The opinion of the court was delivered by: Lewis A. Kaplan, District Judge
Although this case is assigned to and was tried before the undersigned, defendant, by notice of motion dated January 22, 2007, purports to move Judge McKenna to delay sentencing for two months, to remove Toni Messina, Esq., as his court-appointed attorney adviser, and for a new prosecutor.
Defendant was charged with assaulting a federal officer, tried in 2005 before Magistrate Judge Maas, and convicted. The conviction was vacated when (1) Judge Maas discovered that defendant had not been told of his right to a trial before an Article III judge, and (2) defendant refused to waive the point. Accordingly, the case was wheeled out to the undersigned for retrial.
Defendant, as he had at the first trial, insisted upon representing himself. As at the first trial, he also had a court-appointed legal advisor, this time Alexandra Shapiro, Esq., of Latham & Watkins.*fn1
On October 16, 2006, the last business day prior to trial, the defendant announced that he just had learned that the wife of AUSA Lavigne, who had just joined the government's team, worked at Latham & Watkins. He sought appointment of a new attorney-advisor. Inquiry revealed that Mrs. Lavigne is a junior corporate associate at that firm, that she had nothing to do with this case, and that the firm's ethics committee had concluded that there was no conflict. In the circumstances, the Court denied defendant's motion for the assignment of a new attorney adviser.
Defendant went forward pro se and was convicted on October 19, 2006. On November 14, 2006, at defendant's request, the Court relieved Latham & Watkins and appointed Ms. Messina.
On November 29, 2006, the Court adjourned the sentencing, at defendant's request, until January 4, 2007. Five days later, it denied defendant's request to replace Ms. Messina, which was grounded on frivolous contentions that he did not believe her statement that she had misplaced a document, that she attempted to dissuade him from filing certain motions, and that she "apparently" had not obtained her predecessor's files.
On January 4, 2007, defendant again appeared before the Court. He then claimed that he had received the presentence report only moments before. In fact, however, it developed that he had had the presentence report since some time in 2005 or early 2006, as it had been prepared after his conviction for this offense in a prior trial that later was set aside. All he had received only recently was a brief addendum. In any case, the Court granted his request to adjourn the sentencing, this time until January 26, 2007. It denied another application by defendant to remove Ms. Messina.
As a preliminary matter, the Court notes that defendant's attempt to bring this matter on before Judge McKenna is misguided. While the Court understands that defendant contends that Judge McKenna has jurisdiction because defendant appealed the conviction at his first trial and the appeal was assigned to Judge McKenna, the contention is frivolous. The first conviction was vacated and, as Judge McKenna agreed was the appropriate course, wheeled out to a new judge, who turned out to be the undersigned, for retrial. The motion therefore is properly before the undersigned, not Judge McKenna.
Defendant's latest application to remove Ms. Messina is grounded on the unsubstantiated assertion that she failed to inform him that the Probation Department, which had interviewed defendant after the first trial, did not intend to reinterview him after the second. There is, of course, no evidence that Ms. Messina knew any such thing. In light of the fact that Rule 32 does not require a second presentence interview, any such failure in any case would have been harmless. There simply is no basis for removing her. Particularly in view of defendant's succession of court-appointed advisers, there is no ...