Case 1:05-cr MSK Document 604 Filed 04/14/10 USDC Colorado Page 1 of 11

Transcription

1 Case 1:05-cr MSK Document 604 Filed 04/14/10 USDC Colorado Page 1 of 11 Criminal Action No. 05-cr MSK UNITED STATES OF AMERICA v. Plaintiff, JOSEPH P. NACCHIO, Defendant. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO HONORABLE MARCIA S. KRIEGER DEFENDANT S EMERGENCY MOTION FOR RECONSIDERATION OF THE COURT S ORDER WITH REGARD TO DEFENDANT S NOTICE OF INTENT TO WAIVE APPEARANCE AT RE-SENTENCING HEARING, OR IN THE ALTERNATIVE, DEFENDANT S EMERGENCY MOTION FOR FURLOUGH Defendant Joseph P. Nacchio respectfully requests that the Court reconsider its Order dated April 13, 2010 [Docket # 603] ( Order ) requiring that the United States Marshal shall forthwith and using best efforts transport Mr. Nacchio to the Alfred A. Arraj United States Courthouse and bring him before the Court at the earliest possible time for an advisement hearing. Order at 7. In the alternative, Mr. Nacchio respectfully requests that the Court request and recommend that the Warden grant Mr. Nacchio a brief furlough pursuant to 28 C.F.R (a)(8) in order to attend the proposed advisement hearing at his own expense, and in order to permit the hearings scheduled for April 21 and 22 to proceed as planned. Counsel for Mr. Nacchio has contacted the United States Marshals Service Justice Prisoner and Alien

2 Case 1:05-cr MSK Document 604 Filed 04/14/10 USDC Colorado Page 2 of 11 Transportation System Prison Transportation headquarters and was informed that under current scheduling, the Marshals Service would not be able to be transport a prisoner in Pennsylvania to Denver until sometime in May, well after the currently scheduled hearings. 1 Because of Mr. Nacchio s request for expedited consideration and the time-sensitive nature of the matter, counsel has consulted with the United States. The government objects to the requested relief, but authorized us to state that the government agrees with Mr. Nacchio that maintaining the current sentencing schedule is in both parties interest. Given that maintaining the current sentencing schedule is of paramount importance to the Court and the parties, Mr. Nacchio respectfully requests the Court to hold a hearing on this motion today. Counsel for Mr. Nacchio is in Denver and can appear in person. I. DEFENDANT RESPECTFULLY REQUESTS THAT THE COURT ACCEPT WAIVER BY MEANS OTHER THAN A PERSONAL STATEMENT IN COURT Because of the difficulties this Court identified regarding transporting Mr. Nacchio to Denver for an advisement hearing, requiring him to appear in person to waive his right to be present at his resentencing vitiates the reasons for the waiver and also threatens to disrupt the current sentencing schedule. Both Mr. Nacchio and the government agree that maintaining the current sentencing schedule is in both parties interest. Additionally, next week s hearing involves testimony from expert witnesses who can be difficult to schedule. In the section below, Nacchio describes the case law indicating that courts frequently accept written waivers and notes that an in-person waiver is not required. Given the case law cited below, Nacchio respectfully requests that he be permitted to waive his right to personally 1 The information provided was not specific to Mr. Nacchio and the government has also called the Marshals Service, but as of yet has been unable to ascertain more specific details. 2

3 Case 1:05-cr MSK Document 604 Filed 04/14/10 USDC Colorado Page 3 of 11 appear at his resentencing hearings by affidavit, telephonically, through defense counsel, or via videoconference. Indeed, we have attached a written waiver, signed by Mr. Nacchio this morning, to this motion. See Defendant Joseph P. Nacchio s Waiver of Appearance, attached as Exhibit A. Although this Court identified factors it believes weigh in favor of an in-person appearance, we respectfully note additional facts of which the Court may not have been aware. Mr. Nacchio has steadfastly maintained his wish to waive his appearance at resentencing. His competence has never been questioned and he has continued to be actively involved in his defense. Mr. Nacchio was represented by the undersigned law firm prior to his previous sentencing. Counsel has spoken with Mr. Nacchio on a weekly or even more frequent basis for more than two years regarding his sentencing, appeal, resentencing, and the upcoming hearings, including during his incarceration over the past year. Moreover, counsel met personally with Mr. Nacchio on March 31, 2010, just two weeks ago, and discussed this same issue. See Declaration of Sean M. Berkowitz, attached as Exhibit B. Counsel for Mr. Nacchio spoke with him today, April 14, 2010, after the Court issued its order, and Mr. Nacchio reiterated that he understood his rights and still wished to waive his right to be present at resentencing. As noted above, Mr. Nacchio also signed a written waiver this morning, voluntarily waiving his right to appear at his resentencing. 2 2 In addition, Judge Nottingham s Amended Memorandum of Sentencing Hearing and Report of Statement of Reasons states that [t]he court addressed defendant personally and determined whether defendant wished to make a statement or present any information in mitigation of the sentence. Docket No. 463 at 1. The fact that Mr. Nacchio chose not to make a personal statement at his initial sentencing hearing after having been afforded the opportunity is 3

4 Case 1:05-cr MSK Document 604 Filed 04/14/10 USDC Colorado Page 4 of 11 In its order, the Court rejected the government s argument that it could compel Mr. Nacchio s presence at sentencing and found that he may waive his right to be present at the resentencing. Order at 4 n.1. The Court noted that Nacchio s waiver is not effective unless it is both informed and voluntarily made. Id. at 4. However, the Court then determined that to assure Mr. Nacchio s awareness of his right to be present at both re-sentencing hearings and to advise him with regard to his anticipated waiver it would require his presence at the earliest possible time for an advisement hearing. Id. at 7. In so holding, the Court noted that often courts presume that a waiver is invalid unless the defendant is advised of his rights in court. Id. at 5. Although courts indulge in a presumption against waiver of constitutional rights, there is no constitutional requirement that a trial court conduct a direct colloquy with the defendant in order for waiver to be knowing and voluntary. See Polizzi v. United States, 926 F.2d 1311, 1322 (2d Cir. 1991) ( [W]e take issue with Polizzi s contention that the trial court must conduct a direct colloquy with the defendant. ); United States v. Sammons, 918 F.2d 592, (6th Cir. 1990) (rejecting claim that colloquy is required by Sixth Amendment). Moreover, courts have rejected the argument that only the defendant c[an] personally waive his right to be present. Polizzi, 926 F.2d at 1322; see also United States v. Crutcher, 405 F.2d 239, 243 (2d Cir. 1968) ( [T]he issue is whether Payne or his counsel have made an effective waiver. ) (emphasis added). In Polizzi, the Second Circuit rejected a defendant s contention that his waiver of presence at trial was not voluntary and knowing because the waiver was not personally made by entirely consistent with his current position and is further evidence that his waiver is indeed knowing and voluntary. 4

5 Case 1:05-cr MSK Document 604 Filed 04/14/10 USDC Colorado Page 5 of 11 him in court. The Court stated that to hold that an effective waiver requires the defendant s personal statement in court, would be to construct a burdensome, impractical and wholly unnecessary rule. 926 F.2d at 1322 (citation omitted). The court further stated that taken to its logical conclusion, such a rule would work the unwieldy result of leaving ineffective as a waiver the voluntary failure to appear for trial. Id. The same logic applies equally with regard to voluntary absence for resentencing. Other courts have agreed that an effective waiver of presence does not require the defendant s personal statement in court. See, e.g., United States v. Gallo, 763 F.2d 1504, 1529 (6th Cir. 1985) (finding a waiver of the right to be present valid upon defense counsel s representation that he talked with defendant and ascertained that defendant wished to waive the right to be present for the conclusion of the case-in-chief); United States v. Ammar, 919 F.2d 13, 17 (3d Cir. 1990) (holding that the district court could properly resentence defendant in absentia where defendant-petitioner suggested in correspondence to court of appeals that he is reluctant to travel from Florida where he is currently working and participating in a rational behavior training program, a weekly counselor interview, and regular urine testing ); United States v. Marmolejos, No , 1998 U.S. Dist. LEXIS 9058, at *3 (E.D. Pa. June 18, 1998) ( Defendant has expressly waived his right to be present at his re-sentencing. See affidavit of Freddie Marmolejos. Defendant s waiver is found to be knowingly and voluntarily made, and sufficient to allow sentencing in absentia. ); United States v. Boykin, 222 F. Supp. 398, 399 (D. Md. 1963) (finding a waiver of the right to be present at sentencing valid upon defense counsel s representation and affidavit from defendant). In Rigas, moreover, both defendants knowingly and voluntarily waived their right to be present through written waiver as opposed to personal 5

6 Case 1:05-cr MSK Document 604 Filed 04/14/10 USDC Colorado Page 6 of 11 appearance in court. United States v. Rigas, No. 02 Cr. 1236, 2008 WL , at *1 (S.D.N.Y June 24, 2008). Indeed, the government has already effectively conceded that a written waiver from Nacchio would be sufficient. See Objection at 16 n.6 [Docket No. 601] (stating that the Court may wish to require the Defendant to file not only the pleading already filed by his defense counsel, but also a waiver signed by the Defendant himself ). Courts have also found valid waivers of other constitutional rights made outside of court. See, e.g., Spytma v. Howes, 313 F.3d 363 (6th Cir. 2002) (waiver of jury trial by 15-year-old defendant was voluntary, knowing, and intelligent, in murder prosecution, even though trial court did not conduct colloquy with defendant on the record prior to accepting jury waiver, and defendant claimed he was never asked about it in open court, where defendant signed written waiver form and defendant was represented by counsel); United States v. Riddle, 249 F.3d 529 (6th Cir. 2001) (defendants waiver, through their counsel, of right to be present during jury voir dire was effective when defense counsel suggested defendants absence to avoid any prejudice from appearance of heavy security during questioning of potential jurors and court allowed waiver only after instructing defense counsel to consult with defendants and receiving assurances of waiver; trial court was not required to engage defendants in on-the-record colloquy before allowing them to absent themselves from proceedings); Carter v. Newkirk, 6 Fed. Appx. 461 (7th Cir. 2001) (reversing the grant of habeas corpus to a defendant who argued that the Constitution requires an on-the-record colloquy before a defendant may waive his right to a jury trial because there is no such requirement and approving of the finding of waiver by the Indiana appellate court based on both a signed waiver by the defendant and the testimony of the defendant s counsel was sufficient to find waiver); United States v. Wenger, 58 F.3d 280, 282 (7th Cir. 1995) 6

7 Case 1:05-cr MSK Document 604 Filed 04/14/10 USDC Colorado Page 7 of 11 ( Most waivers are effective when set out in writing and signed... ); United States v. Robinson, 8 F.3d 418, 423 (7th Cir. 1993) (intimating regarding a jury trial waiver that evidence of a discussion between the trial judge and defense counsel directly confirming that the waiver is knowing and voluntary may be sufficient to prove a valid waiver). Although the Court cites United States v. Gordon, 829 F.2d 119, 125 (D.C. Cir. 1987), we respectfully note that Gordon has been called into doubt by a number of other courts that have specifically found that a defendant s counsel may waive his constitutional rights on his behalf. See Gallo, 763 F.2d at 1529; see also People v. Gutierrez, 29 Cal. 4th 1196, 1209 (Cal. 2003) (stating that Gordon do[es] not support the conclusion that a custodial defendant who expresses a clear desire to be voluntarily absent from proceedings must confirm that desire through oral waiver in open court ). 3 Although the Court recognized that Mr. Nacchio has a right, not on obligation, to be present at his resentencing, its order essentially transforms that right into an obligation by requiring him to appear in person to waive his right to be present at resentencing. Given the case law, additional facts identified by counsel, and the written waiver executed by Mr. Nacchio this morning, we respectfully request that the Court reconsider its decision requiring Mr. Nacchio to 3 It is also worth nothing that the Tenth Circuit dismisses filed appeals upon a defendant s execution of an express written consent form, which indicates that the court would uphold a signed, express written waiver of appeal as knowing and voluntary. See Circuit Rule 46.3(B) ( A voluntary motion to dismiss a criminal appeal or an appeal in a postconviction proceeding must contain a statement, signed by the appellant, demonstrating knowledge of the right to appeal and expressly electing to withdraw the appeal. If the statement is not included, counsel must show that exceptional circumstances prevented its inclusion. Proof of service must include service on the appellant him or herself. ). 7

8 Case 1:05-cr MSK Document 604 Filed 04/14/10 USDC Colorado Page 8 of 11 appear in person for an advisement hearing and accept his knowing and voluntary waiver of his right to appear. II. IN THE ALTERNATIVE, NACCHIO REQUESTS A FURLOUGH TO TRAVEL TO DENVER FOR AN ADVISEMENT HEARING AT HIS OWN EXPENSE In the alternative, Nacchio requests that he be granted furlough to attend the proposed advisement hearing at his own expense. See 28 C.F.R (a)(8) (authorizing the Warden or Acting Warden of any Bureau of Prisons institution to grant a furlough [t]o appear in a criminal court proceeding when the use of a furlough request is requested or recommended by the applicable court ). Counsel for Mr. Nacchio contacted the Marshal s Service Prisoner Transportation Headquarters at (816) on April 14, Counsel was informed that the Marshals Service has a currently scheduled flight from Pennsylvania to Oklahoma City on Monday, April 19, 2010, but that it could not transport a prisoner currently in Pennsylvania from Oklahoma City to Denver until sometime in May. Under the Court s order, Mr. Nacchio s hearing would be postponed and he would be forced to spend weeks in Oklahoma City awaiting transport to Denver. In addition, the Marshals Service could not confirm the time frame for a prisoner s return transport to Pennsylvania. It is not inconceivable that Mr. Nacchio could spend months in transport. Such a scenario would vitiate the entire purpose of the waiver of his right to be present at his resentencing, disrupt his participation in prison programs, and deprive him of visitation with his family. Moreover, maintaining the current schedule is of the utmost importance, given that under one of the possible gain calculations, Mr. Nacchio has already served as of today, April 14, 2010 the maximum recommended guidelines sentence. 8

9 Case 1:05-cr MSK Document 604 Filed 04/14/10 USDC Colorado Page 9 of 11 In its order, the Court noted that it appreciated that requiring that Mr. Nacchio be physically present is inconvenient, expensive, and time consuming. Order at 6. Granting furlough would resolve these concerns. First, it would place the expense of traveling to Denver on Mr. Nacchio, not the government. Second, a furlough would permit Mr. Nacchio to avoid the inconvenience of being transported over a lengthy period by the Marshal s service. Finally, and most importantly, given the parties interests in expeditiously resolving Mr. Nacchio s case, granting him furlough would permit the Court to adhere to its current schedule and hold the first sentencing hearing on April 21, Moreover, case law establishes that Mr. Nacchio is the type of individual to whom furlough should be granted. See United States v. Cohoe, No. CR JB, 2007 WL (D.N.M. May 15, 2007) (granting furlough where defendant had performed well after pleading guilty, including negative results on all drug and alcohol tests). Mr. Nacchio has been a model prisoner and has had no disciplinary problems during his incarceration. He has taken a number of classes as well as been involved in a number of religious activities. Additionally, this Court has specifically found that Nacchio is neither a flight risk nor a danger to the community. See United States v. Anderson, No. CR JB, 2009 WL (D.N.M. July 29, 2009) (denying in part furlough request because defendant was flight risk, had a history of failing to appear, and was considered a danger to community). Accordingly, in the interest of efficiency and fairness, if the Court requires Mr. Nacchio s presence at an advisement hearing, he respectfully requests to be permitted to travel on furlough. 9

10 Case 1:05-cr MSK Document 604 Filed 04/14/10 USDC Colorado Page 10 of 11 III. CONCLUSION Mr. Nacchio respectfully requests the Court to reconsider its order obligating him to appear in person to waive his right to be present at his resentencing. In the alternative, given that the Court s order will postpone Mr. Nacchio s resentencing hearings because under currently scheduled transportation plans the Marshals Service cannot transport him to Denver until May at the earliest, Mr. Nacchio respectfully requests the Court to request the Warden for furlough to travel to Denver before April 21, 2010 to maintain the current resentencing schedule. Counsel for Mr. Nacchio is in Denver today and respectfully requests a hearing on this emergency motion. Respectfully submitted this 14th day of April, s/ Sean M. Berkowitz Sean M. Berkowitz LATHAM & WATKINS LLP Sears Tower Suite 5800 Chicago, IL (312) (312) (facsimile) Sean.Berkowitz@lw.com Maureen E. Mahoney Everett C. Johnson, Jr. Nathan H. Seltzer LATHAM & WATKINS LLP th Street, N.W. Suite 1000 Washington, DC (202) (202) (facsimile) Maureen.Mahoney@lw.com Everett.Johnson@lw.com Nathan.Seltzer@lw.com 10

11 Case 1:05-cr MSK Document 604 Filed 04/14/10 USDC Colorado Page 11 of 11 CERTIFICATE OF SERVICE I hereby certify that on this 14th day of April 2010, I electronically filed the foregoing DEFENDANT S EMERGENCY MOTION FOR RECONSIDERATION OF THE COURT S ORDER WITH REGARD TO DEFENDANT S NOTICE OF INTENT TO WAIVE APPEARANCE AT RE-SENTENCING HEARING, OR IN THE ALTERNATIVE, DEFENDANT S EMERGENCY MOTION FOR FURLOUGH with the Clerk of the Court using the Court s CM/ECF system, which will send notification of the filing to the following: James O. Hearty james.hearty@usdoj.gov Paul E. Pelletier paul.pelletier@usdoj.gov Kevin Thomas Traskos kevin.traskos@usdoj.gov Alain Leibman aleibman@foxrothschild.com s/ Sean M. Berkowitz Sean M. Berkowitz LATHAM & WATKINS LLP Sears Tower Suite 5800 Chicago, IL (312) (312) (facsimile)