24; Gov’t’s Resp. to Def.’s Mot. to Dismiss the Indictment, ECF No. 25.

        The Government returned a Superseding Indictment on May 4, 2017. See Superseding

Indictment, ECF No. 26. The new indictment added a second count against Defendant for

residing in a foreign country and engaging and attempting to engage in illicit sexual conduct with

a different minor, in violation of 18 U.S.C. §§ 2423(c), (e). Compare Indictment, ECF No. 1,

with Superseding Indictment, ECF No. 26.3 The Superseding Indictment did not halt the Speedy

Trial clock with respect to Count I. See United States v. Marshall, 935 F.2d 1298, 1302 & n.7

(D.C. Cir. 1991); cf. United States v. Van Smith, 530 F.3d 967, 972 (D.C. Cir. 2008).

        At a status conference held May 5, 2017, Defendant was arraigned on Count II and orally

moved to dismiss the new count on the same grounds as Count I. He also moved to file a reply

brief as to one of his motions to dismiss, which the court granted. See Hr’g Tr., May 5, 2017.

Defendant filed his reply brief on May 12, 2017. See Def.’s Reply in Supp. of Mot. to Dismiss



3
  Although Count I and Count II both charge Defendant with violating 18 U.S.C. § 2423(c), the language in each
count differs in light of the version of the statute in effect at the time of the conduct charged in each Count. The
events alleged in Count I purportedly occurred “[b]etween on or about January 17, 2007, and on or about December
2007,” while the events alleged in Count II purportedly occurred “[b]etween on or about January 3, 2016, and on or
about August 2, 2016.” See Superseding Indictment, ECF No. 26. Section 2423(c) was amended in March 2013 to
include the language: “or resides, either temporarily or permanently, in a foreign country.” See Violence Against
Women Reauthorization Act of 2013, Pub. L. No. 113-4, 127 Stat. 54, 142 (2013). Accordingly, Count II couches
its charges in terms of Defendant’s purported residency in the Philippines.
                                                         4
the Indictment and Superseding Indictment, ECF No. 29. With his “reply” brief, however,

Defendant also moved to dismiss Count II on a ground not advanced with respect to Count I—that

Count II violates the Ex Post Facto Clause. See id. The Government’s response to that newly

asserted ground for dismissal is not due until May 26, 2017. See LCrR 47(b). Defendant’s reply

is not due until June 2, 2017. See LCrR 47(d).

       At the same status conference on May 5, 2017, the Government noticed its intention to file

a motion to continue the trial based on the unavailability of certain witnesses. Without indicating

whether it would agree to continue the trial in light of Speedy Trial considerations, the court

identified an alternative trial date of August 14, 2017.      See Hr’g Tr., May 5, 2017.       The

Government filed its Motion to Continue Trial on May 8, 2017, and Defendant filed his Opposition

on May 11, 2017. See Gov’t’s Mot. to Continue Trial, ECF No. 27 [hereinafter Gov’t’s Mot.];

Def.’s Opp’n.

       To summarize, as of the issuance of this Memorandum Opinion, a total of 26 days have

run on Defendant’s Speedy Trial time on Count I. The Speedy Trial clock has not started to run

on Count II because Defendant orally moved to dismiss Count II on the same day he was arraigned

on that count and later supplemented that motion in writing, which remains pending.

See 18 U.S.C. § 3161(h)(1)(D).

II.    LEGAL PRINCIPLES

       As previously mentioned, the Speedy Trial Act provides a criminal defendant with a

statutory guarantee that he will go to trial within 70 days of the date on which his indictment is

made public or he makes his initial appearance, whichever is later. See 18 U.S.C. § 3161(c)(1).

Not every day after the time of charging or initial appearance counts toward that 70-day period,

however. The Act provides a specific list of circumstances warranting delay and tolling of the

                                                 5
Speedy Trial clock. See id. § 3161(h). Amongst those reasons warranting an exclusion of time

from the 70-day window is “[a]ny period of delay resulting from the absence or unavailability of

. . . an essential witness, or “[a]ny period of delay resulting from a continuance granted by any

judge . . . on the basis of his findings that the ends of justice served by taking such action outweigh

the best interest of the public and the defendant in a speedy trial.” Id. §§ 3161(h)(3)(A), (7)(A).

The Government cites both of these exceptions as justifying an exclusion of time under the Speedy

Trial Act in this case.

         A.       Exclusions of Time for the Absence or Unavailability of an Essential Witness

         The Speedy Trial Act does not define who qualifies as an “essential witness.” In the

absence of a statutory definition, the D.C. Circuit has held that an “essential witness” is one “whose

testimony would be extremely important to the proceeding, perhaps providing proof that was not

otherwise attainable”—in other words, “a witness so essential to the proceeding that continuation

without the witness would either be impossible or would likely result in a miscarriage of justice.”

United States v. McNeil, 911 F.2d 768, 773 (D.C. Cir. 1990) (per curiam) (internal quotation marks

omitted); accord United States v. Ortiz, 687 F.3d 660, 663 (5th Cir. 2012); United States v.

Hamilton, 46 F.3d 271, 277 (3d Cir. 1995); United States v. Eagle Hawk, 815 F.2d 1213, 1218

(8th Cir. 1987); United States v. Marrero, 705 F.2d 652, 656 (2d Cir. 1983). 4 To prove a witness

is “essential,” the Government “must show how the testimony that it expects a particular witness

will give fits within the overall framework of its case, and why that witness’s testimony would be




4
  The court notes that neither side has cited a single case, including the D.C. Circuit’s decision in McNeil, that
addresses the Speedy Trial Act, let alone its exclusion for the unavailability of an “essential witness.” The only cases
the Government cites—Barker v. Wingo, 407 U.S. 514 (1972), and United States v. Demirtas, 204 F. Supp. 3d 158
(D.D.C. 2016)—have nothing to do with the Speedy Trial Act. See Gov’t’s Mot. at 5. Those cases involve a
defendant’s constitutional right to a speedy trial under the Sixth Amendment; they do not address a defendant’s
statutory rights under the Speedy Trial Act. Unconsented motions to exclude time under the Speedy Trial Act are
not pro forma requests, and the parties would do better in the future not to treat them as such.
                                                           6
not only useful, but essential.” McNeil, 911 F.2d at 774. The Circuit has recognized that the

district court may not have a concrete idea of a witness’s anticipated testimony at the time the court

has to determine whether the witness is “essential” for purposes of the Speedy Trial Act. See

McNeil, 911 F.2d at 773. Accordingly, the Circuit will not disturb the lower court’s determination

that a witness is “essential” provided that the court’s determination “was reasonable in light of the

information [the court] had or should have asked for at the time that the decision had to be

made.” Id.

       The Act itself speaks directly to when an essential witness is considered “absent” or, as

pertinent here, “unavailable.” An essential witness is “unavailable” when “his whereabouts are

known but his presence for trial cannot be obtained by due diligence or he resists appearing at or

being returned for trial.” Id. Although the D.C. Circuit has yet to opine on the meaning of “due

diligence,” other federal appellate courts appear to have reached consensus that the Government

“must present evidence that the witness’s presence could not be obtained through its ‘reasonable’

efforts” in order to meet its burden. United States v. Burrell, 634 F.3d 284, 290 (5th Cir. 2011)

(per curiam) (quoting BLACK’S LAW DICTIONARY 523 (9th ed. 2009)) (collecting cases). This

requires a showing, by testimony or affidavit, that the Government made a reasonable effort to use

the resources at its disposal to bring the witness to trial—i.e., providing transportation, see United

States v. Patterson, 277 F.3d 709, 711–12 (4th Cir. 2002); subpoenaing the witness to appear, see

United States v. Brown, 819 F.3d 800, 819 (6th Cir. 2016); granting use immunity to secure

testimony, see Hamilton, 46 F.3d at 279; posting bond or enforcing a writ of habeas corpus ad

testificatum, see McNeil, 911 F.2d at 775 (Sentelle, J., concurring)—but those efforts were too

much of a hardship to make or failed through no fault of the Government. See Burwell, 634 F.3d

at 291. When the Government presents no evidence that it made reasonable efforts to secure an

                                                  7
essential witness’s presence, the Government cannot satisfy the “due diligence” requirement of the

Speedy Trial Act’s exception allowing delay for unavailable essential witnesses. See 18 U.S.C.

§ 3162(a)(2); Burrell, 634 F.3d at 292; cf. United States v. Ferguson, 574 F. Supp. 2d 111, 114–

15 (D.D.C. 2008).

           B.      Exclusions of Time in the Interest of Justice

           Separately, if tolling is premised on the interest of justice, the court “must set forth, in the

record of the case, either orally or in writing, its reasons for finding that the needs of justice served

by the granting of such continuance outweigh the best interests of the public and the defendant in

a speedy trial.” 18 U.S.C. § 3161(h)(7)(A). In so doing, the court must consider four factors

enumerated in the statute. Id. § 3161(h)(7)(B).

           The “interest of justice” exception is foreclosed, however, if the Government cannot satisfy

the “essential witness” exclusion. The Speedy Trial Act provides that neither the “lack of diligent

preparation [n]or failure to obtain available witnesses on the part of the attorney for the

Government” is a reason to exclude time from the Speedy Trial Act’s calculation.

Id. § 3161(h)(7)(C). This means that if the court concludes the Government did not meet its

burden to show its essential witnesses were absent or unavailable, then the interest of justice

exclusion cannot apply because the delay will have resulted from the Government’s failure to

obtain an available witness. See Burrell, 634 F.3d at 292–93; compare 18 U.S.C. § 3161(h)(3),

with id. § 3161(h)(7)(C).

III.       DISCUSSION

           The Government moves the court to exclude all the time from June 13, 2017, to some future

date in October 2017—at least 111 days 5—under the Speedy Trial Act for two reasons: (1) four


5
    October 1, 2017, is a Sunday. There are 111 calendar days between June 13, 2017, and October 2, 2017.
                                                         8
witnesses essential to its case-in-chief are unavailable for trial on the present trial date of June 13,

2017, or the alternative trial date of August 14, 2017; and (2) a continuance is “indispensable to

the interests of justice.” See Gov’t’s Mot. at 1. The court first addresses the Government’s

argument as to each witness and, concluding no exclusion of time is warranted, then considers

whether rescheduling trial is appropriate even without excluding time under the Speedy Trial Act.

        A.      Unavailability of Four Essential Witnesses

        As a preliminary matter, the court notes that the Government has submitted no evidence—

in the form of affidavits or otherwise—to support its Motion, which could be fatal to its request

for an exclusion under the “essential witness” exception. See 18 U.S.C. § 3162(a)(2); Burwell,

634 F.3d at 292; Ferguson, 574 F. Supp. 2d at 114–15. Nonetheless, the court will treat the

representations in the Government’s brief as made in good faith and assumes the reasons and dates

included therein regarding witness availability are accurate. The Government’s Motion, then,

must demonstrate that at least one of the four witnesses is both “essential” and that the Government

exercised “due diligence” by making reasonable efforts to secure the witness’s presence at trial,

but those efforts proved unsuccessful.

                1.      Dr. Allison Jackson

        The Government has not met its burden of showing its first witness, Dr. Allison Jackson,

is “essential.” The Government describes Dr. Jackson as an expert in pediatric medicine who will

“assist the trier of fact in reaching a verdict in this case,” but does not otherwise detail the substance

of Dr. Jackson’s testimony or how she fits into the “overall framework of its case.” See McNeil,

911 F.2d at 774.      The court is left to speculate whether Dr. Jackson has examined either

complainant and, if she has not, what she will say to assist the trier of fact. Moreover, the

Government represents that it only contacted Dr. Jackson “[i]n anticipation of a superseding

                                                    9
indictment,” Gov’t’s Mot. at 2, leaving entirely unclear whether Dr. Jackson is even part of the

Government’s case-in-chief on Count I. With this thin information, the court cannot find that

Dr. Jackson’s testimony “would be extremely important to the proceeding” or that she is “so

essential to the proceeding that continuation without [her] would either be impossible or would

likely result in a miscarriage of justice.” See McNeil, 911 F.2d at 773 (internal quotation marks

omitted). Indeed, based on the Government’s Motion, there is no reason to believe Dr. Jackson

could not be replaced with another qualified expert in pediatric medicine.

       The Government also fails to show that Dr. Jackson is “unavailable.” The Government

tersely represents that Dr. Jackson “is not available in June, August or September 2017 due to

other trials scheduled and patient responsibilities. [She] is available on July 10, 12, and 14, 2017.”

Gov’t’s Mot. at 2. The court finds it incredible that Dr. Jackson is unavailable for all but three

days of a four-month period. In any event, there is no statement from the Government that it has

exercised due diligence in trying to ensure her presence for a June or August trial date. In fact,

the Government does not identify any efforts it has made to ensure Dr. Jackson’s appearance. Nor

has the Government stated that Dr. Jackson refuses to make herself available for trial, or that she

could not be compelled to appear by subpoena. See 18 U.S.C. §§ 3161(h)(3)(B), 3162(a)(2); cf.

Brown, 819 F.3d at 819.        Therefore, the Government has not shown that Dr. Jackson is

unavailable.

               2.      Agent Steve Sampilo

       The court finds that the Government’s second witness—Agent Steve Sampilo—is

“essential” to the proceedings, but he is not “unavailable.” The Government describes Agent

Sampilo as “the HSI Manila, Philippines-based case agent . . . [who] has done a great deal of the

investigative work on this case in the Philippines,” including being “present for interviews and

                                                 10
investigative acts in the Philippines,” and “servi[ng] a[s] the main point of contact for the Victims

in this case.” Gov’t’s Mot. at 2. Additionally, the Government intends to designate Agent

Sampilo as the case agent for this matter and “will request his presence for the entirety of the

witness preparation and trial.” Id. Although the Government has not specified whether Agent

Sampilo will testify and, if so, what his testimony will entail, for present purposes the court is

satisfied that Agent Sampilo is a key participant in the Government’s preparation for trial, in light

of his first-hand experience investigating the case and direct interactions with the complainants.

See McNeil, 911 F.2d at 773. Accordingly, the court finds that Agent Sampilo is “essential” to

the Government’s case against Defendant.

       Once more, however, the Government has not demonstrated that Agent Sampilo is

“unavailable” for trial on June 13, 2017, or the alternative date of August 14, 2017.            The

Government submits that, “[f]rom July 7 to August 3, 2017, Agent Sampilo will be the only agent

present in the Manila Philippines HIS office and cannot be present for trial preparation or the trial,

if set during this period.” Gov’t’s Mot. at 2. Those dates when Agent Sampilo needs to be

present for duty in the Philippines do not interfere with his ability to appear as a witness or assist

the Government in preparation for a trial beginning June 13, 2017. Cf. Def.’s Opp’n at 2.

Additionally, the Government has made no indication of its efforts to determine whether, in light

of Agent Sampilo’s importance to its case, arrangements could be made to alter his tour of duty in

the event that (1) a June trial extended into the timeframe in which Agent Sampilo would need to

return to Manila, or (2) Agent Sampilo remaining in Manila until August 3, 2017, would limit his

ability to assist the Government in preparing for an August trial. Cf. Brown, 819 F.3d at 819;

Burrell, 634 F.2d at 292. Thus, the court concludes the Government has not shown that Agent

Sampilo is unavailable.

                                                 11
               3.     The 414 Witness

       The Government also submits that its “414 Witness” is an essential witness who is

unavailable, warranting tolling of the Speedy Trial clock. The Government represents that

               [t]he 414 Witness was abused by [Defendant] as a teenager; the
               witness is middle-aged now. In late 2016, [Defendant] requested
               that the 414 Witness assist him in obtaining fraudulent witnesses to
               assist in his defense. [Defendant] appears to have been seeking
               witnesses to say that the Victim (Count 1) mislead [sic] him into
               believing she was 18-years old or older. The 414 Witness is
               biologically related to [Defendant]. The 414 Witness is essential to
               the government’s case, and creates a commonality between the two
               charged Victims in this case.

Gov’t’s Mot. at 3. The court agrees that this witness is “essential” because only she can offer

testimony about her own abuse, purportedly at the hands of Defendant, see Fed. R. Evid. 414, as

well as Defendant’s alleged efforts to obstruct his prosecution. Accordingly, the court has little

trouble concluding that, at least as to Count I, the 414 Witness’s testimony “would be extremely

important to the proceeding, perhaps providing proof that [is] not otherwise attainable.” See

McNeil, 911 F.2d at 773.

       Still, the Government has not met its burden to show it acted with due diligence in

attempting to obtain the 414 Witness’s appearance at trial. The Government simply submits that

the 414 Witness “is unavailable from June 6 to September 1, as she has purchased a ticket to

Europe for vacation,” and the dates of July 11 to August 11, 2017, are particularly burdensome to

her as “the 414 Witness’s children will visit the Witness in Europe,” and she “could not leave them

unattended to return to the United States for trial.”      Gov’t’s Mot. at 3.     Accepting these

representations as true, the Government has demonstrated that it would be inconvenient for the

414 Witness to attend trial on June 13 or August 14, 2017, but not that she is “unavailable” within

the meaning of the Speedy Trial Act.          Missing from the Government’s Motion is any


                                                12
representation that the Government has offered to provide transportation for the 414 Witness to

return for trial in June or August, and she has refused to voluntarily return, or it would be an undue

hardship to provide such transportation. See Patterson, 277 F.3d at 711–12; Burwell, 634 F.3d at

291. The Motion is equally devoid of any statement that the 414 Witness’s presence could not be

ensured by issuing a subpoena, see Brown, 819 F.3d at 819, or that she will refuse to return for

trial before October, even if subpoenaed, see 18 U.S.C. § 3161(h)(3)(B). Accordingly, the

Government has not met its burden to show the 414 Witness is an essential witness who is

unavailable. See id. §§ 3161(h)(3)(B), 3162(a)(2).

               4.      Agent Keith Cramsey

       Lastly, the Government identifies a fourth witness—Agent Keith Cramsey—as both

essential and unavailable. The Government’s Motion explains that Agent Cramsey “packaged

and sent the DNA for laboratory testing, and created the corresponding document.”

Gov’t’s Mot. at 3.   Unless Defendant intends to stipulate to chain of custody of the DNA

evidence, Agent Cramsey’s anticipated testimony cannot be supplied by another witness. See

McNeil, 911 F.2d at 773. Therefore, the court therefore agrees that Agent Cramsey is “essential.”

       The Government, however, has failed to show that Agent Cramsey is “unavailable” for the

June 13 or August 14, 2017, trial date. The Government says that Agent Cramsey cannot attend

trial because he “would like to participate in a training currently scheduled for June 5 to June 24,

2017. Agent Cramsey views this training as essential to his career, and he had previously lost an

opportunity for an overseas assignment because he lacked this training.” Gov’t’s Mot. at 3. The

mere desire of a government employee to attend a training session that conflicts with trial is not

enough to prove the witness is unavailable within the meaning of the Act. The Fifth Circuit

recently encountered similar facts and held that, without “present[ing] any evidence that it made

                                                 13
reasonable efforts to secure [the agent’s] presence at the scheduled trial date[],” the Government

had not met its burden, and the exception for unavailable essential witnesses could not be used to

exclude time under the Act. See Burrell, 634 F.3d at 292. There, as here, the Government should

have put on the record “where [the agent]’s [training] [is] located, its hours of operation, or its

attendance policies, and . . . whether it would [be] reasonably feasible for [the agent] to be brought

from the training facility to the court to testify without interfering with his completion of the

[training].” Id. Additionally, the Government needed to show that it “contacted the course

administrators to explain the circumstances and determine whether there was any way in which

[the agent] could both testify and complete [the training course].” See id. The court has none of

that information before it. Accordingly, the Government has failed to demonstrate that it acted

with due diligence in trying to ensure Agent Cramsey’s appearance at trial.

                                          *       *       *

       In sum, while three of the four witnesses the Government lists in its Motion are “essential”

to the Government’s case, the Government has not demonstrated that any one of them is

“unavailable” for trial starting on June 13 or August 14, 2017, such that time should be excluded

under Section 3161(h)(3). As to the fourth witness—Dr. Jackson—the Government has not

demonstrated that she is either “essential” or “unavailable.” Accordingly, the court denies the

Government’s Motion insofar as it seeks to exclude time under Section 3161(h)(3).

       B.      Exclusion of Time in the Interest of Justice

       The Government also moves to exclude time from the Speedy Trial clock on the ground

that the ends of justice will be served by so doing and outweigh the Defendant’s and public’s

interests in a speedy trial. See 18 U.S.C. § 3161(h)(7)(A); Gov’t’s Mot. at 1. The majority of

the Government’s Motion discusses the essential witnesses the Government believes to be

                                                 14
unavailable within the meaning of Section 3161(h)(3); only in passing does the Government make

an “interest of justice” argument. See Gov’t’s Mot. at 5. The Government contends that the

charges against Defendant—sexual abuse of minor children—are so serious that “[t]he public’s

interest in justice outweighs [Defendant’s] interests in a speedy trial.” See id.

        The court need not discuss at length why the Government’s Motion fails; the text of the

statute speaks for itself. The Government cannot hang its hat on the broader “interest of justice”

exclusion when the same reasons fail to satisfy the narrower “essential witness” exclusion. See

Burrell, 634 F.3d at 292–93. Therefore, the court will not exclude time under the Speedy Trial

Act on the ground that the ends of justice outweigh the Defendant’s and public’s interests in a

speedy trial.

        C.      Whether Rescheduling Trial is Warranted Without Excluding Time Under the
                Speedy Trial Act

        Although the Government has not met its burden to warrant exclusion of time under the

Speedy Trial Act, the witnesses’ scheduling conflicts, coupled with Defendant’s recent supplement

of his motion to dismiss Count II, raise significant questions that require the court to review

whether beginning trial on June 13, 2017, remains feasible. See United States v. Burton, 584 F.2d

485, 490 (D.C. Cir. 1978) (“recognizing that the court has the right to control its own docket to

require that cases proceed in an orderly and timely fashion, the conclusion is inescapable that the

court in exercise of a sound discretion may grant or deny motions for continuances”).

        Both witness schedules and the need to resolve the pending motions cut against maintaining

the present trial date. Only one of the four witnesses identified in the Government’s Motion does

not have a scheduling conflict in June—Agent Sampilo.               In contrast, Dr. Jackson, the

414 Witness, and Agent Cramsey each have events or responsibilities that interfere with their

appearance for a trial beginning June 13, 2017. See Gov’t’s Mot. at 2–3. Additionally, there are
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three pending motions, one of which seeks dismissal of the Superseding Indictment on

constitutional grounds. See Def.’s Mot. to Dismiss the Indictment, ECF No. 19; Def.’s Mot. to

Dismiss the Superseding Indictment, ECF No. 29. That motion to dismiss is only partially ripe,

as Defendant added a second constitutional ground to dismiss Count II in its reply brief, filed May

12, 2017, meaning the briefing as to that ground will not be complete until June 2, 2017, at the

earliest. Given the time the court anticipates it will take to hold an oral argument on all the

pending motions, issue a written opinion, and address any other pretrial issues, beginning trial on

June 13, 2017, is no longer realistic.

       Continuing the trial until October 2017 is not possible, either, because the Speedy Trial

clock will have run on Count I by then. Because of the pending motions, the Speedy Trial clock

will remain tolled on Count I of the Superseding Indictment until the parties appear for the Motions

Hearing. See 18 U.S.C. § 3161(h)(1)(D)); United States v. Rice, 746 F.3d 1074, 1080 (D.C. Cir.

2014); Van Smith, 530 F.3d at 969. The court has re-set the Motions Hearing for June 15, 2017.

See Revised Pretrial Order, ECF No. 33. The court must resolve Defendant’s pending motions

within 30 days of that hearing. See 18 U.S.C. § 3161(h)(1)(H). Assuming the court ruled on the

pending motions on July 14, 2017, at the end of the 30-day window, the Speedy Trial clock would

begin running again and, absent any further tolling, the last day possible for trial on Count I would

be August 27, 2017. Thus, a trial beginning on Monday, October 2, 2017, would be too late.

       Continuing the trial to the alternate date proposed at the last status hearing—August 14,

2017—is the best solution. Based on the Government’s representations, Agents Sampilo and

Cramsey are both available to appear in a trial beginning August 14, 2017, and the 414 Witness’s

children will no longer be visiting her in Europe at that time, thereby partially alleviating the

inconvenience of returning to the United States for trial. See Gov’t’s Mot. at 2–3. As for

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Dr. Jackson, the continuance affords the Government sufficient time either to work with her

schedule or possibly find another expert. Accordingly, the court will continue the trial to August

14, 2017.

IV.    CONCLUSION AND ORDER

       In light of the foregoing, the court grants in part and denies in part the Government’s First

Motion for Continuance. The Government has not demonstrated that any further exclusions of

time are warranted under the Speedy Trial Act. Nonetheless, given the anticipated difficulty of

coordinating witnesses, the substantial nature of the motions presently pending before the court,

and the fact that a hearing on those motions will be held on June 15, 2017, the court vacates the

present trial date of June 13, 2017, and sets a new trial date of August 14, 2017. The dates

contained in the Pretrial Order dated March 21, 2017, likewise are vacated, and the court will issue

a revised Pretrial Order reflecting the new trial date.




Dated: May 16, 2017
                                                          Amit P. Mehta
                                                          United States District Judge




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