United States District Court, E.D. Virginia, Alexandria Division
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Defendant Douglas Duran Cerritos's ("Cerritos") Motion to Sever and Continue. (Doc. 610). The Third Superseding Indictment, in Count Six, charges Cerritos with murder in the aid of racketeering in violation of Va. Code Ann. §§ 18.2-32 and 18.2-18. (Doc. 287). This offense relates to the alleged attempt by several MS-13 gang members, including Defendant, to kill Gerson Adoni Martinez. See id.
On February 03, 2016, Defendant Cerritos moved to sever his case and continue it from the current trial date of March 21, 2016. (Doc. 610). This relief is sought in light of recent news that Mr. John Rockecharlie ("Rockecharlie"), learned counsel for Defendant, was recently diagnosed with a serious ailment, which necessitates medical testing, treatment and recuperation over an extended period of time. (Id.) Defendant requests his case be severed and continued so that Mr. Rockecharlie may remain on the case along with co-counsel Mr. Dwight Crawley ("Crawley"). (Id.)
The issue before the Court is whether 18 U.S.C. § 3005 requires the retention of a second lawyer after (1) the Government has conclusively determined that it will not seek the death penalty, (2) co-counsel becomes medically incapacitated on the eve of trial, (3) the record reflects that co-counsel is a seasoned and experienced criminal defense attorney, and (4) the Court appointed a second learned co-counsel.
The Court DENIES Defendant's Motion to Sever and Continue this matter because 18 U.S.C. § 3005 does not require the retention of a second lawyer after the Government has conclusively determined that it will not seek the death penalty. In this case, § 3005 to requires two attorneys when the defendant faces the potential option of receiving the death penalty. Here, even though the Government notified Defendant on March 30, 2015, six months after indictment, that it would not be seeking the death penalty, Defendant had access to both Mr. Rockecharlie and Mr. Crawley for more than a year and three months. Additionally, counsel was provided with all the resources that would ordinarily apply to a capital case including: mitigation experts, interpreters, investigators and additional litigation support. When notified of Mr. Rockecharlie's illness, the Court allowed Mr. Rockecharlie to withdraw on February 16, 2016, and appointed Joseph Conte ("Conte") to take his place. Further, there are broad concerns with severing the Defendant or continuing this trial including: (1) the expenditure of unnecessary judicial resources in arguing the same case twice; (2) jeopardizing both the Government's evidence and the safety of its witnesses; (3) the difficulty of attempting to coordinate a new trial date with more than fifteen defense attorneys, eight defendants and the Government; and (4) prolonging the pretrial detention of co-defendants.
Accordingly, the Court denies Defendant's Motion to Sever and Continue because 18 U.S.C. § 3005 does not require the retention of two attorneys, here where co-counsel has become medically incapacitated on the eve of trial, Defendant was appointed a second learned counsel, and Defendant does not face the death penalty. Further, Mr. Rockecharlie's medical disability will not deprive Defendant of the benefits he already received from access to Mr. Rockecharlie for over one year and four months, or effective assistance of counsel at trial as both Mr. Crawley and Mr. Conte are seasoned criminal defense attorneys.
Defendant Cerritos was indicted on September 9, 2014, and charged with murder in the aid of racketeering in violation of Va. Code Ann. §§ 18.2-32 and 18.2-18. (Doc. 287). This offense relates to the alleged attempt by several MS-13 gang members, including Defendant, to kill Gerson Adoni Martinez. See Id. As murder in the aid of racketeering is a capital crime, there was a possibility that the Government would seek the death penalty in Cerritos' case. Thus, as required by 18 U.S.C. § 3005, Cerritos was appointed two attorneys, John Rockecharlie, on October 24, 2014, and Dwight Crawley, on October 20, 2014. (Doc. 68, 91). However, on March 30, 2015, the Government indicated it would not seek the death penalty in Defendant's case. (Doc. 256). On January 20, 2016, counsel John Rockecharlie was diagnosed with a serious illness. (Doc. 610 at 1). After meeting with a medical specialist, Mr. Rockecharlie eventually selected a treatment option that, including recovery, would require him to take at least six weeks off. (Id.) At the time the motion was filed, both attorneys had been appointed in this case for more than one year and three months, or 468 days.
An under seal telephonic hearing was held on Thursday, February 4, 2016, where Mr. Rockecharlie explained his situation to the Court and moved to sever the Defendant from the current case and continue this matter from the current trial date of March 21, 2016, thereby allowing Mr. Rockecharlie to remain on the case. In response, the Court permitted Mr. Rockecharlie to withdraw from the case, and stated that Mr. Crawley could appoint additional counsel if he felt it was necessary. (Doc. 644). On February 17, 2016, Mr. Joseph Conte was appointed to replace Mr. Rockecharlie. (Doc. 649).
II. STANDARD OF REVIEW
A. Motion for Continuance of Trial
Given the inevitably fact-specific conflicts between individual rights and state interests posed in motions for continuances, trial courts must be accorded broad discretion in deciding whether to grant continuances, notwithstanding that constitutional rights may be implicated. Morris v. Slappy, 461 U.S. 1, 11 (1983); United States v. Williams, 445 F.3d 724, 738-39 (4th Cir. 2006). The constitutional right is probably best stated as a limit on trial court discretion: that discretion only exceeds its constitutional bounds when it is exercised to deny a continuance on the basis of an "unreasoning and arbitrary 'insistence upon expeditiousness in the face of a justifiable request for delay.'" Slappy, 461 U.S. at 11-12 (quoting Ungar v. Sarafite, 376 U.S. 575, 589 (1964)). Because a request for delay cannot be considered "justifiable" if it proceeds from a "transparent ploy for delay, " Slappy, 461 U.S. at 13, whether it is the one or the other is the critical constitutional issue posed by such a request.
"[A] trial court's denial of a continuance is ... reviewed for abuse of discretion; even if such an abuse is found, the defendant must show that the error specifically prejudiced her case in order to prevail." Williams, 445 F.3d at 739 (quoting United States v. Hedgepeth, 418 F.3d 411, 419 (4th Cir. 2005)).
B. Motion for Severance
The decision whether to sever is within the sound discretion of the trial judge. United States v. Santoni, 585 F.2d 667, 674 (4th Cir. 1978). The burden is on the defendant to demonstrate "a strong showing of prejudice." United States v. Mir, 525 F.3d 351, 357 (4th Cir. 2008) (citing United States v. Goldman, 750 F.2d 1221, 1225 (4th Cir.1984)).
Federal Rule of Criminal Procedure 14 provides for relief from prejudicial joinder. "If the joinder of offenses or defendants in an indictment... appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants' trials, or provide any other relief that justice requires." Fed. R. Crim. P. 14(a). In determining whether to grant a Rule 14 motion, the court must balance potential prejudice of the defendants against judicial economic interests. United States v.Stratton, 649 F.2d 1066 (5th Cir.1981). The defendant undertakes a "considerable burden" in ...