United States v. Gray-Burriss

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________ ) UNITED STATES OF AMERICA, ) ) v. ) ) Criminal Action No. 10-178 (RWR) CALEB GRAY-BURRISS, ) ) Defendant. ) __________________________ )

MEMORANDUM ORDER

The defendant moved on October 17, 2012 to continue the

November 2, 2012 trial date. He cites several principal reasons:

1) one of his two counsel, Patrick J. Christmas, Esq., just

received on October 9 and 11, 2012, copies of over 2,000 pages of

statements from non-testifying witnesses and testifying

witnesses, agent notes and other Jencks materials, and government

trial exhibits; 2) fourteen potential witnesses had not yet been

contacted by the defense; 3) the expert forensic accountants

retained by the defense had not been properly prepared; and 4)

despite the time he has spent thus far preparing for trial,

Christmas is not and will not be fully prepared for trial

particularly given his other upcoming court appearances.

The court is not unsympathetic to the difficulties trial

lawyers encounter in preparing for trial in multiple-count

criminal cases. Defense counsel in particular do not have at

their disposal the breadth of investigative resources that are

available to federal prosecutors. That is partly why the - 2 -

defendant has been granted the numerous continuances and

accommodations he has sought for over more than two years to

review extensive discovery materials, locate potential expert

witnesses, identify and litigate pretrial motions, pursue

potential dispositions of the charges short of trial, adjust for

counsel’s family emergencies, and provide for continuity of

counsel.1

Over 27 months after the original indictment was returned in

this case, though, the public interest in resolving these charges

timely and the court’s interest in the fair and efficient

administration of justice and management of its docket of cases

warrant weighty consideration as well. Given the history of this

case, the defendant’s proffered reasons for a trial continuance

are not compelling.

The government produced, as a courtesy, copies of statements

of people who will not be trial witnesses, material that the

government was not even required under the Jencks Act, 18 U.S.C.

§ 3500, to produce. The government vowed two years ago to

provide to the defense one week before trial the materials the

Jencks Act does not even require it to produce until after the

1 At one point before Christmas entered his appearance as retained counsel, the court had appointed a second counsel under the Criminal Justice Act (“CJA”) to help represent the defendant when his original and still current CJA counsel, H. Heather Shaner, Esq., faced family health emergencies that at the time made her continuing availability uncertain. - 3 -

witness has testified at trial. Instead, the government produced

the Jencks statements three weeks before trial. Moreover,

receiving courtesy copies of government trial exhibits three

weeks before trial is a benefit, not a burden.2 The recent

document production poses no basis for a continuance.

Nor does any professed need to interview more witnesses.

Twenty-seven months is not too short a period of time to allow

such interviews to have occurred. The defendant has not even

shown why the time between now and the start of trial would

preclude his attorneys or investigator from accomplishing those

interviews, or how interviews of those particular witnesses are

critical to preparing his defense. In addition, his need to

prepare experts has been mooted by his complete failure to have

complied with his reciprocal discovery obligations under Federal

Rule of Criminal Procedure 16(b)(1)(C) and the October 17, 2012

Order granting the government’s motion to preclude the defense

2 The government certainly cannot be accused of ambushing the defense with last-minute discovery production. After the original indictment was returned, the government announced at the October 29, 2010 status hearing, and the defense confirmed, that all discovery had been produced. After the first superseding indictment was returned, the government produced all additional discovery by the June 8, 2011 status conference, which the defense confirmed at that time. Likewise, the government and defense agreed at the September 6, 2012 status hearing -- attended by both Shaner and Christmas -- that all additional discovery had been produced after the second superseding indictment had been returned. - 4 -

from presenting expert testimony. That issue poses no basis for

a continuance, as the Order explains.

Lastly, it may be understandable that Christmas may not feel

fully prepared to conduct the trial on the current date set,

given the recency (July 27, 2012) of his appearance in the case.

Here, though, that poses no basis for a continuance. H. Heather

Shaner, Esq., the defendant’s CJA counsel from the beginning of

the case over 27 months ago, still represents him. This past

June before Christmas entered his appearance, Shaner and the

government announced that there were no impediments to trial-

readiness by all parties. The defendant is represented by able,

experienced CJA counsel who has been on the case throughout. He

has the benefit of two experienced counsel, not just Christmas.

They can be expected to adjust trial responsibilities to achieve

the zealous and effective representation to which the defendant

is entitled. Accordingly, it is hereby

ORDERED that defendant Caleb Gray-Burriss’s motion [141] to

continue the trial be, and hereby is, DENIED.

SIGNED this 19th day of October, 2012.

/s/ RICHARD W. ROBERTS United States District Judge