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UNITED STATES v. QUESADA MOSQUERA

February 10, 1993

UNITED STATES OF AMERICA
v.
LUIS FERNANDO QUESADA MOSQUERA JOSE RAMIREZ RAMIRO a/k/a "Pollo" JAVIER QUESADA MOSQUERA DIEGO QUESADA MOSQUERA CLAUDIA TOBON-MUNOZ JIMMY VELOSA-MONTENEGRO a/k/a "Chino" GUILLERMO FERNANDEZ a/k/a "Nato" FANNETH MUNOZ-GOMEZ GLADYS TORO MARTA GARCIA JOHN HOYOS a/k/a "Checo" EFINGINIO ROJAS a/k/a "Victor Mesa" RAUL CANO ALVARO ORTIZ ROBERTO CERCHIARA NORBERTO CASTRO a/k/a "Beto" MAURICIO GRAJALES GUEVARA a/k/a "Ramiro" a/k/a the "Doctor" HECTOR MEDINA a/k/a "Kevin" a/k/a "065" Defendants.



The opinion of the court was delivered by: JACK B. WEINSTEIN

MEMORANDUM AND ORDER

 Weinstein, J.:

 There are eighteen Spanish-speaking defendants in these related complex cases involving narcotics and money-laundering. All require interpreters. Each defendant is represented by a different lawyer. Ten lawyers are privately retained. Eight are assigned pursuant to the Criminal Justice Act ("CJA"), 18 U.S.C. § 3006A. There is good reason to believe that some defendants represented by privately retained attorneys will require CJA attorneys. We can reasonably predict that at least ten separate CJA attorneys will ultimately be appointed in this one case. Their fees and expenses will be paid for out of the budget of the United States Courts. Based on experience in this court, if the case is fully tried, CJA costs will be over a quarter of a million dollars.

 The government's evidence includes more than 550 tape recordings in Spanish and transcripts of these tapes obtained through wiretaps. There are some 10,000 documents. Not all of the evidence pertains to all of the defendants. Defense counsels' compilation and selection of documents merit special protection in a criminal proceeding where important constitutional rights to due process and effective assistance counsel are implicated. See, e.g., United States v. Horn, 1992 U.S. Dist. Lexis 19587 at 8-9 (D.N.H. 1992).

 The costs of reproducing and translating the materials will be considerable. There are difficulties associated with coordinating communication of defense counsel with the court and with the government. Most defendants are incarcerated in jails near and far. They and their counsel are scattered geographically. Unless steps are taken to avoid duplication of costs and effort, due process may be sacrificed and considerable delays and large costs to the government are inevitable.

 In view of the shortage of budgeted court CJA funds, the anticipated cost is a matter of considerable importance See, e.g., Tom Watson, Money Runs Out For Federal CJA Lawyers, Legal Times, June 29, 1992 at 10 (describing how funding for court-appointed attorneys has not kept pace with the increasing number and complexity of criminal cases). Moreover, in 1993 the judiciary will be facing an "unprecedented funding crisis" and spending cuts must be made to account for a $ 100 million shortfall. See Judiciary Faces Broad Spending Reductions, The Third Branch, Newsletter of the Federal Courts, Jan. 1993 at 1. It is anticipated that the funding for the compensation of court-appointed CJA attorneys will be depleted by March of this year. Id. at 7. The courts have been urged to control these costs by any reasonable means.

 The court must be concerned with the protection of the rights of the accused. The public interest as well as the interests of the accused require promptness in criminal proceedings. See 18 U.S.C. § 3161 (The Speedy Trial Act). In complex multidefendant cases, speedy trial rights are "stretched about as far as can be without making a mockery of that constitutional protection." United States v. Gallo, 668 F. Supp. 736 (E.D.N.Y. 1987), aff'd, 863 F.2d 185 (2d Cir. 1988), cert. denied, 489 U.S. 1083, 103 L. Ed. 2d 843, 109 S. Ct. 1539 (1989).

 Recent federal legislation underscores Congress's concern with reducing expense and delay in our judicial system. The Civil Justice Reform Act of 1990 (the "Act") recognizes the heavy burdens placed on the court because of the increasing volume and complexity of both civil and criminal cases. 28 U.S.C. § 471 et seq. The statute mandates the creation of an administrative structure to ensure effective litigation management with a focus on reduction in costs and delays. Id. See generally Linda S. Mullenix, The Counter-Reformation in Procedural Justice, 77 Minn. L. Rev. 375 (1992). The legislative history of the Act acknowledges that the scarcity of resources, particularly in jurisdictions with high drug-related caseloads, such as the Eastern District of New York, has become a "scourge" on the federal courts. 1990 U.S. Cong. & Admin. News, 6803, 6804.

 In an attempt to institute procedural reforms to combat the crisis in the civil justice system, the Act requires that each district court implement a civil justice expense and delay reduction plan. 28 U.S.C. § 472. The development of such a plan requires a thorough reconsideration of the condition of the civil as well as the criminal dockets in each judicial district by an advisory group.

 The Advisory Group of the Eastern District of New York conducted such an assessment in 1991. See Final Report of the Eastern District of New York Advisory Group, 142 F.R.D. 185 (1991). Its detailed analysis of the state of the criminal docket in this district reveals an emergency situation of critical magnitude. Criminal filings have increased at a rate far greater than the national average. Id. at 201. These cases tend to be much more complex and have many more defendants than in other districts. Vacant judgeships are not filled promptly. Id. The district's termination rate has not, and cannot, keep pace with the burgeoning criminal load. Id.

 The Advisory Group has determined that "the criminal docket is the principal cause of unnecessary delay and expense in the civil justice system within the Eastern District." Id. at 204. It attributes this situation to the increasing federalization of crime, an increase in federal prosecutions as well as to changes in procedures stemming from the Speedy Trial Act and the Sentencing Guidelines. Id. at 205. Since that study was undertaken, an additional widespread federal crime has been added to the potential base for an exploding criminal docket. See The Anti Car Theft Act of 1992, 18 U.S.C. § 2119.

 Statistics for 1992 reveal that the criminal docket problem is increasing. In only one year in this district there has been a 14.8% increase in filings and 11.5 % increase in the number of criminal defendants. Records of the Clerk of the Court, Eastern District of New York. The problem is exacerbated by the fact that "this past year, the district compiled 31.9 vacant judgeship months." Id. To help offset the criminal and civil caseloads, the assistance of twenty visiting judges from September 1991 to December 1992 was secured, many of them to handle only sentencing. Id. The Advisory Group's analysis of the overburdened criminal docket reveals that the implementation of measures to expedite the progress of complex criminal cases must be a priority for the court.

 Eventually Congress and the President will recognize that it has taken a route to the suppression of drugs and crimes that arguable constitutes a misallocation of judicial resources. Until they do so the courts must do all they can to use limited resources effectively in enforcing the criminal law and protecting constitutional rights.

 This court has long been mindful of the enormous burdens posed on the courts and lawyers by complex criminal cases. See United States v. Gallo, 668 F. Supp 736, 754-56 (E.D.N.Y. 1987), aff'd, 863 F.2d 185 (2d Cir. 1988), cert. denied, 489 U.S. 1083, 103 L. Ed. 2d 843, 109 S. Ct. 1539 (1989). Large multidefendant cases such as the instant one create severe disadvantages to defendants because many attorneys, particularly sole practitioners, can ill afford the substantial outlay of time and expense associated with the case. Id. While attorneys sit for countless hours in a courtroom to hear their client's name mentioned on only a few days, their private practices stagnate. Coordination of the work of defense counsel becomes almost impossible, to the disadvantage not only of defendants, but of the prosecutor and the court. Trial judges are faced with enormous problems of trial management. Id.

 This court is obligated to establish a mechanism for reducing costs and delay in the administration of justice in these cases. The district court has the inherent power to control its own docket to ensure that cases proceed in a timely and orderly fashion. United States v. Correia, 531 F.2d 1095, 1098 (1st Cir. 1976 (upholding district court's dismissal of indictment due to prosecutorial delay). See also United States v. Fox, 788 F.2d 905, 908 (2d Cir. 1986) (reversing conviction and remanding for explanation of lengthy delay between voir dire and empaneling of the jury); ...


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