United States District Court, E.D. Michigan, Southern Division
ORDER DENYING DEFENDANT’S MOTION FOR NEW TRIAL
PURSUANT TO FED. R. CRIM. P. 33 [ECF #132]
Victoria A. Roberts District Court Judge.
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.
Warner never requested counsel different from his counsel of
record, the Court did not deny Warner the right to his
counsel of choice.
Court DENIES Defendant’s motion.
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.
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.
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
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.
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.
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.
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, ...