Opinion
No. 1:15-cr-00172-AA-01
07-24-2017
UNITED STATES OF AMERICA, Plaintiff, v. EMMANUEL OLUWATOSIN KAZEEM, Defendant.
OPINION AND ORDER
This matter comes before me on Defendant Emmanuel Kazeem's Motion to Dismiss for violation of the Speedy Trial Act. ECF No. 178. The motion is DENIED.
LEGAL STANDARD
The Speedy Trial Act, 18 U.S.C. § 3161, provides that when a defendant enters a plea of not guilty, the trial of the defendant shall commence within seventy days of either (1) the filing of the indictment or (2) the defendant's first appearance, whichever is later. 18 U.S.C. § 3161(c)(1). In cases involving multiple defendants who are joined for trial, the period of seventy days is deemed to begin on the date of the indictment or arraignment of the latest codefendant. Henderson v. United States, 476 U.S. 321, 323 n.2 (1986). The seventy-day period of all codefendants is measured with respect to that of the latest codefendant. Id. In cases involving multiple defendants, when the defendants have not been severed, any exclusion or delay that applies to one defendant will apply to the others. United States v. Daychild, 357 F.3d 1082, 1091 (9th Cir. 2004).
The seventy-day period is subject to a number of exclusions. The two exclusions relevant to this motion are:
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.18 U.S.C. § 3161(h)(6) (the "joinder of defendants" exclusion); and
Any period of delay resulting from a continuance granted by any judge on his own motion or at the request of the defendant or his counsel or at the request of the attorney for the Government, 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. No such period of delay resulting from a continuance granted by the court in accordance with this paragraph shall be excludable under this subsection unless the court sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial.18 U.S.C. § 3161(h)(7)(A) (the "ends of justice" exclusion).
In determining whether the "ends of justice" exclusion should apply, the statute sets forth a non-exhaustive list of factors for the court to consider. These include:
(i) Whether the failure to grant such a continuance in the proceeding would be likely to make a continuation of such proceeding impossible, or result in a miscarriage of justice.
(ii) Whether the case is so unusual or so complex, due to the number of defendants, the nature of the prosecution, or the existence of novel questions of fact or law, that it is unreasonable to expect adequate preparation for pretrial proceedings or for the trial itself within the time limits established by this section.
(iii) Whether, in a case in which arrest precedes indictment, delay in the filing of the indictment is caused because the arrest occurs at a time such that it is unreasonable to expect return and filing of the indictment within the period specified in section 3161(b), or because the facts upon which the grand jury must base its determination are unusual or complex.
(iv) Whether the failure to grant such a continuance in a case which, taken as a whole, is not so unusual or so complex as to fall within clause (ii), would deny the defendant reasonable time to obtain counsel, would unreasonably deny the
defendant or the Government continuity of counsel, or would deny counsel for the defendant or the attorney for the Government the reasonable time necessary for effective preparation, taking into account the exercise of due diligence.18 U.S.C. § 3161(h)(7)(B).
Of particular note, no exclusion may be granted under § 3161(h)(7)(A) "because of general congestion of the court's calendar, or lack of diligent preparation or failure to obtain available witnesses on the part of the attorney for the Government." 18 U.S.C. § 3161(h)(7)(C).
If a defendant is not brought to trial within seventy days, after tallying the exclusions provided in § 3161(h), then the information or indictment must be dismissed on the defendant's motion. 18 U.S.C. § 3162(a)(2). The defendant must make the motion before trial commences or a guilty plea is entered and the defendant bears the burden on the motion. Id.
BACKGROUND
Defendant, along with four codefendants, is charged with Conspiracy to Commit Mail and Wire Fraud, Mail Fraud, Wire Fraud, and Aggravated Identity Theft. ECF No. 3. Defendant was arraigned on May 22, 2015, and was ordered detained on the charges. ECF Nos. 23, 24. The last of the codefendants, Lateef Animawun ("Animawun") and Oluwaseunara Osanyinbi ("Osanyinbi") made their first appearances on June 22, 2015. ECF No. 48, 52.
On July 6, 2015, the Court deemed this case to be complex and set trial for January 26, 2016. Defendant agreed to the continuance. ECF No. 61. Defendants jointly moved to continue the trial date several times. These continuances were granted and have not been challenged. ECF Nos. 90, 97. On July 29, 2016, all defendants once again jointly moved to continue the trial. The Court agreed to the continuance and set trial for November 22, 2016, with a status conference to be held on October 31, 2016. ECF No. 103.
On October 31, 2016, Defendant reported to the Magistrate Judge that he was prepared to go to trial. ECF No. 104. As no pretrial conference had been scheduled and no pretrial motion schedule set, the Magistrate Judge scheduled a status conference with this Court on November 8, 2016.
On November 8, 2016, Defendant reported that he was prepared to proceed to trial. At the time of the status conference, the codefendants had indicated that they would likely enter guilty pleas, although only one of the codefendants had actually accepted a plea agreement at the time of the hearing. The offers made to all other codefendants had expired on August 31, 2016, and no other offers had been extended. Mem. Supp. Ex. B, at 5. ECF No. 179-2. The codefendants had also jointly moved for a continuance. ECF No. 110.
The Court determined that it would not be possible to summon a jury for trial on November 22, 2016. Mem. Supp. Ex. B, at 6-7.
Defendant indicated that he intended to file evidentiary motions and other motions in limine before trial. The Government moved to continue the trial for ninety days, based on the complexity of the case and the number of witnesses and exhibits involved. Mem. Supp. Ex. B, at 10, 12. Defendant objected to the continuance. Mem. Supp. Ex. B, at 10, 13-14. The Court found that in light of the complexity of the case; the need for pretrial conferral between counsel and pretrial motions practice; and the importance of trying all codefendants together, a continuance was warranted and that the time would be excluded for purposes of the Speedy Trial Act. Mem. Supp. Ex, B at 14: ECF No. 111. In deference to Defendant's counsel's schedule, trial was set for March 7, 2017. Mem. Supp. Ex. B, at 13-14.
In December 2016, codefendant Oluwamuyiwa Olawoye ("Olawoye") fired his attorney and, on January 4, 2017, retained new counsel. ECF No. 123. Although it had been anticipated that Olawoye would accept a plea agreement, the change of counsel cast that understanding into doubt. On January 27, 2017, Olawoye moved to continue the trial date in order to allow his new counsel to review the voluminous discovery materials and properly advise his client on how to proceed. ECF Nos. 125, 126. The Court found that a continuance was once again justified and granted the motion on February 2, 2017. The Court set trial for Defendant and the remaining two codefendants for May 30, 2017. ECF No. 129.
Due to an email filing mistake, Defendant's counsel did not see the electronic notification for Olawoye's motion and did not file an objection before the Court granted the continuance. On February 6, 2017, Defendant filed an objection to the continuance, requesting that the trial go forward on March 7, 2017, as previously scheduled. In the alternative, Defendant moved to sever his case from the remaining codefendants and moved for pretrial release. ECF No. 131. The Court held a hearing on Defendant's objections on February 28, 2017. ECF No. 135. At that hearing, the Court denied Defendant's motion to sever and reaffirmed the earlier-granted continuance. Defendant's counsel represented that he would be on vacation for all of May and June and so the Court set another hearing for March 17, 2017, to pick a new trial date. Mem. Supp. Ex. C, at 20. ECF No. 180.
On March 17, 2017, the Court conferred with the parties and set trial for July 31, 2017, in order to allow time for pretrial motions after Defendant's counsel returned from his vacation. This period was also excluded from the Speedy Trial clock. ECF No. 136. This motion followed on July 10, 2017. ECF No. 178.
DISCUSSION
The Court held a hearing on this motion on July 21, 2017. ECF No, 190. Defendant contends that this Court erred in continuing the trial date on November 8, 2016, and on February 2, 2017, and in excluding that time under the Speedy Trial Act. Defendant contends that those continuances were not properly excluded and that the indictment must be dismissed. As both of the contested periods are longer than seventy days and Defendant does not assert that the Speedy Trial clock was otherwise exceeded, the Court will not include a detailed reckoning of the count of excluded and non-excluded days.
As a preliminary matter, the district court is not required to document the findings supporting a continuance contemporaneously with the granting of the continuance and may record those findings for the first time in response to a motion to dismiss. See United States v. Bryant, 726 F.2d 510, 511 (9th Cir. 1984) ("Although the Act requires that the trial court prepare a record, we find nothing in either the language or the purpose of the Act that requires the court to prepare the record at the precise moment it grants a continuance."); United States v. Medina, 524 F.3d 974, 986 (9th Cir. 2008) (a district court may document its findings for the first time when ruling on a motion to dismiss).
I. The November 8, 2016 Continuance
Defendant is charged with Conspiracy to Commit Mail and Wire Fraud, along with four codefendants. "Generally, defendants who are indicted together in federal court should be jointly tried." United States v. Tootick, 952 F.2d 1078, 1080 (9th Cir. 1991). "It is well established that an exclusion from the Speedy Trial clock for one defendant applies to all codefendants." United States v. Messer, 197 F.3d 330, 336 (9th Cir. 1999). In calculating the Speedy Trial clock for a defendant, the court may exclude 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." 18 U.S.C. § 3161(h)(6); see also United States v. Moniz, 73 F. App'x 981, 983 (9th Cir. 2003) ("Moniz's delay was caused by the district court's attempt to achieve [§ 3161(h)(6)'s] purpose of effectuating a joint trial.").
To determine the reasonableness of the delay, "courts look particularly to whether the delay was necessary to [effectuate a joint trial] and to whether there was any actual prejudice suffered by" the defendant. United States v. Hall, 181 F.3d 1057, 1062 (9th Cir. 1999) (internal quotation marks and citation omitted). However, this is not a simple two-factor test. Rather, "the proper test is whether the totality of the circumstances warrants a conclusion that the delay was unreasonable." Messer, 197 F.3d at 338. Delays are unreasonable where the primary purpose of the delay is to permit the codefendant to pursue plea negotiations and where the delay prejudices the defendant's defense. Hall, 181 F.3d at 1062.
In this case, the Court's decision to grant the continuance on November 8, 2016, was guided by the principle that Defendant should be tried together with his codefendants. The Court carefully weighed the potential for prejudice before making its decision, noting especially that Defendant remained in custody pending trial. Although the other defendants had indicated a likelihood that they would enter into plea agreements, the Government represented to the Court that only one codefendant had actually done so and that the plea offers for the other defendants had been allowed to expire. Mem. Supp. Ex. B, at 5. Counsel for the other defendants indicated that they were wading through the voluminous discovery materials so that they could advise their clients as to their potential exposure. Mem. Supp. Ex. B, at 4. While the Court was aware of the possibility that codefendants would enter pleas, the continuance was not granted in order to allow them to pursue those negotiations, but rather to ensure a joint trial. Defendant has not made any showing that his own defense was prejudiced by the delay. Nor did Defendant request a severance at this juncture. Based on the totality of the circumstances, the Court concluded that the continuance was reasonable as to ensure that all codefendants would be tried together.
The Court noted specifically that "[I]t's important, I think, that we proceed to resolve those other defendants and set them all at the same time." Mem. Supp. Ex. B., at 14.
In United States v. Hall, 181 F.3d 1057 (9th Cir. 1999), the Ninth Circuit held that a delay was unreasonable because it was granted to allow the codefendant to negotiate a plea agreement that included testifying against the defendant, thereby prejudicing his defense. Id. at 1062-63. As previously noted, the continuances in this case were not granted for the purpose of allowing codefendants to proceed with plea negotiations. The codefendants are not expected to testify against Defendant.
Although a defendant is not required to make a motion to sever, the making of such a motion is a factor to be weighed in assessing the reasonableness of the delay. United States v. Messer, 197 F.3d 330, 338, 340 (9th Cir. 1999). At oral argument, Defendant contended that the Court should have inferred the existence of an implied motion to sever based on his objection to the continuance.
The Court also noted that Defendant first reported his readiness for trial to the Magistrate Judge on October 31, 2016. The Court determined that there was not enough time for pretrial motions and other trial preparations between the November 8, 2016, hearing and a November 22, 2016, trial date, even taking into account the exercise of due diligence on the part of the attorneys. This assessment has been substantiated by the lengthy trial preparations still underway. The Court was satisfied that this delay was not the result of a lack of diligent preparation on the part of the Government's attorney, or of a failure to obtain available witnesses.
In particular, the Court notes that Defendant did not request the services of a Yoruba interpreter until June 26, 2017, for the trial to be held on July 31, 2017. ECF No. 165. The Court encountered substantial difficulties in meeting this need, given the lateness of the request and the rarity of qualified Yoruba interpreters. Defendant had not requested this essential service by November 8, 2016, despite his claimed readiness for trial on November 22, 2016.
The Court acknowledges that it discussed issues that would not justify a continuance, such as indications that a plea agreement might still be a possibility. See Mem. Supp. Ex. B, at 7-9, at 10-11. Plea negotiations are not a valid basis for granting a continuance. United States v. Medina, 524 F.3d 974, 986 (9th Cir. 2008). While the Court did consider the possibility of a plea agreement as part of a larger strategy of case management, it did not grant the Government's motion to continue the trial on that basis. Similarly, the Court considered and remarked upon general issues of scheduling and the difficulty of summoning a jury by November 22, 2016, but did not grant the continuance based on the congestion of the Court's calendar.
The Court determined that, in light of the complexity of the case, the importance of joint trial for all codefendants, and the need for the parties to prepare, file, and resolve pretrial motions, a continuance was in the best interests of justice and that it outweighed the interests of the public and Defendant in a speedy trial. Accordingly, the Court continued the trial to March 7, 2017, and excluded the period of the continuance from the Speedy Trial clock. Defendant has not met his burden of showing a Speedy Trial Act violation based on the November 8, 2016, continuance.
II. The February 2, 2017 Continuance
As noted above, the Court granted the February 2, 2017, continuance based on the motion of the attorney for Olawoye. The motion indicated that it was not opposed by the Government, but was silent as to Defendant's position. As the Court later discovered, Defendant's counsel had misfiled the email notification alerting him to the motion and only discovered its existence when the Court granted the continuance. Defendant filed objections to the motion on February 6, 2017. The Court recognized that it should have made inquiries as to Defendant's position before granting the motion, see United States v. Lloyd, 125 F.3d 1263 (9th Cir. 1997), and promptly set a hearing to rectify the error and resolve Defendant's objections. The Court held the hearing on February 28, 2017, before the previously excluded time had elapsed. After hearing Defendant's objections, as well as statements from the Government and counsel for the codefendants, the Court reaffirmed the earlier grant of the continuance.
During the February 28, 2017, hearing, the Court informed the parties that the March 7, 2017, trial date was no longer a possibility. See Mem. Supp. Ex. C at 13-14. This should not be interpreted to mean that the Court was not considering Defendant's objections to the continuance, only that the Court would need to set a different trial date, no matter how it resolved the objections.
As in the case of the earlier continuance, discussed above, the Court's decision to grant the February 2, 2017, continuance was guided by the principle that Defendant should be tried together with his codefendants. Although all parties had previously understood that Olawoye would enter into a plea agreement with the Government, he fired his attorney in December 2016 and retained new counsel in January 2017. These changes cast doubt on the parties' prior understanding about the disposition of Olawoye's case. The volume of discovery in this case and its complexity was such that Olawoye's new attorney would not be able to adequately prepare for the March 7, 2017, trial date. At the hearing on February 28, 2017, Olawoye's attorney advised the Court that trial remained a possibility and that, despite his diligence and the cooperation of the Government, he required the additional time to prepare for trial and to competently advise his client. Mem. Supp. Ex. C, at 8-9. ECF No. 180.
Defendant moved to sever as part of his objection to the continuance. Joint trials "promote efficiency and serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts." Zafiro v. United States, 506 U.S. 534, 537 (1993) (internal quotation marks and citation omitted). Federal Rule of Criminal Procedure 14 provides that a court may sever defendants' trials if a consolidation for trial "appears to prejudice a defendant or the government." Fed. R. Crim. P. 14(a). Severance is warranted only when "joinder is so manifestly prejudicial that it outweighs the dominant concern with judicial economy and compels the exercise of the court's discretion to sever." United States v. Brashier, 548 F.2d 1315, 1323-24 (9th Cir. 1976). The Ninth Circuit has held that joint trials are "particularly appropriate where the co-defendants are charged with conspiracy, because the concern for judicial efficiency is less likely to be outweighed by the possible prejudice to the defendants when much of the same evidence would be admissible against each of them in separate trials." United States v. Fernandez, 388 F.3d 1199, 1242 (9th Cir. 2004). The Supreme Court has further held that severance should not be granted unless "there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." Zafiro, 506 U.S. at 539. Defendant did not address these requirements, or any legal standards, when he presented his motion to sever. The Court did not find that joinder of defendants was so manifestly prejudicial as to compel severance, especially in light of the conspiracy charges involved, and denied the motion.
Given the complexity of the case and the need for adequate and effective trial preparation, the Court determined that the continuance requested by Olawoye served the ends of justice and that it outweighed the defendant's and the public's interest in a speedy trial. For the purposes of ensuring a joint trial, the Court once again considered the reasonableness of the delay, still cognizant of the fact that Defendant remained in custody pending trial and that Defendant had now moved for severance. The Court heard from Olawoye's counsel and was satisfied that this was not simply a continuance to allow him to negotiate a plea agreement. Defendant did not articulate any prejudice to his own defense that would result from the continuance.
At the February 28, 2017, hearing, the Court asked Olawoye's new counsel for his position and he responded that, although he would prefer to avoid a trial and was trying to work out a settlement, "[I]t is a complex case and the record is reflecting, you know, half a million pages of discovery, I wouldn't know if an offer was made, which one has not been made yet, if it's a reasonable offer or not, and so that's why I would need additional time, not only to prepare for a trial if that were to occur but even to advise my client. . . . [Olawoye is] aware of all the proceedings that are going on, and he's—he's anxious to hear my advice as to how to proceed as well." Mem. Supp. Ex. C, at 8-9 (emphasis added). --------
In light of the complexity of the case and the totality of the circumstances, the Court determined that the continuance was justified in order to ensure that Defendant and Olawoye would be tried together. Once again, the Court remarked upon general issues of case management, such as plea agreements or scheduling for specific days, but the Court did not base its decision on those issues. The period covered by this continuance was properly excluded from the Speedy Trial clock. Defendant has not met his burden of showing a Speedy Trial Act violation based on the February 2, 2017, continuance.
CONCLUSION
As the challenged continuances were properly granted pursuant to 18 U.S.C. § 3161(h)(6) and (h)(7)(A), the Court finds no violation of the Speedy Trial Act. Defendant Emmanuel Kazeem's Motion to Dismiss is DENIED.
It is so ORDERED and DATED this 24th of July, 2017.
/s/_________
Ann Aiken
United States District Judge