Opinion
08 CR 823 (HB).
January 21, 2009
OPINION ORDER
On September 2, 2008, Defendant Eddison Gloss and six co-defendants were charged in a one-count indictment with conspiracy to violate the narcotics laws of the United States. Represented by appointed counsel, Gloss appeared before the Court on September 15, 2008 and on that date the Court set a trial date of January 28, 2009. A superseding indictment was filed against Gloss and four remaining co-defendants on January 13, 2009. On January 14, 2009, Gloss' appointed counsel applied for a continuance of the trial date. On January 20, 2009, Gloss' appointed counsel asked to be relieved and replaced by counsel who 0Gloss had just retained and who reiterated the earlier application for a continuance. For the following reasons, Gloss' application for a continuance of the trial date is GRANTED. The trial will begin or a plea will be proffered on Wednesday, February 11 at 12:00 P.M.
I. Factual Background
The lone count charged in the September 2, 2008 indictment (the "Original Indictment") alleges that Gloss and six co-defendants conspired "in or about August 2008," to distribute and to possess with intent to distribute more than one kilogram of heroin in violation of 21 U.S.C. Sections 812, 841(a)(1), and 841(b)(1)(A) ("Count One"). In the Original Indictment, the overt acts alleged to be in furtherance of the charged conspiracy are limited to allegations that Gloss and the six co-defendants met in a garage in Newark, New Jersey on August 19, 2008 "for the purpose of distributing heroin."
The superseding indictment, filed January 13, 2009 against Gloss and four of his originally charged co-defendants (the "Superseding Indictment") (i) adds a substantive count of distribution and possession with intent to distribute more than one kilogram of heroin in violation of 21 U.S.C. Sections 812, 841(a)(1) and 841(b)(1)(A) "from at least in or about March 2008 to in or about August 2008" ("Count Two"), (ii) extends the period of conspiracy charged in Count One to the period between March 2008 and August 2008, and (iii) alleges additional overt acts in furtherance of the conspiracy charged as Count One. The additional overt acts include allegations that on August 7, 2008 Gloss traveled to a garage in Lodi, New Jersey alleged to be "maintained for narcotics trafficking activities," that on August 19, 2008 Gloss brought $2 million dollars to the garage in Newark, New Jersey and that on August 21, 2008 two un-named co-conspirators traveled to Lodi, New Jersey "to pick up approximately $3.5 million in U.S. currency, representing the proceeds of narcotics trafficking activities."
At a hearing on January 14, 2009 the Court granted the government's application for revocation of Gloss' bail. At that hearing counsel for the government explained that information uncovered by post-arrest investigations led the government to both apply for revocation of Gloss' bail and file the Superseding Indictment. According to counsel for the government, these investigations revealed, among other things, (i) that Gloss played a supervisory role in the conspiracy and that the conspiracy lasted for at least several months, (ii) that at the time of his arrest Gloss was the subject of an independent investigation led by the Bureau of Immigration and Customs Enforcement ("ICE"), and (iii) that the ICE investigation led to the August 21, 2009 seizure of $3.5 million in cash and a loaded gun, all found in a vehicle that Gloss had been seen driving days earlier. (Tr. of January 14, 2009 Hrg. ("Tr.") 7:11-11:6.) The post-arrest investigations generated additional discovery materials, first provided to Gloss' counsel on January 14, 2009. (Tr. 12:18-24.) These include surveillance video recordings of Gloss entering the garage in Lodi, New Jersey and photographs that indicate that the currency seized on August 21, 2008 was wrapped and numbered in the same manner as the currency that Gloss is alleged to have transported to the garage in Newark, New Jersey on August 19, 2008. (Tr. 9:5-10; 11:21-24.)
At the January 14, 2009 hearing Gloss' appointed counsel requested a continuance of the trial date based on the additional efforts required to prepare a defense based on the expanded time frame of the alleged conspiracy and new allegations and discovery materials concerning additional acts, participants and locations. (Tr. 13:15-17.) Gloss' counsel also argued that because Gloss was to be remanded to custody that day and it is customary for pretrial detainees to be placed in a special housing unit for the first two weeks of their detention, without a continuance Gloss would spend the balance of the pretrial period with substantially curtailed communication and visiting privileges. (Tr. 14:9-16.) Counsel for the government contended that Gloss would not be prejudiced by facing trial on January 28, 2009, as previously scheduled. (Tr. 12:10-11.)
II. Applicable Law
The Speedy Trial Act, 18 U.S.C. § 3161 et seq. (the "Act"), provides that trial of a criminal defendant must occur no earlier than thirty days after the date on which the defendant first appears through counsel but no later than seventy days after the later to occur of the filing of the indictment or the defendant's appearance before a judicial officer in the court in which the charge is pending. 18 U.S.C. § 3161(c). Certain periods of delay, however, may be excluded in computing the time within which the trial must commence. See 18 U.S.C. § 3161(h).
The Supreme Court has made clear that there is no inherent right to a 30-day continuance following the filing of a superseding indictment. U.S. v. Rohas-Contreras, 474 U.S. 231 (1985); see also, U.S. v. Love, 867 F.Supp. 260 (SDNY 1994) (Baer, J.) However, the Act itself grants District Courts broad discretion to provide a continuance when necessary to serve the "ends of justice." Rohas-Contreras, 474 U.S. at 236. The Supreme Court has opined that the District Court's authority to grant such continuances "should take care of any case in which the Government seeks a superseding indictment which operates to prejudice a defendant." Id.
Specifically, Section (h)(7) of the Act grants the Court discretion to order a continuance if it finds "the ends of justice served by [continuance] outweigh the best interest of the public and the defendant in a speedy trial." Section (h)(7)(B) lists the factors which the Court must consider in making such a finding. Of most relevance here is consideration of "[w]hether the failure to grant such a continuance . . . would deny counsel for the defendant . . . the reasonable time necessary for effective preparation, taking into account the exercise of due diligence. 18 U.S.C. § 3161(h)(7)(B)(iv).
Section (h)(8) of the Act, 18 U.S.C. § 3161, was renumbered Section (h)(7) pursuant to the Judicial Administration and Technical Amendments Act of 2008, Pub.L. No. 110-406 (2008).
In U.S. v. Guzman, 754 F.2d 482 (2d Cir. 1985), the Second Circuit reversed the drug conspiracy conviction of a defendant who was tried on that charge one day after the government filed a superseding indictment that extended the period of the alleged conspiracy from two days to two years. There, the Second Circuit rejected the government's argument that the timing of the trial caused no prejudice because to properly prepare a defense to the charges in the superseding indictment "counsel was required to review a far longer period of activity with his client." Id. at 486. Even though the government had represented that no new evidence would be offered at trial, the District Court was held to have abused its discretion by "neglect[ing] to take into account the impact that the second indictment might have had on defense theories of the case." Id.
In contrast to Guzman, Judge Kaplan denied a motion for continuance based on a superseding indictment filed twenty-six days before trial in U.S. V. Montoya-Echeverria, 896 F.Supp. 148 (S.D.N.Y. 1995). There, the superseding indictment increased the period of the alleged drug conspiracy from six to nineteen weeks and alleged a second narcotics transaction in which the defendant was alleged to have been involved more directly. Id. at 151. In denying the continuance, Judge Kaplan noted that the defendant had known the government had information about the second transaction since the time the first indictment was filed and that his counsel had a total of twenty-six days to prepare for trial. Id.
In reaching his conclusion, Judge Kaplan distinguished Guzman, and found the case before him to be closer to Word v. U.S., 616 F.Supp. 695 (S.D.N.Y. 1985) aff'd 795 F.2d 1006 (2d Cir. 1986). In that case, the defendant asserted the insufficient trial preparation argument post hoc as a habeas corpus petition pursuant to Section 2255. Id. Not only did the defense counsel make no mention of inadequate preparation time in advance of trial, but the defense even brought a motion to dismiss the indictment because the government allegedly took too long to bring the case to trial. Id. at 698. In the court's analysis inWord, these factors weighed against a finding that the defendant was prejudiced by facing trial twenty-five days after the superseding indictment was filed. Id.
III. Analysis
Exercising the broad discretion afforded by the Act in light of the aforementioned decisions, I find that in this case the ends of justice served by granting the requested continuance outweigh the best interests of the public and the Defendant in a speedy trial. As a result of the Superseding Indictment and the newly revealed discovery materials, "failure to grant such a continuance . . . would deny counsel for the defendant . . . the reasonable time necessary for effective preparation" even assuming that Defendant's counsel will exercise exemplary due diligence in making such preparations. 18 U.S.C. § 3161(h)(7)(B)(iv).
First, the new allegations that both expand the duration of the alleged conspiracy and elevate Gloss' role within it will require defense counsel to not only review a significantly longer period of activity with his client, but also to investigate his client's connections to additional locations, individuals and items of physical evidence. See, Guzman, 754 F.2d at 486. The newly revealed discovery materials are circumstantial evidence of a conspiracy the scale of which is such that multi-million dollar cash transactions were not an aberration and that it was the subject of two separate investigations by separate federal law enforcement agencies. Such revelations could quite reasonably lead a defendant and his counsel to rethink their theories of defense and they should in my view be allowed sufficient time to make such informed decisions.
Second, unless the continuance is granted, defense counsel will have less than two weeks from the date the government turned over the new discovery materials to prepare for trial. This is little more than half the period that counsel in Montoya-Echeverria andWord had for their trial preparations. 896 F.Supp. at 151; 616 F.Supp. 698. Moreover, unlike the trial counsel in Word who not only never requested additional time to prepare but even moved for dismissal of the indictment based on the government's delay in bringing the case to trial, 616 F.Supp. 698, here Gloss' appointed counsel argued strenuously for a continuance based on his own assessment of the time required to prepare an adequate defense.
Third, assuming that Gloss' appointed counsel accurately represented the policies of the pretrial detention facilities where Gloss will be detained pending trial, save a continuance Gloss will spend the balance of the pretrial period in a special housing unit with a much curtailed opportunity to communicate with counsel. Further, as a consequence of the timing of the government's application to revoke his bail relative to the scheduled trial date, Gloss' ability to meaningfully participate in preparing his defense — by, for example, reviewing discovery materials produced electronically — would be significantly impaired.
Fourth and finally, the Court notes that Gloss has retained new counsel as of January 20, 2009. Although the Court "must be vigilant that requests for appointment of a new attorney on the eve of trial should not become a vehicle for achieving delay,"U.S. v. Llanes, 374 F.2d 712, 717 (2d Cir. 1967), here Gloss has retained his new counsel and there is no indication that this decision was designed to cause delay. The application for a continuance was sought by Gloss' appointed counsel before the new counsel was retained.
IV. CONCLUSION
For the foregoing reasons I find that the ends of justice served by granting the requested continuance outweigh the best interests of the public and the Defendant in a speedy trial. Accordingly, Gloss' application for a continuance of the trial date is GRANTED. The trial of this matter shall commence on Wednesday, February 11 at 12:00 P.M. and, pursuant to 18 U.S.C. § 3161(h)(7)(A), the period of this continuance shall be excluded from computation of time within which the trial must commence under the Speedy Trial Act, 18 U.S.C. § 3161 et seq.