U.S. v. De Castro-Font

• Citation: 583 F.Supp.2d 243
• Decision Date: 28 October 2008
• Docket Number: Civil No. 08-337 (FAB).
• Parties: UNITED STATES of America, Plaintiff, v. Jorge A. DE CASTRO-FONT [1], Defendant.
• Court: U.S. District Court — District of Puerto Rico

Page 243

583 F.Supp.2d 243

UNITED STATES of America, Plaintiff, v. Jorge A. DE CASTRO-FONT [1], Defendant.

Civil No. 08-337 (FAB).

United States District Court, D. Puerto Rico.

October 28, 2008.

Daniel A. Schwager, Public Integrity, United States Department of Justice, Washington, DC, Ernesto G. Lopez-Soltero, Timothy R. Henwood, United States Attorneys Office, District of Puerto Rico, San Juan, PR, Jacqueline D. Novas-Debien, US Attorney's Office, District of Puerto Rico, Hato Rey, PR, for Plaintiff.

Lydia Lizarribar-Buxo, Lizarribar Masini Law Office, Joseph A. Boucher-Martinez, San Juan, PR, for Defendant.

MEMORANDUM AND ORDER

BESOSA, District Judge.

On October 23, 2008, defendant Jorge De Castro-Font filed a motion entitled "request to vacate trial for just cause" (Docket No. 46). In his motion, De Castro-Font argues that the trial date should be vacated for two reasons. First, he avers that his defense counsel will participate in another trial set in a criminal case scheduled to begin on November 10, 2008, and that the government estimated that trial in this earlier scheduled case will last two months. Second, De Castro-Font indicates that the discovery provided to date by the government contains copious amounts of materials, and that more time is needed to review the discovery materials.

In order to place De Castro-Font's request within some sort of legal framework, because he cites no authority for the requested relief, the Court shall treat it as a request for a continuance. Trial courts enjoy broad discretion when evaluating a motion for continuance. Morris v. Slappy, 461 U.S. 1, 11, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983); Macaulay v. P. Anas, M.D., 321 F.3d 45, 49 (1st Cir.2003). The basis for the discretion rests in part on "an important public interest in the efficient operation of the judicial system and in the orderly management of crowded dockets[,]" and in part on the unique position of a district judge, which makes that judge "the person best equipped to balance the competing considerations [involved in a motion for continuance]." United States v. Devin, 918 F.2d 280, 291 (1st Cir.1990). To overturn a district court's denial of a motion for continuance, a movant must show that he or she suffered substantial prejudice resulting from a serious error of law or meaningful lapse of judgment. Correia v. Fitzgerald, 354 F.3d 47, 52 (1st Cir.2003) (citing United States v. Saccoccia, 58 F.3d 754, 770 (1st Cir.1995)).

In ruling on a motion for a continuance, a trial court must first consider the reasons contemporaneously expressed by the party requesting a continuance. Saccoccia, 58 F.3d at 770 (citing United States v. Lussier, 929 F.2d 25, 28 (1st Cir.1991)). Factors that may prove relevant include the amount of time needed for effective preparation, the amount of time actually available for preparation, the amount of time previously available for preparation and how assiduously the movant used that time, the extent to which the movant contributed to his perceived predicament, the complexity of the case, the availability of assistance from other sources, the probable utility of a continuance, the extent of inconvenience to others if the continuance were granted, and the likelihood of injustice or unfair prejudice attributable to the denial of a continuance. Saccoccia, 58 F.3d at 770 (citations omitted); see also United States v. Rodriguez-Duran, 507 F.3d 749, 763 (1st Cir.2007) (citing four of the Saccoccia factors). The list of these factors is "neither exclusive nor universally applicable." United States v. Ottens, 74 F.3d 357, 360 (1st Cir.1996) (affirming the denial of a continuance where defense counsel requested more time for preparation). Each case involving a motion for continuance is sui generis and requires a case specific approach. Id.

De Castro-Font provides two rationales for granting a continuance: a prior trial date in which defense counsel is involved, and insufficient time for preparation related to a significant amount of discovery. These rationales raise different concerns. Principally, "[w]here defense counsel moves for a continuance based on a scheduling conflict, the court must consider the defendant's Sixth Amendment rights." United States v. Hanhardt, 156 F.Supp.2d 988, 996 (N.D.Ill.2001). The Sixth Amendment guarantees a criminal defendant the right to assistance of counsel, including a limited right to counsel of choice. U.S. CONST. amend. IV; Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 77 L.Ed. 158 (1932). This limited right to counsel, however, must sometimes yield. United States v. Hughey, 147 F.3d 423, 429-30 (5th Cir.1998) (discussing situations where a defendant's limited right to counsel of choice must yield). As the Supreme Court has explained, "the essential aim of the [Sixth] Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers." Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988).

If defendant's chosen attorney "is likely to be unavailable for an extended period, or if other factors exist that tip the balance in favor of proceeding in spite of a particular attorney's absence, the defendant's motion for a continuance clearly may be denied." Morris, 461 U.S. at 25, 103 S.Ct. 1610 (Brennan, J. concurring (joined by Marshall, J.)). "Only an unreasoning and arbitrary `insistence upon expeditiousness in the face of a justifiable request for delay' violates the right to the assistance of counsel." Id. at 11-12, 103 S.Ct. 1610 (citing Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964)).

De Castro-Font asserts that his defense counsel will participate in another criminal trial, United States v. Anthony Dominguez (Crim. 07-346(DRD)), scheduled to begin on November 10, 2008. He further alleges that the government estimated the Dominguez trial would last for two months. If the government accurately estimated the time for trial, then defense counsel would be tied up until just two days prior to the start of trial in this case, January 12, 2009. Nonetheless, as of today, the two-month estimate for the Dominguez case is just that, an estimate. The Dominguez case could conceivably be tried and finished by early December, and it just as easily might plea out before trial begins or shortly thereafter.¹

Even assuming that the Dominguez case actually goes to trial and lasts for two months, something that this Court views as extremely unlikely, De Castro-Font may not be harmed by attorney Lizarribar-Buxo's absence from his case. After all, De Castro-Font has TWO attorneys of record. De Castro-Font's other attorney, Joseph Boucher-Martinez, is not an attorney of record in the Dominguez case. Neither does his name appear in the motion for a continuance signed by attorney Lizarribar-Buxo. On the record before the Court, there is no reason to believe that attorney Boucher-Martinez cannot devote the bulk of his time and attention to the preparation of De Castro-Font's case should attorney Lizarribar-Buxo need to divide her attention between different clients.

Putting aside for the moment this Court's belief that trial is unlikely to last for two months in the Dominguez case and that attorney Boucher-Martinez can continue to represent De Castro-Font if attorney Lizarribar-Buxo is involved in another trial, there remains an important point to be made: this Court need not allow De Castro-Font's self-inflicted Sixth Amendment conflict to trump the Court's reasonable trial schedule. See United States v. Delia, 925 F.2d 574, 575 (2d Cir.1991) ("The right to counsel of one's choice does not include a lawyer whose other commitments preclude compliance with a court's reasonable scheduling of its cases.").

The grand jury issued the indictment against De Castro-Font on October 2, 2008 (Docket No. 3). This Court takes judicial notice of the fact that defense counsel Lizarribar-Buxo had already long been listed as defense counsel in the Dominguez case (Crim. 07-346(DRD), Docket No. 155). Moreover, by the time indictment was issued in this case, trial had already been set in the Dominguez case (Crim. 07-346(DRD), Docket No. 252). Thus, attorney Lizarribar-Buxo knew when she took on the representation of De Castro-Font that she had a pre-existing obligation to her already existing client that could, and likely would, interfere with her ability to dedicate herself to preparing De Castro-Font's defense. As further explained below, there is nothing objectively unreasonable about this Court's allocation to De Castro-Font of nearly three and a half months to prepare for trial. The fact that attorney Lizarribar-Buxo has a scheduling conflict that may impact her ability to prepare the defense does not outweigh the inconvenience to the Court and other litigants that a continuance will cause.

This Court has a busy trial schedule. Rescheduling trial in this case would require rescheduling trials in many other cases given the quantum of evidence that may be presented. This outcome would not only be an inefficient utilization of court resources, but it would also be unjust to the other litigants awaiting resolution of their cases. Therefore, this Court deems defense counsel's pre-existing trial schedule insufficient justification for granting a continuance in this case. If trial is not postponed in the Dominguez case, and if attorney Lizarribar-Buxo cannot divide the work for this case among other associates, whether they be legal, paralegal, administrative or investigative, such that De Castro-Font's defense is competently prepared, then she may have to withdraw and De Castro-Font may have to retain additional counsel, with sufficient time to prepare competently for the trial that will begin on January 12, 2009. See Hughey, 147 F.3d at 432.

De Castro-Font's second justification for a continuance, that there is too much...