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United States v. Hester

June 29, 2010

UNITED STATES OF AMERICA,
v.
JOE HESTER,



The opinion of the court was delivered by: Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

On May 7, 2010, Defendant Joe Hester filed a re-submission of a motion to dismiss the indictment in this case [126]. For the reasons set forth below, motion [126] is respectfully denied.

I. Background

On October 21, 2008, Hester was arrested on a criminal complaint charging him with a violation of 18 U.S.C. §922(g). A federal defender appeared on his behalf at his initial appearance on October 22, 2008. Then, at a detention hearing held on October 24, 2008, attorney William Laws was given leave to file his appearance on behalf of Hester after Hester acknowledged on the record that it was his desire that Laws appear for him as his lawyer. During the hearing, Laws argued for Hester's release on bond. Hester waived his right to a preliminary examination at that time.

On November 20, 2008, the government filed a motion for extension of time [10] in which to return an indictment pursuant to 18 U.S.C. §3161(h)(8)(A). The motion reflected that Hester's attorney did not object to the motion. Id. On November 20, 2008, Chief Judge Holderman granted the government's motion for an extension of time [11] to and including December 22, 2008. On December 22, 2008, the government filed a second motion for extension of time [14] in which to return an indictment pursuant to 18 U.S.C. §3161(h)(8)(A).

The motion again reflects that Hester's attorney did not object to the motion. Id. On December 22, 2008, Chief Judge Holderman granted the government's second motion for an extension of time [16] to and including January 22, 2009. Then, on January 22, 2009, the government filed a third motion for extension of time [20] in which to return an indictment pursuant to 18 U.S.C. §3161(h)(8)(A). The motion stated that government counsel had not yet heard from Hester's attorney as to whether there was an objection to the motion. Id. On January 22, 2009, Chief Judge Holderman granted the government's third motion for an extension of time [21] to and including February 23, 2009. On February 17, 2009, the grand jury returned a three-count indictment charging Hester with one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and two counts of possession of narcotics with intent to distribute [24],*fn1

and Hester was arraigned on February 24, 2009.

On March 9, 2009, Hester filed several pro se motions, including motions for dismissal for the violation of his due process rights [35], dismissal [36], and immediate release based on a violation of the Speedy Trial Act [39]. On March 25, 2009, Laws filed a motion to withdraw [41] as Hester's attorney, which the Court granted on March 26, 2009. A federal defender panel attorney was appointed as standby counsel on April 8, 2009. On May 15, 2009, the Court granted Hester's request to proceed pro se and ordered the government to respond to Hester's pending motions.

On August 21, 2009, the Court held a hearing [72] on the motions. A primary issue discussed at the hearing was whether government counsel actually had contacted Hester's attorney to ascertain Hester's position prior to filing motions on November 20, 2008 and December 22, 2008, as was represented in the motions themselves. Government counsel testified to her communications with Laws prior to filing the motions and provided as exhibits documents, correspondence, and telephone records concerning those communications. Government counsel testified that on November 20, 2008, she spoke with Laws and he expressed no objection to the November 20, 2008 motion. She further testified that she spoke with Laws on December 19, 2008, and he expressed no objection to the December 22, 2008 motion. Government counsel also testified that she attempted to speak with Laws in regard to the January 22, 2009 motion, but was unable to reach him prior to filing the motion. The motion reflected that government counsel had been unable to reach Laws prior to filing the motion on January 22, 2009. Government counsel testified that she spoke with Laws on January 23, 2009, and that he indicated that he would need to speak to his client before he could determine whether to oppose the motion. The government provided telephone records pertaining to the telephone calls.

Laws also testified at the hearing. He indicated that he did not file an appearance on Hester's behalf. Laws admitted that he stated to government counsel that he had no objection to the November 20, 2008 motion, but he testified that he told government counsel he could not agree to the second extension because he had not talked to Hester concerning it. Laws' recollection of the January 23, 2009 telephone call was "I believe this is a conversation about some discovery maybe" and he recalled that he did not agree to any extension in January.

On August 27, 2009, Judge Manning, to whom this case was then assigned, denied [73] Hester's motion for discovery, motion for dismissal for the violation of his due process rights, motion for dismissal, and motion for immediate release based on a violation of the Speedy Trial Act. In denying the motion concerning the Speedy Trial Act and the due process motion, Judge Manning noted that, as a legal matter, "defendant is entitled to dismissal under § 3161(h) of his indictment only if the court abused its discretion in granting the motion to extend and the defendant was actually prejudiced as a result." [73 at 2.] Judge Manning concluded that "Hester has failed to show either an abuse of discretion or actual prejudice." Id. Judge Manning reasoned that "the government is entitled to adequate time to gather its evidence and witnesses to present to a grand jury." Id. at 3. Judge Manning further pointed out that "Hester has presented no evidence that the delay in presenting Johnson to the grand jury or in obtaining the results of forensics tests were the result of a lack of diligence by the government." Id. at 3. On the issue of due process, Judge Manning noted that in order to obtain relief, "Hester must establish actual and substantial prejudice from the delay," and that Hester had failed to meet that burden. Id.

Judge Manning credited the testimony of government counsel that Laws had indeed expressed no objection to the November 20, and December 22, 2009 motions, as the government stated in the motions themselves. Judge Manning also considered and rejected Hester's argument, presented for the first time at the conclusion of the August 21, 2009 hearing, that Laws was not Hester's attorney and that he thus had no authority to waive objection to the motions. Id. at 3. Judge Manning determined that "the court need not delve into the issue of whether any misunderstanding over Laws' representation of Hester caused the court to extend the time to indict without first holding a hearing because no hearing was necessary under § 3161(h)(8)(A)." Id. at 3-4 (citing United States v. Daniels, 631 F. Supp 602, 604-5 (N.D. Ill. 1986) and United States v. Ousley, 100 F.3d 75, 77 (7th Cir. 1996)).

II. Analysis

In his current motion, entitled "Re-Submission of Motion to Dismiss" [126] (to which he attaches a document entitled "Original Motion to Dismiss Indictment"), Hester argues that Laws' failure to file an appearance form in his case left him without counsel or proper representation at the detention hearing. [126 at 6.] Hester also contends that the government violated his Sixth Amendment rights by contacting Laws concerning the Speedy Trial motions and implies that the government deliberately sent electronic copies of the motions to the federal defender who represented him at his initial appearance, rather than to Laws. Id. The argument that Laws was not Hester's attorney ...


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