United States v. Dobek

• Decision Date: 21 October 2013
• Docket Number: Case No. 12–CR–253–JPS.
• Citation: 989 F.Supp.2d 723
• Parties: UNITED STATES of America, Plaintiff, v. Ronald A. DOBEK, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

989 F.Supp.2d 723

UNITED STATES of America, Plaintiff,

v.Ronald A. DOBEK, Defendant.

Case No. 12–CR–253–JPS.

United States District Court, E.D. Wisconsin.

Oct. 21, 2013.

John J. Manning, United States Department of Justice, Milwaukee, WI, for Plaintiff.

ORDER

J.P. STADTMUELLER, District Judge.

This criminal prosecution represents yet another episode of what occurs when errant Assistant U.S. Attorneys embark too late and without all their bags on a troubled adventure in case preparation, their lack of such preparation perhaps overshadowed only by the apparent absence of meaningful accountability, oversight, and supervision within the United States Attorney'soffice. For in the end, these ingredients collectively prove to be part of a quintessential recipe for disaster. But first, some relevant background facts.

To begin, the origins of this case stretch all the way back to July of 2012 when the Government filed a sealed complaint against the defendant, Ronald Dobek, in a separate case in the Southern District of New York. (S.D.N.Y. Case No. 12–CR–583, Docket # 1). That complaint charged Mr. Dobek with passport fraud and aggravated identity theft. ( Id.) In that case, Mr. Dobek sought and received several extensions of time, all excludable under the Speedy Trial Act, to file pretrial motions. ( See, e.g., S.D.N.Y. Case No. 12–CR–583, Docket # 7, # 8).

Eventually, in those proceedings, it became clear that Mr. Dobek was likely to face separate charges here, in the Eastern District of Wisconsin. (S.D.N.Y. Case No. 12–CR–583, Docket # 9, at 2:10–2:18). Initially, the parties in the New York case were very hopeful that they could reach a global disposition that would resolve the charges then pending against Mr. Dobek, together with the as-yet-unfiled charges that would have been brought against him in this district. (S.D.N.Y. Case No. 12–CR–583, Docket # 9, at 2:21–3:1). The parties received another Speedy Trial extension at that juncture, in order to allow them to engage in plea negotiations to reach the anticipated global agreement. (S.D.N.Y. Case No. 12–CR–583, Docket # 9, at 3:19–4:9).

Unfortunately, the global disposition envisioned never reached fruition. Thus, on December 11, 2012, the United States Attorney for the Eastern District of Wisconsin sought an indictment against Mr. Dobek from the grand jury. (Docket # 1). The grand jury returned that indictment, charging Mr. Dobek with two substantive counts of illegally exporting defense articles to Venezuela. (Docket # 1). On December 20, 2012, the parties in the Southern District case informed the presiding judge that a global agreement could not be reached, and Mr. Dobek would plead guilty to the Southern District charges before proceeding to trial on the separate charges pending against him here. (S.D.N.Y. Case No. 12–CR–583, Docket # 12, at 2:19–2:24). The presiding judge in the Southern District case granted an additional extension consistent with the Speedy Trial Act to allow the parties to engage in further plea negotiations regarding the Southern District charges. (S.D.N.Y. Case No. 12–CR–583, Docket # 12, at 3:18–3:25).

The parties received several more extensions of time in the Southern District case (S.D.N.Y. Case No. 12–CR–583, Docket # 14, # 15, # 16), before Mr. Dobek finally pled guilty to a superseding three-count information charging him with passport fraud, identity theft, and fraud with identification documents. (S.D.N.Y. Case No. 12–CR–583, Docket # 17, # 19).

Thereafter, Mr. Dobek awaited sentencing in the Southern District, which was adjourned once. (S.D.N.Y. Case No. 12–CR–583, Docket # 21). Eventually, on June 14, 2013, Mr. Dobek was sentenced to a term of four months imprisonment on counts one and three (the passport and identification documentation fraud charges) and twenty-four months imprisonment on count two (the identity theft charge), to run concurrent for a total term of twenty-four months imprisonment.

In the meantime, the U.S. Attorney in this district took no action while Mr. Dobek was awaiting sentencing. In fact, the U.S. Attorney took practically no action until almost a month after Mr. Dobek's case was concluded in the Southern District. Then, it was not until August 16, 2013, that Mr. Dobek finally appeared for an arraignment on the charges pending against him in this district. (Docket # 9).

But, even after Mr. Dobek's arraignment, the delays continued. The U.S. Attorney did not provide the defense with discovery until August 23, 2013, more than a week after the arraignment. (Docket # 13). That required Mr. Dobek to seek an extension of time to file pretrial motions, which would otherwise have been due only a week later. (Docket # 13).

All of this begs the question: if the U.S. Attorney's office in this district was not adequately prepared to follow through with making discovery available at the time of the arraignment, even after having over eight months to prepare, then why did they even present the charge to the grand jury so much earlier? The answer, of course, lies in the fact that the statute of limitations would have otherwise expired on the conduct charged against Mr. Dobek in Count One of the underlying indictment.

That fact, in itself, also begs the question of why the U.S. Attorney did not bring the charges against Mr. Dobek in a more timely fashion so as to avoid any issues with the statute of limitations. As early as July of 2010, the Government was interviewing witnesses and gathering evidence against Mr. Dobek. (Docket # 21, at 4–5). So why wait until the eleventh hour, fifty-ninth minute to bring the charges? Alas, there is no evidence in the record that would provide even a clue as to the basis for that decision. To be sure, that is an executive branch decision, and the Court respects that fact; nonetheless, at the risk of stating the obvious, it is a decision that served to send the U.S. Attorney's office further up the creek that they now find themselves struggling to navigate.

Whatever the reasons for the U.S. Attorney's lack of preparation at the time of Mr. Dobek's arraignment, it seemed that the kinks had mostly worked themselves out by early October-or so it would appear. There was very limited communication between the parties and the Court after the assigned magistrate judge granted Mr. Dobek's motion for an extension on September 3, 2013. Through communications with counsel, though, the Court ultimately became aware that Mr. Dobek was likely to decline to resolve his case short of a full blown trial.

In keeping with that plan, the parties filed their joint final pretrial report on October 10, 2013. (Docket # 21). It was at that time that the chinks in the Government's case again began jumping off the page.

The first indication that there were serious issues with the state of preparations in the prosecution's case became apparent as the Court began preparation of a preliminary draft of the instructions that would be given to the jury at the conclusion of the trial. In doing so, the Court noticed that—curiously and seemingly erroneously—the U.S. Attorney had included proposed jury instructions for a conspiracy charge. (Docket # 21, Ex. 2, at 16). This was surprising, given that the indictment only charged Mr. Dobek with two substantive counts, both of which alleged illegal export. (Docket # 1). It certainly did not include a conspiracy charge. (Docket # 1). At the same time, Mr. Dobek's proposed jury instructions did not include any instructions addressing a conspiracy charge. (Docket # 21, Ex. 3). Nonetheless, seeing as there were other clerical errors in the U.S. Attorney's pretrial report, including the erroneous representation that the jury instructions were submitted “by JAMES L. SANTELLE, United States Attorney for the Northern District of Illinois,” (Docket # 21, Ex. 2, at 1 (emphasis added)), the Court believed that the submission of jury instructions for uncharged conduct might well have also been erroneous.

Alas, it was not. The following day, in a phone conversation, Assistant U.S. Attorney Erica O'Neil informed the Court that, in fact, the Government planned to re-indict Mr. Dobek on Tuesday, October 15, 2013—the day of the final pretrial conference and less than a week before trial was scheduled to commence—to add a conspiracy charge. This was the first that the Court had caught wind of any anticipated additional charge.

Likewise, the U.S. Attorney's office informed Edward J. Hunt, Mr. Dobek's counsel, of this possibility very late in the pretrial process. In fact, Mr. Hunt informed the Court that he received word of this only moments before the parties submitted their joint pretrial report to the Court. To be sure, this was a very unwise strategy on the part of the U.S. Attorney for two important reasons.

First, it is specific evidence of the fact that the U.S. Attorney's office did not abide by the Court's trial scheduling order. The trial scheduling order requires that “the government and the defendant confer in person, and thereafter prepare and file a single joint final pretrial report, the principal burden for the preparation and filing of which rests with counsel for the government.” (Docket # 8, at 1–2). Seeing as Mr. Dobek's jury instruction submission did not include instructions on a conspiracy charge, the Court concludes that the U.S. Attorney either: (a) never had the required open discussions with Mr. Dobek's attorney prior to preparing and submitting the pretrial report; or (b) had such a conversation but concealed the potential for re-indictment from defense counsel only to change its submission prior to submitting it to the Court. Whichever of those activities the U.S. Attorney engaged in, it is most troubling. Moreover, the fact that the parties did not adequately engage in pretrial discussions is further evidenced by their widely divergent submissions on the instructions regarding the elements of the illegal export charges, which give every...