United States District Court, W.D. New York
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
Decision and Order addresses defendant Andre Jenkins'
("Jenkins") motion for severance or for an
adjournment of the trial date, which has been filed under
seal. (Dkt. 990). For the reasons set forth below, the Court
denies the motion.
attorneys were assigned to represent Jenkins in this case,
having been appointed under the Criminal Justice Act
("CJA"), 18 U.S.C. § 3006A. The attorneys are
as follows: Barry Nelson Covert ("Covert"), Michael
S. Deal ("Deal"), and Herbert L. Greenman
("Greenman"). The history of these attorneys'
involvement in this case is summarized below.
March of 2016, following the filing of the Second Superseding
Indictment ("Indictment") (Dkt. 33), Magistrate
Judge Michael J. Roemer held an attorney appointment hearing
at which Covert was assigned to represent Jenkins. (Dkt. 64).
The Government initially sought the death penalty, and
therefore, on April 6, 2016, Judge Roemer granted
Covert's motion for assignment of co-counsel. (Dkt. 93).
The Court assigned Andrew LoTempio ("LoTempio") as
co-counsel for Jenkins, citing 18 U.S.C. § 3005, which
provides for the assignment of two attorneys in capital
cases, and Section XVI(B)(1) of the Western District of New
York Criminal Justice Act Plan, which governs the appointment
of counsel in death penalty proceedings . (Dkt. 94).
April 27, 2016, the Government advised that the U.S. Attorney
General had authorized and directed the U.S Attorney's
Office not to seek the death penalty against Jenkins and his
co-defendant, David Pirk. (Dkt. 163-1 at ¶ 11). As a
result, the Government would not file a notice of intention
to seek the death penalty. (Id.). The Government
subsequently moved to remove Jenkins' second
court-appointed attorney. (Dkt. 163). On June 22, 2016, Judge
Roemer granted the Government's motion and determined
that LoTempio would remain as counsel only through the filing
of pretrial motions. (Dkt. 191).
November 21, 2016, Covert moved for an extension of time to
file pretrial motions and for the appointment of Deal as
co-counsel for the pendency of the case, citing a number of
personal matters requiring Covert's attention (including
the matter that he cites in the instant motion for severance
or adjournment). (Dkt. 363). On December 8, 2016, Judge
Roemer granted both requests and appointed Deal as
co-counsel. (Dkt. 393). A Text Order that Judge Roemer issued
that same day also appointed Greenman as counsel for Jenkins.
There is no record on the docket of the discussions among
counsel and Judge Roemer surrounding that motion and the
appointments of Greenman and Deal, but the Court understands,
based on representations of counsel as well as discussions
with Judge Roemer, that a chambers conference was conducted
due to the personal nature of Covert's application. The
Government has represented that, at this chambers conference,
it was contemplated that Covert may not return to the case,
and Greenman and Deal would remain on the case through trial.
In any event, as of December 8, 2016, Jenkins was assigned
three CJA attorneys.
than a month later, at a status conference held before Judge
Roemer on January 5, 2017, all three counsel-Covert, Deal,
and Greenman-appeared on behalf of Jenkins. Judge Roemer
inquired about the status of Jenkins' counsel. (Dkt. 496
at 20). The following exchange occurred:
THE COURT: Where are we on counsel, Mr. Covert? Are you going
to be in the case or not in the case?
MR. COVERT: Yes, Your Honor. I would propose that Mr. Deal
and I would be co-counsel on the case if that's okay with
THE COURT: Okay.
MR. COVERT: I have returned now to full-time practice.
THE COURT: And then, Mr. Greenman would not be on the case.
MR. GREENMAN: May I be heard, Your Honor?
THE COURT: Sure.
MR. GREENMAN: We had talk about ~ we had a meeting earlier
before we came over here and I would be ineligible it looks
like, but in Mr. Covert's absence, I spent a lot of time
looking at ~ through things related to the case with an eye
toward motion practice and we talked about this earlier and
if the Court would allow me to stay in through the motion
part of the case because right now, I'm pretty
familiar with that. Otherwise, he is going to have to start
over with this and it's going to be too close to this to
have two of us working on the motions at this time.
THE COURT: What's our motion schedule right now?
MR. GREENMAN: Our motions are due in March, Your Honor.
THE COURT: March?
MR. GREENMAN: And after having looked at all the ...