Wednesday, March 16, 2005

Court finds that Speedy Trial Act Violation May be Harmless, United States v. Zedner, 04-0821-cr (2d Cir. April 28, 2005)

In March 1996, Jacob Zedner walked into several banks and attempted to negotiate bonds issued by "The Ministry of Finance of U.S.A." from the "Onited States" and with an expiration date of "forevev." The face value of the bonds was $40 million. Surprisingly, Mr. Zedner was never able to actaully negotiate the bonds. He was, however, able to negotiate some attention from the U.S. government, which found his efforts less than amusing. Indeed, the soundness and security of the United States financial system was preserved when Mr. Zedner was arrested by the U.S. Secret Service.

After 7 years of on-again/off-again institutionalization and conflicting competency evaluations, Mr. Zedner was found fit to stand trial whereupon he was convicted. At sentencing, Judge Platt rejected departure motions based on diminished capacity and overstated loss amount and sentenced him to 63 months in jail.

In a lengthy, fact-intensive opinion, the Court: (1) rejected Mr. Zedner's numerous Speedy Trial challenges; (2) rejected his 404(b) challenges; and (3) rejected his challenge to a conscious avoidance charge. Despite all this rejection, Mr. Zedner will receive a resentencing because the district court may have misunderstood its discretion to depart.

Speedy Trial Issues

Mr. Zedner challenged two different periods of time as having violated the Speedy Trial Act. The Court analyzed both periods as though no order of exclusion had been granted because the only order was one "for all time" that the trial judge entered at the beginning of the case which the Court found ineffectual.

The first time period at issue was a three-month period near the beginning of the case when defense counsel requested additional time to prepare for trial. The Court analyzed several other circuits' views on the balance between the interests of the public and the defendant in a speedy trial and held that even where no order of exclusion is entered, "when a defendant requests an adjournment that would serve the ends of justice [as the Second Cir. found], that defendant will not be heard to claim that her Speedy Trial rights were violated by the court's grant of her request, regardless whether the court made an 'ends of justice' finding under 3161(h)(8)."

The second time period was a seven month period of time in which, according to the Court, Mr. Zedner could not have been tried because of his lawyer's medical problems and because he himself had been found incompetent to stand trial during that time. The Court found that despite the mandatory language in the Speedy Trial Act that an indictment "shall be dismissed" where a defendant is not tried within the applicable period, the error in failing to exclude time during this period was harmless because Mr. Zedner could not have been tried. [This issue -- whether harmless error doctrine can in fact be applied to the Speedy Trial Act -- may conflict with other circuits and may create an interesting question for SCOTUS].

Yet another Speedy Trial claim was also rejected -- this one brought under the 6th Amendment -- based on the 7 year delay between indictment and trial. The Court balanced the factors set forth in Barker v. Wingo and determined that aside from the length of time itself, the factors weighed against a 6th A. violation, i.e., the Court found that the reasons for the delay were largely caused by Mr. Zedner, that he often requested continuances, and that he was not prejudiced by the delay.

Rule 404(b) Claim

Mr. Zedner challenged the district court's decision to allow testimony regarding his alleged fraudulent conduct 10 years prior to his arrest in the present case. Two witnesses claimed that he had induced them to sign over deeds to their homes in his name so that he could help them refinance their mortgages. They claimed that they then had to sue him to regain title. The Court found the testimony admissible because contrary to Mr. Zedner's defense that was delusional and lacked the requisite mens rea, the other acts "tended to prove Zedner's financial sophistication, his ability to execute complex schemes, and his ability to form intent to defraud."

Conscious Avoidance

The Court also rejected Mr. Zedner's objection to a conscious avoidance charge. Mr. Zedner argued that the jury could only reasonably find that he either delusional or not and that he therefore either knew the bonds were phony or didn't. Without much explanation, the Court found that the jury could have also concluded that he was aware of the high probability that they were fake and deliberately avoided confirming that fact. The Court then criticized the charge itself as potentially misleading the jury regarding the proper mens reas, but found that it did not rise to the level of plain error when read in light of the charge as a whole.

Downward Departure

Lastly, the Court remanded the case for resentencing because it seemed from the record that Judge Platt misunderstood his ability to depart downwardly based on diminished capacity and an overstated loss amount. Judge Platt seemed to indicate that because the jury found that Mr. Zedner had the requisite mens rea for conviction, he was precluded from granting a departure for diminished capacity. The Second Circuit pointed out that if that were the case, there would be no such thing as a diminished capacity departure -- as sentencing presumes a conviction, which presumes the requisite mens rea. So too, the conviction did not preclude a determination that the intended loss amount overstated the seriousness of the offense.


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