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United States v. Jenkins

United States District Court, W.D. New York

January 15, 2018

UNITED STATES OF AMERICA,
v.
ANDRE JENKINS, a/k/a Little Bear, Defendant.

          DECISION AND ORDER

          ELIZABETH A. WOLFORD, United States District Judge

         INTRODUCTION

         This 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.

         BACKGROUND

         Three 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.

         In 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).

         On 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).

         On 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.

         Less 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.
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 ...

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