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U.S. v. WARNER

January 15, 2004.

UNITED STATES OF AMERICA, Plaintiff,
v.
LAWRENCE E. WARNER and GEORGE H. RYAN, SR., Defendants



The opinion of the court was delivered by: REBECCA PALLMEYER, District Judge

MEMORANDUM OPINION AND ORDER

Defendant Lawrence Warner was indicted nearly 17 months ago on charges of racketeering, money laundering, extortion, and mail fraud. The indictment alleged that Warner, who operates commercial insurance and real estate businesses, conspired with high-ranking officials of the Illinois Secretary of State's office, including unnamed "Official A," to steer lucrative state contracts in the direction of vendors from whom Warner took bribes. For reasons related to his lead attorney's trial schedule and need for surgery, Warner requested continuances of the trial date. Some delay resulted, as well, while the court considered his motion to dismiss the indictment on several grounds. Most recently, the trial date on the original indictment was set for February 23, 2004. At the request of government attorneys, Warner signed a written waiver of his rights under the Speedy Trial Act when he agreed to the February 2004 trial date.

On December 17, 2003, the grand jury returned a Second Superseding Indictment, restating many of the same charges against Warner and now identifying former Governor George H. Ryan as Official A involved in the alleged wrongdoing. Mr. Ryan was arraigned on December 23, 2003. His attorney, Daniel K. Webb, asserts that adequate preparation for the trial in this case will take 15 months and asks the court to set a trial date in March 2005.

  Defendant Warner strenuously objects to such a lengthy extension for his own trial, which he justifiably expected would be completed long before the end of this year. Warner requests that Page 2 his own trial be conducted on February 23, 2004, as previously scheduled and, if necessary to achieve that end, that he and Ryan be tried separately. The government objects to this request, characterizing it as a de facto severance motion, one the court must deny. For the reasons explained below, the court concludes that Warner's request for an early trial date, separate from that of his co-Defendant, must be denied.

  DISCUSSION

  Under the Federal Rules of Criminal Procedure, more than one defendant may be charged in a single indictment if the defendants "are alleged to have participated in the same act or transaction or in the same series of acts or transactions, constituting an offense or offenses." FED. R. CRIM. P. 8(b); U.S. v. Thompson, 286 F.3d 950, 968 (7th Cir. 2002). It is undisputed that Warner and Ryan have been charged with engaging together in a racketeering conspiracy and a scheme to defraud, which satisfies the requirements of Rule 8. Thus, there is a presumption that Warner and Ryan should be tried together. See U.S. v. Souffront, 338 F.3d 809, 828 (7th Cir. 2003) ("there is a preference in the federal system for joint trials of defendants who are indicted together"); U.S. v. Ramirez, 45 F.3d 1096, 1100 (7th Cir. 1995) "[t]here is a presumption that co-conspirators who are indicted together are properly tried together"). As the Seventh Circuit recently explained,
Joint trials "play a vital role in the criminal justice system." They promote efficiency and "serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts."
Souffront, 338 F.3d at 828 (quoting Zafiro v. U.S., 506 U.S. 534, 537 (1993)).

 A. The Speedy Trial Act

  Warner does not object on substantive grounds to a joint trial with Ryan. He has, however, invoked his right to a speedy trial, knowing that Ryan cannot be ready for trial by February 23, 2004. The Speedy Trial Act mandates that a defendant be tried within 70 days after the filing of an indictment, or the date on which the defendant first appears before a judicial officer, whichever Page 3 is later. 18 U.S.C. § 3161(c)(1). In calculating the 70 day period, "one does not simply count off seventy days from the starting date and see whether the defendant's trial commenced by that date." U.S. v. Piontek, 861 F.2d 152, 153 (7th Cir. 1988). Rather, the Act "provides for the exclusion of certain periods of time from this calculation." U.S. v. Garreff, 45 F.3d 1135, 1138 (7th Cir. 1995); U.S. v. Griffin, 194 F.3d 808, 824 (7th Cir. 1999) (Act requires a trial within 70 days after the filing of an information or indictment "unless certain excludable periods exist").

  One of those excludable periods is "[a] reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted." 18 U.S.C. § 3161 (h)(7). "Where more than one defendant is charged in an indictment, the Speedy Trial clock begins running on the date of the last co-defendant's arraignment." Garrett, 45 F.3d at 1138 (citing Henderson v. U.S., 476 U.S. 321, 323 n.2 (1986)). In addition, "absent a severance, any time excludable to one defendant is excludable to his co-defendants." U.S. v. Mustread, 42 F.3d 1097, 1106 (7th Cir. 1994); U.S. v. Tanner, 941 F.2d 574, 580 (7th Cir. 1991). Under these principles, the "clock" for Defendant Warner began to run on the date of Defendant Ryan's arraignment, and because no severance has been granted, time that Ryan's attorneys reasonably devote to motions and trial preparation is excludable for Ryan and therefore excludable with respect to Warner, as well.

  Warner argues that the Speedy Trial clock should not begin to run for him on the date Ryan was first arraigned in December 2003 because he has already been under indictment for nearly 17 months. He urges: "Mr. Warner and his family are not made of ice. The indictment has taken considerable emotional and physical toll both on himself and his family, including his wife, daughter and father-in-law. They all want to put this stigma to bed as quickly as possible." (Defendant Warner's Position Paper Relative to the Trial Date, (hereinafter, "Warner Mem."), at 2.) Warner also claims that his "business phone no longer rings with any degree of frequency," which "wreaks Page 4 financial havoc, as do mounting legal bills." (Id. at 2-3.) The government responds that these factors are insufficient to defeat the presumption of joint trials in light of the purpose of § 3161(h)(7), the lack of prejudice to Warner, the complexity of the case, and Warner's failure to move for a severance. (Government's Brief in Opposition to Defendant Warner's De Facto Motion for Severance and in Support of a Joint Trial (hereinafter, "Gov't Mem."), at 17-18.)

  1. Purpose of § 3161(h)(7)

  Section 3161(h)(7) "was intended to help avoid the time, expense and inconvenience of separate prosecutions." U.S. v. Dennis, 737 F.2d 617, 621 (7th Cir. 1984); U.S. v. Salerno, 108 F.3d 730, 737 (7th Cir. 1997) (noting § 3161(h)(7)'s "preference for the judicial efficiency of joint trials"). See also U.S. v. Hall, 181 F.3d 1057, 1062 (9th Cir. 1999) ("[t]he general purpose of § 3161(h)(7) is to facilitate the efficient use of judicial resources by enabling joint trials where appropriate"). There can be little question that this general purpose would be ill-served by conducting two trials in this case. By all estimates, trial of these charges is expected to be lengthy and complex. To proceed with such a trial not once, but twice, would tax the resources of the U.S. Attorney's office and disrupt the court's calendar for, in the parties' estimation, at least ten months. Significantly, two trials would necessitate two very difficult and arduous jury selections, which would be particularly burdensome and prejudicial to the second Defendant tried, who will be faced not only with the inevitable pretrial publicity, but also the publicity that the first trial will generate. More importantly, both trials would involve nearly identical lists of witnesses offering nearly identical testimony, with the second Defendant getting a full and complete preview of the government's case. These facts all support a joint trial in this case and militate against Warner's contention that the court ought not exclude from his Speedy Trial clock the delay attributable to Ryan's trial preparation. Page 5

  2. Prejudice to Warner

  The court is aware that Warner has been under indictment for nearly 17 months and is not unsympathetic to his desire to put this matter behind him. In light of the circumstances reviewed above, however, the court believes that a separate trial for Warner must be ordered only if Warner can establish that he will be unduly prejudiced if time is excluded under § 3161(h)(7). In Salerno, the defendant was charged with, among other things, murder and with conspiring with four co-defendants to commit murder. 108 F.3d at 734. A jury could not reach a verdict on these two charges, and 17 months later the government announced its intention to retry Salerno alone. In the second trial, a jury found Salerno guilty on both counts. Id. On appeal, Salerno claimed that the 17-month delay violated the Speedy Trial Act. The court disagreed, finding that the 17 months spent litigating post-trial motions and sentencing issues was reasonable. Id. at 737. As for Salerno's claim of substantial prejudice, the court held that "[t]he mere passage of time, without more, is not dispositive," and that Salerno failed to demonstrate that he was unable or less able to present an ...


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