Wednesday, September 30, 2020

Abuse of discretion to deny continuance motion leads to reversal

In U.S. v. Schwarz, the 11th Circuit reversed a large white collar SDFLA case, where the defendant was not given sufficient time to prepare for trial.  The defendant was sentenced to 480 months in prison even though he was acquitted of half the counts and even though he only had a few months to prepare for trial.  The appellate court called out the trial court's "history of denying continuances in criminal cases":

There are seven cases from 2006 through 2017 in which the issue in this particular trial court was raised and argued on appeal, and, in all but one, there are substantive rulings by this Court. See Jeri, 869 F.3d at 1257–59; United States v. Ubieta, 630 F. App’x 964, 970–72 (11th Cir. 2015); United States v. Bates, 590 F. App’x 882, 890–91 (11th Cir. 2014); United States v. Anderson, 329 F. App’x 878, 882–84 (11th Cir. 2009); United States v. King, 306 F. App’x 501, 513–18 (11th Cir. 2009); Valladares, 544 F.3d at 1264–65; United States v. Perez, 473 F.3d 1147, 1150–51 (11th Cir. 2006). We by no means challenge the conclusions of prior panels. The rules of the Circuit are clear, and the bar is high for reversal when continuances are denied. None of the listed cases resulted in reversal, but three contained warnings to the trial court, and the most recent, United States v. Jeri, found error by the trial court, but insufficient evidence of prejudice to defendant under our precedent.

United States v. King was a 2009 complicated tax fraud case involving four years of personal and corporate tax returns of two corporations owned by defendant which had been investigated by the Internal Revenue Service for over three years and involved 80,000 documents in discovery. 306 F. App’x at 506. Trial was set to begin forty days after arraignment and fifty-three days after indictment. Discovery was turned over by the government during the 40 days. Id. at 504. This Court noted: “The difficulty in trial preparation was exacerbated by the fact that, little more than a month before trial, the government left 39 boxes containing 80,000 discovery documents at Xpedia, a copy center.” Id. at 515–16. The trial court denied several motions by defendant for a continuance, including an unopposed motion for at least a seven-month continuance. Id. at 506. The trial court eventually granted an eight-day continuance, after which the government added twenty-five exhibits and substituted ten more, one day before the new trial date. Id. at 515–16. On the day of trial, defendant renewed orally his motion for a continuance, to no avail. Id. at 515.
Implying error, this Court made the following observations for the benefit of the trial court:

[T]his is a complicated tax fraud case involving voluminous records. King’s requests for more time to prepare was reasonable. While we understand the need to move cases expeditiously, this case was not a simple one. A 30– or 60–day continuance . . . would not have unduly delayed the court’s docket under these facts.

Id. at 516. Nevertheless, “[t]he problem for King . . . is that he has not shown that the district court’s denials resulted in ‘specific, substantial prejudice’ to his defense.” Id. There was also overwhelming evidence of guilt. Id. at 518.
We issued another warning in our 2014 opinion in United States v. Bates, which dealt with a child pornography prosecution. See generally Bates, 590 F. App’x at 882. The denial of repeated requests for continuance was argued on appeal but not decided by the panel. Id. at 890. Nevertheless, this Court instructed on remand that “the District Court must assure itself that Mr. Bates has adequate resources to permit his expert to review the evidence, and enough time to pursue the evidence necessary to aid in his defense.” Id. Noting a short period for the expert to complete a computer forensics examination, and a superseding indictment just two weeks before trial, this Court warned: “If Mr. Bates is retried on remand, we hope and expect that the District Court will be mindful of his need for . . . adequate time to prepare for trial.” Id. at 891.
As stated above, in United States v. Jeri, our Court found error on the part of this trial court in denying a motion for continuance when a television video of the fruits of a search in a drug case was located by the government on the day before trial, and turned over to defendant on the morning of trial.
The facts of this case suggest to us that the trial court would have been wiser to grant a continuance or at least a short recess. After all, the video was not made available to Jeri until the morning of trial and he did not get to watch the video until after the first day of the day-and-a-half-long trial, by which time five Government witnesses had already testified.

Jeri, 869 F.3d at 1258. Again, however, despite “this error,” defendant could not show specific, substantial prejudice, and there was no reversal. But our panel did not leave it there:

[I]t is worth reiterating “that a scheduled trial date should never become such an overarching end that it results in the erosion of the defendant’s right to a fair trial.” Id. at 1291 [citing United States v. Uptain, 531 F.2d 1281 (5th Cir. 1976)]. The costs attendant to a continuance were low, but the potential risk to the defendant was real. While we are acutely aware of the district courts’ heavy caseloads and fully appreciate the important public interest in their expeditious resolution, it is often wise to counsel patience in finding the “delicate balance between the defendant’s right to adequate representation by counsel of his choice and the general interest in the prompt and efficient administration of justice.”

Id. at 1258–59 (full citation added).

We are troubled, after three warnings by prior panels and in view of the particular facts of this case, that this trial court has not heeded prior panel warnings, resulting in an abuse of discretion in this case. The risk of error is exacerbated by the setting of short trial dates. We have considered, but rejected this time, the sanction of reassignment of this case to another court. To avoid future sanctions, the trial court must be carefully mindful of the occasional needed continuance for a defendant and, in some cases, both sides, especially in a case as complicated as this one.
Because we conclude that the district court abused its discretion in denying Schwarz’s several motions for continuance and caused him to suffer substantial prejudice in presenting his defense, we VACATE appellant SCHWARZ’s convictions and REMAND for a new trial.



Anonymous said...

I'm going to take a wild guess that Judge Moore was involved below.

Anonymous said...

Who was the defense attorney? And the prosecutors?

Anonymous said...

So now are they going to also use the same logic in other areas like Brady/Pross Misconduct since no matter how many Brady/Prosecutorial Misconduct errors they identify they continue to rely on "harmless error" to affirm?

Anonymous said...

Unpublished opinion so non-precedential

the trialmaster said...

Sounds like Martinez. Judge Kehoe would set cases for trial 30 days after arraignment, but on a complicated case like this even he would grant a reasonable continance. He was a great guy and Judge.

Anonymous said...

It definitely doesn't sound like Martinez. He is a tough sentencer, but he may be the most reasonable judge in the courthouse when it comes to giving lawyers the time they need.

Every criminal practitioner in the district knew which Judge this was without reading the opinion.

Anonymous said...

i'm just a lowly commercial litigator, but the SDFLA judges are out of control with their case management tactics. literally, check the box mentality about moving things along.

and it was moore in this case.

Anonymous said...

I'm just a lowly commercial litigator, but the SDFLA judges are doing a far better job than the state judges and should be even more aggressive.

As uncomfortable as it is for the lawyers, forcing us to move and be genuinely ready to litigate from day one will, eventually, teach civil lawyers not to file half baked cases thinking that the case will just settle out.

Anonymous said...

don't waste my time comparing this to state court. i'm not talking about that at all. that's a system that's broken for far more serious reasons than the judges don't impose deadlines.

and i'm not against case management deadlines. but sometimes you need to push things a few months to complete discovery that was unforeseen or wrap up other pretrial matters. there's outright hostility from most of the SDFLA judges to do that. it's not borne out of "you had sufficient time to do this"; rather, it's an ego trip, misapprehension of private practice or an obsession with internal court reporting statistics.

Anonymous said...

My experience has been that if an issue arises that requires additional time, you get it. They just don't like being the side court to all your chicken shit state court cases that can be continued forever and hacked away at.

Anonymous said...

It is nice to see the 11th Circuit trying to learn ole K. Michael Moore a lesson.