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United States v. Morales

June 11, 2010


The opinion of the court was delivered by: Johnson, Senior District Judge


Defendant John Morales ("Defendant" or "Morales") was arrested on June 15, 2007, after being indicted for four narcotics-related charges. The Law Offices of E. Abel Arcia ("Arcia") was retained to represent Morales and, accordingly, Arcia filed a notice of appearance on June 19, 2007. Ernest Atalay ("Atalay"), then an attorney with Arcia's firm, also made appearances before this Court on behalf of Morales. Atalay initially appeared as a stand-in for Arcia, and did not file a notice of appearance. However, both Arcia and Atalay made subsequent appearances on behalf of Morales. More notable for the purposes of this order are the times that both Arcia and Atalay failed to appear.

On November 13, 2007, neither attorney appeared with Morales at a status conference. On November 15, 2007, Atalay made his first appearance in this case and informed the Court that Arcia's wife recently had a baby. The Court told Atalay,

The Court: That's nice but he also has a client, and he should give the client and the Court the courtesy of saying "I have this personal problem."

Atalay: Absolutely.

The Court: It's really no excuse on his behalf.

Atalay: I'm just the messenger, your Honor. I will relay the Court's position to Mr. Arcia. I'm sure he is aware of it.

[. . .]

The Court: Tell your colleague he better be here. [. . . ]

The Court: I have had situations such as he's having, and I remember I took my infant down to court when I was a police officer, okay. So he's got no excuse.

Atalay: I understand, your Honor. I will let him know.

The Court: But not so much me, although it's me also, but he's got a client here.

(Tr. of 11/15/07 Proceedings, at 2:18-4:4.)

At a March 5, 2008 conference, neither Arcia nor Atalay appeared for Morales. Consequently, the conference was adjourned to April 4, 2008, wherein Atalay appeared and represented that plea negotiations were ongoing. The Court set another status conference for May 15, 2008. Informed that plea negotiations had failed, the Court set jury selection and trial, to commence on September 8, 2008. The parties were directed to file any in limine motions by August 18, 2008.

On July 22, 2008, the government moved to hold a status conference at the Court's earliest convenience. (Docket No. 19.) According to the government, Morales' case had just been reassigned to new Assistant United States Attorney ("AUSA"), Sylvia Schweder ("AUSA Schweder"), who, despite several attempts, was unable to get in touch with either Arcia or Atalay. A hearing was immediately scheduled for the purpose of aiding the government in reaching defense counsel.

On August 18, 2008, the government moved to admit tape-recorded conversations between Morales and an alleged co-conspirator. No opposition from Arcia or Atalay followed.

On August 21, 2008, the government filed a superseding indictment. The only difference between the original indictment and the superseding indictment is the length of the conspiracies charged. Specifically, the original indictment charged Morales with conspiring to import and posses heroin on or about November 5, 2006 (Counts One and Three, respectively). Counts One and Three of the superseding indictment charged Morales with committing these two crimes "[o]n or about and between January 1, 2006 and November 5, 2006." The indictments are otherwise identical. (Compare indictment with superseding indictment.)

Despite the relative insignificance of these changes, Atalay, on August 29, 2008, filed a letter requesting an adjournment of trial based on his desire to "explore the possibility of a disposition in light of this new development." (Docket No. 27.) Defense counsel had not conferred with the government before filing this letter. (See Docket No. 35 at 2 ("With no notice to the government, the defendant filed a letter to requesting an adjournment . . . to explore 'plea negotiations.'")

The Court (unaware at that time that plea negotiations had not resumed) adjourned trial and set a status conference. At the conference, the government indicated that there would not be a plea disposition in this case. Atalay requested additional time to address any in limine motions and was given until October 14 to file same. (Docket No. 33.) A November 7, 2008 status conference was set, and the Court indicated that a trial date would be selected thereat.

Four days after that October 14 deadline to submit in limine motions, Atalay moved the Court for an audibility hearing on the tape-recorded conversations that the government, in its August 18 letter, stated its intention of admitting into evidence. The government opposed this motion based on, inter alia, its untimely filing, and the fact that the case had then been pending for 16 months. (Docket No. 35.)

Atalay and Arcia failed to appear when the matter was called on November 7, 2008. No request to adjourn had been filed. Morales informed the Court that he had "just found out" that Arcia would not be appearing, and offered the Court a letter he received from Arcia's assistant. Morales was told,

You get in touch with your lawyer. Your lawyer is supposed to notify chambers 48 hours in advance if he wants an adjournment. You tell your lawyer that we will call the case again this afternoon at 2:00. He is right across the East River at 26 Federal Plaza. Your lawyer and his firm have a habit of doing this. (Tr. of 11/7/08 Conference at 2:12-19.)

At the 2:00 second call of this case, Atalay appeared. He explained that he was in immigration court and was admonished as to the importance of his timely arrival, absent a properly-filed motion to adjourn:

The Court: But the date for this morning was set about a month ago.

And the fact that you weren't here, that's no excuse.

Atalay: I understand. And I have no excuse other than the explanation I provided.

The Court: If you weren't here you should have had somebody else here because you have wasted your client's time, you have wasted the government's time, and you have wasted my time. Atalay: Judge, I have no response.

The Court: And it wouldn't be so bad, but it's several times that this has happened. I will accept your explanation and ...

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