United States v. Utsick
| Decision Date | 01 June 2016 |
| Docket Number | CASE NO. 10-20242-CR-ALTONAGA |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. JOHN J. UTSICK, Defendant. |
| Court | U.S. District Court — Southern District of Florida |
The initial Indictment [ECF No. 3] in this case was filed April 6, 2010; the operative Superseding Indictment ("Superseding Indictment" or "the Indictment") [ECF No. 8] was filed November 30, 2010. The case was unsealed by Order dated August 25, 2014 [ECF No. 15]. Defendant, John Utsick ("Defendant" or "Utsick"), was extradited from Brazil in December 2014; had his initial appearance on December 8, 2014 (see [ECF No. 18]); and was arraigned on February 17, 2015 (see [ECF No. 30]). From the time of the Superseding Indictment, Defendant has had several attorneys represent him. (See Order granting motion to appear pro hac vice [ECF No. 12]; Notice of Temporary Appearance as Counsel [ECF No. 17]; Federal Public Defender notices [ECF Nos. 29, 34, 40]; Motion to appear pro hac vice [ECF No. 113]; Order granting motion to appear pro hac vice [ECF No. 120]; and Notice of Attorney Appearance [ECF No. 142]).
In an Order dated February 17, 2015 [ECF No. 33], the Court set a trial date of March 17, 2015. In all, the trial date has been continued four times (see Orders [ECF Nos. 46, 58, 88, 140, 150]), all at the request of the Defendant. The latest Order Continuing Trial [ECF No. 181] was necessary given Defendant's untimely filing of motions to dismiss, discussed below, and establishes a trial period commencing June 13, 2016.
Before the Court now, and the subject of this Order, is one of Defendant's recent motions to dismiss. Defendant first filed a "Motion to Dismiss for Government Misconduct and Unconstitutional Arrest" ("First Dismissal Motion") [ECF No. 109] on December 4, 2015. The Court denied that First Motion by Order dated December 7, 2015 [ECF No. 110] because it lacked any legal citations or memorandum of law. On March 31, 2016, Defendant filed a "Preliminary Omnibus Motion to Dismiss and Notice of Request for Leave to Supplement" ("Second Dismissal Motion") [ECF No. 168]. Following oral argument, the Court denied the Second Dismissal Motion by Order on April 5, 2016 [ECF No. 171], as the motion was largely unsupported by any exhibits or other evidentiary submissions.
Defendant filed a Renewed Omnibus Motion to Dismiss the Indictment ("Third Dismissal Motion" or "the Motion") [ECF No. 173] on April 22, 2016. Defendant also filed a Renewed Motion to Dismiss Indictment for Unconstitutional Government Interference . . . ("Fourth Dismissal Motion") [ECF No. 180], on April 26, 2016. Defendant briefly previewed the substance of the Fourth Dismissal Motion in the Third Dismissal Motion, explaining further elaboration would be supplied in the Fourth Dismissal Motion. (Third Dism. Mot. 3, n.4). The Court addresses the several arguments raised in the Third Dismissal Motion; the Fourth Dismissal Motion will be the subject of a separate order once that motion is fully briefed.1
In the Third Dismissal Motion (hereinafter, "Motion"), Defendant moves to dismiss the Indictment on five grounds: 1) unconstitutional interference with the right to counsel and/orattorney-client privilege; 2) a pattern of prolonged government misconduct and abuse of the civil process; 3) prolonged and unnecessary pre-indictment and post-indictment delay; 4) illegal procurement of Defendant's arrest in violation of the applicable extradition treaty; and 5) providing false statements in order to seal the indictment just before the statute of limitations expired. (See Mot. 3-4). Defendant also seeks various evidentiary exclusions in addition to, or in the alternative to, the Indictment's dismissal. (See id. 4). The Government filed its Response . . . ("Response") [ECF No. 189] on May 16, 2016; Defendant filed his Reply . . . ("Reply") [ECF No. 201] on May 27, 2016.
Defendant's Motion is a largely unstructured, stream-of-thought narrative that does not conform to even its own nominal roadmap, dispersing parts of its five arguments among three titled sections. (See generally Mot.). To the extent Defendant's arguments support the bullet-pointed assertions paraphrased above — and are not duplicative of the issues presented in the Fourth Dismissal Motion — the Court examines them in the order in which they are broached.
In the first section, Defendant makes at least two needlessly intertwined arguments regarding the Indictment: 1) the Government improperly waited to seek an indictment; and 2) the Government improperly sealed the Indictment. (See Mot. 4-10). The Court analyzes the former argument in conjunction with the otherwise repetitive separate claim regarding unnecessary delay below.
Looking to just the sealing issue for now, Defendant accuses the Government of improperly sealing the Indictment to withhold its existence from him "by falsely stating to the court that the defendant was a threat to flee the jurisdiction." (Id. 7). Defendant claims he moved to Brazil, "where his residence appeared to be well known to both the U.S. and Braziliangovernment[,]" "as part of his attempt to continue his promotions business in Latin America." (Id. (alteration added)). This is the entirety of Defendant's argument for why sealing the Indictment was improper. Still, by combining the unsupported assertion he was not a flight risk with a litany of unrelated allegations which form the separate and separately discussed "pattern of misconduct" argument, Defendant challenges not just the sealing, but the propriety of the Indictment itself. (See id. 8 ( ).
The Government's version of the facts is different and elucidates reasonable cause to seal the Indictment. The Government notes Defendant was not under arrest when he was charged with a massive fraud scheme resulting in a loss of $207 million. (See Resp. 2). Given the alleged serial frauds, and based on Defendant's advanced age and the apparent certainty of spending the remainder of his life in prison if convicted, the Government argues it had reason to believe Defendant would likely attempt to thwart his arrest and/or tamper with witnesses and evidence if he knew his prosecution was imminent. (See id.).
Supporting this belief, Defendant has admitted he left the United States for Brazil and refused to return — or set foot in any other country from which he might face extradition — for fear of being arrested. (See id. 3). In fact, he previously refused to appear in a related civil matter in this District, or even in the country of his choosing, on that explicit basis. (See id.). Additionally, the apparent abandonment of his Miami condominiums, his dispatching of people to attempt to retrieve and send him his possessions, and his maneuvers to have his pensiondeposited in his account for him in absentia further corroborate the Government's theory Defendant did not lawfully relocate to Brazil merely to pursue business opportunities, and would not have cooperated with authorities had he known of the Indictment. (See id. 4).
In his Reply, Defendant refutes the Government's narrative as a "post-hoc rationalization," faulting the Government for not presenting any affirmative evidence of the risk Defendant might flee or compromise the investigation if the Indictment had not been sealed. (See Reply 3-5). Although Defendant does challenge some of the Government's factual assertions, such as the reason behind his decision to relocate to Brazil — and with an apparent one-time offer to surrender voluntarily, much of this argument disputes what inferences the Court should draw from the facts, not the facts themselves. (See, e.g., id. 5 n.4). Because Defendant does not directly address, no less refute, all of the facts from which the Government drew the conclusion sealing the Indictment was warranted, considering the situation as a whole, the Court still finds that position was reasonably justified.
The only case Defendant cites in the text of his argument is unhelpful. See generally Bank of Nova Scotia, 487 U.S. 250 (). In the bullet-point preview of this argument, Defendant also cites, without explanation, five additional cases. (See Mot. 4 (citing Toussie v. United States, 397 U.S. 112 (1970); United States v. Thompson, 287 F. 3d 1244 (10th Cir. 2002); United States v. Edwards, 777 F.2d 644 (11th Cir. 1985); United States v. Broe, 695 F. Supp. 2d 1361 (S.D. Fla. 2010); United States v. Goff, No. Crim. A. No. 2:07cr322-MHT, 2009 WL 197972 (M.D. Ala. Jan. 27, 2009)). None of these cases both supports Defendant's argument and is so closely analogous to the instant matter as to compel a finding in Defendant's favor without explanation.2
In the Reply, Defendant excoriates the Government for failing to address the purported statute of limitations violation. (See Reply 11-12). To the extent the Government failed to respond to the argument that now appears in the Reply, it did so because the argument does not appear in the Motion. (See Mot. 4-10). Rather, Defendant merely mentioned the statute of limitations in a section header (see id. 4), and in his lengthy factual narrative (see id. 7). At the end of this section, Defendant does cite Thompson and Broe for the proposition: "The prejudice caused by the improper sealing of the indictment is a violation of the five year statute of limitations period for the charged offenses" (id. 10), but there is no accompanying analysis to which the Government could have responded in any...
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