U.S. v. Shellef

Citation756 F.Supp.2d 280
Decision Date14 January 2011
Docket NumberNo. 03–CR–0723 (JFB)(ETB).,03–CR–0723 (JFB)(ETB).
PartiesUNITED STATES of Americav.Dov SHELLEF, Defendant.
CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)

OPINION TEXT STARTS HERE

James B. Nelson and Mark W. Kotila, United States Department of Justice, Washington, DC, for the Government.Henry E. Mazurek, Weinstein & Mazurek PLLC, and Jane Anne Murray, Law Office of Jane Anne Murray, New York, NY, for the defendant.

memorandum and order

JOSEPH F. BIANCO, District Judge:

On July 28, 2005, defendant Dov Shellef (hereinafter defendant or “Shellef”) was convicted following a jury trial on all counts of an 86–count indictment, alleging: conspiracy to defraud the government, 18 U.S.C. § 371; filing a false tax return, 26 U.S.C. § 7206(1); wire fraud, 18 U.S.C. § 1343; and money laundering, 18 U.S.C. § 1956(a)(1)(A)(i), (a)(1)(A)(ii), (a)(1)(B)(i). On March 22, 2006, the Honorable Joanna Seybert sentenced Shellef principally to seventy months' imprisonment to be followed by three years' supervised release. On March 4, 2008, the Second Circuit issued a mandate, vacating the judgment of conviction and remanding for a new trial. On March 21, 2008, the case was re-assigned to the Honorable Thomas C. Platt. Shellef subsequently filed a writ of mandamus with the Second Circuit in connection with the denial of his counsel's motion to withdraw as counsel and substitute new counsel for purposes of the re-trial. In connection with that appeal, the parties agreed that substitution of counsel should be permitted. On June 2, 2009, the Second Circuit issued a mandate which granted the mandamus to the extent it sought re-assignment to a new district judge and denied the petition in all other respects. On June 17, 2009, the case was re-assigned to the undersigned.

On September 3, 2009, prior to the re-trial, Shellef moved to dismiss the indictment for alleged violation of the Speedy Trial Act while the case was assigned to Judge Platt.1 The government opposed the motion. This was a renewed motion because Judge Platt had rejected Shellef's Speedy Trial motions before the re-assignment. On October 23, 2009, the defendant filed his reply. On November 19, 2009, after reviewing the written submissions and hearing argument, the Court denied the Speedy Trial motion and provided the basis for its ruling orally on the record. However, the Court provides a more extended analysis of its decision in this Memorandum and Order.2 The analysis herein not only addresses the arguments made in defendant's motion, but also the arguments regarding the Speedy Trial motion contained in his recent filing for bail pending appeal. Therefore, for the reasons set forth below and orally on the record in Court, the defendant's Speedy Trial motion is denied.3

I. Background 4

Defendant was initially charged in a 91–count indictment on June 24, 2003. Following a jury trial in June–July 2005 before the Honorable Joanna Seybert, United States District Judge, defendant was convicted, along with co-defendant William Rubenstein, of all counts. Both Shellef and Rubenstein appealed their convictions. The Second Circuit held that certain tax charges against Shellef were improperly joined with the other charges against both defendants under Rule 8 of the Federal Rules of Criminal Procedure. See United States v. Shellef, 507 F.3d 82, 88 (2d Cir.2007). The Second Circuit also held that the joinder of Shellef and Rubenstein as defendants was improper. See id.5

On March 4, 2008, the Second Circuit issued a mandate remanding the case for retrial. (Docket No. 255.) On March 21, 2008, the case was re-assigned by the Honorable Joanna Seybert to the Honorable Thomas C. Platt. (Docket No. 256.) On March 26, 2008, Judge Platt issued a notice of hearing for a scheduling conference to be held on April 10, 2008. During this 37–day period, both defendants submitted letters requesting permission to travel outside their bail limitations. In particular, on March 28, 2008, Shellef submitted his request for bail modification. (Docket No. 258.) On April 1, 2008, the court issued a Memorandum and Order in which the request was granted in part and denied in part. (Docket No. 260.)

The scheduling conference was held on April 10, 2008. At the conference, Judge Platt instructed the government that, in light of the Second Circuit's finding of improper joinder, the government should obtain superseding indictments in the Grand Jury that separated the counts in a manner consistent with the mandate of the Second Circuit. (4/10/08 Tr. at 3–8.) Although the government believed that re-indictment was unnecessary, defense counsel agreed with Judge Platt. ( Id. at 9–10.) The government requested an opportunity to brief the issue. ( Id. at 10–11.) Government counsel also informed the court that the parties had discussed a re-trial date in early 2009. ( Id. at 14.) Judge Platt proceeded to discuss the potential Speedy Trial Act implications of proceeding in this manner. In response, government counsel stated, “I think initially, your Honor, this case was declared a complex matter.” ( Id. at 15.) The Court responded, “I think we can rely on Judge Sackett [sic] to back us up on that, but as long as the both sides agree.” ( Id.) The Court then inquired as to defense counsel's opinion on the issue of complexity. Shellef's counsel stated, “Maybe the only thing we'll agree on, your Honor, I think is that. It is a complex case.” ( Id. at 16–17.) Government counsel also advised the court that he did not anticipate an open-ended extension; rather, he “would like to agree with counsel to a date certain, provided it fits with the court's calendar, and just hold to that date.” ( Id. at 17.) The court responded, We'll do the best we can.” ( Id.) The court instructed the government to notify the court when superseding indictments were returned and to schedule arraignments of the defendants on the new indictments. ( Id. at 19.)

On May 19, 2008, the Government filed a letter motion with the Court seeking a trial date without having to re-indict the case. (Docket No. 265.) In particular, the government argued in its letter motion that, as a matter of law, the government need not represent the case to the Grand Jury, but rather could proceed on the original Indictment so long as the re-trials were consistent with the Second Circuit's mandate. Based on its analysis, the government stated the following: [T]he United States is prepared to proceed to trial on the counts set forth in the original indictment in this matter, as modified consistent with the decision of the Court of Appeals. Therefore, the United States respectfully requests that the Court set three new trial dates as requested herein with associated scheduling orders.” ( Id. at 4.) Defendant Shellef did not respond to this letter motion and, thus, gave no indication that he was abandoning his position at the April 10 conference that the case had to be re-indicted before re-trial. On May 27, 2008, the court requested that the government submit redacted copies of the original Indictment to demonstrate how the re-trials could proceed in a manner that was consistent with the Second Circuit's decision. (Docket No. 266.)

On June 3, 2008, while the government's letter motion requesting new trial dates was still pending and before the government responded to the court's May 27 request, defendant Shellef filed a motion to dismiss the Indictment for violation of the Speedy Trial Act. (Docket Nos. 267–69.) On June 13, 2008, the government opposed Shellef's motion on the following grounds: (1) the parties had agreed that the case was complex and, thus, not subject to the seventy-day limitation; and (2) even if the case were not designated as complex, the seventy days had not expired. (Docket No. 271.) On June 18, 2008, Shellef submitted his reply to the government's opposition. (Docket No. 273.) On July 22, 2008, in response to the court's May 27 request, the government filed a letter with the court and attached redacted indictments to demonstrate how the various counts in the pending Indictment should be severed in order for the re-trials to comply with the Second Circuit's decision. (Docket No. 275.) In that letter, the government reiterated that it was prepared to proceed to trial, and requested that the court set new trial dates and scheduling orders. ( Id. at 2.) Defendant Shellef never responded to that letter.

On July 24, 2008, Judge Platt issued a nine-page Memorandum and Order denying the defendant's motion to dismiss the Indictment for violation of the Speedy Trial Act. (Docket No. 276.) In the Memorandum and Order, the court explained that it had determined that an “ends of justice” continuance was necessary pursuant to 18 U.S.C. § 3161(h)(8)(A), (B)(ii), due to the complexity of the case. ( Id. at 5–8.) More specifically, the court explained: “While it is true that the Court did not on April 10, 2008 specifically state that it was excluding time based on the fact that this is a ‘complex’ case, it seemed unnecessary given that the attorneys for both parties, during a discussion on the record concerning excludable time pursuant to the Speedy Trial Act, agreed that this case was complex. Additionally, it is also true that at the time of such agreement, all of the attorneys requested a date in January 2009 to commence the retrials of these defendants. Further, it is true that regardless of the agreement among the parties on this issue, the Court (between Judge Joanna Seybert and the undersigned) was fully aware that this case was ‘complex’ given that it took four weeks to try the first time and was reversed and remanded for misjoinder on appeal because of its very complexity.” ( Id. at 7–8.)

On October 29, 2008, the government filed a letter motion to the court noting that all of the pending matters had been resolved, and stating that the government stood ready to proceed to trial at the court's convenience. (Docket No. 281.) Accordingly, the government requested that...

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10 cases
  • United States v. Shellef, Docket No. 11–876–cr.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 19, 2013
    ...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 tha......
  • United States v. Walsh, 15-CR-91 (ADS)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • November 7, 2016
    ...to correct a clear error of law or to prevent manifest injustice. Carr, 557 F.3d at 93; Uccio, 940 F.2d at 758; United States v. Shellef, 756 F. Supp. 2d 280, 288 (E.D.N.Y. 2011) (quoting United States v. Tenzer, 213 F.3d 34, 39 (2d Cir. 2000)); see also Vitrano v. United States, No. 06-CV-......
  • United States v. Shellef, Docket No. 11-876-cr
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • May 23, 2013
    ...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 ......
  • United States v. Shellef, Docket No. 11-876-cr
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • May 23, 2013
    ...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 ......
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