Argued: June 20, 2012
Corrected: June 19, 2013
On appeal from a second judgment of conviction entered in the United States District Court for the Eastern District of New York (Joseph F. Bianco, Judge), defendant seeks vacatur of the judgment and dismissal of the indictment with prejudice on the ground that he was not retried following an earlier mandate of this court within the time prescribed by the Speedy Trial Act, see 18 U.S.C. § 3161(e).
Scott A. Chesin (Andrew L. Frey, Andrew H. Schapiro, Mayer Brown LLP, New York, New York; Henry E. Mazurek, Clayman & Rosenberg LLP, New York, New York, on the brief), Mayer Brown LLP, New York, New York, for Defendant-Appellant.
Andrew C. Mergen (Ignacia S. Moreno, Assistant Attorney General, Sambhav N. Sankar, James B. Nelson, on the brief), Environmental & Natural Resources Division, U.S. Department of Justice, Washington, D.C., for Appellee.
Before: Leval, Pooler, and Raggi, Circuit Judges.
Reena Raggi, Circuit Judge:
This appeal from a judgment of conviction entered on February 28, 2011, in the United States District Court for the Eastern District of New York (Joseph F. Bianco, Judge), raises questions about the proper application of the Speedy Trial Act, 18 U.S.C. § 3161 et seq., on retrial, specifically, whether a district court may find factors supporting an extension of the time for retrial only within the initially prescribed 70-day period, see id. § 3161(e), or whether it may make such findings even after the 70-day period has passed. We confront these questions in the context of a record suggesting both insufficient prosecutorial attention to speedy trial obligations and a lack of candor by prior defense counsel about actual readiness for trial. Neither concern, however, determines this appeal. In the end, we conclude that, however preferable it may be for § 3161(e) findings extending the time for retrial to be made within the initial 70-day retrial period, the statute itself does not impose such a requirement. For that reason, and because we identify no error in the district court's decision to grant an extension to 180 days or in its determination that defendant was tried within that time, we affirm the challenged judgment.
A. First Trial and Appeal
On July 28, 2005, defendant Dov Shellef and confederate William Rubenstein were found guilty after a six-week jury trial before Judge Joanna Seybert of one count of conspiracy to commit tax fraud, see 18 U.S.C. § 371; 26 U.S.C. §§ 4681–82, and 45 counts of substantive wire fraud, see 18 U.S.C. § 1343. These crimes arise out of a complex scheme to buy and sell an ozone-depleting chemical, CFC-113, without paying millions of dollars in required federal excise and income taxes. Shellef was also found guilty on 41 counts of money laundering, see id. § 1956(a)(1)(A)(i)–(ii), B(i); two counts of subscribing to false income tax returns, see 26 U.S.C. § 7206(1); and one count of personal income tax evasion, see id. § 7201.
On appeal, this court ruled that Shellef was entitled to have had the 1996 tax counts (but not the 1999 tax count) severed from the other charges against him, see United States v. Shellef ("Shellef I"), 507 F.3d 82, 99–100 (2d Cir. 2007), and to have had his trial severed from that of Rubenstein, see id. at 103. The initial judgment of conviction was, therefore, vacated and the case remanded for a new trial. See id.
B. District Court Proceedings Following Mandate
This court's mandate in Shellef I issued on March 4, 2008, which all parties agree is the starting date for purposes of calculating time under the Speedy Trial Act provision governing retrials, see 18 U.S.C. § 3161(e). To facilitate our consideration of Shellef's Speedy Trial Act challenge to his conviction on remand, we frame our discussion of the events following issuance of the mandate by reference to discrete time periods.
1. March 4 to April 10, 2008: Reassignment of Case to Judge Platt
Ten days after issuance of the mandate, by letter dated March 14, 2008, the government requested that Judge Seybert schedule a status conference, advising that the Shellef I remand would now require three trials for the two defendants. Before Judge Seybert acted on this request, the case was randomly reassigned on March 21, 2008, to Judge Thomas C. Platt pursuant to Eastern District Local Rule 50.2(l)(1). On March 26, Judge Platt ordered the parties to appear for conference on April 10.
2. April 10, 2008: Discussion of Possible Need for Re-Indictment and Retrial in Early 2009
At the April 10 conference, a question arose as to whether, consistent with this court's severance ruling, the government could pursue the necessary retrials on the single existing indictment (the government's position), or needed to re-present the case to a grand jury to seek three distinct indictments (defendants' position). With Judge Platt initially inclined toward the latter view, the government sought leave to brief the issue. Although it set no specific briefing schedule, the district court directed the government to include in its brief an assessment of the speedy trial status of the case.
The government advised the court that the parties had been exploring the possibility of retrial in early 2009. When Judge Platt observed that speedy trial exclusions would be necessary to delay retrial until 2009, the government stated that the case had already been declared a complex matter, presumably a reference to the Speedy Trial Act's continuance provision, see 18 U.S.C. § 3161(h)(7)(A), (B)(ii). Shellef's then-counsel, Stuart E. Abrams, agreed that the case was complex, but emphasized that Shellef was not agreeing to "open-ended extensions of speedy trial time." April 10, 2008 Tr. 16:4–5. Judge Platt observed that he did not understand that to be the government's request, which the government confirmed. Nevertheless, Judge Platt agreed that the case was complex, identifying support for that conclusion in the Shellef I panel decision. He did not, however, expressly state that he was granting a continuance on April 10. Rather, he instructed the parties to consider the matter further so that they could ask for appropriate Speedy Trial Act exclusions at future court appearances.
3. May 19 to November 4, 2008: Government's Request for Trial Date and Shellef's First Speedy Trial Motion
Approximately five weeks later, on May 19, 2008, the government requested that the district court set new trial dates in the case. In a four-page, single-spaced letter, the government presented legal argument as to why it could retry the defendants on the original indictment, contrary to reservations noted by Judge Platt and opposition voiced by defendants at the April 10 conference. On May 27, 2008, Judge Platt instructed the government, inter alia, to submit copies of the redacted indictments it proposed to use at the three anticipated retrials. For reasons not apparent from the record, the government did not comply until July 22, 2008.
Shellef never filed any opposition to the government's May 19 argument that retrial could proceed without new indictments. Instead, on June 3, 2008, his counsel Abrams filed a two-page motion seeking dismissal of the pending indictment on the ground that the 70-day period within which Shellef's retrial was required by 18 U.S.C. § 3161(e) had expired on May 13, 2008. Judge Platt denied the motion on July 24, 2008, finding that he had implicitly granted a speedy trial exclusion on April 10, 2008, pursuant to 18 U.S.C. § 3161(h)(7)(A), (B)(ii), based on the complexity of the case, which was then acknowledged by all parties who were seeking retrial in January 2009.
Three months later, by letter dated October 29, 2008, the government again requested a status conference to set trial dates. On November 3, 2008, Judge Platt scheduled that conference for November 6, at which time it set Shellef's case for retrial on November 24. Meanwhile, on November 4, 2008, Abrams filed a motion to modify the conditions of Shellef's bail.
4. November 4, 2008 to June 17, 2009: Shellef's Requests for Trial Continuances and Reassignment of Case to Judge Bianco
Shellef does not contest that the time between the November 4, 2008 bail motion and the start of trial on December 14, 2009, is properly excluded from speedy trial calculation. Thus, we need not discuss the particular exclusions supporting this conclusion in detail. Nevertheless, we think it useful to summarize the events giving rise to this 13-month period of further delay to provide context for the speedy trial issues raised on this appeal and to explain the reassignment of this case to Judge Bianco, whose final speedy trial assessment is here challenged.
At the November 6 conference, Abrams renewed his argument that Shellef had been denied speedy retrial. Judge Platt remained unconvinced, reiterating that he had implicitly granted a § 3161(h)(7) continuance based on complexity, running from the April 10, 2008 status conference through January 2009, the month the parties had identified for possible retrial. Nevertheless, in light of Shellef's speedy trial challenge, Judge Platt proceeded to set November 24, 2008, for Rubenstein's retrial, to be followed immediately by Shellef's retrial. Rubenstein's counsel objected to the trial date, invoking scheduled medical treatments and ongoing plea negotiations. Judge Platt maintained the date, advising that if the case against Rubenstein were resolved by plea before November 24, the government should be prepared to begin Shellef's retrial on that date. Abrams objected, noting that he was currently engaged in a trial that would not be concluded by late November. Following Judge Platt's suggestion that Shellef retain other counsel who could try the case as scheduled, Abrams advised that a late November trial still might not be realistic because he expected to file additional motions addressed to the government's decision not to re-indict and to unspecified issues raised by the Shellef I ruling. Judge Platt suggested that Shellef's efforts to avoid a November 24 trial cast doubt on the sincerity of his earlier speedy trial protest.
On November 17, Abrams advised the district court that his client had been unable to secure new counsel to retry the case on November 24, and that the trial in which he was engaged would not conclude until mid-December. Abrams proposed that new pretrial motions be filed by December 22, 2008, and that trial be adjourned until February 12, 2009. In support of this schedule, Shellef agreed to a § 3161(h)(7) continuance of speedy trial in the interests of justice. The district court accordingly rescheduled trial for February 17, 2009.
On January 5, 2009, Abrams again moved to adjourn trial, as well as for leave to withdraw, for the first time advising Judge Platt that Shellef had not finalized Abrams's retention for retrial. At the ensuing January 13 conference, Abrams stated that if the court would release $250, 000 of the money Shellef had posted for bail, Shellef would be able to effect Abrams's retention, allowing retrial to proceed as scheduled without "the problem of having [to secure] new counsel." Jan. 13, 2009 Tr. 5:18–19. With the government's consent, the district court released the money. The counsel "problem, " however, was not eliminated. By letter dated February 5, 2009, attorney Henry E. Mazurek sought leave to substitute as Shellef's counsel and requested a 60-day continuance of the trial date to afford him adequate time for preparation. Judge Platt denied the application on February 11, 2009, at an apparently untranscribed telephone conference. Presumably, he had not yet seen Shellef's supporting declaration, dated February 10, which advised that it had been his intention since "remand . . . in March 2008" to seek new counsel for retrial because of "fundamental disagreements and irreconcilable differences" with counsel of record about his defense. Shellef Decl. 2 (Feb. 10, 2009). Shellef attributed his failure to do so to financial constraints that persisted until the district court's release of bail funds. Shellef represented that Abrams had agreed to represent him on remand only for purposes of bail and speedy trial and that the two had had no "adequate substantive meetings or communications" with respect to defense strategy at retrial. Id. Shellef did not explain why these circumstances—presumably making it impossible to proceed to retrial at any time between March 2008 and February 2009—had not been disclosed earlier to the district court. By written order dated February 17, 2009, Judge Platt adhered to his original decision denying substitution.
Shellef petitioned this court for a writ of mandamus, which was denied on March 13, 2009. See In re Dov Shellef, 09-0607-mr (2d Cir. Mar. 13, 2009) (order denying mandamus). The order nevertheless identified various constitutional concerns arising from Shellef's claim that the denial of Mazurek's application was forcing him "unwillingly to proceed to trial pro se, " which this court assumed Judge Platt would address before retrial. Id. at 2.
With jury selection scheduled to begin on the afternoon of March 24, Judge Platt heard extensively from Shellef and Abrams on that morning and the day before about Shellef's professed longstanding intent to secure different representation for retrial, his current dysfunctional relationship with counsel of record, and his unwillingness to represent himself. Judge Platt remained adamant in refusing to allow a substitution of counsel that would require adjournment of trial. The judge voiced frustration that, at past status conferences, Abrams had given the misimpression that, but for scheduling conflicts and lack of funds, he stood ready to retry the case. The judge further characterized as inadequate a proposed stipulation to waive speedy trial challenges that operated only prospectively. Abrams construed the latter statement as impermissibly conditioning Shellef's choice of counsel on the withdrawal of the original speedy trial challenge, prompting a heated exchange that ultimately led Abrams to request Judge Platt's recusal, which request was denied.
At the same time that these proceedings were being conducted in the district court, Mazurek successfully obtained a temporary stay of trial from this court while he petitioned for a writ of mandamus. See In re Dov Shellef, 09-1183-op (2d Cir. Mar. 24, 2009) (motion for emergency stay of trial and writ of mandamus). On April 15, 2009, this court granted mandamus to the extent of ordering reassignment of the case to a different judge. See In re Dov Shellef, 09-1183-op (2d Cir. Apr. 15, 2009) (order granting mandamus). Pursuant to the mandate, which issued on June 2, 2009, the case was reassigned to Judge Bianco on June 17, 2009.
5. June 17, 2009 to February 28, 2011: Shellef's Second Speedy Trial Motion and the Challenged Judgment of Conviction
At a June 24, 2009 status conference, Judge Bianco set December 7, 2009, for retrial, with Shellef agreeing to the exclusion of all intervening time from speedy trial calculation. On September 3, 2009, Mazurek moved to dismiss the pending indictment based on speedy trial delays occurring before November 4, 2008. The district court denied the motion orally on November 19, 2009, and on January 14, 2011, after the conclusion of trial and post-trial proceedings, filed a detailed memorandum and order explaining its reasoning. See United States v. Shellef, 756 F.Supp.2d 280 (E.D.N.Y. 2011).
Therein, Judge Bianco construed the record of proceedings on April 10, 2008, to reflect an implicit finding by Judge Platt that retrial within 70 days of the mandate would have been impractical, and to extend the time for retrial to 180 days pursuant to 18 U.S.C. § 3161(e). Even in the absence of such action by Judge Platt, however, Judge Bianco concluded that he had the authority to make the same finding of impracticality and to extend the time for retrial to 180 days, which he did.
In considering whether Shellef had been tried within the required 180 days, Judge Bianco focused on the 246 days between the March 4, 2008 mandate and the November 4, 2008 filing of Shellef's bail motion—after which time Shellef concedes the proper exclusion of all time through the start of trial on December 14, 2009. Observing that at least 66 of these 246 days had to be excludable under the Speedy Trial Act ...