The opinion of the court was delivered by: Robert N. Scola, Jr.united States District Judge
ORDER ON DEMAND FOR SPEEDY TRIAL
THIS MATTER is before the Court on the Demand for Speedy Trial [ECF No. 380], filed by Defendant Aiman Aryan. For the reasons that follow, the Court will not set an earlier trial date for Defendant Aryan.
On November 17, 2011, Defendant Aryan, through prior counsel, filed an Unopposed Motion to Continue Trial [ECF No. 244] which was then set for December 5, 2011. The Defendant sought a postponement of the trial date in this "complex, multi-year conspiracy [case] involving 24 defendants." In the motion, the Defendant represented to the Court that the following reasons necessitated a continuance:
The majority of the factors set forth in 18 U.S.C. § 3161(h)(7)(B) support the continuance of trial:
a. First, the failure to grant a continuance would make going forward with trial virtually impossible and would "result in a miscarriage of justice." 18 U.S.C. § 3161(h)(7)(B)(i). As noted above, defense counsel has only limited access to discovery material. At this time, only two and a half weeks prior to trial, the government is not able to estimate when the bulk of the discovery will become available. Without access to this information, defense counsel is unable to formulate pretrial motions or even begin to prepare their defense. Furthermore, Mr. Aryan's detention has made preparation for trial difficult, and counsel's dedication of time and effort to seek his release have further detracted from the resources available to develop his defense. Going forward with the December 5 trial date would not permit defense counsel to prepare a thorough defense on Mr. Aryan's behalf.
b. Second, the large number of defendants and the complexity of the scheme alleged in this case make it "unreasonable to expect adequate preparation for pretrial proceedings or for the trial itself within the [established] time limits." 18 U.S.C. § 3161(h)(7)(B)(ii) (listing the number of defendants, nature of the prosecution, and novel questions of fact or law as appropriate considerations in determining the complexity of the case). Twenty-four defendants are charged in the indictment. As explained above, some defendants have been arraigned only within the past 3 days, and one has not yet been arraigned. The indictment alleges a complicated scheme to defraud Medicare, Medicaid and private insurance companies. The number of defendants and nature of the prosecution, fraud, mean that the document discovery in this case is extensive. As noted above, the government has indicated their evidence includes "many bankers boxes" of documents. Much of this discovery has not yet been reviewed by the government, and the government is not able to estimate when it will be made available to the defendants. Trial, as currently scheduled, is now only eighteen days away. Even were defense counsel to receive the government's discovery today, there would not be adequate time to review it all, file any appropriate pretrial motions, and then prepare for trial. There will undoubtedly be insufficient time to prepare once defense counsel receives the discovery and trial preparation can actually begin.
c. Finally, even if this case were not "so unusual and so complex" to fit within Section 3161(h)(7)(B)(ii), proceeding with the December 5, 2011 trial date would "unreasonably deny counsel for the defendant . . . the reasonable time necessary for effective preparation, taking into account the exercise of due diligence." 18 U.S.C. § 3161(h)(7)(B)(iv). For the reasons already given, the time between now and December 5 is simply not enough to adequately prepare to try this complex, document-intensive case.
See Aryan Mot. to Cont. ¶ 4 (footnote and docket reference omitted). Several co-defendants, and the Government, also sought a continuance of the trial date in this matter. See Mots. to Cont. [ECF Nos. 251, 255, 260, 263, 265, 272, 279, 284, 309, 311, 314].
Therefore, on December 1, 2011, the predecessor trial judge entered an order [ECF No. 321] granting the motions to continue and transferring the case to the undersigned. Upon transfer, this Court held a status conference in order to set a reasonable trial date for all defendants. The parties, including Defendant Aryan, agreed that trial would be held beginning on April 2, 2012. Accordingly, on December 15, 2011, this Court entered an order [ECF No. 352] continuing the trial to that date. In the order, the Court found that, pursuant to the factors set forth in 18 U.S.C. § 3161(h)(8)(B)(i) and (iv), "the ends of justice" will be served by the continuance and that such action "outweighs the best interest of the public and defendants to a speedy trial."
Subsequent to the Court entering the order setting the agreed upon trial date, Defendant Aryan sought to obtain a substitution of counsel [ECF No. 360], to allow David O. Markus, Esq. to substitute as his counsel. Markus was on notice that the trial in this case had already been set for April 2, 2012 when he entered the case as evidenced by his immediate filing of a motion to sever and motion for earlier trial date [ECF No. 361], in which he claimed he was not available to try the case on April 2, 2012 because he was already scheduled to appear in a specially set trial before another district judge. Thus, when Markus filed his motion for substitution, the Court would have been well within its rights to deny the motion for substitution based upon Markus's unavailability for the trial date in this case -- which had been set only after the Court consulted with the Government and all twenty-four co-defendants to make sure everyone was available.
The Court has received a large number of lengthy, multiple co-defendant criminal cases from other judges, most of which were ripe for disposition or trial. The Court set status conferences in each of the cases and set trial dates in all the cases serially to make sure each case had a realistic trial date and to make sure each attorney was available for the trial dates. In light of the multiple legal authorities discussed below which provide that the Speedy Trial Act does not create any additional grounds for severances in multiple defendant cases, there is no reasonable possibility that Markus entered this case expecting the Court to sever his client, who is the main defendant in this twenty-four co-defendant trial, and to provide him with an earlier trial date -- particularly when just a few days earlier the Defendant's prior attorney had sought and received a continuance of the trial to April 2, 2012.
Even knowing that Markus may not be available for the trial date that had been set, the Court granted [ECF No. 363] the motion for substitution of counsel and agreed to allow Markus into the case. The Court did so in order to allow the Defendant the opportunity to have the attorney of his choice and also to allow Markus the opportunity to be retained by the Defendant. The Court was prepared to consider a continuance of the trial if Markus actually ended up being unavailable for the trial date in April 2012. ...