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November 4, 1996


The opinion of the court was delivered by: BLOCK


 BLOCK, District Judge:

 On September 16, 1996, a jury returned a verdict against the defendant John Mapp ("Mapp"), finding him guilty on Counts One through Three of the eleven-count superseding indictment. *fn1" The jury was unable to return a verdict with respect to Mapp on the remaining eight counts, and thus, a mistrial was declared on those counts. Sentencing was scheduled to proceed on December 16, 1996. At a status conference held on November 1, 1996, the government represented that it would not dismiss the open counts until the Court sentenced Mapp and the government had an opportunity to review such sentence. The government indicated that if the Court upwardly departs based on the criminal conduct for which Mapp was charged but not convicted, it will drop the open counts. Because the Speedy Trial Act requires retrial to commence within seventy days of a court's declaration of a mistrial, see 18 U.S.C. § 3161(e), the government moved to exclude the speedy trial time on the open counts from November 1, 1996 to the date of sentencing. For the reasons that follow, the government's motion is granted.

 The instant motion is made pursuant to 18 U.S.C. § 3161(h)(8)(A), which provides for the exclusion of time from the Speedy Trial clock when the ends of justice served by a continuance "outweigh the best interest of the public and the defendant in a speedy trial." 18 U.S.C. § 3161(h)(8)(A). *fn2" In essence, the government's request is two-fold: (1) a continuance of the trial on the open counts until the date of sentencing; and (2) the exclusion of speedy trial time during such continuance because the grant of the continuance would serve the ends of justice. Subsection (h)(8)(B) sets forth a "nonexclusive list of factors for the court to consider" in deciding whether to grant a continuance under the ends of justice exclusion, none of which are applicable here. *fn3" United States v. Tunnessen, 763 F.2d 74, 76-77 (2d Cir. 1985); see United States v. Scarpa, No. CR-87-0760, 1988 WL 8606, *1 (E.D.N.Y. Jan. 15, 1988) (Glasser, J.) ("The factors listed are not exclusive."); United States v. Bou, No. 85 Cr. 1165, 1986 WL 4081, *1 (S.D.N.Y. March 28, 1986) ("Subsection (h)(8)(B) makes clear that the Court is not limited to [the factors set forth in that section].").

 Although the parties were unable to point to any case applying an ends of justice exclusion to the instant situation, and the Court acknowledges a dearth of caselaw on this subject, the Court's independent research revealed one case dealing with a closely analogous, if not identical, situation. In United States v. Levasseur, 635 F. Supp. 251, 252 (E.D.N.Y. 1986) (Glasser, J.), the court was faced with the aftermath of a trial in which the jury returned a partial verdict -- convicting on some counts, but unable to reach a verdict on the other counts. The government, as here, did not wish to proceed immediately with the retrial on the open counts. Rather, it wished to wait until the appeals on the counts for which a verdict had been returned were affirmed. If those convictions were affirmed, the government represented that it would dismiss the open counts. However, if the convictions were reversed, the government indicated it would reprosecute the defendants on the open counts and on any or all counts as to which the convictions were reversed. Accordingly, the government moved for an order excluding the speedy trial time on the open counts, pending decision on the defendants' appeals.

 Noting that the government's motion "appeared to present a question of novel impression," and that "none of the factors [listed in 3161(h)(8)] appeared applicable," Judge Glasser nonetheless set forth a persuasive argument for granting the motion. Levasseur, 635 F. Supp. at 252. In determining whether the exclusion would be in the interest of justice, the court reviewed a line of cases which suggested that "a mechanical adherence to time limits would not serve the interests of [the] defendant, the government, courts, or society." Id. at 254 (citation omitted). Moreover, the court noted that the defendants would not be prejudiced by a postponement in their retrial:


The Government has represented in open court and in the memorandum in support of their motion . . . that they will not pursue the open counts given an affirmance by the Court of Appeals. The defendants clearly would benefit should that prove to be the case and will have lost nothing should it not. If the convictions are reversed, there will have been no needless complex and protracted second trial which might also result in a reversal based on the Second Circuit's decision. The defendants have not claimed, nor can they, that a relatively brief delay would make inaccessible to them either witnesses or evidence or would prejudice them in any other way.

 Id. at 254-55. Finally, the court focused on the purpose of the Speedy Trial Act, which "was not established primarily to safeguard the defendant's rights, but to serve the public interest in the prompt adjudication of criminal cases." Id. at 255. The court concluded that "neither the public interest, nor the courts, nor society would be served by a lengthy trial which might prove to be unnecessary." Id.

 Although there are differences between the facts here and those in Levasseur, (e.g., the request here is for a continuance and Speedy Trial exclusion pending sentence as opposed to pending a decision on appeal), the same general analysis justifies application of 3161(h)(8)(A). As in Levasseur, there can be no claim that Mapp would be prejudiced by an additional one or two-month delay in retrial. The same witnesses and evidence available for trial in November 1996 will most probably be available in January 1997. More importantly, it may be a significant waste of judicial resources to retry the open counts prior to Mapp's sentencing. As in Levasseur, in which the government represented that it would dismiss the open counts if the convictions on the other counts were affirmed, the government has here represented that it would dismiss the open counts if the Court upwardly departs based on the conduct charged in the open counts. *fn4" Thus, depending on the Court's decision with respect to Mapp's sentence, there may not be a need for a retrial.

 Moreover, Mapp has nothing to gain from a retrial prior to the imposition of sentence. Even if he is acquitted on the open counts, the government may still move for an upward departure at his sentencing based on the conduct alleged in those counts. Such a departure is proper if it is reasonable -- a standard that varies depending on the weight of the evidence supporting the upward departure and the degree of the departure. See United States v. Gigante, 94 F.3d 53, 57 (2d Cir. 1996) ("In considering the reasonableness of a departure, sentencing appellate courts should take the weight of the evidence into account. The reasonableness of substantial upward departures will depend in part on the standard of proof by which the conduct warranting the departure is established.").

 For these reasons I find that the ends of justice to be served by granting a continuance and stopping the Speedy Trial clock until the date of sentencing far outweigh the best interest of the public and the defendant in a speedier trial. Accordingly, the government's motion is granted and the Speedy Trial clock tolled until sentencing with respect to the open counts against Mapp.

 Dated: Brooklyn, New York

 November 4, 1996



 United States District Judge

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