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United States v. George

United States District Court, E.D. Louisiana

December 27, 2018


         SECTION I

          ORDER & REASONS


         Before the Court is defendant Chukwudi Ofomata's (“Ofomata”) motion[1] to continue the trial date. For the following reasons, the motion is granted.


         This case arises out of an armored truck robbery and the murder of Hector Trochez, which occurred on December 18, 2013. On November 9, 2017, a grand jury returned a four-count superseding indictment against defendants Lilbear George, Jeremy Esteves, Curtis Johnson, Jr., Robert Brumfield, III, Jasmine Theophile, and Ofomata.[2] The trial was originally scheduled for January 8, 2018.[3]

         On December 12, 2017, the Court granted the government's first unopposed motion to continue, and the trial was reset for July 9, 2018.[4] Two months later, on February 2, 2018, the Court granted the government's second unopposed motion to continue, and the trial was reset for October 9, 2018.[5] Finally, on May 22, 2018, the Court granted the government's third unopposed motion to continue.[6] At a subsequent status conference, the trial was reset for January 28, 2019.[7]

         On August 31, 2018, the government filed notices of its intent to seek the death penalty as to three of the six defendants-Lilbear George, Curtis Johnson, Jr., and Ofomata.[8] In October 2018, Ofomata filed his first motion to continue, asserting that, because the United States Attorney General had authorized the case for capital prosecution, he would need additional time to prepare for trial.[9] In support of a continuance, Ofomata argued that much discovery remained to be conducted; the motions practice was likely to be more detailed and complex now that the government was seeking the death penalty; and conducting a mitigation investigation, which is an integral part of a defendant's preparation in a capital case, would take more time than the scheduling order allowed. Ofomata requested that the trial be continued to October 5, 2020, at the earliest.[10] The government opposed the motion.[11]

         At an October 30, 2018 status conference held to discuss Ofomata's first motion to continue, Ofomata and the government reached a compromise, agreeing that they would present to the Court a mutually agreed upon trial date sometime near the end of 2019.[12] Consequently, Ofomata submitted the present motion to continue, indicating that he and the government have agreed upon a new trial date of November 4, 2019.[13] The only party who opposes the motion is defendant Jeremy Esteves (“Esteves”).[14] Noting that he is not a capital defendant and, therefore, he does not need to prepare a capital defense, Esteves argues that another continuance would violate his right to a speedy trial under the Speedy Trial Act and the Sixth Amendment.[15]

         As an initial matter, Esteves's opposition argues against the previously requested October 5, 2020 trial date. He argues that an October 2020 trial would result in an unreasonable and excessive gap of almost thirty-five months between indictment and trial.[16] However, the Court has already rejected a 2020 trial date. Since then, Ofomata and the government have requested a new trial date of November 4, 2019-shortening the proposed continuance by approximately eleven months.

         Although Esteves filed his opposition after Ofomata submitted his second motion to continue requesting a November 2019 trial date, Esteves has not acknowledged the date change or explained why he believes that the most recent requested continuance is unreasonable. The Court will nevertheless address why a November 4, 2019 trial date does not violate Esteves's right to a speedy trial under either the Speedy Trial Act or the Sixth Amendment.



         “The Speedy Trial Act, which is designed to protect a criminal defendant's constitutional right to a speedy trial and to serve the public interest in bringing prompt criminal proceedings, requires that a defendant's trial commence within seventy days from his indictment or initial appearance, whichever is later.” United States v. Stephens, 489 F.3d 647, 652 (5th Cir. 2007) (citing 18 U.S.C. § 3161(c)(1)).[17]Certain actions toll the seventy-day clock. United States v. Parker, 505 F.3d 323, 326 (5th Cir. 2007); 18 U.S.C. § 3161(h). For example, the Speedy Trial Act provides for the exclusion of “[a] reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted.” 18 U.S.C. § 3161(h)(6). In other words, “the excludable delay of one codefendant may be attributable to all codefendants.” Stephens, 489 F.3d at 654. “Attribution of the excludable delay of one codefendant to another codefendant is not, however, automatic; rather, the period of delay must be reasonable.” Id.

         No motion for severance has been granted in this case.[18] Consequently, if the Court grants the present motion to continue, the resulting delay will constitute excludable time attributable to Esteves-so long as the length of the delay is reasonable. See United States v. Bieganowski, 313 F.3d 264, 281 (5th Cir. 2002). (“[T]he Act excludes from the calculation of the seventy-day limit any delay resulting from the proper grant of a continuance requested by a co-defendant.”).

         Reasonableness can be measured by reference to “either (1) ‘the totality of the circumstances prior to trial'; or (2) ‘the actual prejudice suffered by the [defendant] as a result of the delay.'” Id. “In examining the totality of the circumstances of the case, [the] inquiry focuses on the necessity of the delay, giving proper consideration ‘to the purpose behind subsection (h)[(6)]-‘accommodating the efficient use of prosecutorial and judicial resources in trying multiple defendants in a single trial.'” Bieganowski, 313 F.3d at 283 (quoting United States v. Franklin, 148 F.3d 451, 457 (5th Cir. 1998)). “In weighing prejudice, on the other hand, ‘relevant considerations include whether the delay impaired the [defendant's] ability to defend himself or resulted in excessive pretrial incarceration.'” Id.

         Neither prong of the subsection (h)(6) inquiry supports Esteves's assertion that the proposed continuance is unreasonable. The Court has already concluded that a compelling reason to continue the January 2019 trial date exists.[19] Three of Esteves's codefendants are capital defendants, and an attorney for a capital defendant must “conduct a ‘reasonably substantial, independent investigation' into potential mitigating circumstances” to prepare for the sentencing hearing. Neal v. Puckett, 286 F.3d 230, 236 (5th Cir. 2002) (quoting Baldwin v. Maggio, 704 F.2d 1325, 1332-33 (5th Cir. 1983)). In fact, the ABA has issued guidelines regarding an attorney's obligations to his or her client in a capital case, and the guidelines require an extensive investigation into the defendant's life.[20] The United States Supreme Court has explained that death-penalty mitigation investigations often include examining a defendant's medical history, educational history, employment and training history, family and social history, prior adult and juvenile correctional experience, and religious and cultural influences. See Wiggins v. Smith, 539 U.S. 510, 524 (2003) (citing ABA Guidelines for the Appointment & Performance of Counsel in Death Penalty Cases 11.4.1(C) (1989)). After the October 30, 2018 status conference, and upon review of Ofomata's first motion to continue, the Court found that extensive mitigation remains to be conducted by Esteves's codefendants, which warrants a continuance.[21]

         According to Kevin McNally, director of the Federal Death Penalty Resource Counsel Project, the average time between the date on which the government files its notice of intent to seek the death penalty and the trial in federal capital cases is approximately 16.4 months.[22] In this case, a November 4, 2019 trial date results in a comparable period of less than 15 months.[23] The Court recognizes that the scheduling order in this case cannot be rigidly dictated by the schedules of other federal courts, but the fact that 15 months is below the average time between notice and trial in federal capital cases weighs in favor of a finding of reasonableness. “[A] defendant, charged with a serious crime, must not be stripped of his right to have sufficient time to advise with counsel and prepare his defense.” Powell v. State of Ala., 287 U.S. 45, 59 (1932). It is critical that the Court provides the defendants for whom the government seeks the death penalty enough time to prepare for both phases of the trial.

         Additionally, and considering the purpose behind subsection (h)(6), “[t]he utility of a joint trial is particularly compelling here, as the defendants were charged with a single conspiracy.” Franklin, 148 F.3d at 457 (concluding that the district court's pretrial delay was not unreasonable, in part because it was necessary to achieve a joint trial). Several of the defendants in this case-including Esteves-were charged in three of the four counts set forth in the superseding indictment, one of which alleges a conspiracy to commit robbery.[24] A joint trial permits the government “to recite a single factual history, put on a single array of evidence, and call a single group of witnesses.” Id. at 458 (citations omitted). The government has stated that it intends to prove that Esteves “played a significant role in the robbery.”[25] The government also contends that, at trial, “Esteves and his co-defendants will be exposed to much of the same evidence because they participated in the same conspiracy.”[26] The substantial overlap between the accusations against Esteves and those against several of his codefendants weighs in favor of granting the continuance to achieve a joint trial.

         The complexity of the case also bears on the Court's determination as to whether the ends of justice served by granting the continuance outweigh the best interest of the public and the defendants in a speedy trial. See 18 U.S.C. §§ 3161(h)(7)(A) and (B)(ii). Several times now, the Court has emphasized the complex nature of this case.[27] Considering subsection (h)(6)'s goal, and the importance of the continuance, the Court finds that the totality of the circumstances warrants a finding that the proposed pretrial delay is reasonable.

         Furthermore, Esteves has failed to show actual prejudice. He argues that “witnesses may pass away, memories will fade, and records will deteriorate.”[28] This argument is too speculative. See United States v. Davis, No. 07-1995, 2009 WL 3488052, at *7 (N.D. Tex. Oct. 28, 2009) (noting that, to establish prejudice based on an impairment to a defense, the “movant must show an ‘actual, substantial prejudice to the defense at trial . . . a showing of mere potential or possible trial prejudice does not suffice”) (quoting United States v. Jackson, 549 F.3d 963, 970 (5th Cir. 2008), cert. denied, 558 U.S. 828 (2009)).

         Esteves also argues that a lengthy delay will impact his employment, housing, and social prospects and cause him stress and anxiety.[29] Of note, Esteves has not objected to any of the motions to continue granted thus far. Even though he has been detained since November 13, 2017, [30] and he has presumably suffered the same prejudices he now alleges in support of his opposition, Esteves did not object to continuing the trial in December of 2017 and then again in February and May of 2018. Esteves's conjectures are simply insufficient to establish actual prejudice. Indeed, if generic and hypothetical prejudice were enough to overcome the proposed continuance, the Court would be compelled to deny virtually any opposed motion to continue.[31]

         In summary, the Court finds that the delay caused by the requested continuance is reasonable. Esteves argues that the reasons for Ofomata's motion to continue do not apply to him because he does not need to conduct a mitigation investigation.[32] However, this argument misunderstands ยง 3161(h)(6). Having concluded that the proposed continuance is reasonable, the delay is attributable to Esteves. Consequently, the attributable delay is excludable from ...

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