USA v. Eldridge et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
v. DECISION AND ORDER
09-CR-329
THAMUD ELDRIDGE, et al.,
Defendants.
INTRODUCTION
Before the Court is the Government’s third motion for removal of court-
appointed second counsel for the three remaining defendants in this case
involving Racketeer Influenced and Corrupt Organizations Act (“RICO”) charges.
(Dkt. No. 317) For the following reasons, the Government’s motion to remove
court-appointed second counsel is granted.
FACTUAL AND PROCEDURAL BACKGROUND
On September 24, 2009, the Government filed a 37-page indictment
charging Thamud Eldridge, Kevin Allen and Galen Rose (the “defendants”) with
17-counts including racketeering, racketeering conspiracy, murder in aid of
racketeering, conspiracy to distribute controlled substances, possession of
firearms in furtherance of drug trafficking crimes, violent crime in aid of
racketeering-kidnaping, Hobbs Act robbery and conspiracy, and various firearm
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offenses. In sum, it is alleged that defendants were members of a criminal1
organization that engaged in the distribution of cocaine, cocaine base, marijuana
and heroin and also committed acts of violence in furtherance of their drug
trafficking enterprise, including murder, robbery and extortion. The organization
operated principally on the East Side of Buffalo, New York. Defendants allegedly
robbed, murdered and attempted to rob and murder other individuals involved in
drug distribution and allegedly carried, brandished and discharged firearms in
furtherance of these activities.
In addition to the various RICO charges, the indictment included Notices of
Special Findings as to each defendant pursuant to Sections 3591 and 3592 of
Title 18 of the United States Code, which govern the imposition of a sentence of
death. As a result of this and pursuant to Section 3005 of Title 18 of the United
States Code, the Court appointed two counsel for each defendant, one being
“learned in the law” in death penalty matters.
On February 4, 2010, the Government notified defendants and the Court
that a notice of intention to seek the death penalty would not be filed in this
matter. The Government subsequently filed a motion for removal of court-
appointed second counsel on February 16, 2010. That motion was denied by
Magistrate Judge Hugh B. Scott, on the grounds that the case presented complex
A fourth defendant, Kashika Speed, was also charged. Speed entered into a1
plea agreement before this Court on June 16, 2014.
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legal and factual issues, and removing counsel from defendants at this stage in
the proceeding would cause significant disruption in the defendants’
representation, result in extended delays, and place an atypical burden on the
remaining counsel.
Over the next four years, the Government and defense counsel engaged in
extensive motion and hearing practice, including a motion to recuse the United
States Attorney’s Office of the Western District of New York and five evidentiary
hearings. Each defendant had the benefit of court-appointed second counsel
throughout this time.
On June 17, 2014, at the conclusion of the majority of pretrial motions and
shortly before a trial date was to be set, the Government filed a second motion for
removal of court-appointed second counsel. During oral argument, the2
Government indicated that the filing of the second motion was prompted by this
Court’s removal of defendant Speed’s court-appointed second counsel following
his severance from the other defendants. The motion to remove was again
denied by the Magistrate Judge, who noted that “because this case presents
Prior to the filing of the Government’s second motion to remove court-2
appointed second counsel, defendant Speed was severed from the other defendants
and a trial date for Speed only was set for June 18, 2014. On May 30, 2014, the Court
held a status conference regarding Speed’s dual court-appointed counsel. After
hearing the parties’ respective positions, the Court determined that it would permit only
one court-appointed attorney to represent defendant Speed going forward. A short
adjournment was granted, from mid-June until early July, to allow remaining counsel
time to prepare to proceed to trial on his own. Defendant Speed entered a plea on
June 16, 2014.
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complex legal and factual issues, removing learned counsel from the defendants
at this late stage would cause significant disruption in the defendants’
representation and place an atypical burden on remaining counsel.” (Dkt. No.
315)
On July 3, 2014, the Government renewed, before this Court, its motion to
remove court-appointed second counsel. Therein, the Government noted that the
Magistrate Judge’s determination was “without prejudice” and that this Court has
plenary jurisdiction with respect to the case. The Government cited this Court’s
decision regarding counsel as to defendant Speed, the Criminal Justice Act
Guidelines, the Death Penalty Reference Guide (June 2012, Western District of
New York), and Second Circuit case law, in support of its assertion that court-
appointed second counsel for the three remaining defendants should be
removed.
DISCUSSION
Procedural Issues
Defendants contend that this motion is not properly before the District
Court and that, even if it were, the law of the case doctrine prevents the Court
from revisiting this issue. Before turning to the merits of the Government’s
motion, the Court will address defendants’ procedural arguments.
Section 636 of Title 28 of the United States Code states that “a judge may
designate a magistrate...to hear and determine any pretrial matters pending
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before the Court, except motions...to dismiss or quash an indictment or
information made by a defendant...or to suppress evidence in a criminal case.”
See 28 U.S.C. §636(b)(1)(A) (emphasis added). Further, Rule 59(a) of the
Federal Rules of Criminal Procedure provides that a district judge “may refer to a
magistrate for determination any matter that does not dispose of a charge or
defense [and the] magistrate judge must promptly conduct the required
proceedings and, when appropriate, enter on the record an oral or written order
stating the determination. ” See Fed. R. Crim. P. 59(a) (emphasis added). With
respect to dispositive motions, the Supreme Court has held that a district court
may refer dispositive motions to a magistrate for recommendation so long as “the
entire process takes place under the district court’s total control and jurisdiction.”
United States v. Raddatz, 447 U.S. 667, 681 (1980).
Defendants argue that because the initial motions to remove court-
appointed second counsel were referred to and decided by Magistrate Judge
Scott, the Government was obligated to file an appeal of the Magistrate Judge’s
determination, or seek reconsideration, rather than bring a new motion before this
Court. This is incorrect. The Government was within its rights to file a new
motion rather than an appeal, and this Court is within its rights to consider that
motion. Indeed, while Section 636(b)(1)(A) and Rule 59(a) provide that a district
court may refer non-dispositive motions to a magistrate judge, they certainly do
not prohibit a district court from adjudicating a non-dispositive pre-trial motion on
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its own, regardless of whether that same motion was previously brought before a
magistrate judge. A motion for removal of court-appointed second counsel has
been renewed before this Court, and this Court, pursuant to Article III of Section I
of the Constitution, certainly retains the power and jurisdiction to adjudicate the
motion. See Thomas v. Arn, 474 U.S. 140 (1985) (“The district judge has
jurisdiction over the case at all times. He retains full authority to decide whether
to refer a case to the magistrate, to review magistrate’s report, and to enter
judgment. Any party that desires plenary consideration by the Article III judge of
any issue need only ask.”)
Defendants also argue that the Magistrate Judge’s denial of the
Government’s motion to remove court-appointed second counsel has become the
law of the case, and as such it should not be disturbed by this Court. The law of
the case doctrine dictates that “when a court decides upon a rule of law, that
decision should continue to govern the same issues in subsequent stages in the
same case.” In re PCH Assocs., 949 F.2d 585, 592 (2d. Cir. 1991). Importantly,
this doctrine is discretionary, and does not prevent a court from reconsidering an
issue previously decided. See American Hotel International Group, Inc. v.
Onebeacon Insurance Company, 611 F. Supp. 2d 373 (SDNY 2009); accord
Virgin Atlantic Airways, Ltd. v. National Mediation Board, 956 F.2d 1245, 1255
(2d. Cir. 1992) (the law of the case doctrine is “admittedly discretionary and does
not limit a court’s power to reconsider its own decisions prior to final judgment”).
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See also Arizona v. California, 460 U.S. 605, 618 (1983) (law of the case doctrine
“does not limit tribunal’s power”); 1B James W. Moore et. al., Moore’s Federal
Practice P 0.404[1] (“At the trial court level, the doctrine of law of the case is little
more than a management practice to permit logical progression toward
judgment.”); 18 Charles A. Wright et al., Federal Practice and Procedure §4478
(1981) (“it is clear that all federal courts retain the power to reconsider if they
wish”).
Courts generally depart from the law of the case when there is a change in
controlling law, when new evidence becomes available, to correct a clear error, or
prevent manifest injustice. DiLaura v. Power Authority, 982 F.2d 73, 76 (2d. Cir.
1992). The Second Circuit has held that prior decisions may be revisited in light
of “cogent” or “compelling” reasons. Doe v. New York City Dep’t of Social Servs.,
709 F.2d 782, 789 (2d. Cir. 1983); Scherer v. The Equitable Life Assurance
Society of the United States, 2004 U.S. Dist. LEXIS 18875 (SDNY 2004) (“In
deciding whether to exercise its discretion to depart from the law of the case
doctrine and change an earlier ruling, a district court may consider changes in the
governing law, newly discovered facts, or other circumstances bearing upon a fair
resolution of the case.”)
Courts in this Circuit have further stated that in determining whether to
apply the law of the case doctrine, it is important to consider the stage of the
proceeding. See Bonnie & Company Fashions, Inc v. Bankers Trust Company,
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955 F. Supp. 203 (SDNY 1997); accord Wright, et al., §4478, at 791. Thus,
rulings made at a pretrial stage may be subject to reconsideration as a case
progresses toward trial. Id. See also United States v. Agent Orange, 733 F.2d
10 (2d. Cir. 1984) (“the interlocutory orders and rulings made by a pre-trial judge
are subject to modification by the district judge at any time prior to final
judgment”).
The Court has considered the precedent set forth above and finds that the
law of the case doctrine does not prohibit it from reconsidering the Government’s
motion and reaching a different conclusion than that of the Magistrate Judge.
Indeed, like a motion for severance, the instant motion for removal of court-
appointed second counsel is directly relevant to the manner in which this case will
be tried. It would be illogical if the Court tasked with the responsibility of
presiding over the trial was prohibited from reconsidering the Magistrate Judge’s
prior orders regarding the make-up of defendants’ court-appointed counsel.
Furthermore, this Court is ultimately responsible for appropriately limiting
expenditures pursuant to the Criminal Justice Act, and should not be hamstrung
in making final determinations regarding court-appointed, taxpayer-funded
counsel prior to trial. The law of the case doctrine, which is discretionary and
considered a “management practice to permit logical progression toward
judgment”, would not intend such a result.
Also significant is the Death Penalty Reference Guide, issued in June of
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2012 by the Clerk of the Court of the Western District of New York, which states
that “if it is determined that the death penalty will not be sought, the Court should
reduce the number of appointed counsel, unless there are extenuating
circumstances....[t]his decision should be made by the presiding Judge at the
time.” The Death Penalty Reference Guide was not yet published when
Magistrate Judge Scott issued his first denial of the motion to remove court-
appointed second counsel, and it does not appear that Magistrate Judge Scott
considered the Death Penalty Reference Guide when he issued his subsequent
denial in July of this year. The Death Penalty Reference Guide makes clear that
once a decision not to seek the death penalty is made, the number of counsel
should be reduced absent extenuating circumstances. Magistrate Judge Scott
concludes that the removal of learned counsel would cause significant disruption
in the defendants’ representation and place an atypical burden on remaining
counsel. He does not, however, specify what extenuating circumstances exist
here, as opposed to other complicated cases which were originally death penalty
eligible, that would justify the continuation of court-appointed second counsel.
The recent publication of the Death Penalty Reference Guide by the Clerk of this
Court, as well as the Magistrate Judge’s failure to specifically consider it in his
most recent decision, also warrant reconsideration of this issue.
Defendants’ Right to Court-Appointed Second Counsel
Having found that the instant motion can be considered by this Court, the
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Court now turns to the merits of the Government’s motion. As set forth in detail
below, Court finds that there are cogent and compelling reasons to grant the
Government’s renewed request.
The Second Circuit has held that when the Government decides not to
seek the death penalty, defendants no longer have a statutory right to court-
appointed second counsel. United States v. Douglas, 525 F.3d 225 (2d. Cir.
2008). In addition, the Criminal Justice Act Guidelines (“CJA Guidelines”) provide
that the court should, absent extenuating circumstances, make an appropriate
reduction in the number of counsel in cases where the death penalty will not be
sought. See Guidelines for the Admin. Of Criminal Justice Act, vol. VII, § A, ch.
6.02(B)(2). In determining whether extenuating circumstances exist, the Court
should consider the following: (a) the need to avoid disruption in the proceedings;
(b) whether the decision not to seek the death penalty occurred late in the
litigation; (c) whether the case is unusually complex; and (d) any other factors
that would interfere with the need to ensure adequate representation of the
defendant. Id.
The Court has carefully considered this matter and finds that the
circumstances here do not require that defendants continue with court-appointed
second counsel. The indictment is lengthy and the charges extensive. However,
the Court disagrees with Magistrate Judge Scott’s assessment that this matter is
so unusually complex that it requires two lawyers per each defendant. This case
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is no more factually or legally complicated than other multi-defendant RICO and
RICO conspiracy cases which have been tried before this Court and which have
involved a single court-appointed lawyer for each defendant. Likewise, this case
is no more factually or legally complicated than other cases which included
Notices of Special Findings pursuant to Sections 3591 and 3592, and which
involved a reduction of counsel when it was determined that the Government
would not seek the death penalty. The lawyers in those matters provided
competent and comprehensive representation to their clients. Similarly, the
lawyers involved here are some of the most experienced and skilled criminal
defense attorneys in the area, each of whom is fully capable of trying a
complicated RICO matter on his or her own. Indeed, all cases involving RICO,
RICO conspiracy and murders are complex. If this Court were to determine that
the nature of the charges here required two lawyers per defendant, it would rarely
if ever be permitted to reduce counsel when the Government elected not to
pursue the death penalty. This result would be in direct conflict with the
instructions of the Criminal Justice Act Guidelines, as well as this Court’s duty to
control taxpayer expenses.
The decision not to seek the death penalty was made early on in the
litigation, in February of 2010. Notwithstanding, defendants have retained the
benefit of two court-appointed lawyers for the last four and a half years. As
indicated previously, the motion and hearing practice in this matter has been
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extensive to say the least, and a total of six court-appointed lawyers represented
four defendants throughout the entirety of those pre-trial proceedings. With the
exception of the filing of objections to a final Report and Recommendation from
the Magistrate Judge, all pre-trial matters are now concluded. Unlike many
individuals charged with extremely serious yet non-capital crimes, each
defendant here has had the benefit of two very experienced attorneys filing and
arguing motions, conducting hearings, and preparing his case for trial over the
past four and a half years.
The Court finds that removal of court-appointed second counsel will not
significantly disrupt the proceedings. The trial is not scheduled to begin until
January 2015, which would afford counsel four and a half months to prepare.
Considering the fact that all pre-trial motions are completed, and taking into
account the experience and skill of the remaining lawyers, this is a sufficient
amount of time to prepare for trial. Indeed, it bears mentioning that while court-
appointed second counsel will be removed, three defense attorneys remain who
will have the opportunity to collaborate, when appropriate, over the course of the
trial.
Defense counsel argues that they, as well as their clients, have
“detrimentally relied” on the Magistrate Judge’s prior rulings and that removal of
one court-appointed attorney will cause a serious disruption in representation.
They note that the case will be extremely time consuming and demanding to try,
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that it will require significant investigation, and that they have divided the work
accordingly. They further emphasize the relationship that each attorney has
developed with their respective clients. The Court is aware of, and sensitive to,
the demands that this trial will place on counsel as well as the disruption involved
when removing one attorney. However, these legitimate concerns must be
weighed in light of the CJA Guidelines and the Death Penalty Reference Guide
which require the Court to limit taxpayer expense by removing second counsel
when appropriate.
Here, the demands cited by counsel and the disruption in removing an
attorney, while not insignificant, are present in most serious and lengthy criminal
trials and are not the types of unique circumstances which would require the
continuation of two court-appointed attorneys. If the Court were to accept these
as extenuating circumstances, it would seldom be permitted to remove court-
appointed second counsel after learning that the Government did not intend to
seek the death penalty. As noted above, this notion is directly contrary to the
Court’s duty, pursuant to the CJA Guidelines and this District’s Death Penalty
Reference Guide, to reduce expenditures and remove taxpayer-funded second
counsel when the death penalty will not be sought and no extenuating
circumstances exist. Extenuating circumstances do not exist here. All pre-trial
motions are complete, one very experienced criminal defense attorney per
defendant will remain to conduct the trial, the trial may proceed timely as
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scheduled, and defendants’ Sixth Amendment rights are fulfilled. See Caplin &
Drysdale, Chartered v. United States, 491 U.S. 617 (1989) (indigent defendants
may not choose their own court-appointed lawyers, and “have no cognizable
complaint so long as they are adequately represented by attorneys appointed by
the courts”).
CONCLUSION
For the reasons set forth above, the Government’s third motion to remove
court-appointed second counsel is granted. Angelo Musitano shall continue to
represent defendant Eldridge, Cheryl Meyers Buth shall continue to represent
defendant Allen and Daniel Henry shall continue to represent defendant Rose.3
All remaining attorneys shall be removed from the case.
SO ORDERED.
The Court is mindful of Ms. Buth’s affidavit indicating that she was appointed to3
the case in August of 2010, after Ms. Kubiak left private practice to join the Federal
Public Defender’s Office, and that Mr. Harrington has maintained the majority of client
contact. However, during oral argument Mr. Harrington represented that as a result of
his obligations in the US Military Commission proceedings at Guantanamo Bay, Cuba,
he would be unable to handle the trial on his own. Since Ms. Buth has been assigned
to the case for four years and has maintained the day-to-day handling of the file, the
Court finds that it is most appropriate for her to proceed as counsel for Mr. Allen.
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____Richard J. Arcara____________
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT COURT
Dated: September 16, 2014
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