United States District Court, W.D. New York
DECISION AND ORDER
RICHARD J. ARCARA, District Judge.
Before the Court is the Government's third motion for removal of court-appointed second counsel for the three remaining defendants in this case involving Racketeer Influenced and Corrupt Organizations Act ("RICO") charges. (Dkt. No. 317) For the following reasons, the Government's motion to remove court-appointed second counsel is granted.
FACTUAL AND PROCEDURAL BACKGROUND
On September 24, 2009, the Government filed a 37-page indictment charging Thamud Eldridge, Kevin Allen and Galen Rose (the "defendants") with 17-counts including racketeering, racketeering conspiracy, murder in aid of racketeering, conspiracy to distribute controlled substances, possession of firearms in furtherance of drug trafficking crimes, violent crime in aid of racketeering-kidnaping, Hobbs Act robbery and conspiracy, and various firearm offenses. In sum, it is alleged that defendants were members of a criminal organization that engaged in the distribution of cocaine, cocaine base, marijuana and heroin and also committed acts of violence in furtherance of their drug trafficking enterprise, including murder, robbery and extortion. The organization operated principally on the East Side of Buffalo, New York. Defendants allegedly robbed, murdered and attempted to rob and murder other individuals involved in drug distribution and allegedly carried, brandished and discharged firearms in furtherance of these activities.
In addition to the various RICO charges, the indictment included Notices of Special Findings as to each defendant pursuant to Sections 3591 and 3592 of Title 18 of the United States Code, which govern the imposition of a sentence of death. As a result of this and pursuant to Section 3005 of Title 18 of the United States Code, the Court appointed two counsel for each defendant, one being "learned in the law" in death penalty matters.
On February 4, 2010, the Government notified defendants and the Court that a notice of intention to seek the death penalty would not be filed in this matter. The Government subsequently filed a motion for removal of court-appointed second counsel on February 16, 2010. That motion was denied by Magistrate Judge Hugh B. Scott, on the grounds that the case presented complex legal and factual issues, and removing counsel from defendants at this stage in the proceeding would cause significant disruption in the defendants' representation, result in extended delays, and place an atypical burden on the remaining counsel.
Over the next four years, the Government and defense counsel engaged in extensive motion and hearing practice, including a motion to recuse the United States Attorney's Office of the Western District of New York and five evidentiary hearings. Each defendant had the benefit of court-appointed second counsel throughout this time.
On June 17, 2014, at the conclusion of the majority of pretrial motions and shortly before a trial date was to be set, the Government filed a second motion for removal of court-appointed second counsel. During oral argument, the Government indicated that the filing of the second motion was prompted by this Court's removal of defendant Speed's court-appointed second counsel following his severance from the other defendants. The motion to remove was again denied by the Magistrate Judge, who noted that "because this case presents complex legal and factual issues, removing learned counsel from the defendants at this late stage would cause significant disruption in the defendants' representation and place an atypical burden on remaining counsel." (Dkt. No. 315)
On July 3, 2014, the Government renewed, before this Court, its motion to remove court-appointed second counsel. Therein, the Government noted that the Magistrate Judge's determination was "without prejudice" and that this Court has plenary jurisdiction with respect to the case. The Government cited this Court's decision regarding counsel as to defendant Speed, the Criminal Justice Act Guidelines, the Death Penalty Reference Guide (June 2012, Western District of New York), and Second Circuit case law, in support of its assertion that court-appointed second counsel for the three remaining defendants should be removed.
Defendants contend that this motion is not properly before the District Court and that, even if it were, the law of the case doctrine prevents the Court from revisiting this issue. Before turning to the merits of the Government's motion, the Court will address defendants' procedural arguments.
Section 636 of Title 28 of the United States Code states that "a judge may designate a magistrate... to hear and determine any pretrial matters pending before the Court, except motions... to dismiss or quash an indictment or information made by a defendant... or to suppress evidence in a criminal case." See 28 U.S.C. §636(b)(1)(A) (emphasis added). Further, Rule 59(a) of the Federal Rules of Criminal Procedure provides that a district judge "may refer to a magistrate for determination any matter that does not dispose of a charge or defense [and the] magistrate judge must promptly conduct the required proceedings and, when appropriate, enter on the record an oral or written order stating the determination. " See Fed. R. Crim. P. 59(a) (emphasis added). With respect to dispositive motions, the Supreme Court has held that a district court may ...