United States District Court, S.D. New York
June 1, 2005.
UNITED STATES OF AMERICA,
JAMES DONOVAN, Defendant.
The opinion of the court was delivered by: MICHAEL DOLINGER, Magistrate Judge
MEMORANDUM & ORDER
We have received an application today by defendant James
Donovan requesting an unspecified adjournment of his trial, now
scheduled to begin June 3, 2005. He seeks the delay to permit him
to be examined by a doctor and thereafter to undergo some form of
nerve-block procedure. He also complains that the Government has
withheld from him certain witness identification information that
he claims the court ordered the Government to supply.
This is not the first adjournment sought. The trial was
originally scheduled for May 23, 2005. On May 17, the Government
requested a one-day adjournment because a witness was
unavailable, and we postponed the trial to May 31, 2005 to
accommodate a variety of scheduling conflicts. On May 26, 2005
plaintiff's standby counsel advised the court that defendant was
seeking an adjournment of six weeks because he was "suffering
from significant health problems." (May 26, 2005 letter to the
Court from Richard Boulware, Esq.). We denied that request without prejudice on May 27, 2005, specifying
that a renewed application must be accompanied by "some form of medical
documentation." (Endorsed Order dated May 27, 2005).
Yesterday we received a telephone call from defendant, his
standby counsel and the Government's trial lawyer, apparently
because defendant wanted to ask directly for a postponement based
on lack of funds and perhaps his medical condition. We directed
him to make a written application, which has come today.*fn1
The Government, in response, takes no position on the medical
ground for a delay but represents that it is prepared to proceed
on June 3, 2005 and denies that it failed to comply with any
discovery order in this case. (See June 1, 2005 letter to the
Court from Assistant United States Attorney Alexander J. Willscher).
We have been presented with no basis for finding any failure by
the Government to comply with its discovery obligations. At an
April 28, 2005 conference we requested that the Government
produce any Veterans Affairs files reflecting two alleged prior
incidents involving defendant. The Government represents that it
searched for such documents and that none exists. As for defendant's medical excuse, on May 27 we directed that
he provide medical documentation in support of any future
application based on his physical condition. He has failed to do
so, although he reports having an appointment scheduled with a
referring doctor on June 9. We have confirmed with the doctor's
staff that defendant has an appointment on June 8 (not June 9, as
he reports), and on that basis we will excuse on this occasion
his failure to comply with our prior order regarding medical documentation.
On that basis we will adjourn the trial to June 20, 2005. No
further adjournments should be expected. The time between June 3
and 20, 2005 will be excluded for Speedy Trial Act purposes,
since the ends of justice served by this adjournment outweigh the
best interests of the public and the defendant in a speedy trial.