United States District Court, D. Nebraska
FINDINGS, RECOMMENDATION, AND ORDER
CHERYL R. ZWART, Magistrate Judge.
The defendant filed a pro se motion to dismiss his criminal case for improper venue, for insufficient evidence, and for violation of his speedy trial rights. (Filing No. 116). The government filed a motion to preserve trial testimony by deposition. (Filing No. 131). Both are pending before me for findings and a recommendation. For the reasons discussed below, the undersigned magistrate judge finds the pro se motion to dismiss should be denied, and the motion to preserve testimony by deposition for use at trial should be granted.
Thomas Whitlow first appeared before me for an initial appearance on a criminal complaint on February 11, 2014. Whitlow was charged with Conspiracy to Commit Wire Fraud in violation of 18 U.S.C. § 1349. During the defendant's initial appearance, Attorney John Vanderslice was appointed to represent the defendant. (Filing Nos. 21-25). The government orally moved for detention. That motion was heard on February 13, 2014. Following the hearing the court entered an order of detention, explaining:
[T]he defendant has a criminal record which indicates a propensity to violate the law and orders of the court; has a propensity to commit theft resulting in harm to others; is subject to several outstanding warrants; has failed to appear for court proceedings in the past; and no conditions or combination of conditions are currently available which will sufficiently ameliorate the risks posed if the defendant is released.
(Filing No. 43).
A 12-count indictment was entered against the defendant on February 19, 2014. (Filing No. 51). The indictment alleges that from May 31, 2011, and until November 1, 2013, the defendant conspired with co-defendants Tempest Amerson, Yolanda Clemons, Isys Jordan, and Rosland Starks to defraud elderly people and obtain money and property from them. The indictment alleges the defendants called elderly individuals, pretended to be a family member or a person acting on behalf of a family member, and claimed the family member urgently needed money to, for example, post bond, pay for the services of an attorney, pay for damage caused by a car accident, buy gas, or purchase a new investment.
As set forth under "Overt Acts" in the indictment, the alleged victims are:
A.K., Sheridan, Wyoming
K.R., Hamilton, Virginia
R.H., Soddy Daisy, Tennessee
E.E., Pocahontas, Arkansas
J.M., North Charleston, South Carolina
E.B., Covington, Virginia
T.V., Benton, Arkansas
S.B., Miller's Creek, North Carolina
(Filing No. 51, at CM/ECF p. 4-5). For all but two of the alleged overt acts of the conspiracy, the elderly victims allegedly wire-transferred money into Nebraska. And from Nebraska, the money was, in turn, wire transferred to Kansas City, Kansas or Kansas City, Missouri. (Filing No. 51, at CM/ECF p. 4-5). Whitlow was an alleged recipient of the money once it reached Kansas City. (Filing No. 51, at CM/ECF p. 3).
Whitlow was arraigned on the indictment on February 24, 2014. (Filing No. 57), and trial was set for April 21, 2014. (Filing No. 58).
On March 10, 2014, Whitlow's counsel, John Vanderlice, moved to withdraw. The motion explained:
Whitlow has told counsel to withdraw from his case because his interests are not being represented to Whitlow's satisfaction. Moreover, Whitlow has stated that he has sent a letter to the Nebraska State Bar Association complaining about counsel's representation. Further, Whitlow has stated that counsel is working with the prosecutor in this matter such that counsel is not representing Whitlow to the best of counsel's ability.
(Filing No. 63). A hearing was held on the motion to withdraw on March 12, 2014. During the hearing, the defendant accused Mr. Vanderslice of lying to Whitlow about the federal venue laws, and stated that if the court agrees with counsel's interpretation of the federal venue law, the court is "in cahoots" with defense counsel and the government. The court granted Mr. Vanderslice's motion to withdraw. During the hearing, the court also advised Whitlow that if he continues to refuse to eat while incarcerated, that refusal is his choice: It will not result in the defendant's release from detention, and it will harm the defendant and no one else. (Filing No. 66).
CJA-appointed counsel Jonathan M. Braaten entered his appearance as counsel for Whitlow, and on April 9, 2014, he moved to continue the trial, explaining that due to his recent appointment, he needed additional time to review discovery and prepare for trial. Mr. Whitlow agreed to a 30-day continuance. (Filing No. 82). The motion was granted on April 11, 2014, and based on the court's calendar, trial was rescheduled for May 20, 2014, with the time between April 11, 2014 and May 20, 2014 excluded under the Speedy Trial Act. (Filing No. 83).
On May 15, 2014, a status hearing was held with counsel for the government, defense counsel, and the defendant. Defense counsel stated the defendant wanted to file a motion to dismiss for lack of venue, for violation of the Speedy Trial Act, and for insufficient evidence, and a motion to suppress his co-defendants' statements. The defendant was told he could not have pretrial motions filed by his counsel, considered by the court, and ruled on and also have an immediate trial. The defendant asked his counsel if the defendant could draft the pretrial motions and submit them to the court. After being told by counsel that pretrial motions would delay the trial even if the defendant drafted the motions, the defendant stated he would forego filing motions in favor of having an immediate trial. (Filing No. 111). Trial was set to begin on June 18, 2014. Based on the defendant's past and present conduct during court hearings, the defendant was reminded that his right to be present at trial is not absolute; that he must not interrupt the judge or witnesses during trial, or otherwise be disruptive. (Filing No. 111).
On May 29, 2014, the court received defendant's pro se motion which stated his speedy trial rights were being violated, the Nebraska federal forum lacks venue to adjudicate all or part of the charges within the indictment, and the undersigned magistrate judge and District Judge Richard G. Kopf were engaged in "Misfeasance in Public Office." The defendant's motion states "insufficient evidence exists for an indictment on a criminal charge, ... my right to a speedy trial is violated, [and] I pray and request this matter be investigated and upon your conclusion discover my rights violated [and] justice be served." (Filing No. 116, at CM/ECF p. 3).
To the extent the motion requested recusal of the undersigned magistrate judge, the request was denied on June 2, 2014. Whitlow's trial was continued and a hearing on his motion to dismiss was set for June 20, 2014. (Filing No. 124).
On June 19, 2014, the government filed a motion to take depositions for use at trial. That motion was initially addressed at the hearing on June 20, 2014. After significant discussion about the electronic options available in the court, and the difficulty with moving the defendant to the deposition locations, the defendant strenuously objected to any depositions being used and any videoconferencing options. Acknowledging that a trial continuance would be necessary, the defendant nonetheless objected to the government proceeding by proffer to show "exceptional circumstances" as required under Rule 15. He requested an evidentiary hearing. The hearing was set for July 15, 2014. (Filing No. 134).
On July 14, 2014, the Marshal moved the defendant from a detention location in Omaha, Nebraska to the Saunders County jail in Wahoo, Nebraska. The defendant arrived at the Saunders county facility at 4:10 p.m. Upon arrival, he announced he did not eat meat. He refused to comply with the booking process. When served a meal that included meat, he demanded a meatless meal. He was told he must submit a sick call to the medical department so he could explain his circumstances and be placed on a meatless diet. The defendant became very upset, demanded another meal, and rather than eat the non-meat portions of the meal he had received, kicked his door, causing his meal tray to fall on the floor. Then, yelling profane language, the defendant threatened to cause physical harm to the staff and other inmates, and damage the building itself. He climbed on the toilet to reach the sprinkler head, and when told he would be charged if he broke it, stated:
I told you I will [mess] this building up! I will force you to move me to another facility! I will wear you out! I will throw shit and piss on staff! I've done it before and I will do it again, check my record!
(Filing No. 161-1). The defendant was cited for "Refusing direct orders. Making threats towards staff, inmates and facility, " and placed in Immediate Segregation.
The following morning, at the outset of the hearing on the government's motion to permit deposition testimony, the Marshal informed the court that the defendant had stated on three separate occasions that the only way he was leaving the federal courthouse was if he was carried out of the building. On the court's inquiry, the defendant acknowledged making those statements, but said the statements should not be interpreted as threats of suicide. His counsel agreed. The defendant admitted to throwing a tray while in the Saunders County Jail, explaining he did so because the jail knew he did not eat meat and served him meat anyway. He denied making any threats. The court determined the defendant is angry and volatile, and he is competent.
The government seeks to depose three victim witnesses named in the indictment, E.B., E.E., and J.M.
E.B. is from Covington, Virginia, and is a material witness for the government as
to Count 1, ¶ 7, overt acts (k) and (l); and Count 6. Covington, Virginia is over 1000 miles from Lincoln, Nebraska, and approximately 100 miles from the closest federal court, located in Lynchburg, Virginia.
E.B. is in her 80s. She has many chronic health problems, including hypertension, rectal bleeding, urinary incontinence, chronic knee pain, chronic back pain for which she wears a brace, primary hypothyroidism, vertigo, macular degeneration, bilateral cataracts, depression, and anxiety. Her doctor states that E.B's constellation of medical issues prevent her from all but the shortest trips. The doctor does not believe E.B. can make the trip to Nebraska. (Exs. 1-1A).
E.E. is from Pocahontas, Arkansas and is a material witness for the government as to Count 1, ¶ 7, overt acts (g) and (h). Pocohontas, Arkansas is over 500 miles from Lincoln, Nebraska, and approximately 100 miles from ...