The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER
The Court has before it Defendant's Third Motion to Continue Trial (Dkt. 128.) For the reasons explained below, the Court will deny the motion.
Early in this case the Court appointed the Federal Defenders to represent Defendant. A jury trial was initially scheduled for August 16, 2010. On July 17, 2010, Defendant filed a motion to continue the trial and to extend the time for filing pretrial motions. Defendant asked for a sixty-day continuance. (Dkt. 23.) A few days later, the Government filed a Superseding Indictment, and Defendant supplemented his motion to continue by asking that trial be continued until November 2010. The Court granted the motion and set trial for November 1, 2010, with all pretrial motions due October 4, 2010. (Dkt. 32.) On October 5, 2010, Defendant filed a second motion to continue. (Dkts. 53 & 59.) Defendant suggested that the case was complex, and he asked for a six-month continuance. The Court granted a four-month continuance, and set trial for March 7, 2011, with all pretrial motions due February 4, 2011.
At a January 26 status conference, Defendant's attorney informed the Court and the Government that Defendant would be filing the motion for substitution of counsel. On February 7, 2011, Defendant filed that motion. At a hearing on the motion for substitution, Defendant's new attorney asked for another continuance of the trial date and to extend the deadline for providing notice of expert evidence of a mental condition pursuant to Rule 12.2. The Court denied the motion to continue the trial, but extended the deadline for pretrial motions and for providing notice of expert evidence of a mental condition to February 9, 2011. The Court gave Defendant until February 16, 2011 to file any expert witness reports. In turn, the Court gave the Government until February 18, 2011 to designate additional experts.
The Ninth Circuit is guided by four factors when it reviews a district court's decision on a motion to continue: "(1) the extent of appellant's diligence in his efforts to ready his defense prior to the date set for hearing . . . (2) how likely it is that the need for a continuance could have been met if the continuance had been granted . . .(3) the extent to which granting the continuance would have inconvenienced the court and the opposing party, including its witnesses . . . (4) the extent to which the appellant might have suffered harm as a result of the district court's denial." U.S. v. Rivera-Guerrero, 426 F.3d 1130,1138-39 (9th Cir. 2005).
Defendant contends that his new attorney, Robert McAllister, has not had time to adequately prepare for trial because he has only been counsel of record since February 7, 2011. However, this case has been pending for more than eight months, and Defendant chose to wait until one month before trial to have Mr. McAllister enter his appearance.
Why Defendant waited until one business day after the deadline for filing pretrial motions and notices is unclear to the Court. Defendant may be suggesting that he could not have retained counsel earlier because the Government seized his silver coins as evidence, and that he needed those coins to pay counsel. However, counsel has made it clear that half the coins were returned to Defendant's wife early in this case, and Defendant's wife has been willing to pay for the defense. More importantly, Defendant did not ask the Government to return the coins until late January or early February 2011, seven months into the case. Once the request was made, the Government promptly returned the coins after reaching a stipulation to admit photographs of the coins as evidence at trial.
Moreover, Defendant did not retain Mr. McAllister because of any breakdown in the relationship with his public defenders. Mr. McAllister stated during the February 7 hearing that the Federal Defenders had done excellent work in terms of preparing the case for trial. He further stated that he had to convince Defendant to seek an extension of the trial date.
The Court is also skeptical of Defendant's suggestion that the Federal Defenders did not provide Mr. McAllister with access to the discovery in the case until February 16, 2011, or that Mr. McAllister only recently learned about the degree of preparation done by the Federal Defenders regarding expert witnesses. At the February 7 hearing, Mr. McAllister specifically stated that he has "been involved in this case since . . . November. And [he has] been working on it closely with Mr. Peven and Ms. Moran [the Federal Defender attorneys] steadily." Moreover, at the February 7 hearing, the Court specifically ordered the Federal Defenders to remain available to Mr. McAllister on a consulting basis, and to make any experts and investigators available to him. There is no evidence before the Court that the Federal Defenders disobeyed that order or otherwise impeded Mr. McAllister's access to the information.
Defendant's argument that the Government waited until less than thirty days before trial to depose a witness in Ukraine is also less than accurate. Counsel for the Government indicated that it had a stipulation with the Federal Defenders which would have removed the need for the Ukrainian witness. When Mr. McAllister substituted in as counsel of record, he chose not to agree to that stipulation. That is his choice, but it does not change the fact that the stipulation was agreed to by previous counsel, and the Court has not heard from previous counsel that no such stipulation existed. Again, by his own admission, Mr. McAllister has been ...