United States District Court, W.D. New York
For Nina Jafari, Defendant: Robert Ross Fogg, Buffalo, NY.
For USA, Plaintiff: Michael DiGiacomo, LEAD ATTORNEY, Aaron J. Mango, U.S. Attorney's Office, Buffalo, NY.
DECISION & ORDER
ELIZABETH A. WOLFORD, United States District Judge.
Defendant Nina Jafari (" Defendant" ) is charged with five counts of healthcare fraud allegedly in violation of 18 U.S.C. § 1347. (Dkt. 1). Trial was scheduled to commence on June 17, 2014. (Dkt. 39). On May 18, 2014, Defendant's attorney, Robert Ross Fogg, Esq. (" Mr. Fogg" ),
filed a motion to withdraw as counsel. (Dkt. 50). The Court held a hearing on the motion to withdraw on May 27, 2014. (Dkt. 54). For the reasons set forth below, the motion to withdraw is granted.
A district court should consider the following factors on a motion to withdraw as counsel: the timeliness of the motion; whether the issue between the defendant and her attorney is so great that it results in a total lack of communication preventing an adequate defense; and the extent to which the defendant's own conduct contributed to the communication breakdown. United States v. Doe No. 1, 272 F.3d 116, 123-124 (2d Cir. 2001); see also United States v. Simeonov, 252 F.3d 238, 241 (2d Cir. 2001); United States v. Reyes, 352 F.3d 511, 515 (1st Cir. 2003); United States v. Biear, S3 09 Cr. 1185 (PKC), at *7 (S.D.N.Y. Mar. 20, 2012). The relevant considerations in this case are the timeliness of the motion and whether the issue between Defendant and Mr. Fogg is so great that it results in a total lack of communication preventing an adequate defense.
Courts are hesitant to grant motions to withdraw made on the eve of trial. See United States v. Schwab, 05-CR-6161L, 12-CV-6537L, *7-8 (W.D.N.Y. Apr. 17, 2013) (" Certainly, an attempt by counsel to withdraw at the eleventh hour, for example, on the eve of trial, would be a circumstance to justify counsel's continued involvement." ). A district court generally has discretion to determine when a motion is made " on the eve of trial." See United States v. Fox, No. 12-3333-cr, 558 F.App'x 66, at *11 (2d Cir. Mar. 12, 2014) (district court was within its discretion to deny appointment of new counsel when scheduled trial date was only five months away); Reyes, 352 F.3d at 515 (motion to withdraw filed one week before trial was untimely); United States v. Myers, 294 F.3d 203, 206 (1st Cir. 2002) (withdrawal motion submitted months after conflict first developed and five days before sentencing was untimely); United States v. Mangual-Corchado, 139 F.3d 34, 42 n.18 (1st Cir. 1998) (motion to withdraw filed three weeks before trial could be untimely); United States v. Zaccaria, 95-CR-97S-29, *7 (W.D.N.Y. Apr. 11, 1997) (" we are two weeks from trial. It would wreak havoc on [defendant's] defense if he [was] forced to prepare and proceed to trial with a new lawyer." ).
Mr. Fogg's motion to withdraw is not timely. Mr. Fogg was retained by Defendant prior to the filing of the Indictment on January 18, 2013. (Dkt. 1). A trial date of June 17, 2014, was set on January 15, 2014. (Dkt. 39). Despite the fact that Mr. Fogg has represented Defendant for well over a year, he filed a motion to withdraw less than one month before the start of trial, citing a communication deficiency between himself and Defendant which, according to his motion papers, has been an ongoing problem rather than a recent occurrence. (Dkt. 50 at ¶ ¶ 10-14). Accordingly, the Court finds that Mr. Fogg's motion is untimely and on the eve of trial.
However, even though untimely, the Court determines that withdrawal of counsel is appropriate due to the extent of the conflict between ...