United States v. Shellef, Docket No. 11–876–cr.

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Citation718 F.3d 94
Docket NumberDocket No. 11–876–cr.
PartiesUNITED STATES of America, Appellee, v. Dov SHELLEF, Defendant–Appellant.
Decision Date19 June 2013

718 F.3d 94

UNITED STATES of America, Appellee,
v.
Dov SHELLEF, Defendant–Appellant.

Docket No. 11–876–cr.

United States Court of Appeals,
Second Circuit.

Argued: June 20, 2012.
Decided: May 23, 2013.

Corrected: June 19, 2013.


[718 F.3d 95]


Scott A. Chesin (Andrew L. Frey, Andrew H. Schapiro, Mayer Brown LLP, New York, NY; Henry E. Mazurek, Clayman & Rosenberg LLP, New York, NY, on the brief), Mayer Brown LLP, New York, NY, 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.

Judge POOLER dissents in a separate opinion.

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

[718 F.3d 96]

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.

I. BackgroundA. 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, see18 U.S.C. § 371; 26 U.S.C. §§ 4681–82, and 45 counts of substantive wire fraud, see18 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, see26 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. See18 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).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

[718 F.3d 97]

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. See18 U.S.C. § 3161(h)(7)(A), (B)(ii).2 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

[718 F.3d 98]

by all parties who were seeking retrial in January 2009. 3

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...

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17 practice notes
  • United States v. Henning, Case No.: SACR 16-00029-CJC-7
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • January 19, 2021
    ...Congress intended to afford experienced trial judges considerable discretion in making such determinations." United States v. Shellef , 718 F.3d 94, 105 (2d Cir. 2013). Determinations of whether holding a trial is impractical are therefore subject to "case-by-case review rather than ... cat......
  • Headley-Ombler v. Holder, 12–CV–2631 WFK LB.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • December 5, 2013
    ...necessarily begins with the plain meaning of a law's text and, absent ambiguity, will generally end there.” United States v. Shellef, 718 F.3d 94, 102 (2d Cir.2013) (citations omitted). “In conducting such an analysis, [the court will] review the statutory text, considering the ordinary or ......
  • United States v. Edwards, Docket No. 15–741–cr
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • August 24, 2016
    ...Ins. Co., 560 U.S. 242, 251, 130 S.Ct. 2149, 176 L.Ed.2d 998 (2010) (internal quotation marks omitted); accord United States v. Shellef, 718 F.3d 94, 102 (2d Cir. 2013) (“Statutory analysis necessarily begins with the plain meaning of a law's text and, absent ambiguity, will generally end t......
  • Headley-Ombler v. Holder, 12-CV-2631 (WFK) (LB)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • December 5, 2013
    ...necessarily begins with the plain meaning of a law's text and, absent ambiguity, will generally end there." United States v. Shellef, 718 F.3d 94, 102 (2d Cir. 2013) (citations omitted). "In conducting such an analysis, [the court will] review the statutory text, considering the ordinary or......
  • Request a trial to view additional results
17 cases
  • United States v. Henning, Case No.: SACR 16-00029-CJC-7
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • January 19, 2021
    ...Congress intended to afford experienced trial judges considerable discretion in making such determinations." United States v. Shellef , 718 F.3d 94, 105 (2d Cir. 2013). Determinations of whether holding a trial is impractical are therefore subject to "case-by-case review rather than ... cat......
  • Headley-Ombler v. Holder, 12–CV–2631 WFK LB.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • December 5, 2013
    ...necessarily begins with the plain meaning of a law's text and, absent ambiguity, will generally end there.” United States v. Shellef, 718 F.3d 94, 102 (2d Cir.2013) (citations omitted). “In conducting such an analysis, [the court will] review the statutory text, considering the ordinary or ......
  • United States v. Edwards, Docket No. 15–741–cr
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • August 24, 2016
    ...Ins. Co., 560 U.S. 242, 251, 130 S.Ct. 2149, 176 L.Ed.2d 998 (2010) (internal quotation marks omitted); accord United States v. Shellef, 718 F.3d 94, 102 (2d Cir. 2013) (“Statutory analysis necessarily begins with the plain meaning of a law's text and, absent ambiguity, will generally end t......
  • Headley-Ombler v. Holder, 12-CV-2631 (WFK) (LB)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • December 5, 2013
    ...necessarily begins with the plain meaning of a law's text and, absent ambiguity, will generally end there." United States v. Shellef, 718 F.3d 94, 102 (2d Cir. 2013) (citations omitted). "In conducting such an analysis, [the court will] review the statutory text, considering the ordinary or......
  • Request a trial to view additional results

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