United States District Court, E.D. Tennessee
MEMORANDUM OPINION AND ORDER
A. VARLAN, UNITED STATES DISTRICT JUDGE
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.
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].
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.
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.
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.
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].
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
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.
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).
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).
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