IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
IN THE MATTER OF: )
RULE 50(B), FEDERAL RULES OF CRIMINAL )
PROCEDURE; SPEEDY TRIAL ACT OF 1974; )
AND SPEEDY TRIAL ACT AMENDMENTS ACT )
OF 1979. )
Pursuant to the requirements of rule 50(b) of the Federal Rules of Criminal Procedure,
the Speedy Trial Act of 1974 (18 U.S.C. chapter 208), the Speedy Trial Act Amendments Act of
l979 (Pub. L. No. 96-43, 93 Stat. 327), and the Federal Juvenile Delinquency Act (18 U.S.C.
§§5036, 5037), the judges of the United State District Court for the District of Colorado have
adopted the following time limits and procedures to minimize undue delay and to further the
prompt disposition of criminal cases and certain juvenile proceedings:
1. Applicability.
(a) Offenses. The time limits set forth herein are applicable to all criminal offenses triable
in this court, including cases triable by United States magistrates, except for petty offenses as
defined in 18 U.S.C. §1(3). Except aa specifically provided, they are not applicable to
proceedings under the Federal Juvenile Delinquency Act. [§ 3172]
(b) Persons. The time limits are applicable to persons accused who have not been
indicted or informed against as well as those who have, and the word "defendant" includes such
person unless the context indicates otherwise.
2. Priorities in Scheduling Criminal Cases.
Preference shall be given to criminal proceedings as far as practicable as required by
rule 50(a) of the Federal Rules of Criminal Procedure. The trial of defendants in custody solely
because they are awaiting trial and of high-risk defendants as defined in section 5 should be
given preference over other criminal cases. [§ 3164(a)]
3. Time Within Which an Indictment or Information Must be Filed.
(a) Time Limits. If an individual is arrested or served with a summons and the complaint
charges an offense to be prosecuted in this district, any indictment or information subsequently
filed in connection with such charge shall be filed within 30 days of arrest or service. [§ 3161(b)]
(b) Grand Jury Not in Session. If the defendant is charged with a felony to be prosecuted
in this district, and no grand jury in the district has been in session during the 30-day period
prescribed in subsection (a), such period shall be extended an additional 30 days. [§ 3161(b)]
(c) Measurement of Time Periods. If a person has not been arrested or served with a
summons on a Federal charge, an arrest will be deemed to have been made at such time as the
person (i) is held in custody solely for the purpose of responding to a Federal charge; (ii) is
delivered to the custody of a Federal officer in connection with a Federal charge; or (iii) appears
before a judicial officer in connection with a Federal charge.
(d) Related Procedures.
(1) At the time of the earliest appearance before a judicial officer of a person who
has been arrested for an offense not charged in an indictment or information, the judicial officer
shall establish for the record the date on which the arrest took place.
(2) In the absence of a showing to the contrary, a summons shall be considered
to have been served on the date of service shown on the return thereof.
4. Time Within Which Trial Must Commence.
(a) Time Limits. The trial of a defendant shall commence not later than 70 days after the
last to occur of the following dates:
(1) The date on which an indictment or information is filed in this district;
(2) The date on which a sealed indictment or information is unsealed; or
(3) The date of the defendant’s first appearance before a judicial officer of this
district.
[§ 3161(c)(1)]
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(b) Retrial; Trial After Reinstatement of An Indictment or Information. The retrial of a
defendant shall commence within 70 days from the date the order occasioning the retrial
becomes final, as shall the trial of a defendant upon an indictment or information dismissed by a
trial court and reinstated following an appeal. If the retrial or trial follows an appeal or collateral
attack, the court may extend the period if unavailability of witnesses or other factors resulting
from passage of time make trial within 70 days impractical. The extended period shall not
exceed 180 days. [§§ 3161(d)(2), (e)]
(c) Withdrawal of Plea. If a defendant enters a plea of guilty or nolo contendere to any or
all charges in an indictment or information and is subsequently permitted to withdraw it, the time
limit shall be determined for all counts as if the indictment or information were filed on the day
the order permitting withdrawal of the plea becomes final. [§ 3161(i)]
(d) Superseding Charges. If, after an indictment or information has been filed, a
complaint, indictment, or information is filed which charges the defendant with the same offense
or with an offense required to be joined with that offense, the time limit applicable to the
subsequent charge will be determined as follows:
(1) If the original indictment or information was dismissed on motion of the
defendant before the filing of the subsequent charge, the time limit shall be determined without
regard to the existence of the original charge. [§ 3161(d)(1)]
(2) If the original indictment or information is pending at the time the subsequent
charge is filed, the trial shall commence within the time limit for commencement of trial on the
original indictment or information. [§ 3161(h)(6)]
(3) If the original indictment or information was dismissed on action of the United
States attorney before the filing of the subsequent charge, the trial shall commence within the
time limit for commencement of trial on the original indictment or information, but the period
during which the defendant was not under charges shall be excluded from the computations.
Such period is the period between the dismissal of the original indictment or information and the
date the time would have commenced to run on the subsequent charge had there been no
previous charge. [§ 3161(h)(6)]
If the subsequent charge is contained in a complaint, the formal time limit within which an
indictment or information must be obtained on the charge shall be determined without regard to
the existence of the indictment or information, but earlier action may in fact be required if the
time limit for commencement of trial is to be satisfied.
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(e) Measurement of Time Periods. For the purpose of this section:
(1) If a defendant signs a written consent to be tried before a magistrate and no
indictment or information charging the offense has been filed, the time limit shall run from the
date of such consent.
(2) In the event of a transfer to this district under Rule 20 of the Federal Rules of
Criminal Procedure, the indictment or information shall be deemed filed in this district when the
papers in the proceeding or certified copies thereof are received by the clerk.
(3) A trial in a jury case shall be deemed to commence at the beginning of voir
dire.
(4) A trial in a non-jury case shall be deemed to commence on the day the case
is called, provided that some step in the trial procedure immediately follows.
(f) Related Procedures.
(1) At the time of the defendant's earliest appearance before a judicial officer of
this district, the officer will take appropriate steps to assure that the defendant is represented by
counsel and shall appoint counsel where appropriate under the Criminal Justice Act and Rule 44
of the Federal Rules of Criminal Procedure.
(2) The court shall set cases for trial taking into account, insofar as possible, the
convenience of counsel. At the time of arraignment or as soon thereafter as is practicable, each
case will be set for trial on a day certain or listed for trial on a weekly or other short-term
calendar. [§ 3161(a)]
(3) Individual civil calendars shall be managed so that it will be reasonably
anticipated that every criminal case set for trial will be reached by assigned judge or judges
during the week of original setting. A conflict in schedule of Assistant United States Attorneys or
defense counsel may be grounds for a possible continuance or delayed setting only if approved
by the court and called to the court's attention at the earliest practicable time.
(4) In the event that a complaint, indictment, or information is filed against a
defendant charged in a pending indictment or information or in as indictment or information
dismissed on motion of the United States Attorney, the trial on the new charge shall commence
within the time limit for commencement of trial on the original indictment or information unless
the court finds that the new charge is not for the same offense charged in the original indictment
or information or an offense required to be joined there-with.
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(5) At the time of the filing of a complaint, indictment, or information described in
paragraph (4), the United States Attorney shall give written notice to the court of that
circumstance and of his position with respect to the computation of the time limits.
(6) All pretrial hearings shall be conducted as soon after the arraignment as
possible, consistent with the priorities of other matters on the court’s criminal docket.
5. Defendants in Custody and High-Risk Defendants.
(a) Time Limits. Notwithstanding any longer time period that may be permitted under
sections 3 and 4, the following time limits will also be applicable to defendants in custody and
high-risk defendants as herein defined:
(1) The trial of a defendant held in custody solely for the purpose of trial on a
Federal charge shall commence within 90 days following the beginning of continuous custody.
(2) The trial of a high-risk defendant shall commence within 90 days of the
designation as high-risk.
[§ 3164)(b)]
(b) Definition of “High-Risk Defendant." A high-risk defendant is one reasonably
designated by the United States Attorney as posing a danger to himself or any other person or to
the community.
(c) Measurement of Time Periods. For the purpose of this section:
(1) A defendant is deemed to be in detention awaiting trial when he is arrested on
a Federal charge or otherwise held for the purpose of responding to a Federal charge.
Defendant is awaiting trial unless the person exercising custodial authority has an independent
basis (not including a detainer) for continuing. to hold the defendant.
(2) If a case is transferred pursuant to Rule 20 of the Federal Rules of Criminal
Procedure and the defendant subsequently rejects disposition under Rule 20 or the court
declines to accept the plea, a new period of continuous detention awaiting trial will begin at that
time.
(3) A trial shall be deemed to commence as provided in sections 4(e)(3) and
4(e)(4).
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(d) Related Procedures.
(1) If a defendant is being held in custody solely for the purpose of awaiting trial,
the United States Attorney shall advise the court in writing at the earliest practicable time of the
date of the beginning of such custody.
(2) The United States Attorney shall advise the court in writing at the earliest
practicable time (usually at the hearing with respect to bail) if the defendant is considered by
him to be high risk.
(3) If the court finds that the filing of a "high-risk" designation as a public record
may result in prejudice to the defendant, it may order the designation sealed for such period as
is necessary to protect the defendant’s right to a fair trial, but not beyond the time that the court's
judgment in the case becomes final. During the time the designation is under seal, it shall be
made known to the defendant and his counsel but shall not be made known to other persons
without the permission of the court.
6. Exclusion of Time From Computations.
(a) Applicability. In computing any time limit under section 3, 4, or 5, the periods of delay
set forth in 18 U.S.C. § 3161(h) shall be excluded. Such periods of delay shall not be excluded
in computing the minimum period for commencement of trial under section 7.
(b) Records of Excludable Time. The clerk of the court shall enter on the docket, in the
form prescribed by the Administrative Office of the United States Courts, information with
respect to excludable periods of time for each criminal defendant. With respect to proceedings
prior to the filing of an indictment or information, excludable time shall be reported in writing to
the clerk by the United States Attorney.
(c) Stipulations.
(1) The attorney for the government and the attorney for the defendant may at any
time enter into stipulations with respect to the accuracy of the docket entries recording
excludable time.
(2) To the extent that the amount of time stipulated by the parties does not exceed
the amount recorded on the docket for any excludable period of delay, the stipulation shall be
conclusive as between the parties unless it has no basis in fact or law. It shall similarly be
conclusive as to a codefendant for the limited purpose of determining, under 18 U.S.C. §
3161(h)(7), whether time has run against the defendant entering into the stipulation.
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(3) To the extent that the amount of time stipulated exceeds the amount recorded
on the docket, the stipulation shall have no effect unless approved by the court.
(d) Pre-Indictment procedures
(1) In the event that the United States Attorney anticipates that an indictment or
information will not be filed within the time limit set forth in section 3, he may file a written motion
with the court for a determination of excludable time. In the event that the United States Attorney
seeks a continuance under 18 USC § 3161(h)(8), he shall file a written motion with the court
requesting such a continuance.
(2) The motion of the United States Attorney shall state (i) the period of time
proposed for exclusion, and (ii) the basis of the proposed exclusion. If the motion is for a
continuance under 18 U S C § 3161(h)(8), it shall also state whether or not the defendant is
being held in custody on the basis of the complaint. In appropriate circumstances, the motion
may include a request that some or all of the supporting material be considered ex parte and in
camera.
(3) The court may grant a continuance under 18 U.S.C. § 3161(h)(8) for either a
specific period of time or a period to be determined by reference to an event (such as recovery
from illness) not within the control of the government. If the continuance is to a date not certain,
the court shall required one or both parties to inform the court promptly when and if the
circumstances that justify the continuance no longer exist. In addition, the court shall require
one or both parties to file periodic reports bearing on the continued existence of such
circumstances. The course shall determine the frequency of such reports in the light of the
facts of the particular case.
(e) Post-Indictment Procedures.
(1) In the event that the court continues a trial beyond the time limit set forth in
section 4 or 5, the court shall determine whether the limit may be recomputed by excluding time
pursuant to 18 U.S.C. § 3161(h).
(2) If it is determined that a continuance is justified, the court shall set forth its
findings in the record, either orally or in writing. If the continuance is granted under 18 U.S.C. §
3161 (h)(8), the court shall also set forth its reasons for finding that the ends of justice served by
granting the continuance outweigh the best interests of the public and the defendant in a speedy
trial.
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If the continuance is to a date not certain, the court shall require one or both parties to
inform the court promptly when and if the circumstances that justify the continuance no
longer exist. In addition, the court shall require one or both parties to file periodic reports
bearing on the continued existence of such circumstances. The court shall determine
the frequency of such reports in the light of the facts of the particular case.
7. Minimum Period for Defense Preparation.
Unless the defendant consents in writing to the contrary, the trial shall not commence
earlier than 30 days from the date on which the indictment or information is filed or, if later, from
the date on which counsel first enters an appearance or on which the defendant expressly
waives counsel and elects to proceed pro se. In circumstances in which the 70-day time limit for
commencing trial on a charge in an indictment or information is determined by reference to an
earlier indictment or information pursuant to section 4(d), the 30-day minimum period shall also
be determined by reference to the earlier indictment or information. When prosecution is
resumed on an original indictment or information following a mistrial, appeal, or withdrawal of a
guilty plea, a new 30-day minimum period will not begin to run. The court will in all cases
schedule trials so as to permit defense counsel adequate preparation time in the light of all
circumstances. [USC § 3161(c)(2)1] The United States Attorney shall inform the court in writing
if it appears the case has been set for trial within this 30-day minimum period for defense
preparation.
8. Time Within Which Defendant Should Be Sentenced.
(a) Time Limit. A defendant shall ordinarily be sentenced within [45] days of the date of
his conviction or plea of guilty or nolo contendere
(b) Related Procedures. lf the defendant and his counsel consent thereto, a presentence
investigation may be commenced prior to a plea of guilty or nolo contendere or a conviction
9. Juvenile Proceedings.
(a) Time Limit Within Which Trial Must Commence. An alleged delinquent who is in
detention pending trial shall be brought to trial within 30 days of the date on which such detention
was begun, as provided in 18 U.S.C. § 5036.
(b) Time of Dispositional Hearing. If a juvenile is adjudicated delinquent, a separate
dispositional hearing shall be held no later than 20 court days after trial, unless the court has
ordered further study of the juvenile in accordance with 18 U.S.C. § 5037(c).
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10. Sanctions.
(a) Dismissal or Release from Custody. Failure to comply with the requirement of Title I
of the Speedy Trial Act may entitle the defendant to dismissal of the charges against him or to
release from pretrial custody. Nothing in this plan shall be construed to require that a case be
dismissed or a defendant released from custody in circumstances in which such action would
not be required by 18 U.S.C. § 3162 and 3164.
(b) High-Risk Defendants. A High-risk defendant whose trial has not commenced within
the time limit set forth in 18 U.S.C. § 3164(b) shall, if the failure to commence trial was through
no fault of the attorney for the government, have his release conditions automatically reviewed.
A high-risk defendant who is found by the court to have intentionally delayed the trial of his case
shall be subject to an order of the court modifying his nonfinancial conditions of release under
chapter 207 of title 18, U.S.C., to ensure that he shall appear at trial as required. [§3164(c)1]
(c) Discipline of Attorneys. In a case in which counsel (1) knowingly allows the case to be
set for trial without disclosing the fact that a necessary witnesses would be unavailable for trial,
(2) files a motion solely for the purpose of delay which he knows is frivolous and without merit,
(3) makes a statement for the purpose of obtaining a continuance which he knows to be false
and which is material to the granting of the continuance, or (4) otherwise willfully fails to proceed
to trial without justification consistent with 18 U.S.C. § 3161, the court may punish such counsel
as provided in 18 U.S.C. §162(b) and (c).
(d) Alleged Juvenile Delinquents. An alleged delinquent in custody whose trial has not
commenced within the time limit set forth in 18 U.S.C. § 5036 shall be entitled to dismissal of his
case pursuant to that section unless the Attorney General shows that the delay was consented
to or caused by the juvenile or his counsel, or would be in the interest of justice in the particular
case.
11. Persons Serving Terms of Imprisonment.
If the United States Attorney knows that a person charged with an offense is serving a
term of imprisonment in any penal institution, he shall promptly seek to obtain the presence of
the prisoner for trial, or cause a detainer to be filed, in accordance with the provisions of 18
U.S.C. § 3161(j).
12. Effective Dates.
(a) The amendments to the Speedy Trial Act made by Public Law 96-43 became
effective August 2, 1979. To the extent that this revision of the district’s plan does more than
merely reflect the amendments, the revised
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plan shall take effect upon approval of the reviewing panel designated in accordance with
18 U.S.C. § 3165(c). However, the dismissal sanction and the sanctions against
attorneys authorised by 18 U.S.C. § 3162 and reflected in sections 10(a) and (c) of this
plan shall apply only to defendants whose cases are commenced by arrest or summons
on or after July 1, 1980, and to indictment and informations filed on or after that date.
(b) If the defendant was arrested or served with summons before July 1, 1979, the time
within which an information or indictment must be filed shall be determined under the plan that
was in effect at the time of such arrest or service.
(c) If a defendant was arraigned before August 2, 1979, the time within which the trial
must commence shall be determined under the plan that was in effect at the time of such
arraignment.
(d) If a defendant was in custody on August 2, 1979, solely because he was awaiting trial,
the 90-day period under section 5 shall be computed from that date.
DATED at Denver, Colorado, this 3rd day of March,1980.
BY THE COURT:
s/Fred M. Winner
CHIEF JUDGE FRED M. WINNER
s/Sherman G. Finesilver
JUDGE SHERMAN G. FINESILVER
s/Richard P. Matsch
JUDGE RICHARD P. MATSCH
s/John L. Kane, Jr.
JUDGE JOHN L. KANE, JR.
s/Jim R. Carrigan
JUDGE JIM R. CARRIGAN
s/Zita L. Weinshienk
JUDGE ZITA L. WEINSHIENK
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