Opinion
Case No. 3:15-cr-238-SI
07-26-2017
UNITED STATES OF AMERICA, v. DAN HEINE and DIANA YATES, Defendants.
Billy J. Williams, United States Attorney, and Claire M. Fay, Michelle Holman Kerin, and Quinn P. Harrington, Assistant United States Attorneys, UNITED STATES ATTORNEY'S OFFICE FOR THE DISTRICT OF OREGON, 1000 SW Third Avenue, Suite 600, Portland, OR 97204. Of Attorneys for the United States of America. Jeffrey Alberts and Mark Weiner, PRYOR CASHMAN, LLP, 7 Times Square, New York, NY 10036; Caroline Harris Crowne and Michael C. Willes, TONKON TORP, LLP, 1600 Pioneer Tower, 888 SW Fifth Avenue, Portland, OR 97204. Of Attorneys for Defendant Dan Heine. Janet Lee Hoffman, Kelsey R. Jones, Andrew T. Weiner, Katherine Feuer, and Douglas J. Stamm, JANET HOFFMAN & ASSOCIATES, LLC, 1000 SW Broadway, Suite 1500, Portland OR 97205; Matthew J. Kalmanson, HART WAGNER, LLP, 1000 SW Broadway, Suite 2000, Portland, OR 97205. Of Attorneys for Defendant Diana Yates.
AMENDED OPINION AND ORDER DENYING MOTION TO CONTINUE
Billy J. Williams, United States Attorney, and Claire M. Fay, Michelle Holman Kerin, and Quinn P. Harrington, Assistant United States Attorneys, UNITED STATES ATTORNEY'S OFFICE FOR THE DISTRICT OF OREGON, 1000 SW Third Avenue, Suite 600, Portland, OR 97204. Of Attorneys for the United States of America. Jeffrey Alberts and Mark Weiner, PRYOR CASHMAN, LLP, 7 Times Square, New York, NY 10036; Caroline Harris Crowne and Michael C. Willes, TONKON TORP, LLP, 1600 Pioneer Tower, 888 SW Fifth Avenue, Portland, OR 97204. Of Attorneys for Defendant Dan Heine. Janet Lee Hoffman, Kelsey R. Jones, Andrew T. Weiner, Katherine Feuer, and Douglas J. Stamm, JANET HOFFMAN & ASSOCIATES, LLC, 1000 SW Broadway, Suite 1500, Portland OR 97205; Matthew J. Kalmanson, HART WAGNER, LLP, 1000 SW Broadway, Suite 2000, Portland, OR 97205. Of Attorneys for Defendant Diana Yates. Michael H. Simon, District Judge.
Defendants Dan Heine ("Heine") and Diana Yates ("Yates") are charged in this criminal action with conspiring to commit bank fraud and making false bank entries, reports, or transactions during the time when they were the two most senior officers of The Bank of Oswego (the "Bank"). The Court has scheduled a five-week jury trial to begin on October 10, 2017. On June 27, 2017, Yates filed her Amended Motion to Vacate Fourth Trial Management Order. ECF 758. In her motion, Yates asserts that the Bank "has stopped paying Ms. Yates's attorneys' fees, experts, document hosting fees, and other costs, and has indicated that it is considering whether to file bankruptcy." Id. at 1-2. Thus, argues Yates, "the basic tools of the defense are unavailable because of the Bank's failure and refusal to pay past fees and expenses, while future payments of any kind are uncertain." Id. at 3. Yates "therefore requests that all pretrial deadlines and the trial date be vacated until efforts to negotiate a resolution with the Bank and HomeStreet Bank are completed." Id. For the reasons that follow, Yates's motion is denied.
On August 12, 2016, the Bank sold its loans and other assets to HomeStreet Bank ("HomeStreet"). The Bank of Oswego continues to exist as a corporate entity, but has relinquished its banking charter and now operates as Oswego Resolution.
BACKGROUND
Heine and Yates co-founded the Bank in 2004. Until August 2016, the Bank had been a financial institution engaged in the business of personal and commercial banking and lending, headquartered in Lake Oswego, Oregon. Heine previously served as the Bank's President and Chief Executive Officer. Heine also was a member of the Bank's Board of Directors ("Board"). Heine left the Bank in September 2014. Yates previously served as the Bank's Executive Vice President and Chief Financial Officer. Yates also was the Secretary of the Board. Yates resigned from the Bank on March 22, 2012.
On June 24, 2015, a federal grand jury issued a 27-seven count indictment against both Heine and Yates for conduct related to their time with the Bank. On March 9, 2017, a federal grand jury returned a 19-count Superseding Indictment in this case. The Superseding Indictment ("Indictment") charges Heine and Yates with one count of conspiring to commit bank fraud, in violation of 18 U.S.C. § 1349, and multiple counts of making false bank entries, reports, or transactions, in violation of 18 U.S.C. §§ 2 and 1005. The Indictment alleges that between September 2009 and September 2014, Heine and Yates conspired to defraud the Bank through materially false representations and promises. The Indictment further alleges that one of the purposes of the conspiracy was to conceal the true financial condition of the Bank from the Board, the Bank's shareholders, the public, and the Bank's regulators, including the Federal Deposit Insurance Corporation. According to the Indictment, Heine and Yates reported false and misleading information about loan performance, concealed information about the status of foreclosed properties, made unauthorized transfers of Bank proceeds, and failed to disclose material facts about loans to the Board, shareholders, and regulators, all in an effort to conceal the Bank's true financial condition.
On August 26, 2015, two months after the grand jury returned the original indictment, Heine brought a civil action against the bank. Heine, a citizen of Florida, filed his lawsuit against the Bank, a citizen of Oregon, in federal court in the District of Oregon, invoking diversity jurisdiction. In his civil lawsuit, Heine sought both declaratory relief and advancement of his reasonable legal fees and expenses in connection with his defense of the federal criminal action, pursuant to the Bank's indemnification obligations contained in its Articles of Incorporation. On November 13, 2015, the Court, through the undersigned district judge, held that Heine was entitled to advancement of his reasonable legal fees and expenses of defense. Heine v. The Bank of Oswego, 144 F. Supp. 3d 1198 (D. Or. 2015). Yates, however, was unable to join Heine's civil lawsuit or file her own federal court action against the Bank because she was a citizen of Oregon, thereby precluding diversity jurisdiction.
On October 14, 2015, in the pending criminal case, Yates moved to compel the Bank of Oswego to advance legal fees. Yates made the same contract arguments that Heine asserted in his civil lawsuit based on the Bank's indemnification obligations contained in its Articles of Incorporation. In her motion against the Bank brought in the pending criminal action, Yates asserted that the Court has ancillary jurisdiction to resolve Yates's private contract claim against the Bank. The Court disagreed and denied Yates's motion on January 4, 2016, concluding that Yates's motion for contractual relief against the Bank did not fall within the Court's jurisdiction in this criminal case.
In March 2016, Yates filed a civil lawsuit against the Bank in state court in Oregon. Yates v. The Bank of Oswego, Case No. 16-CV-07657 (Clackamas County Circuit Court). Shortly thereafter, Yates and the Bank entered into a settlement agreement under which Yates abated her civil lawsuit and released the Bank from claims in exchange for the Bank's agreement to advance reasonable expenses incurred by Yates in defending the criminal action. ECF 548 at 1-2 (¶ 3). By August 2016, Heine and Yates's combined advancement expenses exceeded the limits of the Bank's Director & Officer insurance policy, and the Bank then began to pay Defendants' requested advancement expenses with its own funds. Id. By November 2016, the Bank began TO pay less than all of Yates's submitted bills. ECF 758 at 4.
On January 26, 2017, the Bank filed a non-party motion in this criminal action, asking the Court to review for reasonableness the detailed billing statements from counsel for Heine and Yates. ECF 547. In its motion, the Bank stated that it "remains committed to satisfying any obligations it may have to advance Defendants' reasonable criminal defense fees and expenses." Id. at 2 (emphasis in original). In its motion, the Bank disclosed the substantial amount that it had already paid as of November 4, 2016. The Bank added that it had recently received bills from counsel for Yates and Heine for work performed in October and November, and "the resulting legal bills, by any standard, are grossly excessive and unreasonable." Id. The Bank explained that it had "reduced Yates's and Heine's recent bills for attorneys' fees by fifty percent and forty percent, respectively" and "[o]ther than the reduction for attorneys' fees, no other reductions were made by the Bank." Id. (footnotes omitted). Heine objected to the Court reviewing for reasonableness the invoices that his counsel had sent to the Bank, arguing that such a review is "premature." Id. at 1. Yates, however, did not object to the Court reviewing for reasonableness her counsel's billing statements. ECF 563. On February 16, 2017, the Court declined to exercise ancillary jurisdiction in this criminal case over the non-party Bank's fee dispute with either Heine or Yates. ECF 581.
That amount is stated in ECF 547 at 2, which the Bank filed under seal.
On February 24, 2017, in the civil case of Heine v. The Bank of Oswego, Case No. 3:15-cv-1622-SI (D. Or.), Heine moved for relief pursuant to 28 U.S.C. § 2202 based on the Bank's alleged noncompliance with the Court's November 13, 2015 Opinion and Order and December 29, 2015 Judgment, which declared that the Bank must advance Heine's reasonable expenses incurred in defending the pending criminal case.
In her opening motion to vacate, Yates asserted that the Bank had not yet paid Yates's counsel for any services rendered after January 2017 and that the Bank recently stated that it is considering filing for bankruptcy unless a resolution can be reached regarding the Bank's ongoing obligations to advance defense costs. Yates originally asked the Court to vacate the trial date of October 10, 2017 and set a status conference at some point in the future so that Yates's counsel can report back regarding her efforts to resolve the matter. In her reply, Yates asserts that the Bank recently paid a portion of her counsel's February 2017 invoice and that the Bank's counsel recently stated that the Bank was considering pursuing legal action in state court regarding the reasonableness of counsel's legal fees and expenses. Yates concludes her reply by asking the Court to vacate the current trial schedule, continue the trial date to February 2018, and set a status conference in 60 days so that Yates's counsel can report what progress has been made toward resolving the funding issues. Both the Government and Defendant Heine oppose Yates's motion and urge the Court not to continue the trial date, which is currently set to begin on October 10, 2017.
STANDARDS
A. Motion to Continue Trial Date
When a defendant in a criminal case moves for a continuance of the trial date, the court must consider the following four factors: (1) the defendant's diligence in preparing for trial; (2) the likelihood that the requested continuance will satisfy the defendant's needs that underlie the request for continuance; (3) the inconvenience that a continuance will cause the Court and the Government; and (4) the extent to which the defendant will suffer harm if the request for continuance is denied. United States v. Zamora-Hernandez, 222 F.3d 1046, 1049 (9th Cir. 2000). "The fourth factor is most critical." Id. These four factors are well established in the law. See United States v. Tham, 960 F.2d 1391, 1396 (9th Cir. 1992); United States v. Shirley, 884 F.2d 1130, 1134 (9th Cir. 1989). B. Sixth Amendment Right to Counsel of Choice
No party, including Yates, has called the Court's attention to any case that presents facts even remotely similar to those raised in Yates's motion to vacate. Nor has the Court located any such case. Yates, however, emphasizes the fundamental nature of the Sixth Amendment right of a criminal defendant to counsel of choice. Yates is correct, but it will be helpful to the Court's analysis to clarify the precise meaning—and limitations—of that right.
In a 2016 decision, the Supreme Court stated: "No one doubts the fundamental character of a criminal defendant's Sixth Amendment right to the 'Assistance of Counsel.'" Luis v. United States, 136 S. Ct. 1083, 1088 (2016) (holding that the pretrial restraint of a defendant's legitimate, untainted assets needed to retain counsel of choice violates the Sixth Amendment). In that case, the Supreme Court observed that its prior opinions often refer to the right to counsel as "fundamental," that commentators describe the right as a "great engin[e] by which an innocent man can make the truth of his innocence visible," that the right requires the Government to provide counsel for an indigent defendant accused of all but the least serious crimes, and that a wrongful deprivation of the right to counsel is a "structural" error such that a reviewing court need not even ask whether the wrongful deprivation caused harm to the defendant. Id. at 1089 (quotation marks and alteration in original).
The Supreme Court further explained in Luis that the Sixth Amendment grants a defendant "a fair opportunity to secure counsel of his own choice." Id. (quoting Powell v. Alabama, 287 U.S. 45, 53 (1932)). This right, however, is not unlimited. "A defendant has no right, for example, to an attorney who is not a member of the bar, or who has a conflict of interest due to a relationship with an opposing party." Luis, 136 S. Ct. at 1089 (citing Wheat v. United States, 486 U.S. 153, 159 (1988)). Further, "an indigent defendant, while entitled to adequate representation, has no right to have the Government pay for his preferred representational choice." Luis, 136 S. Ct. at 1089 (citing Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624 (1989)).
DISCUSSION
A. Yates's Sixth Amendment Right to Counsel of Choice
On numerous occasions, the Supreme Court has stated that a defendant has no right under the Sixth Amendment to choose counsel she cannot afford. In Luis, the Supreme Court concluded its overview of the Sixth Amendment right to counsel by stating: "[T]he Sixth Amendment guarantees a defendant the right to be represented by an otherwise qualified attorney whom that defendant can afford to hire." Luis, 136 S. Ct. at 1089 (alteration in original and emphasis added) (quoting Caplin & Drysdale, 491 U.S. at 624). Further, this point has a long and distinguished pedigree. When the Supreme Court in Caplin & Drysdale made this statement, it was quoting from the earlier Supreme Court opinion in Wheat. See Caplin & Drysdale, 491 U.S. at 624 ("[A] defendant may not insist on representation by an attorney he cannot afford." (quoting Wheat, 486 U.S. at 159)); see also Kaley v. United States, 134 S. Ct. 1090, 1107 (2014) ("It is of course true that the right to counsel of choice is (like most rights) not absolute. A defendant has no right to choose counsel he cannot afford, counsel who is not a member of the bar, or counsel with an impermissible conflict of interest." (emphasis added) (citing Wheat, 486 U.S. at 159)); United States v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006) ("[T]he Sixth Amendment guarantees a defendant the right to be represented by an otherwise qualified attorney whom that defendant can afford to hire." (quoting Caplin & Drysdale, 491 U.S. at 624)).
Yates argues:
The right to counsel of choice attached because Ms. Yates may reasonably and lawfully obtain the necessary advancement from The Bank of Oswego ("the Bank"). See United States v. Stein, 541 F.3d 130,151, 156 (2d Cir. 2008) ("[T]he Sixth Amendment protects against unjustified governmental interference with the right to defend oneself using whatever assets one has or might reasonably and lawfully obtain."). This Court should not interfere with Ms. Yates's right to keep chosen counsel by denying the requested continuance. Ms. Yates requires additional time to try to obtain the funding to which she is legally entitled from the Bank and its asset purchaser, HomeStreet Bank.ECF 773 at 1-2.
First, it is unclear what it means to say that Yates's right to counsel of choice "attached because [she] may reasonably and lawfully obtain the necessary advance from [the Bank]." Neither the Government nor the Court is denying Yates's right to counsel of choice. Yates's counsel of choice is Ms. Hoffman, and Ms. Hoffman is, and has been, representing Yates. Thus, there is, and has been, no denial of Yates's right to counsel of choice. Moreover, any argument that Yates's right to counsel of choice may be denied in the future is at most speculative. As discussed below, even if Ms. Hoffman were to move to withdraw as counsel for Yates due to the current uncertainty about whether the Bank will pay her fees in full (a motion that Ms. Hoffman has not filed), the Court might very well deny that motion because trial is set to begin in less than three months. Second, Yates's reliance on Stein is misplaced. In the pending action against Yates, there is, and has been, no governmental interference with any of Yates's assets, including any private contractual rights that she has against the Bank. Finally, to the extent that Yates requests "additional time to try to obtain the funding to which she is legally entitled from the Bank," the Court considers this argument in the context of a motion to continue.
B. Yates's Motion to Continue Trial Date
In her Reply, Yates requests that the Court continue the trial date from October 10, 2017, to February 2018 and set a status conference to be held 60 days after the Court's decision on her pending motion, implying that even delaying trial to February 2018 might not be sufficient to satisfy Yates's needs. ECF 768 at 12. In evaluating Yates's motion to continue, the Court applies the well-established four-factor test.
1. Yates's Diligence
The Court does not question the diligence of Yates and her trial team of six lawyers, plus investigators, legal assistants, and expert witnesses, in preparing this case for trial. As the record reflects, Yates has filed numerous motions to dismiss, to suppress, and to compel discovery, and she has issued numerous subpoenas for documents. In short, she has been diligent in her preparation for trial. The Court also does not question the diligence of Yates and her legal team in litigating against the Bank to obtain whatever private contractual rights Yates may be entitled to receive from the Bank under its Articles of Incorporation. Yates's diligence in this area includes negotiating a settlement of her lawsuit against the Bank and her legal team retaining the services of bankruptcy and ethics counsel promptly after the Bank disclosed the possibility that it might seek protection in the bankruptcy court. Where Yates has been less than diligent is in failing to anticipate that her criminal defense costs: (1) might exceed the Bank's insurance coverage that was available to pay the defense costs of both Yates and Heine; (2) might exceed the Bank's own assets available to pay for those costs after all insurance coverage had been exhausted; and (3) might exceed the Bank's evaluation of what would be "reasonable" criminal defense costs and that the Bank might begin to withhold payment for what it contends are unreasonable fees or costs. Regarding this third point, it does not appear that Yates and the Bank ever discussed, let alone agreed upon, a reasonable litigation budget for the defense costs (including fees and expenses) in Yates's criminal case.
In addition, the Federal Defender's Office is available to provide legal representation to an indigent defendant. In addition, the Criminal Justice Act, 18 U.S.C. § 3006A, provides that an indigent defendant is entitled to have the Government, through the Court, pay for investigative, expert, or other services necessary for an adequate defense. See 18 U.S.C. § 3006A(e)(1). For an indigent defendant, funds are available to pay for such services, provided that "a reasonable attorney would engage such services for a client having the independent financial means to pay for them." United States v. Bass, 477 F.2d 723, 725 (9th Cir. 1973).
Under the Criminal Justice Act Plan adopted by the U.S. District Court for the District of Oregon, the Federal Defender makes an initial assessment of eligibility, as well as a recommendation to the Court. For that process to begin, however, a defendant seeking assistance must complete, under penalty of perjury, a financial affidavit on a form provided by the Federal Defender. Yates's lead counsel has told the Court and the parties that Yates had not provided a financial affidavit to the Federal Defender before she filed her motion on June 26, 2017, to continue trial for some indefinite period of time while she negotiated with the Bank. This was a seven months after the Bank began to "cut" the invoices of Yates's counsel in November 2016, and five months after the Bank filed its motion in this case on January 26, 2017, regarding the reasonableness of Yates's (and Heine's) legal defense costs.
If Yates has sufficient financial resources to pay for her own defense, a matter about which the Court has no knowledge, then it would be entirely reasonable for her not to have previously provided a financial affidavit to the Federal Defender. If, however, Yates does not have sufficient financial resources to pay for her defense, her failure to provide a financial affidavit to the Federal Defender before filing her motion and her failure to anticipate and prepare for the circumstances in which she now finds herself provide a basis at least to question her diligence on this issue.
2. Likelihood that the Requested Continuance Will Satisfy Yates's Needs
In Yates's opening memorandum, reply, and supporting declarations, Yates fails to give the Court any assurance or confidence that a continuance of the trial date from October 10, 2017 to February 2018 will satisfy Yates's needs. In fact, such a continuance may actually exacerbate the problem. With her reply, Yates filed the Supplemental Declaration of Howard Levine. Mr. Levine explains that he currently is negotiating to try to reach a resolution of Yates's financial dispute with the Bank and HomeStreet. Mr. Levine begins paragraph 12 of his declaration by stating: "I do not know if we will be able to reach a settlement with the Bank and HomeStreet." ECF 770 at ¶ 12. He ends that paragraph: "Based on the Bank's financial condition, which will only deteriorate going forward, I do not believe we will reach a settlement with the Bank alone." Id. These statements do not give the Court confidence that a four-month continuance of the trial date will satisfy Yates's needs.
In fact, a four-month delay may even make matters worse. If the five-week trial were continued from its present commencement date of October 10, 2017, to February 2018, Yates likely would incur four months of additional defense costs even before trial begins, at least based on the history of this case so far. Further, Heine also almost certainly would continue to incur additional defense costs during those four months. If both Yates and Heine continue to incur extra defense costs before trial begins, due to a four-month delay, more of the Bank's resources that might have been available to pay for Yates's and Heine's defense costs at trial will have been spent. This would make it even less likely that Yates's financial dispute with the Bank will be resolved by the time trial starts.
3. Inconvenience to the Court, the Government, and Defendant Heine
The Government opposes Yates's motion. The Government argues, among other things:
More delay may cause witnesses['] memories to fade. Moreover, at least one of the government's witnesses has been diagnosed with a life threatening disease. Prospective jurors on this case will surely wonder what took so long to bring this matter to trial, perhaps they will conclude it must be because the government did not consider defendants' illegal conduct to be a priority. Reality could not be further from that potential speculation. As for "inconvenience," the government has served dozens of subpoenas in this case, including on witnesses who reside out of state. A new trial date may not work for these witnesses' schedule. Re-serving new subpoenas on over forty government witnesses would inconvenience the prosecutors, legal assistants, and agents who have to search for and serve these individuals.ECF 765 at 3.
In addition, Heine objects to Yates's motion. His lead counsel explains: "Throughout this case, Mr. Heine has sought his earliest day in Court, and has repeatedly opposed Ms. Yates's motions for continuances." ECF 764 at 1. Heine's counsel adds that Heine's "position remains unchanged." Id. Finally, the Court has cleared its calendar for the five-week jury trial the parties have requested begin on October 10, 2017. Although the Court could rearrange its calendar once again, there is some degree of inconvenience to the Court presented by Yates's motion. That said, any inconvenience to the Court is the least important consideration in this analysis.
4. Extent to Which Yates Will Suffer Harm If Her Request Is Denied
The final, and most important, factor is the extent to which Yates will suffer harm if her request for a continuance is denied. See Zamora-Hernandez, 222 F.3d at 1049. Yates's evidence on this point is speculative. The Bank has represented that it will pay all of Yates's out-of-pocket expenses, or "hard costs," as they come due. That should take care of Yates's need for investigators, subpoena fees, expert witness fees and expenses, reasonable travel expenses for lay witnesses, data processing costs, and the like.
Yates's lead counsel states that she recently received a payment from the Bank for Yates's hard costs but is reluctant to disburse that money until after the applicable 90-day bankruptcy preference period has expired. Yates's lead counsel also states that the Bank has cut a small portion of Yates's hard costs pending a reasonableness analysis. Yates adds that her expert witnesses and investigators ceased all work on the case in April 2017, when her counsel learned that the Bank would no longer assure payment for all of Yates's hard costs.
In documents filed under seal, Yates provides the approximate amount of her hard costs that has been withheld by the Bank pending its reasonableness analysis. ECF 773 at 5; ECF 774 at 2 (¶ 6). That amount is a very small fraction of what has been paid to date.
Yates, however, had not provided to the Federal Defender, at least by the time she filed her motion to postpone trial, a financial affidavit listing her personal assets that might be available to pay her remaining hard costs of defense, if they are not paid by the Bank. Thus, based on the evidence presented, the Court cannot conclude whether the risk of harm that Yates describes in her opening motion and her reply that may result from the Court denying her request for a four-month continuance is anything more than speculation. In other words, if Yates herself can pay for whatever hard costs of defense the Bank is refusing to pay, there is no risk of prejudice.
Similarly, whether Yates's privately-retained counsel might not receive full payment from the Bank for Yates's legal fees and the effect that might have on Yates's defense also are matters of speculation. If Yates has a civil claim against the Bank for breach of contract, including breach of settlement agreement, she can pursue it in state court. If the Bank files for bankruptcy protection, Yates can assert her claim in that forum.
Moreover, if Yates's counsel continues to represent Yates for the next three months—and for the duration of the five-week trial that is set to begin on October 10, 2017, there will be no harm to Yates's defense. If, however, Yates's counsel were to file with this Court a motion to withdraw due to payment insecurity, after having represented Yates since the beginning of this criminal action and having been paid in full until sometime earlier this year, the Court would evaluate that motion, if and when such a motion were filed. In such an event, the Court might grant the motion and appoint the Federal Defender to take over the defense of Yates. Alternatively, the Court might deny the motion to withdraw based on how much Yates's counsel has already been paid in this case and how close the case to trial. In that event, the Court would require Yates's counsel to continue to represent Yates at trial. Further, there may be other alternatives. There is nothing to be gained, however, by engaging in speculation at this time.
The Court is, and will continue to be, mindful of Yates's Sixth Amendment right to counsel of her choice. As the Supreme Court has observed, however, "the right to counsel of choice is (like most rights) not absolute. A defendant has no right to choose counsel [s]he cannot afford." Kaley, 134 S.Ct. at 1107 (2014). --------
In sum, any harm to Yates that may come from denying her pending motion to continue the trial date for another four months so that she can continue to negotiate with the Bank and HomeStreet is speculative, at best. In addition, any further delay of the trial date likely will only make this situation worse—for both Yates and Heine. After weighing all four factors, the Court denies Yates's motion for a continuance.
CONCLUSION
Defendant Yates's Amended Motion to Vacate Fourth Trial Management Order (ECF 758) is DENIED.
IT IS SO ORDERED.
DATED this 26th day of July, 2017.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge