United States District Court, E.D. Tennessee, Knoxville
MEMORANDUM AND ORDER
C. Poplin United States Magistrate Judge.
case is before the undersigned on Defendant Cynthia
Clemons’s Motion to Continue Trial Date [Doc. 592],
filed on September 9, 2019, and referred [Doc. 605] to the
undersigned on September 12, 2019. See 28 U.S.C. §
636(b). Defendant Clemons also filed a sealed memorandum
[Doc. 606, SEALED] in support of her motion to continue the
October 1, 2019 trial date. On September 11, 2019, the
undersigned conducted an ex parte telephone conference with
counsel for Defendant Clemons to explore the matters raised
in the sealed memorandum and their effect on counsel’s
ability to prepare for trial. On September 12, 2019, the
Government filed a response [Doc. 607] opposing a trial
continuance. The parties appeared for a hearing on the motion
to continue on September 20, 2019. Assistant United States
Attorney Tracy L. Stone appeared on behalf of the Government.
Attorneys Charles C. Burks, Jr., and Loretta G. Cravens
represented Defendant Sylvia Hofstetter, who was also
present. Attorneys Christopher J. Oldham and Mark E. Brown
represented Defendant Courtney Newman. Attorneys Randall E.
Reagan and M. Jeffrey Whitt represented Defendant Cynthia
Clemons, who was also present. Attorney Christopher Rodgers
represented Defendant Holli Womack.
beginning of the hearing, the Court noted generally that
Attorney M. Jeffrey Whitt was appointed [Doc. 620] to
represent Defendant Clemons on September 18, 2019, in order
to assist Mr. Reagan, in light of Co-counsel Cullen
Wojcik’s health issues. Mr. Reagan stated that, while
he appreciated the appointment of Mr. Whitt, he was still
requesting a trial continuance, because it is not possible
for Mr. Whitt or any attorney to familiarize himself with the
case and be prepared for trial in the short time before trial
begins. Mr. Reagan stated that Mr. Wojcik’s role was to
be responsible for the expert witnesses, while he (Mr.
Reagan) has been preparing for all other witnesses. He noted
that Mr. Wojcik’s health was such that he was not able
to assist with pretrial preparations and would not likely be
available for some time after trial begins. Mr. Reagan said
that this is a complex and extremely difficult case and that
Mr. Whitt needed time to prepare in order for Defendant
Clemons to have the effective assistance of counsel.
Whitt said following his appointment, he has met with Mr.
Reagan multiple times, met with AUSA Stone, met with Mr.
Burks, and talked with Mr. Wojcik, in order to assess his
role and what he must do to prepare. He said that Mr. Wojcik
would not be able to help him, other than to give him access
to certain materials and possibly to confer with him by
telephone but that Mr. Wojcik’s availability in the
near future was minimal, due to his health. Mr. Whitt said
that he needed to read and review a huge amount of materials:
48 CD’s of one and one-half hours long each, over 100
patient files,  six gigabytes of Jencks materials, and
nearly 700 filings in this case. He said that he also needed
to meet with the defense experts. Mr. Whitt said that
although he has largely cleared his schedule for this case,
the review of these materials and pretrial preparations will
take five weeks. Mr. Whitt related that the earliest that he
could be prepared for trial, assuming the experts were
available to meet with him, is November 1, 2019. Mr. Whitt
asserted that a trial continuance of that length is necessary
to allow him to do his best for Defendant Clemons.
Reagan stated that although the Defendants’ disclosure
of patient files that they intend to use in their
cases-in-chief was due today, they would need an extension of
that deadline, because Mr. Wojcik had not been able to work
on that. Mr. Burks also requested an extension of the defense
patient-file disclosure deadline in order to give Mr. Whitt
time to review the materials in this case.
Stone related that the Government had disclosed 225 patient
files that it would potentially use in relation to its
experts in its case-in-chief. AUSA Stone informed the Court
that he had met with Mr. Whitt and had disclosed that the
Government would only call two of its four medical experts,
Dr. Blake and Dr. Carter.
Burks stated that he adopts the motion to continue on behalf
of Defendant Hofstetter. He noted that the defense of this
case was a joint effort among defense counsel, and that Mr.
Wojcik was planning to handle the examination of the medical
experts for the Defendants. He confirmed that he had also met
with Mr. Whitt. He stated that Mr. Whitt’s review could
not be limited to matters relating to experts. Mr. Burks
opined that the defense of this case could not be neatly
partitioned into experts and non-experts, because everything
in the case is intertwined. He said that Defendant Hofstetter
waived her right to proceed to trial on October 1, 2019. He
maintained that Mr. Whitt’s suggestion that he could be
ready by November 1 was a very aggressive estimate.
Oldham agreed that a trial continuance is necessary given the
circumstances. He said Defendant Newman does not oppose the
requested timeframe. Mr. Rodgers stated that Defendant Womack
takes no position on the motion. He noted that his client
does not want the trial to be continued again.
Stone stated that the Government wants the Defendants to have
the best defense possible. He said that in light of the
unforeseen and unfortunate circumstances requiring the
appointment of Mr. Whitt, the Government asks only that the
Court set the earliest trial date possible. After a brief
recess, AUSA Stone said that the Government would not be
calling its experts before the last third of its case and
probably not before the last quarter of its case. He also
stated that he was optimistic that the parties would be able
to stipulate to the authenticity and chain of custody of the
patient files. AUSA Stone stated that the parties were
pursuing other stipulations as well in order to make the
trial as short as possible.
Reagan said that even though the Government had narrowed its
medical experts from four to two, the Government would still
call one or more toxicologists and three forensic
pathologists. He observed that Mr. Whitt still has numerous
expert witnesses for which to be prepared. Mr. Reagan argued
that any concerns about breaking up the proof by taking time
off during the holidays could be alleviated by continuing the
trial to January 2020. He stated that this would also give
Mr. Whitt additional time to prepare.
Stone expressed concern about continuing the trial to January
2020, noting that his co-counsel had trials in other
districts, after the first of the year. He said that if the
trial was moved to a time that his co-counsel was not longer
able to participate, the Government would be in a similar
position to Mr. Reagan and in need of more time to bring new
co-counsel up to speed.
Court finds Defendant Clemons’s motion to continue the
trial, which was joined by Defendant Hofstetter, to be
well-taken and that the ends of justice served by granting a
continuance outweigh the interest of the Defendants and the
public in a speedy trial. 18 U.S.C. § 3161(h)(7)(A). The
Court observes that Defendant Newman does not oppose the
motion and that Defendant Womack takes no position on the
motion. Although the Government filed a response in
opposition to a trial continuance, it acknowledged that the
present circumstances relating to Mr. Wojcik’s health
necessitate additional time for new counsel to prepare. The
Court finds a short continuance of three weeks is appropriate
in this case.
Court begins by observing that it declared [Doc. 44] this
case to be complex for speedy trial purposes on May 14, 2015.
At that time, the Court found it to be “unreasonable to
expect adequate preparation for pretrial proceedings or for
the trial itself within the time limits established by”
the Speedy Trial Act, due to the nature of the prosecution
and the No. of defendants involved in this and related cases.
18 U.S.C. § 3161(h)(7)(B)(ii). The Court finds that this
case has only increased in complexity with the passage of
time. The Government has brought four Superseding Indictments
[Docs. 70, 224, 278, and 320] and has alleged a RICO
conspiracy occurring in Tennessee and Florida, in addition to
two drug conspiracies, substantive drug trafficking charges,
and money laundering charges. Many of these charges contain
allegations of penalty enhancement due to the alleged
overdose deaths of patients of the pain clinics at issue in
this case. Thus, the Court continues to find the case to be
complex for speedy trial purposes.
the Court finds that a short continuance is necessary to
permit newly appointed counsel for Defendant Clemons to
prepare for trial. Defendant Clemons has been represented by
Mr. Reagan [Doc. 77] since her initial appearance on October
11, 2016. On January 7, 2019, the undersigned appointed
[Docs. 399, 401] Attorney Wojcik as co-counsel for Defendant
Clemons, after finding this case to be extremely difficult
and the appointment of co-counsel to be both necessary and in
the interest of justice. Mr. Wojcik’s health now
prevents him from participating in trial preparations or the
trial both currently and for the near future. In an attempt
to respond to this situation expeditiously, the Court
appointed Mr. Whitt as a third attorney for Ms. Clemons. Mr.
Whitt states that he needs at least five weeks to familiarize
himself with the case and to prepare for trial. Mr. Reagan
and the defense team have represented that Mr. Whitt’s
role, like Mr. Wojcik’s intended role, will primarily
be to cross-examine the Government’s medical and
scientific experts and to present the defense experts. The
Court finds that a continuance to October 21, 2019, will give
Mr. Whitt five weeks to prepare before any testimony is
anticipated to begin in this case. Moreover, Mr. Whitt may have
an additional ...