Defendant Receives New Trial After Judge Forces His Lawyer to Try the Case without Time to Prepare, USA v. Schwarz, 828 Fed. Appx. 628 (2020)

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Defendant Receives New Trial After Judge Forces His Lawyer to Try the Case without Time to Prepare, USA v. Schwarz, 828 Fed. Appx. 628 (2020)

Fantastic advocacy by Sonia Escobio O’Donnell of The O’Donnell Law Firm, PA.  and congratulations to her deserving client. The defendant in this case was charged with committing incredibly complex bank fraud. This defendant’s codefendant had already been tried twice before during weeks- long trials and was ultimately convicted and sentenced to 40 years for fraud.  After that guy was convicted, the Government came after Ms. O’Donnell’s client. There had been an SEC investigation; the IRS was involved. And the defendant here was the minor partner in the organization that the Government argued was engaged in massive fraud, Cay Clubs Resorts and Marina.  The details regarding the fraud aren’t important for grasping the novelty of this case.  What is important is just how completely unreasonable the trial court judge behaved and his complete insensitivity to the rights of the defendant. 

Trial counsel was a solo practitioner and was appointed by the court on October 31, 2016. Three days later the trial court set a trial date for December 5, 2016. The day after his appointment, trial counsel filed an unopposed motion for an April 2017 trial date.  The court partially granted the request and set the trial date for February 6, 2017. Trial counsel renewed the motion for continuance on November 18 again asking for an April trial date. During this continuance motion, trial counsel indicated that the Government had produced its discovery which included a 3 TB hard drive several boxes of records and CDs. Counsel noted that the conspiracy and tax related allegations covered activities from 2004 to 2007 and that the discovery extended beyond 2015 and included an extensive SEC investigation. The trial court denied the motion and also denied counsel’s request for a second lawyer. The court found the case was not “that complex.” 

Trial counsel then filed a third motion for a continuance on January 24, 2017 again asking for an April 2017 trial date. Trial counsel also informed the court that he had been in trial for three of the preceding weeks and that he continued to receive request for stipulations from the government that required days to answer. The government opposed granting a continuance for longer than 30 days. The trial court denied the motion without explanation on the very day the trial counsel filed the motion.

The Court of Appeals was not amused. In its opinion, the Court discussed the nine-day trial that resulted in the defendant’s conviction and 40-year sentence. The Court noted that the government’s trial presentation ventured far beyond the evidence needed to support its indictment.  It also noted that the defendant’s defense was that he relied on professionals and did not intentionally commit fraud. 

In reviewing this case, the Court focused on just how complex this case was, and how it was an abuse of the judge’s discretion to refuse to grant reasonable continuances. The court noted especially that trial counsel was a solo practitioner. The Court found that trial counsel essentially had 12 weeks to try to prepare a complex financial case in which his client was facing decades in prison. The government, however, had investigated this case for at least three years before the defendant’s trial started, plus the months and years of additional preparation required to try the co-defendant. 

There is some great language in this opinion about trial counsel’s obligation to his client. For instance, the government had argued that much of the discovery it had provided to trial counsel was irrelevant and therefore did not require that much time to review. The Court found that argument to the unpersuasive:

            “Loyalty to his clients’ interest required Schwarz’s counsel to view the discovery with an independent eye. The government’s assessment that most of the materials were “not relevant” is meaningless: the opposing team is not privileged to call plays for the defense.”  *5. 

What is really remarkable about this case is the extent to which the Court admonishes this particular trial court judge for his failure to grant reasonable continuances in seven other cases. Apparently there has been a long-standing issue with this particular judge and his unwillingness to allow defense counsel the time needed to do its job. However, the Court noted that in those other cases, it did not appear to the Court that the lack of reasonable continuances impacted the fairness of those trials.  This lawyer wonders if the impact of those truncated timelines might become clearer when convicted defendants start filing 2255 motions alleging ineffective assistance of counsel. 

Anyway, this is a very interesting case, and includes some great language that should be of use to the criminal defense bar. 


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