United States v. Warner

          ORDER DENYING DEFENDANT’S MOTION FOR NEW TRIAL PURSUANT TO FED. R. CRIM. P. 33 [ECF #132]

          Victoria A. Roberts District Court Judge.

         I. INTRODUCTION

         James Warner says the Court denied his Sixth Amendment right to counsel of choice when it denied his attorney’s emergency motion to adjourn his trial date. [ECF #106]. Warner moves for a new trial pursuant to Fed. R. Crim. P. 33.

         Because Warner never requested counsel different from his counsel of record, the Court did not deny Warner the right to his counsel of choice.

         The Court DENIES Defendant’s motion.

         II. BACKGROUND

         The Government charged James Warner in May 2018 in an eight-count Second Superseding Indictment. The Court scheduled trial for November 26, 2018. Subsequently, the Government charged Warner in a ten-count Fifth Superseding Indictment in January 2019 alleging fraud, bribery, conspiracy, money laundering, and obstruction of justice related to a multi-defendant scheme to defraud the Wayne County Airport Authority. The Court adjourned Warner’s trial date several times at the request of the parties: first, to February 5, 2019, then to May 7, 2019, and finally to May 21, 2019.

         In November 2018, Robert Harrison, Warner’s trial attorney, told the Court about his back pain stemming from a failed surgery. He cited this as a reason, along with voluminous on-going discovery, as a basis for his request to adjourn Warner’s first trial date. The Court granted the request. On May 15, 2019, Harrison told the Court again through email about back and leg pain. Harrison stated Warner was aware of his physical limitations and informed the Court that he may need accommodations during trial. He did not request an adjournment.

         On May 16, 2019, the Court spoke with counsel to finalize the trial schedule. The Court advised that the trial must be completed by June 5, 2019, and that some full days may be necessary – a modification of the Court’s typical half day (8:30 a.m. – 1:30 p.m.) schedule. After this conference, Harrison emailed the Court seeking an adjournment; he said his back issues would prevent him from completing full days. He also said that if the trial was adjourned, he would arrange to have another trial attorney try the case with him. The Court told Mr. Harrison to file a motion.

         Harrison filed an emergency motion to adjourn on May 17, 2019. [ECF #106]. The motion outlined two reasons for adjournment: (1) the proposed trial schedule and the Court’s instruction that trial must conclude by June 5, 2019 would jeopardize Warner’s right to a full and fair trial; and (2) health issues would substantially impair Harrison’s performance. There was no request for secondary counsel.

         The Court found both arguments unavailing and denied the motion. The Court concluded: (1) Harrison never informed the Court that he could not endure full trial days; (2) the proposed schedule gave the parties all the time they said they needed for trial; and (3) it would extend whatever courtesies Harrison required during trial to address his pain and fatigue issues. The Court gave the parties alternative trial schedules: one of mainly half days that took into account the Court’s need to break around June 5th, and extended trial to June 13th. The second alternative concluded the trial on June 5th, but with a higher mix of full trial days. [ECF No. 110]. The parties declined these options.

         Warner’s trial began on May 21, 2019. It lasted for eight modified half days over a period of three weeks. The jury returned guilty verdicts on June 5, 2019.

         III. LEGAL STANDARD

         While the disposition of a motion for continuance is “traditionally within the discretion of the trial judge, ” Ungar v. Sarafite,376 U.S. 575, 589 (1964), an “‘unreason[ed] and arbitrary’ insistence upon expeditiousness in the face of a justifiable request for delay violates the right to assistance of counsel.” Abby v. Howe,742 F.3d 221, ...