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December 4, 1995

UNITED STATES OF AMERICA against RAFAEL CRUZ, a/k/a "Esa," Defendant.

The opinion of the court was delivered by: HAIGHT

 HAIGHT, Senior District Judge:

 In Counts One and Two of the two-count superseding indictment this case, defendant Rafael Cruz is charged with conspiracy to distribute and to possess with the intent to distribute heroin in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), and 846, and with the use of a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. §§ 924(c) and 2. By Notice of Motion dated November 17, 1995, Cruz moved this Court to dismiss the instant indictment under the Speedy Trial Act, 18 U.S.C. § 3161, and the Fifth and Sixth Amendments to the United States Constitution on the ground that he has been denied his right to a speedy trial. I denied that motion in an oral ruling on November 27, 1995. This opinion sets forth the Court's reasons.


 On September 30, 1994, defendant was charged as one of 19 defendants in a 78-count superseding indictment involving the C&C criminal organization. S1 94 Cr. 313. On October 3, 1994, Cruz was arraigned and pled not guilty.

 On October 19, 1994, Cruz filed a motion seeking various forms of discovery relief, the dismissal of the two counts against him and, alternatively, severance from his codefendants. On October 26, 1994, this Court gave the government permission to extend its reply date until November 14, 1994. Prospective orders of exclusion of time were made under the Speedy Trial Act, 18 U.S.C. § 3161 et seq. (the "Act"), to accommodate these motions.

 On December 8, 1994, the government agreed to sever Cruz's case from that of his codefendants. With Cruz's explicit consent, time under the Act was prospectively excluded from that date until the conclusion of the trial of Angel Padilla, the principal architect of the C&C organization. Transcript of December 8, 1994 Pre-Trial Conference ("Tr.") 6-11.

 The jury in the Padilla trial reached a verdict on May 17, 1995. On that day this Court issued an order scheduling a status conference for Cruz on May 25, 1995 and excluding time until that conference. The defendant appeared with counsel, Manuel Zapata, Esq., at the May 25, 1995 conference. Counsel informed the Court that he planned to make a motion to supplement the one he had filed on October 19, 1994, which had not been decided. Time was therefore excluded from May 25 through June 23, 1995, the date on which the government's response to the motion was due. Cruz filed the supplemental motion on June 9, 1995; on June 22, 1995, Cruz consented to and the Court ordered an extension of time for the government's response until June 28, 1995. Meanwhile, on June 25, a trial was scheduled for Cruz for July 17, 1995. The government filed its response papers to both of Cruz's pending motions -- dated October 19, 1994 and June 9, 1995 -- on June 30, 1995.

 On July 10, 1995, the Court held a pretrial conference with Cruz and the government to address concerns raised by the government about a possible conflict of interest facing Cruz's trial counsel, Zapata. I reserved decision on the issue on that day, and prospectively excluded all time needed to decide the question. The issue was argued before the Court on July 28, 1995; decision was again reserved. On August 3, 1995, I issued a Memorandum Opinion and Order granting the government's application to disqualify Zapata. By separate order on August 3, 1995, the Court excluded time through September 6, 1995, so that successor counsel could confer with defendant about the case.

 On September 6, 1995, the Court ordered exclusion of time until September 8, due to defendant's inability to appear at a scheduled conference. On September 8, 1995, Cruz appeared before the Court for a status conference with new counsel, Jerry Vasquez, Esq. Successor counsel requested and was granted leave to file his own pretrial motions. At that conference the Court rescheduled defendant's trial for November 6, 1995, and prospectively excluded time until that date. In the interim period, Vasquez filed on Cruz's behalf a pretrial motion which, counsel advised the Court in a telephone conversation with chambers on October 17, 1995, was intended to supersede the still-undecided motions filed by original trial counsel, Zapata. I decided that motion on October 20, 1995. On October 30, a Grand Jury returned a superseding indictment against Cruz, including the same charges as were in the 78-count superseding indictment against the C&C organization.

 On November 6, 1995, the day on which defendant's trial was scheduled to begin, defense counsel informed the Court that he would be unable to proceed on that date for medical reasons. The Court adjourned the trial to November 20, 1995, and prospectively excluded all time until then. Cruz made this application on November 17, 1995, alleging that the government and the Court have violated his right to a speedy trial by failing to respond to and decide his motions of October, 1994 and June, 1995 in a sufficiently timely manner.


 1. The Speedy Trial Act Claim

 The Speedy Trial Act requires government prosecutors to bring a criminal defendant to trial within 70 days of either the defendant's first appearance before a judicial officer or the filing of the indictment, whichever occurs later. 18 U.S.C. § 3161(c)(1). Section 3161(h) identifies certain delays which shall be excluded from the time computed under this 70-day clock. Cruz asserts that the Speedy Trial Act was violated in his case because the government failed to respond to his motion of October 19, 1994 until June 30, 1995, and that this span of time was nonexcludable. *fn1" Cruz alleges that his waivers of the Speedy Trial Act were involuntary because he never agreed to the government's delay in responding to his motion.

 Section 3161(h)(1)(F) of the Speedy Trial Act mandates exclusion of any period of delay "resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion." By contrast, § 3161(h)(1)(J) mandates a prospective exclusion of time for "delay reasonably attributable to any period, not to exceed thirty days, ...

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