USA v. Munyenyezi

2011 DNH 067

• Court: District Court, D. New Hampshire
• Decided: April 20, 2011
• Docket: 10-CR-085-SM
• Status: Published

Opinion

USA v . Munyenyezi 10-CR-085-SM 4/20/11 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

United States of America, Government

v. Criminal N o . 10-cr-85-1-SM Opinion N o . 2011 DNH 067 Beatrice Munyenyezi, Defendant

O R D E R

Defendant’s motion to continue the trial date is granted.

Although the current trial date (May 1 7 , 2011) was agreed to by

the parties as reasonable under the circumstances, and although

the court stressed at the scheduling hearing on July 1 6 , 2010,

that counsel should treat the date as firm and diligently

prepare, still, defense counsel assert, for various reasons, that

they require additional time to adequately prepare a defense.

This is both an unusual and complex case in several

respects. Essential to this prosecution is the government’s

factual assertion that the defendant participated in the Rwanda

genocide. Critical witnesses for the government and defendant

reside in Rwanda, and counsel for both sides must necessarily

travel to Rwanda to investigate, marshal evidence, and make

arrangements for witnesses to come to the United States to

testify. Defense counsel have not yet done s o . Language barriers, differences in customs, and international relations

issues all add other complexities that must be navigated.

Discovery and relevant investigatory materials are voluminous,

and include thousands of pages of testimony given before

international tribunals. Realistically, the prosecution involves

a case within a case — before the charged offense can be proven,

defendant’s participation in the genocide must be proven.

While defense counsel probably could have been more diligent

in preparing for trial according to the set schedule, the

complexity of the case and unusual obstacles they face cannot be

casually dismissed. Certainly, both appointed counsel are quite

capable, responsible, and reliable — the court does not doubt

their good faith representation that more time is needed to

prepare if defendant is to have the adequate representation

guaranteed by the Constitution.

The defendant, perhaps optimistically, seeks a delay of only

eighty (80) days beyond the current trial date. While the

court’s trial schedule can accommodate that request, the

government protests. Government counsel rightly point out that

the court made it clear at the July 16 hearing that general pleas

for more time to prepare would not be favorably received, and the

trial date was considered firm. Relying on that circumstance,

2 government counsel understandably committed to two other equally

complicated and complex trials in July and October of 2011.

Beginning on July 1 1 , 2011, government counsel will be in trial

in the District of Massachusetts in United States v . Kantengwa,

Crim. N o . 10385-RGS, which also involves allegations related to

the 1994 Rwanda genocide. Trial is expected to close well after

the August 2 , 2011, date that defense counsel propose to begin

the trial in this case. Shortly thereafter, on October 3 , 2011,

government counsel will be in trial in United States v . Mehanna,

Crim. N o . 09-10017-GAO, also in the District of Massachusetts.

Mehanna involves allegations of terrorism and is expected to

require two months to complete, and, government counsel

realistically predict that they will need two months to prepare

after the trial in Kantengwa is complete.

This case and the other two referenced cases are assigned to

specific government trial counsel, and counsel have already

invested substantial time and energy in their preparation. It is

difficult to fault government counsel for reasonably relying on

the firm trial date set here, and certainly the court will not

fault government counsel for not anticipating defense counsel’s

inability to adequately prepare for trial according to the

schedule previously set and agreed t o . The delay sought, and the

3 grounds for i t , are attributable to the defense, not the

government. The government is ready to proceed on May 1 7 .

A continuance may, of course, be granted under the Speedy

Trial Act when a case is so complex that the ends of justice will

be served by allowing defense counsel more time to prepare.

Morris v . Slappy, 461 U.S. 1 , 11 (1983); Ungar v . Sarafite, 376

U.S. 575, 589 (1964). Here, the complexity of the case, and the

logistical difficulties associated with its preparation, warrant

granting the defendant’s request for additional time.

But, that does not end the matter. Defense counsel cannot

be permitted to use a legitimate request for additional time to

disrupt the reasonable commitments made by the government in

reliance upon the firm date previously set, nor to disrupt other

firm court schedules developed based upon those commitments. If

the defendant’s request for delay (eighty days and no more) were

granted as filed, the government would be unduly prejudiced in

that it would be denied continuity of counsel in this case (or

others) since counsel cannot, realistically, be expected to

prepare and try two complex lengthy cases at once. Continuity is

important here not only because assigned counsel are skilled and

experienced, but because they have already invested substantial

time and effort in this prosecution, which would have to be

4 duplicated if new counsel were assigned (and that would

undoubtedly require an extensive continuance as well).

Among the statutory factors a court “shall consider” in

determining whether a criminal case should be continued is

“whether the failure to grant such a continuance . . . would

unreasonably deny . . . the Government continuity of counsel.”

18 U.S.C. § 3161(h)(7)(B)(iv). The government does not join in

defendant’s request for a continuance, and has asserted that it

is fully prepared to keep to the current trial date. Indeed, the

government objects to a continuance, pointing out that defense

counsel could have been more diligent and their claimed need for

more time — a precisely limited period of time — would, if

granted, have the direct effect of disrupting the continuity of

government counsel in this case, which is plainly a right

entitled to some protection under the Speedy Trial Act. See

United States v . Richardson, 421 F.3d 1 7 , 30-31 (1st Cir. 2005)

(government’s need for continuity of counsel is a valid ground

for granting a continuance in the interest of justice).

For the reasons discussed above, I find that defendant’s

request for a continuance to permit defense counsel to adequately

prepare for trial is legitimate, and outweighs the best interest

of the public and the defendant in a speedy trial. I also find

5 that to grant the continuance only for the limited eighty-day

period requested by defendant would effectively deprive the

government of continuity of counsel under the circumstances and,

finding the government’s brief in opposition persuasive, will

continue the trial until the February 2012, trial period, with

the following caveat. Should government counsel become available

to try this case sooner, due to changes in the obligations they

assumed in reliance upon the firm trial date previously scheduled

in this case, they shall advise the clerk. The court will then

endeavor to reschedule an earlier trial date.

The parties are advised that no further continuances will be

granted absent genuinely extraordinary circumstances. Both

parties shall prepare diligently with the understanding that the

February trial date is firm. Pretrial status conferences will be

scheduled in August and October of 2011 to monitor the status of

preparation and timely address any potential impediments to

proceeding with trial in February.

Conclusion

Defendant’s motion to continue (document n o . 34) is granted,

as set forth above. Trial will be scheduled during the February

2012 trial period.

6 SO ORDERED.

April 2 0 , 2011

cc: David W . Ruoff, Esq. Mark E . Howard, Esq. Donald A . Feith, AUSA Aloke S . Chakravarty, SAUSA Jeffrey Auerhahn, SAUSA U.S. Probation U.S. Marshal