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U.S. v. DONOVAN

United States District Court, S.D. New York


June 1, 2005.

UNITED STATES OF AMERICA,
v.
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.


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