Opinion
08 Cr. 124 (DLC).
September 25, 2009
For the United States of America: Howard Master Daniel Stein, Assistant United States Attorneys, United States Attorney's Office, Southern District of New York, New York, NY.
For the Defendant Pro Se: Joseph Jordan, Metropolitan Correctional Center, New York, NY.
Standby Counsel for the Defendant: Andrew Patel, Law Office of Andrew G. Patel, New York, NY.
OPINION ORDER
In anticipation of his sentencing, pro se defendant Joseph Jordan made numerous written applications. This Opinion describes Jordan's requests for an independent medical examination, the appointment of an investigator to help him prepare for sentence, and the adjournment of his sentencing, requests which were made on August 18, 2009 and repeatedly thereafter. As described below, Jordan was examined by several health professionals and assisted by an investigator and others while he prepared for his sentence. His requests for an adjournment of his sentence were denied, and sentence was imposed on September 16, 2009.
Background
Jordan was indicted on February 14, 2008. He proceeded to trial and was found guilty on five counts of the indictment on October 16, 2008. After a brief outline of the proceedings in this case following the verdict until August 14, 2009, when Jordan assumed the responsibility of representing himself, this Opinion will describe in greater detail Jordan's requests and submissions during the month that preceded his sentencing.
The five counts were severed from the remainder of the counts in the indictment.
Jordan's counsel for trial were relieved and a new attorney was appointed to represent him immediately following the jury's verdict. A motion for a new trial, which incorporated an extensive submission from Jordan, was denied on December 29, 2008. United States v. Jordan, 591 F. Supp. 2d 686 (S.D.N.Y. 2008). Within a few weeks, Jordan's new attorney, his fourth, requested to be relieved, and that application was granted on February 9, 2009.
At a February 5 conference, Jordan was asked whether he wanted a new lawyer and he answered "I have no position." Since February 5, Jordan's position on whether he wanted a new lawyer has shifted.
As of February 9, trial on the remaining counts in the indictment was scheduled to begin on July 6, 2009. Jordan then requested a trial date earlier than July, and when his attorney could not accommodate that request, Mr. Andrew Patel became the sixth attorney to represent Jordan in these proceedings. On March 13, the trial on the remaining counts was scheduled to take place on May 12, 2009.
On April 29, Mr. Patel (having conferred with Jordan and having received his authorization) and the Government requested that the trial on the open counts be deferred, and that Jordan first be sentenced on the five counts on which he had been convicted. The sentence was scheduled for September 10, with defense submissions due August 28, and the Government's submissions due September 4.
Since April 29, Jordan has attempted to retract that authorization.
The parties requested a September date for the sentencing, as opposed to a date in July or August.
A conference was held on July 27 to address a letter from Jordan received by Chambers on July 24, and to determine whether Jordan was in fact requesting to proceed pro se. As a result of that conference, counsel was appointed to consult with Jordan regarding that request. The attorney familiarized himself with the history of the litigation, and met twice with Jordan to discuss his decision. Following a lengthy colloquy with Jordan on August 14, the Court found that Jordan was making the decision to proceed pro se knowingly and voluntarily, and granted Jordan's request to proceed pro se. Mr. Patel was immediately appointed as standby counsel to assist Jordan.
Mr. Patel, assisted by a second lawyer who functioned as a paralegal and by a mitigation specialist, had worked hard on Jordan's behalf to prepare for the sentencing proceeding, and continued to render Jordan invaluable assistance after Jordan began to represent himself. Mr. Patel is a respected criminal defense attorney in our court, and despite Jordan's intermittent complaints about Mr. Patel, Jordan and Mr. Patel maintained an excellent working relationship throughout the period preceding the sentencing and during the sentencing proceeding itself. They consulted frequently during court proceedings, and Jordan repeatedly demonstrated his respect for and reliance on Mr. Patel during those appearances. Thus, even after deciding to proceed pro se, Jordan relied on Mr. Patel extensively and asked Mr. Patel to play a significant role in helping him to prepare for sentence. As it turned out, in the midst of the sentencing proceeding, Jordan relinquished his pro se status and requested that Mr. Patel once again become his attorney of record.
Jordan has expressed his high regard for Mr. Patel on several occasions, including in his September 2 submission in which he observed that he had not requested Mr. Patel to withdraw as his stand-by counsel.
Meanwhile, the Presentence Report ("PSR") had been provided by e-mail to Mr. Patel and to the Government on August 7, thirty-four days before the September 10 scheduled sentencing date. Mr. Patel, who had been traveling, looked at the PSR for the first time on August 11. He gave Jordan a copy of it on August 13 and another copy on August 18.
Jordan asserted that prison officials had taken the copy given to him on August 13.
Jordan submitted three pro se motions on August 18. As already noted, this Opinion will summarize the responses to those motions and to the similar applications which followed. Jordan designated his three August 18 motions as an "Ex Parte Motion for Medical Examination and Appointment of Expert" (hereinafter, "Expert Motion"), "Motion for Adjournment of Sentencing Hearing" (hereinafter, "Adjournment Motion"), and "Ex Parte Motion for Appointment of Investigator" (hereinafter, "Investigator Motion").
At a conference on August 25, Jordan submitted a motion for an extension of time to submit his sentencing submission. On that same day, Chambers received a four-page affidavit bearing the date July 29 regarding Jordan's "neurological condition." At the August 25 conference, the sentence was adjourned to September 14. The date for the parties' sentencing submissions was extended to September 1, with Jordan being given an opportunity to supplement those submissions on September 4 with a psychological evaluation from his defense expert and his mitigation specialist's report. Both parties were permitted an opportunity to respond to the other's submissions on September 8, and aFatico hearing was scheduled for September 10.
On September 1, Jordan submitted a twenty-two page affidavit and six more motions. One of those motions, labeled "Renewed Motions for Medical Expert and For Investigator," explained that Jordan continued to experience "head pains and pressure that at times incapacitate him, as well as recurring vertigo, numbness, and other symptoms." A conference held on September 2 addressed Jordan's renewed requests for further assistance to prepare for his sentence, as described in his affidavit and two of the motions. On September 4, Chambers received the sentencing submission from Jordan's mitigation specialist Kathleen O'Boyle and another eight-page submission from Jordan requesting an adjournment of his sentence.
Among other things, the six September 1 motions addressed the sentencing guidelines calculations for and the maximum terms of imprisonment on the counts of conviction, challenged passages in the PSR, and objected to documents attached to the Government's September 1 sentencing submission.
Jordan chose not to submit the report prepared by the psychiatrist retained by defense counsel.
On September 8, Chambers received an Emergency Motion for Adjournment of Sentencing. The sole basis for the adjournment request was Jordan's physical condition. Jordan explained that he was suffering "from recurring dizziness, head pain, and head pressure that causes altered perceptions and the inability to, at times, function at all. Stress makes it worse." On September 9, Chambers received an eight-page letter from Jordan that requested, inter alia, additional medical examinations and more time for his investigator to develop relevant facts. Jordan also submitted a thirty-five page "Response to Government's Sentencing Submissions," with attachments. This September 9 submission, and each of the submissions which followed were untimely but were considered by the Court in connection with Jordan's sentence.
At the Fatico hearing on September 10, Jordan submitted an "Appendix to Defendant's Sentencing Submission." The Appendix was a collection of many documents on which Jordan wished the Court to rely in imposing sentence. The following day, Chambers received a letter from standby counsel dated September 10 enclosing copies of documents introduced at the September 10 Fatico hearing, as well as a DVD labeled "7/17/09 Carol Jordan Interview," which showed footage of Mr. Patel's interview of the defendant's sister Carol Jordan.
On September 14, Chambers received a five-page submission from Jordan entitled "Omnibus Submission Re: Sentencing Proceedings." Among other things, this submission renewed the request for an investigator and an additional expert. Also on September 14, Chambers received a cover letter from standby counsel dated September 13 enclosing a DVD entitled "P.J. Ray, Juggler." Jordan was a world renowned juggler and this promotional DVD showcased his juggling skills. The next day, September 15, Chambers received a fifteen-page submission from Jordan entitled "Omnibus Motion for Orders Relevant to Sentencing Proceedings," which was dated August 27. This submission principally requested an adjournment of the sentence due to Jordan's physical problems, the need for an independent medical and neurological examination, and his desire that a psychiatrist conduct a "dangerousness assessment." Also on September 15, Mr. Patel delivered two DVDs, portions of which Jordan requested the Court to watch. These portions showed footage of Jordan interacting with his ex-wife and two twin boys in the late 1980s. Finally, Jordan submitted eight documents: a four-page "Motion for a New Trial," largely addressed to his desire for further medical tests and evaluations; a fourteen-page "Submission Regarding Outstanding Matters to be Addressed Before Sentencing," reiterating a request to adjourn the sentencing proceeding to address his medical condition, and presenting arguments concerning inter alia the sentencing guidelines and appropriate conditions of confinement during any term of incarceration; a two-page "Affidavit of Joseph Jordan Regarding Authenticity of Documents," challenging the reliability of the documents included in the appendix to the Government's sentencing submission; a five-page "Motion for Adjournment of Sentencing," based solely on his physical condition; a four-page "Motion to Dismiss Count One;" an eleven-page Affidavit and a ten-page Affidavit, both largely addressed to a description of his physical problems; and a thirteen-page Affidavit describing his physical condition, attacking the performance of his trial counsel, and denying that he authored all of the communications and internet postings which underlay his conviction at trial, among other things.
Along with this motion, Jordan submitted one page entitled "Attachment: Ex Parte," which requests funds for a "neuropsychological examination."
The evening of September 15, Mr. Patel delivered a fifty-three page "Trial Testimony Proffer" from Jordan. In this document Jordan denies having engaged in some of the conduct on which he was convicted, and also apologizes for some of his actions. Finally, on September 15, Chambers received a 293-page collection of documents with a cover page entitled "Defendant Submission of Documents Relevant to Motion for a New Trial and Motion to Expand Record."
On September 16, Jordan was sentenced. Later that day, on the application of the Government, the open counts in the indictment were dismissed. The judgment of conviction was filed on September 17.
Discussion
1. Expert Motion[fn11]
There were a score or so of conferences, several of them lasting hours, after the jury returned its verdict against Jordan on October 16, 2008.
While Jordan's submission refers to his ability to testify at sentence, the reference was construed broadly to encompass his ability to speak during the sentencing proceeding.
To place Jordan's complaints regarding his medical condition in context, it is helpful to summarize the medical care he has received since his incarceration in a federal correctional facility, his complaints regarding that care, and his descriptions of his ailments. Jordan entered federal custody in March 2008. Despite being represented by counsel, Jordan was a frequent correspondent with the Court from the beginning of this case. In none of the eight letters received between March 7 and September 18, 2008, however, did Jordan complain of his medical care or describe any medical problem. In a letter of September 20, 2008 (received on October 1), Jordan referred to his physical condition for the first time while arguing that any opinion by an expert or his counsel that he was mentally incompetent was unreliable. He explained that he may appear unresponsive or disinterested at times, not because of mental illness, but because he is having headaches and can't sleep. He did not complain about any lack of medical care.
Jordan ignored oral and written orders instructing him not to send letters to the Court but to communicate through his counsel so long as he was represented by counsel.
Two letters sent during the October 2008 trial to complain about his attorneys also described his physical condition. In a letter dated October 10, which was marked Court Exhibit 6, Jordan reported that he felt stressed by meetings with his counsel, was sleeping no more than two to three hours a night because he was obsessed by the desire to gain his counsel's trust, and was unable to pay attention to court proceedings. In a letter dated October 14 and marked Court Exhibit 8, Jordan reported that he suffered from extreme headaches, felt sick and dizzy in the courtroom, had difficulty concentrating on the court proceedings, and was "going crazy." He attributed these symptoms principally to the stress of not being able to communicate adequately with counsel.
Jordan's medical records from the Metropolitan Correctional Center ("MCC") reflect that on October 22, approximately six days after the jury found him guilty, Jordan was a "no show" for a sick call. At a November 3 medical consultation in the MCC, Jordan reported that when he has pain in his neck
I get headache and the room spins. When I move my head forward, I feel pressure in my head and the room spins. I can not also lie down on my back because the room spins. . . . I had neck injury in college — playing football had head on collision. I get numbness on my lower lip and on the left 4th and 5th finger. Only get the numbness when the pain is there. When I have dizziness and I walk I have sensation of floor bouncing. . . . Pain goes away when he straightens himself up.
Jordan never attended college.
A week later, Jordan was again a "no show" for a November 10 sick call.
Neither Jordan's December 5, 2008 twenty-three page pro se submission in support of a new trial nor his January 13, 2009 101-page long pro se submission in support of reconsideration of the denial of his new trial motion made any reference to his physical condition. Of particular importance, Jordan did not attribute his decision not to take the stand and testify in his own defense at trial to his physical condition. He asserted that his decision was due to his attorneys' failure to prepare him to testify and to Jordan's concern that his attorneys were so unprepared to conduct his direct examination that they might reveal a precluded conviction during that examination.
In none of the four letters Jordan sent to the Court from February 5 to March 15, 2009 did Jordan discuss his medical condition. At a conference on February 5, however, Jordan's attorney reported that Jordan was complaining of medical problems with his spine and neck, and asked the Court to issue an order or request to the BOP and MCC to ensure that Jordan received medical attention for these complaints. The Court asked the Government to confirm with the MCC that Jordan was being provided adequate medical care. In a letter of March 5, the Government explained that MCC medical staff had evaluated Jordan on February 25, 2009, and that the MCC has "provided appropriate medical care."
Indeed, on February 13, a radiograph of Jordan's cervical spine performed by a board certified radiologist at the Chinatown Medical Imaging Center showed degenerative change and a muscle spasm. BOP medical files from a February 25 evaluation report that Jordan "basically" has "the same problem like before when he saw me. The room spins and bounce[s], have dizziness. He still has feeling [of] numbness of the lower lip area and his neck pains and numbness and tingling sensation on his left 4th and 5th fingers."
On April 9, Dr. Xiao-ke Gao, a diplomate of the American Board of Psychiatry and Neurology and Assistant Professor of Clinical Psychology at New York University School of Medicine, saw Jordan during a consultation arranged by the BOP. During that visit, Jordan complained to Dr. Gao that he had
intermittent neck pain for many years. Recently, he has pain of the lower back and neck. He also complains of intermittent numbness of the lower lip, fourth and fifth fingers of the left hand. He reports that, nine-years ago after the neck pain, he had associated dizziness as a spinning sensation that went on for six months. He had a MRI of the brain and it was normal. He sometimes wakes up and feels dizzy.
Jordan made no other complaints to Dr. Gao at that time. After examining Jordan, Dr. Gao's clinical impression was that Jordan had cervical radiculopathy and vertigo. She concluded that tests should be done, that multiple sclerosis should be ruled out, and that a differential diagnosis was anxiety.
On April 23, an MRI of Jordan's brain without contrast was performed. The impression from the examination was that there were multiple "scattered tiny foci of FLAIR of hyperintensity . . . of uncertain clinical significance. These do not have the typical MR appearance of demyelinating disease." The report adds that a clinical correlation is advised, and that if further evaluation is necessary, that a contrast enhanced scan could be obtained. That same day, an MRI of the cervical spine was performed. Again, there was no evidence of demyelinating disease. The principal impression was of degenerative disc disease with multiple bulges. On May 28, an EMG was performed to evaluate possible carpal tunnel syndrome and cervical radiculopathy. The results were interpreted as most consistent with carpal tunnel syndrome.
Demyelinating disease is commonly known as multiple sclerosis.
Although he had just been seen by Dr. Gao on April 9, Jordan complained in a letter to the Court of April 10 (received on April 20), about his medical condition and lack of treatment. Roughly half of his letters to the Court following that date contain similar complaints regarding head pain, dizziness, and a cervical spine problem.
On July 14, Jordan asked the MCC for Dr. Gao's name and complete copies of his medical records of his MRI since he "may be released soon. I have inflammation of my brain and I will need to follow up." On July 27, seven pages reflecting the MRI results from the April 9 and 23 examinations were given to Jordan.
In his August 18 Expert Motion, Jordan asserted for the first time that his medical problems influenced his decisions not to testify at the October 2008 trial, and to request in July 2009 that he be permitted to proceed pro se. The record belies both of these assertions. As described above, Jordan's new trial motion made no reference to any medical problem in its discussion of his decision not to testify at trial. Moreover, Jordan was given an opportunity to consult with independent counsel during the trial regarding the decision to testify, and that attorney made no reference to any complaint by Jordan regarding his physical condition when he reported to the Court that that consultation had taken place and that Jordan understood his legal options. Similarly, Jordan's July 24 letter requesting either new counsel or to proceed pro se, made no reference to Mr. Patel's failure tc seek medical treatment for him.
Jordan's July 24 letter stated his reasons for his requests to obtain new counsel or proceed pro se as follows:
I am dissatisfied with [Mr. Patel's] efforts regarding trial preparation. . . . Present counsel has not reviewed or discussed with me any documents related to the untried counts or to sentencing on the untried counts. Moreover, he has neglected to keep certain promises related to my efforts to prepare my appeal and other post-trial submissions.
Dr. Gao examined Jordan a second time on August 20. Despite that consultation, on September 1 Jordan asked the Court to appoint a second neurologist to examine him. Jordan explained that he continued to experience head pains and pressure "that at times incapacitate him" as well as "recurring vertigo, numbness, and other symptoms." At a September 2 conference, the Government submitted a one-page report from Dr. Gao dated September 2. This report, based on Dr. Gao's consultations with Jordan on April 9 and August 20 noted that Jordan
presented with intermittent dizziness, intermittent neck pain, lower back pain, tingling and numbness of lower lip, fourth and fifth fingers of his left hand for many years. He never complained of head pressure, loss of consciousness, and blackouts. The initial impression was to rule out Multiple Sclerosis. A MRI report obtained on 4/23/09 revealed multiple scattered white matter lesions.
Dr. Gao made the following diagnosis: "1. Cervical radiculopathy 2. Carpal Tunnel Syndrome 3. Rule out Multiple sclerosis," and suggested a lumbar puncture. Dr. Gao reported that "[d]uring the interview, [Jordan] had fair to good cognitive function including, memory, comprehension, and communication skills. His complaints and current working diagnosis will not affect his cognitive function and court testimony."
The Court noted at the September 2 conference that Jordan's current medical record did not suggest any need for an additional medical evaluation before sentencing, but granted Jordan's request that court funds pay for an examination by the physician his family had located — Dr. Head — so long as Dr. Head could provide a report on Jordan's condition by September 11. When Mr. Patel learned that Dr. Head was in fact traveling and unable to examine Jordan, Mr. Patel arranged for a diplomate of the American Board of Psychiatry and Neurology and an associate clinical professor of neurology at Mount Sinai School of Medicine, Dr. Adam Bender, to examine Jordan.
Dr. Bender examined Jordan on September 8 and prepared an eight-page report of his evaluation. Dr. Bender's report, which Jordan submitted at the September 10 Fatico hearing, concludes that Jordan "has subjective complaints of intermittent `pressure sensations' in his head, shooting pains in the side of his head, sense that the floor is `wobbling or spinning,' numbness and pins and needles in his right leg, shoulder, left 4th and 5th fingers." Dr. Bender noted that Jordan had a past history of head and neck injuries for which Jordan should undergo follow-up tests, a history of vertigo, and a questionable history of alcohol abuse. With respect to the brain MRI, Dr. Bender said Jordan "needs a repeat MRI with contrast" and "he may also need a lumbar puncture, as suggested by Dr. Gao, to rule out the unlikely but possible diagnosis of multiple sclerosis."
Dr. Bender found no significant problems with Jordan's mental abilities. He noted that Jordan "is able to read and had read `many law books' in preparation for his own defense" and displayed "no abnormalities in cognition." Dr. Bender's report concluded "I concur with Dr. Gao that [Jordan's] complaints, at present, remain subjective in nature and that there is no objective evidence on his present examination of any neurological problem that would, at this time, interfere with his ability to give court testimony at trial."
Consistent with Dr. Bender's conclusion, medical personnel have consistently found that Jordan is not incapacitated by any psychological condition. At a May 5, 2009 psychological evaluation with MCC Drug Abuse Coordinator Dr. Cristina Liberati, Jordan "denied psychological problems." In reports of March 26 and May 21, 2009, MCC psychologist Elissa Miller noted "[i]nmate is currently stable and in no need of mental health services." During his presentence interview with the probation officer, Jordan reported no mental health problems and disclaimed any history of psychiatric or psychological treatment. Most significantly, the September 1, 2009 twelvepage psychological evaluation by forensic psychologist Dr. N.G. Berrill, prepared at the request of the Probation Department, concluded that there was "no evidence" based on a psychological examination of Jordan "that the integrity of Mr. Jordan's cognitive functioning is compromised." Despite his September 8 examination by Dr. Bender and August 13 evaluation by Dr. Berrill, in a letter dated September 9, entitled "Joseph Jordan's Notice to Court Counsel Re: Matters Relevant to Sentencing," Jordan requested another examination, this time by a "doctor also trained in psychiatry."
Jordan's counsel in 2008 and again in 2009 obtained psychological evaluations of Jordan, but in each instance chose not to submit them to the Court. The 2009 evaluation has been made part of the record in this case, but placed under seal and has not been reviewed by the Court.
The September 9 submission contained a critique of Dr. Gao's and Dr. Berrill's reports. Jordan explained in the submission received on September 15 that he wanted a psychiatrist to conduct a "dangerousness assessment." As Mr. Patel explained at sentencing, however, Jordan had cooperated with the psychological evaluation by Dr. Berrill on the explicit condition that Dr. Berrill not conduct an assessment of Jordan's "future dangerousness."
This history, the records of the Jordan's medical care while in the custody of the BOP, Jordan's correspondence with the Court, and this Court's observations of Jordan during the many court appearances held over the past year or so all indicate that Jordan is highly intelligent, articulate, and fully competent to participate in his criminal proceedings. Although Jordan is understandably concerned about the neck pain from which he has suffered for many years, and about the recent reports of "white matter lesions" and the possibility, however remote, that he might suffer from multiple sclerosis, none of these conditions has interfered with his ability to understand the proceedings, make decisions, or communicate with the Court. Nothing in the record suggested any medical reason to delay sentence. There is no reason to find that the BOP will be unable to address any of the medical problems that Jordan is experiencing during his incarceration.
2. Adjournment Motion
In his August 18 Adjournment Motion and again in letters received on September 4, 10, 14 and 15, Jordan identified tasks that he wanted to complete before being sentenced and argued that an adjournment of the sentence was necessary to comply with the time periods set forth in Rule 32, Fed.R.Crim.P., for distribution of the draft and final PSR. There was no violation of Rule 32, and Jordan had ample time and resources to prepare for his sentence.
The principal due process concerns at sentence are:
(1) that a defendant not be sentenced based on materially false information; (2) that a defendant be given notice and an opportunity to contest the facts upon which the sentencing authority relies in imposing the sentence; and (3) that a defendant not be sentenced based on a material misapprehension of fact.Torres v. United States, 140 F.3d 392, 404 (2d Cir. 1998) (citation omitted); see also Hili v. Sciarrotta, 140 F.3d 210, 215 (2d Cir. 1998). Federal Rule of Criminal Procedure 32 assures the accuracy of a PSR by protecting a defendant's opportunity to contest the information therein. Rule 32(e)(2) provides that the "probation officer must give the presentence report to the defendant, the defendant's attorney, and an attorney for the government at least 35 days before sentencing unless the defendant waives this minimum period." Fed.R.Crim.P. 32(e)(2). "Within 14 days after receiving the presentence report, the parties must state in writing any objections." Fed.R.Crim.P. 32(f)(1). The final PSR must be submitted to the court and to the parties at least seven days before sentencing. Fed.R.Crim.P. 32(g).
As the Second Circuit has observed, "Rule 32 in general . . . is intended to provide efficient and focused, adversarial resolution of the legal and factual issues to ensure that a defendant is not sentenced on the basis of materially untrue statements or misinformation." United States v. Cole, 496 F.3d 188, 193 (2d Cir. 2007) (citation omitted); United States v. Sisti, 91 F.3d 305, 310 (2d Cir. 1996) (discussing Rule 32's goal of ensuring accurate sentencing information). Besides ensuring the accuracy of information contained in the PSR, Rule 32's timeframes discourage any delay in sentencing. United States v. Ray, ___ F.3d ____, 2009 WL 2616247, *13 (2d Cir. Aug. 27, 2009) ("The Federal Rules of Criminal Procedure . . . protect criminal defendants from unreasonable delays in sentencing").
Jordan's rights under Rule 32 have not been infringed. He had a full opportunity to prepare for his sentence. Having been given notice of the sentencing date in April 2009, Jordan had more than four months to prepare for sentence. As Jordan was contemplating whether to proceed pro se, he was repeatedly advised that the sentencing date was unlikely to change and was able to weigh that fact in his calculus.
Besides the general policies against a delay in sentencing, particularly of incarcerated defendants, there were reasons particular to this case why the sentencing date should not shift without good and sufficient cause. While Jordan has alternated between wanting to be sentenced before proceeding to trial on the open counts, and wanting to adjourn his sentence, a recurring theme in his complaints since the Spring of 2009 has been the delay in his criminal proceedings. His request to be sentenced before being tried on the open counts, of course, led to a delay in that trial, and ultimately to the dismissal of those counts. That request was a reasonable one in the circumstances and was granted. That said, he is not entitled to whipsaw these proceedings by requesting adjournments and complaining of delays. Moreover, while the approach of a sentencing date is always a time of stress for a defendant, in Jordan's case that stress was acute, as his stream of submissions and requests reflected. Provided that care was taken so that the information on which the sentence was based was reliable and so that the defendant had a full opportunity to present his sentencing arguments, the fair and efficient administration of justice weighed strongly in favor of hewing as closely as possible to the schedule for sentence set on April 29.
Judges in this district have been encouraged to avoid adjourning sentencing dates of incarcerated prisoners because of the overcrowding in the MCC and MDC.
All of Rule 32's deadlines were satisfied in this case. The draft PSR was sent to Mr. Patel on August 7, more than thirty-five days before the September 16 sentence date. Jordan asserted in his motion that he should be given 14 days from receipt of the PSR to object to it. On August 18, Jordan was advised that his written objections should be submitted by August 25, fourteen days after Mr. Patel first viewed the PSR. On August 25, Jordan submitted a 67-page handwritten set of detailed, paragraph by paragraph, objections to the PSR. As this document demonstrates, Jordan had sufficient time to comprehend and comment on the PSR. Finally, the final PSR was hand-delivered to Jordan on September 3. To ensure that Rule 32's seven-day period of review was met, on September 2 the Court moved the sentence to September 16, 8 days (excluding two weekends and a holiday) from September 3. See Fed.R.Crim.P. 45(a)(2) (excluding "intermediate Saturdays, Sundays, and legal holidays when the period is less than 11 days").
In addition to requests for additional medical examinations, Jordan made several other requests in his Adjournment Motion. First, Jordan wanted an unredacted set of the documents concerning his 1992 conviction in Massachusetts following trial for conspiring to murder his sister and related charges. As described on the record at a conference on August 18, Jordan had access to the entire set of Massachusetts documents given to his counsel. After the Government explained the reasons for any redactions and after Jordan learned that he had access to all of the materials provided to Mr. Patel, Jordan did not renew this particular request.
Jordan was tried and convicted of kidnapping, assault with a dangerous weapon, conspiracy to commit murder, and assault and battery. He served approximately twelve years in Massachusetts state prison for these crimes.
At the request of the Massachusetts prosecutors, some of the documents were redacted by the United States Attorney's Office before being provided to the defendant and his attorney. Jordan principally expressed interest in having access to his motion for a new trial in that case, and has not suggested that this document had been redacted. In a December 3, 1998 opinion denying Jordan's motion for a new trial, the Honorable Vieri Volterra, Justice of the Superior Court of Massachusetts, found that many of the documents submitted with Jordan's motion for a new trial appeared "to be blatant forgeries."
Jordan also requested an opportunity to speak to his mitigation specialist and access to documents in the possession of Mr. Patel. As Mr, Patel explained at the August 25 conference, those requests were addressed. With Jordan's approval, the eleven-page report of the mitigation specialist retained by Mr. Patel was submitted to the Court on September 4 to argue for leniency in sentencing.
Finally, Jordan requested access to prior statements of any witnesses who would testify against him at the sentence. As explained to Jordan on August 25, the Government provided him with such statements for witnesses it called at the Fatico hearing. The Court also explained that the law did not require that such statements be provided to him for any victims who chose to speak at the sentencing proceeding. As it turned out, only one victim, Simone Thenault, spoke at the sentencing proceeding. Jordan had already been provided with all of her prior statements during his October 2008 trial, and he did not complain that he was hampered in any way in his ability to respond to her remarks.
Jordan requested "any and all letters and statements, written or otherwise recorded, of any person who may testify at the sentencing hearing or whose words may be otherwise presented." This was construed as a request for all previous statements the Government has in its possession made by any victim who might speak at Jordan's sentence.
Statements were hand-delivered to Jordan on the morning of September 9, a day in advance of the Fatico hearing. Jordan made no complaint at the hearing that he had insufficient time to prepare his cross-examination of the Government witnesses, and those examinations demonstrated familiarity with the documents.
Cf. 18 U.S.C. § 3500 (discussing disclosure obligation only with respect to witnesses who testify at trial); United States v. Jackson, 345 F.3d 59, 76 (2d Cir. 2003) (noting that § 3500 "mandates disclosure only after said witness has testified on direct examination in the trial of the case") (citation omitted).Compare Fed.R.Crim.P. 26.2 32(i)(2) (requiring disclosure of statements of witnesses who testify at trial or sentence) with Fed.R.Crim.P. 32(i)(4)(B) (allowing victims the opportunity to be heard, without requiring disclosure of statements).
3. Investigator Motion
In his third motion of August 18, Jordan requested the appointment of an investigator. This motion was submitted ex parte, and because it named individuals that the defendant wanted an investigator to interview before sentence, it was filed under seal and not shown to the Government. In an ex parte proceeding on the record on August 25, Jordan proffered what he expected each of these witnesses to be able to say on his behalf. Most of these witnesses were described as persons who could comment on his treatment of his former wife and children. Four were described as witnesses who spent time with the defendant and his principal victim in this case, Simone Thenault. Others were described as women the defendant had dated or with whom he had worked and had not abused. As became clear during the ex parte proceeding on August 25, Mr. Patel, a relative of Jordan's, and his mitigation expert had been working for some considerable time to contact people who might be able to provide letters or information in support of Jordan at sentence. Jordan was instructed to continue to rely on these sources of assistance.
Following the imposition of sentence, the motion and transcript were unsealed.
In his affidavit in support of his September 1 motions, Jordan renewed his request for an investigator, and identified an investigator who he wished to serve in that role. This affidavit added to the list of tasks he wanted an investigator to perform. As described in the September 1 submission, the persons Jordan wished to contact in connection with his sentence fell into roughly four categories. Some are family members and friends, and Jordan was reminded during the September 2 conference that he could simply ask these persons to send letters to the Court on his behalf. Several family members did submit letters on Jordan's behalf at the sentencing. A second category consisted of persons Jordan knew but with whom he had lost touch and whose email addresses he believed could be retrieved from his Yahoo! account. As Mr. Patel reported in his letter of September 14, no helpful information was gleaned from a review of that account information. A third category was victims of Jordan's various crimes. The Court requested the Government to inquire of those individuals whether they would be willing to speak to either Mr. Patel or Ms. Kathleen O'Boyle, Jordan's mitigation specialist.
Although Jordan had served the September 1 submissions on the Government, the Court discussed some of Jordan's requests with him and Mr. Patel ex parte during the September 2 conference.
There is absolutely no reason to believe that anyone in this category would have anything to say that could have inured to Jordan's benefit. His high school girlfriend, ex-wife, Simone Thenault and members of Ms. Thenault's family all submitted letters to the Court describing Jordan's abuse and the impact of that abuse on their lives.
The final category of persons consisted of individuals who Jordan speculated might have something relevant to add. For example, he hoped that two bartenders whose first names he remembered and who had worked at the Café Noir in the summer of 2007 could be located and might remember observing his encounter on a night in June 2007 with the law firm associate whom he expected to testify at the Fatico hearing about his harassment of her and her law firm in the weeks that followed that June 2007 meeting. With the Court's approval, Mr. Patel retained investigator Aubrey Weeks. Following the September 2 conference, Jordan never identified any individual who could provide helpful information to him but who he needed more time or assistance to contact.
As it turned out, the law firm associate did not testify at the Fatico hearing. Instead, the Government relied on documents recording Jordan's communications with her to establish the nature and pattern of his harassment of her after she rebuffed Jordan's overtures to her.
The Court did not authorize the investigator to pursue every task identified by Jordan. For example, it refused to authorize an investigator to go to a restaurant named "Peep," which Jordan had frequented two years earlier, show the waitresses and staff Jordan's photograph, and try to find someone who might have worked there two years earlier and who might remember whether Jordan was there with the law firm associate in mid-June of 2007.
This Opinion has summarized the Court's response to Jordan's most prominent pro se requests in the run-up to his sentencing. It is intended to assist in deciphering the merits of any future applications addressed to these issues, since Jordan's positions are chameleon-like. He repeatedly attempts to rewrite the record to suit his needs: he freely fabricates documents, and he continued that practice while in custody, sending fabricated documents both to his victims in an effort to dissuade them from testifying and to this Court in an effort to win a new trial; his explanations of his past decisions shift constantly, with newly minted reasons given for his decisions not to testify at trial, to keep or change attorneys, to proceed to sentence before trial on the remaining counts in the indictment, and to represent himself, among other examples; and his arguments about being incapacitated by medical problems cropped up opportunistically and were largely unsupported by the record. In sum, Jordan's version of past events has not proven trustworthy.
CONCLUSION
Jordan's August 18 and subsequent requests for an independent medical examination, the appointment of an investigator to help him prepare for sentence, and the adjournment of his sentencing were granted or denied as described in this Opinion and in the conferences addressed to these requests.
SO ORDERED: