United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
A. BRADY, JUDGE UNITED STATES DISTRICT COURT
matter comes before the Court on the Government Motion to
Continue Pretrial Conference and Trial [ECF No. 68] (the
“Motion”), filed on June 11, 2019. Defendant
filed his Reply to Government's Motion to Continue [ECF
No. 69] on June 14, 2019. The Government filed its Reply to
Defendant's Objection to Government's Motion to
Continue Pretrial Conference and Trial [ECF No. 71] on June
17, 2019. At its essence, the issue presented in the
parties' briefing on the Motion is whether Special Agent
Timothy Worthen (“SA Worthen”) is an
“essential witness” who is
“unavailable” during the currently scheduled
trial. This Court concludes that he is, and will continue the
pretrial conference and trial.
5, 2019, this Court issued a Scheduling Order setting this
matter for a final pretrial conference on June 25, 2019, and
a four (4) day trial beginning on July 9, 2019. [ECF No. 67].
According to the Motion, the trial date conflicts with the
schedule of SA Worthen, who is “out of the state for
mandatory training until July 18, 2019.” [ECF No. 68 at
2]. According to the Government, SA Worthen is an essential
government witness in that he was the investigator that test
fired the firearms involved in this case and he conducted all
the interstate nexus research. (Id. at 1-2). As a
result, the Government claims that a continuance is proper
under 18 U.S.C. § 3161(h)(3)(A) and (h)(7)(A).
(Id. at 2).
attacks the factual basis for the Motion in his Reply.
Defendant does not challenge the importance of SA
Worthen's testimony or the existence of the claimed
training. Instead, he claims that the Government has not
established that SA Worthen was the only agent who could
provide the firearm testimony, and further that the
Government had not established that SA Worthen could not
attend the training at a different date. [ECF No. 69 at 4].
Since the continuance could allegedly hamper Defendant's
ability to call witnesses on his behalf (Id. at 2),
Defendant asks that the Motion be denied.
Government's Reply largely answers the questions posed in
Defendant's Reply. First, the Government explains that
not just any ATF agent can provide the necessary firearm
testimony. Instead, there are only two ATF agents in the Fort
Wayne office that are certified to make interstate nexus
determination, SA Worthen and Special Agent Thomas Kaiser.
[ECF No. 71 at 4]. The Government argues that it is
“not reasonable” to ask Kaiser to perform the
same testing and research that had already been performed by
SA Worthen and, in any event, Kaiser is also unavailable for
the currently scheduled trial. (Id.). With respect
to the necessity of SA Worthen's training, the Government
states that SA Worthen will be teaching at the ATF Academy
from July 5, 2019, through July 18, 2019, and that the
Academy cannot find a substitute for SA Worthen at this late
parties do not dispute that the unavailability of an
essential witness is grounds for a continuance and for
excluding any delay from the Speedy Trial calculation.
See 18 U.S.C. § 3161(h)(3)(A). As Defendant
notes, the legislative history on the Speedy Trial Act
indicates that an “essential witness” is “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. For example, a
chemist who has identified narcotics in the defendant's
possession would be an ‘essential witness.'”
United States v. Marrero, 705 F.2d 652, 656 (2nd
Cir. 1983); quoting S.Rep. No. 1021, 93d Cong., 2d Sess. 37
(1974). An essential witness is considered
“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.” 18 U.S.C. § 3161(h)(3)(B).
Court concludes that SA Worthen is akin to the chemist
described in the legislative history. Defendant is charged
with a violation of 18 U.S.C. § 922(g)(1). The
Government must therefore prove that Defendant was (1) a
felon, (2) who had possessed a firearm, (3) that had traveled
in interstate commerce. United States v. Villasenor,
664 F.3d 673, 680 (7th Cir. 2011). SA Worthen's testimony
goes directly to the second and third elements. Since no
individual other than SA Worthen can currently present his
testimony, the Court concludes that he qualifies as an
essential witness. See also United States v. Allen,
235 F.3d 482 (10th Cir. 2000) (finding that agent who would
testify that the defendant's weapon met the definition of
a firearm was an essential witness). The Court also concludes
that, given the additional information provided by the
Government in its Reply, SA Worthen is unavailable for trial
due to his pre-scheduled teaching obligations.
there may very well be situations where the Government could
be compelled to produce a different agent to provide the
necessary firearm testimony, it is not this case. Defendant
has obtained six prior continuances, and the requested
continuance is relatively short. While the Defendant asserts
that his witnesses may be unavailable following a continuance
due to their transient lifestyle, no specific examples or
evidence is provided to support this assertion. Accordingly,
the Court concludes that a continuance to secure the
testimony of SA Worthen is appropriate.
does not mean, however, that the Government has demonstrated
it is entitled to a continuance of the requested length.
While the Court accepts that SA Worthen is unavailable
through July 18, 2019, the Government has provided the Court
with no reason or rationale why it cannot take this matter to
trial until August 5, 2019. Any excluded continuance based on
the unavailability of an essential witness, then, must
necessarily end on July 18, 2019. Mindful of the speedy trial
clock, the Court determines that a continuance until August
5, 2019, is unnecessary, and instead sets this matter for
trial to begin on July 29, 2019.
foregoing reasons, the Government's Motion to Continue
Pretrial Conference and Trial [ECF No. 68] is GRANTED in part
and DENIED in part. The four (4) day trial set for July 9,
2019, is continued to July 29, 2019, at 9:00 A.M before Judge
Holly A. Brady. The June 25, 2019, in person pretrial
conference is continued to July 15, 2019, at 1:30 P.M. before
Judge Holly A. Brady. Counsel only to appear. Any plea
agreement in this matter shall be filed no later than the
time of the final pretrial conference. The deadline for
parties to file pretrial motions or a motion to continue
trial-related deadlines is July 8, 2019. A defense motion
must include the ...