from October 26, 1988 through November 23, 1988, is also excludable. 18 U.S.C. §§ 3161(h)(1)(F), and (h)(1)(J).
C. ABSENCE FROM THE DISTRICT OF CODEFENDANT WOODS
Woods' absence from the district for the purpose of medical treatment is also excludable time, and tolls the Speedy Trial clock as to all defendants. 18 U.S.C. § 3161(h)(7) excludes from speedy trial time, "[a] reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted." As the Seventh Circuit stated in United States v. Dennis, 737 F.2d 617, 620 (7th Cir.), cert. denied, 469 U.S. 868, 83 L. Ed. 2d 145, 105 S. Ct. 215 (1984), "It is well established under this section [3161(h)(7)] that the excludable delay of one defendant may be ascribed to all codefendants in the same case, absent severance." The court noted that delay attributable to one defendant is attributable to other codefendants as long as that delay is reasonable. Id. The court stated, however, that the determination of whether the delay was reasonable is to be made on a case by case basis.
The Dennis court looked to the congressional purpose behind the enactment of § 3161(h)(7). Among the interests of Congress was the preference for joint trials of codefendants. The court quoted favorably the Third Circuit ruling in United States v. Novak, 715 F.2d 810, 814 (3d Cir. 1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1293, 79 L. Ed. 2d 694 (1984): "The Legislative history of section 3161(h)(7) illustrates a strong congressional preference for joint trials and an intention that delays resulting from the joinder of codefendants be liberally excluded." 737 F.2d at 621.
In finding that the delay was reasonable in Dennis, the court focused on the fact that the absent defendant was in federal custody out of the district on a writ, and, although his exact return to the district was unknown, his whereabouts were known at all times. The court further found that the 144 day delay due to the absence was not "presumptively prejudicial" under Barker v. Wingo, 407 U.S. 514, 530-31, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972).
Applying the reasonableness standards of Dennis, the Court finds that the delay attributable to Woods' absence from the district was reasonable and is excludable as to all codefendants. Woods was absent from the district for some 97 days for medical treatment; however, he was in custody throughout that time and his location was known at all times. Although neither the government nor the defendants' counsel knew exactly when Woods would be returned to the district, there "was never any doubt that he would be produced." 737 F.2d at 621. Furthermore, the delay was necessary to ensure a joint trial. Therefore, the Court finds that the delay attributable to Woods' absence from the district was not "presumptively prejudicial" under the standards of Barker, and is excludable as to all defendants in accordance with § 3161(h)(7).
D. DEFENDANT PAUL ROBINSON'S MOTION FOR RELEASE ON BOND
On December 29, 1988, Paul Robinson filed a motion for release on bond. The Court held an evidentiary hearing on the motion on March 10, 1989, took the matter under advisement, and issued its memorandum opinion on March 24, 1989 denying defendant's motion. For the same reasons discussed previously, the Court finds that the time from filing the motion through the Court's ruling, that is from December 29, 1988 to March 24, 1989, to be excludable time as to all defendants pursuant to §§ 3161(h)(1)(F), (h)(1)(J).
E. DELAY RESULTING FROM THE DISQUALIFICATION OF DEFENSE COUNSEL
On February 7, 1989, the government filed motions to disqualify each of the defense counsel. After a hearing on the matter, and review of in camera materials, the Court, on February 9, 1989, granted the government's motions and disqualified the defense counsel on various grounds. (Docs. 178, 179 and 180). Defendants were granted 20 days to secure counsel. Defendants' current counsel entered their respective appearances on March 3, 1989 on behalf of Paul Robinson, March 7 on behalf of Woods and March 10, on behalf of Daniel Robinson. At the hearing on March 10, 1989, the Court made a finding that due to the complexity of the case, and the recent entries of the new defense counsel, and the need for defense counsel to be adequately prepared for trial, a continuance from the April 11, 1989 setting was necessary, and that the ends of justice outweighed the best interest of the public and the individual defendants in a speedy trial. (Tr. 3/10/89 pp. 76-85). Section 3161(h)(8)(A) provides for the exclusion of:
Any period of delay resulting from a continuance granted by a judge on his own motion or at the request of the defendant or his counsel . . . if the judge granted such continuance 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.
Therefore, the Court finds that the time from February 7 to February 9 to be excludable pursuant to § 3161(h)(1)(F) and (h)(1)(J). The time during which the defendants were granted leave to acquire new counsel is also excludable. Accord, Montoya, 827 F.2d at 153. Therefore, the time from February 9, 1989 to March 1, 1989 is excludable as to all defendants. In addition, the court finds that the time from April 11, 1989 through May 31, 1989 to be excluded under § 3161(h)(8)(A) as to all defendants.
F. ADDITIONAL PRETRIAL MOTIONS
On March 21, 1989, defendant Woods filed some twenty-three additional pretrial motions. The government was granted leave to file its responses through April 7, 1989. The Seventh Circuit, in United States v. Latham, 754 F.2d 747 (7th Cir. 1985), discussed the computation of excludable time with respect to the ruling on multiple pretrial motions. The Latham court found that the standard was "reasonable promptness" rather than 30 days as set forth in § 3161(h)(1)(J). Accordingly, the Court finds excludable all time from March 21, 1989 through the disposition of the last of Woods' motions. As the court in Dennis, 737 F.2d at 620 stated, excludable time for disposition of Woods' motions is ascribed to all codefendants.
G. FUGITIVE DEFENDANTS
In addition to the plethora of pretrial motions, the Court notes that there are two defendants in this case who remain fugitives. The government has submitted for in camera review, under seal, the affidavits of DEA Special Agents Michael A. Braun and Darrell D. Skaggs, concerning efforts made to locate the two fugitive defendants.
Pertinent sections of the Act, specifically 18 U.S.C § 3161(h)(3)(A) and (B) read together with § 3161(h)(7), govern the time that shall be excluded when the situation of fugitive codefendants exists.
(h) The following periods of delay shall be excludable . . . in computing the time within which the trial of any offense must commence: