United States v. Raymond

District Court, District of Columbia·Decided October 18, 2023·No. Criminal No. 2021-0380·Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA v. Criminal Action No. 21-380 (CKK) BRIAN JEFFREY RAYMOND, Defendant

MEMORANDUM OPINION AND ORDER (October 18, 2023)

Defendant Brian Jeffrey Raymond (“Defendant”) is charged by indictment with various

sex offenses allegedly committed in, among other countries, Mexico and the United States. 1 On

September 28, 2023, the Court denied Defendant’s request to continue the trial set for November

8, 2023, by approximately four months. United States v. Raymond, Crim. A. No. 21-380, 2023

WL 6317850, at *1 (D.D.C.). Defendant has now moved for reconsideration, arguing again that

his counsel and their investigator have insufficient time to investigate the scores of alleged sexual

assaults at issue in this case. Because the Sixth Amendment does not require that defense counsel

undertake the investigation it envisions, and in light of the prejudice to the Government, the Court,

the public, and the alleged victims were the Court to continue the trial, Defendant’s [304] Motion

for Reconsideration is DENIED.

“Although the Federal Rules do not specifically provide for motions for reconsideration in

criminal cases, the Supreme Court has recognized, in dicta, the utility of such motions.” United

States v. Ferguson, 574 F. Supp. 2d 111, 113 (D.D.C. 2008). Reconsideration may be granted “as

1 The Court assumes the reader’s familiarity with the factual and procedural background of this case. For background, the Court refers the reader to United States v. Raymond, 640 F. Supp. 3d 9 (D.D.C. Oct. 26, 2022), United States v. Raymond, 2023 WL 3040453 (D.D.C. Apr. 21, 2023), and United States v. Raymond, 2023 WL 6294178 (D.D.C. Sept. 27, 2023). 1 justice requires.” United States v. Dynamic Visions, Inc., 321 F.R.D. 14, 17 (D.D.C. 2017) (CKK).

Nevertheless, motions for reconsideration are “disfavored.” United States v. All Assets Held at

Bank Julius, 502 F. Supp. 3d 91, 95 (D.D.C. 2020). To warrant reconsideration, the moving party

must demonstration: “(1) an intervening change in the law; (2) the discovery of new evidence not

previously available; [] (3) a clear error in the first order[;]” or (4) a “significant change in the

[salient] facts[.]” United States v. Caldwell, Crim. A. No. 21-181 (CKK), 2022 WL 168343, at *5

(D.D.C. Jan. 19, 2022) (internal quotation marks omitted). As such, motions for reconsideration

“cannot be used as an opportunity to reargue facts and theories upon which a court has already

ruled, nor as a vehicle for presenting theories or arguments that could have been advanced earlier.”

Estate of Gaither ex rel. Gaither v. District of Columbia, 771 F. Supp. 2d 5, 10 (D.D.C. 2011).

Because Defendant (1) identifies no intervening change in fact or law and (2) presses the same

arguments as before, his request for a continuance fails.

In Defendant’s prior motion, Defendant moved to continue the trial to April 2024 on three

grounds: (1) insufficient access to the identities of the victims alleged in the operative indictment,

(2) limited access to a secure compartmented information facility (“SCIF”) for defense counsel

and Defendant himself to discuss classified discovery, and (3) outstanding motions on which the

Court has yet to rule. The Court rejected each, noting, in relevant part, that it had recently ordered

the Government to file a bill of particulars identifying each alleged victim by name and date of

birth. Now, Defendant argues that this information is still insufficient to adequately prepare for

trial. Unless the Court affords Defendant’s private investigator four months to further research the

circumstances of the charged offenses, Defendant argues, Defendant will be constructively denied

his right to effective counsel guaranteed by the Sixth Amendment.

In short, what a defense investigator thinks critical is not synonymous with what the

2 Constitution requires. The Sixth Amendment does not compel defense counsel to overturn every

rock or interview every potential witness, particularly where witness accounts are known to

Defendant ahead of trial. See Eggleston v. United States, 798 F.2d 374, 376 (9th Cir. 1986);

Huffington v. Nuth, 140 F.3d 572, 580 (4th Cir. 1998). Constitutional error attaches only where

defense counsel “complete[ly] fail[s] to investigate potential” witnesses. See United States v.

Mohammed, 863 F.3d 885, 890 (D.C. Cir. 2017). In Mohammed, defense counsel “failed to take

the step of calling [any] potential witnesses, starting with the contact list that the [G]overnment

provided in discovery months before trial.” Id. Here, on the other hand, the Government identified

the circumstances of the charged conduct well before trial, and the Government identified the

alleged victims well before trial. ECF No. 314 at 6-7. Months ago, the Government even offered

to make alleged victims available for defense interviews, should the alleged victims agree to be

interviewed. Raymond, 2023 WL 6317850, at *2. Because Defendant has had, for many months,

adequate material to undertake some effective investigation in advance of trial, the Constitution

mandates no continuance.

As to whether the Court should nevertheless, in its discretion, grant a continuance,

Defendant fails to identify exactly what he thinks is missing from the defense’s file currently.

Defendant’s investigator’s supporting declaration states no more than that he would like more time

to investigate; it is entirely silent as to what, exactly, remains to be done. ECF No. 304-1 at 1.

The defense’s insistence that they remain woefully underprepared without additional time for its

investigator is all the more curious when Defendant’s putative experts have concluded that they

do have sufficient information to opine on the trustworthiness of an alleged victim’s testimony.

See ECF Nos. 249, 250, 252 (defense expert disclosures). Certainly, Defendant has brought

substantial resources to bear in this matter, retaining five attorneys between two firms, three

3 experts, and at least one investigator.

Defendant devotes very little briefing to his last two grounds, outstanding legal issues and

SCIF access, and they merit little discussion here. The Court consideration of outstanding briefing

continues apace, as this memorandum opinion and order illustrates. As to SCIF access, and as the

Court explained in its last opinion, any delay in discussion of classified matters between Defendant

and his counsel is attributable mainly to Defendant himself––defense counsel concedes that they

first attempted to access to the SCIF just two weeks ago, on September 14, 2023. Raymond, 2023

WL 6317850, at *2. In any event, very little of this case depends on classified information, and

the actual charged conduct has nothing to do with classified materials. Altogether, the speedy trial

to which the public, the Government, the alleged victims, and the Court is entitled outweighs

Defendant’s mere prudential interest in additional time to prepare. The Court is confident that

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