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United States v. Hofstetter

United States District Court, E.D. Tennessee

October 11, 2019




         Defendant Cynthia Clemons has moved to continue trial [Doc. 660], and defendants Courtney Newman and Sylvia Hofstetter have joined her motion [Docs. 663, 665]. The government opposes a continuance [Doc. 662]. Defendants have failed to provide a sufficient basis for granting an ends-of-justice continuance in this case, and denying their motion will not result in a constitutional violation. The motion to continue [Doc. 660] is therefore DENIED.

         I. Background[1]

         The trial date in this case has been continued seven (7) times. Magistrate Judge C. Clifford Shirley originally continued the trial date from May 19, 2015, to June 14, 2016 [Doc. 44], on defendant Hofstetter's motion [Doc. 36]. The trial was then continued to November 8, 2016 [Doc. 61], on defendant Hofstetter's oral motion to continue. After defendants Newman and Clemons entered the case, they moved separately to continue trial [Docs. 91, 95], and Judge Shirley granted their motions, continuing trial to September 12, 2017 [Doc. 100]. In July of 2017, former co-defendant Clyde Christopher Tipton orally moved to continue the September 12 trial date, joined by most of the other defendants in the case at that time, and Judge Shirley granted the motion over defendant Hofstetter's objection [Doc. 251 p. 1-2]. The new October 16, 2018 trial date [Doc. 251] was later continued to June 3, 2019 [Doc. 364], on defendant Newman's motion to continue [Doc. 347], which defendants Hofstetter [Doc. 349] and Clemons [Doc. 358] supported. Magistrate Judge Debra C. Poplin then continued the trial to October 1, 2019 [Doc. 486], on defendant Hofstetter's motion to continue [Doc. 453], joined by defendant Clemons and unopposed by defendants Newman and Womack [Id. at p. 2].

         More recently, Judge Poplin granted defendant Clemons's previous motion to continue on September 20, 2019, providing almost three (3) additional weeks, and five (5) weeks total, for defendant Clemons's newly appointed additional counsel to prepare for trial [Doc. 629]. The trial is currently scheduled to begin Monday, October 21, 2019.

         The magistrate judge fully discussed the circumstances of that continuance in her order [Doc. 629], which the Court incorporates by reference. However, the Court highlights the following particularly relevant facts from that order: at the hearing on the motion to continue, the magistrate judge noted that attorney M. Jeffrey Whitt was appointed [Doc. 620] to assist Randall Reagan in representing defendant Clemons due to the then-indisposition of Mr. Reagan's co-counsel Cullen Wojcik; Mr. Reagan stated that Mr. Wojcik's role was to prepare for the expert witnesses while Mr. Reagan prepared for all other witnesses; Mr. Whitt related that, after meeting with Mr. Reagan multiple times, meeting with Assistant United States Attorney Tracy Stone and Charles Burks, one of defendant Hofstetter's attorneys, and speaking with Mr. Wojcik, he believed the earliest he could be prepared for trial, assuming the availability of experts to meet with him, would be November 1, 2019, approximately six (6) weeks after his appointment; AUSA Stone stated that the government had disclosed 225 patient files it could conceivably use in relation to its experts' testimony but that it would only call two (2) of its four (4) medical experts, Dr. Blake and Dr. Carter; and AUSA Stone also stated the government would not call its experts before the last third of its case and probably not before the last quarter of its case [Doc. 629 p. 1-4]. Just a week earlier, at a September 10th hearing in this case, the government estimated its case could last eight (8) to ten (10) weeks.

         In granting defendant Clemons's motion to continue, Judge Poplin noted that the new trial date, October 21, 2019, would give Mr. Whitt five (5) weeks to prepare before testimony began and an additional four (4) to six (6) weeks, after the start of trial, before the government presented its experts [Doc. 629 p. 6]. At the October 9, 2019 hearing, the government stated that it expects its case-in-chief to last five (5) to seven (7) weeks, based on its offered reductions in witnesses and proof and assuming the parties agree upon the government's desired stipulations. The Court has advised the parties that trial will not take place October 24 and 25, November 1, November 11 (Veterans Day), the week of Thanksgiving (November 25-29), and the weeks of December 23-27 and December 30-January 3. Additionally, the Court has advised the parties that it anticipates trial will not be held on certain additional days to allow the Court to attend to other matters.

         The Court now has before it defendant Clemons's Motion to Continue Trial Date [Doc. 660], which defendants Newman and Hofstetter have joined [Docs. 663, 665]. Defendant Clemons asks for a continuance until January 2020 considering the recent nature of Mr. Whitt's appointment as her attorney, the complexity of the issues, the number of charts Mr. Whitt believes he must review to prepare for trial, and the need to send additional charts to a defense expert [Doc. 660 p. 1, 4]. The government opposes the motion, emphasizing, among other things, the lengthy history of continuing this trial and Mr. Whitt's limited role [Doc. 662].

         Since the trial was continued to October 21, the government has moved to dismiss three (3) counts of the Fourth Superseding Indictment and to strike certain enhancement notices [Doc. 635]. Defendants stated at the pretrial conference on September 25, 2019, that they did not oppose this motion, and the parties agreed to file a proposed order dismissing the counts and striking the enhancements. Such an order would have the effect of reducing the number of overdose deaths alleged or referenced in the Fourth Superseding Indictment from eighteen (18) to thirteen (13) [Doc. 662 p. 2]. In the government's response to the instant motion, it offered to reduce the number of charged or referenced overdose deaths to just five (5): C.H., A.V.K., S.B., H.R., and J.R. [Id.]. The government noted in its response to defendant Clemons's motion that Mr. Whitt would be responsible for handling expert testimony relating to these five (5) deaths and approximately ninety-five (95) patient files [Id.], which the government clarified at the October 9th hearing, represents eighty (80) files reviewed by government experts and fifteen (15) files reviewed by defense experts.

         II. Legal Standard

         The Court analyzes the propriety of granting or denying a continuance under the Speedy Trial Act, 18 U.S.C. § 3161-3174, and the Constitution. U.S. Const. amend. VI.

         Although the Speedy Trial Act requires that a criminal defendant's trial begin within seventy (70) days of his being charged or making an initial appearance, whichever occurs later, § 3161(c)(1), periods of delay are excludable if the court finds that “the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial.” § 3161(h)(7)(A). Sua sponte or on motion, id., the Court shall consider various factors, most relevant to this case, whether a failure to continue would “result in a miscarriage of justice” or whether it would deny counsel for the defendant “the reasonable time necessary for effective preparation, taking into account the exercise of due diligence.” §§ 3161(h)(7)(B)(i), (iv). The court must set forth its reasons for granting a continuance orally or in writing. § 3161(h)(7)(A).

         The district court exercises “wide discretion” on whether to grant or deny continuances as a constitutional matter. United States v. Lewis, 605 F.3d 395, 401 (6th Cir. 2010) (citation omitted); see also Morris v. Slappy, 461 U.S. 1, 11-12 (1983) (“broad discretion must be granted trial courts on matters of continuances”). The propriety of a continuance is a fact-intensive inquiry that may involve consideration of “the length of delay, previous continuances, inconvenience to litigants, witnesses, counsel and the court, whether the delay is purposeful or is caused by the accused, the complexity of the case, and whether denying the continuance will lead to identifiable prejudice.” United States v. McClendon, 146 Fed.Appx. 23, 26-27 (6th Cir. 2005); see also Barker v. Wingo, 407 U.S. 514, 530-33 (1972) (discussing four (4) non-exclusive, non-decisive factors, length of delay, reason for delay, defendant's assertion of his right, and prejudice to defendant, a court might consider). Far from “every restriction on counsel's time or opportunity to investigate or to consult with the client or otherwise to prepare for trial violat[ing] a defendant's Sixth Amendment right to counsel, ” 146 Fed.Appx. at 26, a denial is only an abuse of discretion amounting to a due process violation when it represents “an unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay.” United States v. Vasquez, 560 F.3d 461, 466 (6th Cir. 2009) (quoting Morris, 461 U.S. at 11-12); United States v. King, 127 F.3d 483, 486-87 (6th Cir. 1997).

         A defendant must also show that the denial of a continuance actually prejudiced his or her defense. Powell v. Collins, 332 F.3d 376, 396 (6th Cir. 2003). A defendant may demonstrate actual prejudice by “showing that a continuance would have made relevant witnesses available or added something to the defense.” King, 127 F.3d at 487 (finding no abuse of discretion where no evidence of actual prejudice); see also United States v. Harbour, 417 Fed.Appx. 507, 514-15 (6th Cir. 2011) (finding no abuse of discretion where district court denied second motion for continuance after new counsel was retained and where defendant stated more time would have allowed attorney to retain expert witness and review evidence and prepare arguments “at a more leisurely pace”); cf. McClendon, 146 Fed.Appx. at 27-28 (finding abuse ...

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