United States District Court, D. Maine
ORDER ON DEFENDANT'S MOTION TO CONTINUE
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE .
3, 2017, Anthony G. Berry waived indictment and pleaded
guilty to an information, charging him with engaging in a
conspiracy to transport stolen goods. Waiver of an
Indictment (ECF No. 1); Information (ECF No.
2). He has been awaiting a sentencing hearing ever since. The
scheduling of the sentencing hearing has been substantially
delayed largely, though not exclusively, as a result of
motions to continue by defense counsel. On June 21, 2017,
Attorney Tzovarras sought and received a thirty day extension
of time for initial disclosure of the presentence
investigation report. Def.'s Mot. to Enlarge Time for
Initial Disclosure of PSI (ECF No. 16); Order
Granting Mot. to Enlarge Time for Initial Disclosure of
Presentence Report (ECF No. 17). The Court held a
presentence conference on August 31, 2017. Min.
Entry (ECF No. 21). It set a briefing schedule that
required the Defendant to file a sentencing memorandum by
September 20, 2017 and the Government to respond by October
4, 2017. It also scheduled a sentencing hearing for October
11, 2017. Notice of Hr'g (ECF No. 22).
September 11, 2017, Attorney Tzovarras again moved to
continue the case for “approximately thirty
days.” Mot. to Continue Sentencing Mem. Deadlines
and Sentencing Hr'g at 1 (ECF No. 24). In
part, the motion to continue was based on a murder trial in
which Attorney Tzovarras was defense counsel in state court
that was scheduled from September 21 until October 6, 2017,
which meant that he would have “limited time to prepare
a sentencing memorandum during this time.” Id.
at 2. The Government opposed the continuance, but on
September 12, 2017, the Court granted the continuance over
the Government's objection. Order Granting Mot. to
Continue Sentencing Mem. Deadlines and Sentencing
Hr'g (ECF No. 28). The Court reset the deadline for
the Defendant's sentencing memorandum for October 20,
2017 and the Government's response for November 3, 2017.
The Court also set the sentencing hearing for December 12,
2017. Notice of Hr'g (ECF No. 29).
October 20, 2017, Attorney Tzovarras again moved to continue
filing deadline for his sentencing memorandum but only for
another three days. Def.'s Mot. for Enlargement of
Time to File Sentencing Mem. (ECF No. 31). On October
23, 2017, the Court granted the motion. Order Granting
Mot. to Extend Time to File Sentencing Mem. (ECF No.
September 11, 2017, Attorney Tzovarras had moved for a copy
of another defendant's presentence investigation report.
Mot. for Release of Revised Pre-Sentence Report and
Statement of Reasons in Co-Conspirator's Sentencing
(ECF No. 25). On October 23, 2017, the Court held a
conference of counsel to discuss this motion. Min.
Entry (ECF No. 34). Attorney Tzovarras requested some
additional time to decide whether to press the motion, and
the Court granted him until November 7, 2017. Min.
Entry (ECF No. 34). Attorney Tzovarras failed to comply
with the Court's deadline and on November 9, 2017, the
Court dismissed his motion for the other defendant's
presentence investigation report. Order (ECF No.
meantime, Attorney Tzovarras filed his sentencing memorandum
on October 24, 2017 and the Government filed its response on
November 6, 2017. The sentencing date was set for December
12, 2017. On October 4, 2017, the Court reset the December
12, 2017 hearing date because it had agreed to act as faculty
at the National Advocacy Center in Columbia, South Carolina.
Notice of Rescheduled Hr'g (ECF No. 30). The new
hearing date was January 3, 2018.
November 16, 2017, the Court was required to reschedule the
January 3, 2017 hearing date for January 24, 2017 because it
was scheduled to preside over a civil jury trial, Bowen
v. DiTech Fin. LLC, 2:16-cv-00195-JAW, in Portland
during the first week of January, 2018. Notice of
Rescheduled Hr'g (ECF No. 39). However, on December
6, 2017, the parties in Bowen confirmed that the
case settled, thereby freeing up the first week of January,
December 15, 2017, Attorney Tzovarras moved to continue the
January 24, 2018 sentencing hearing until “sometime
after February 9, 2018.” Def.'s Mot. to
Continue Sentencing Hr'g (ECF No. 41)
(Def.'s Mot.). On December 15, 2017, the
Government responded and objected to the continuance,
requesting that the Court reinstate the January 3, 2018 date.
Gov't Resp. in Opp'n to Defense Mot. to Continue
Sentencing Hr'g (ECF No. 42) (Gov't's
Opp'n). Attorney Tzovarras replied on December 18,
2018. Def.'s Reply to Gov't's Resp. to Mot.
to Continue Hr'g (ECF No. 43) (Def.'s
motion, Attorney Tzovarras gave two reasons for the requested
continuance: (1) he was scheduled for a state court trial on
January 22-26, 2018; and, (2) the state court specially set
the trial to avoid conflict with federal trials Attorney
Tzovarras currently has scheduled in this Court during the
month of January 2018. The Court's docket reveals that
Attorney Tzovarras is defense counsel on United States v.
Cain, 1:16-cr-00103-JAW, a criminal case set for trial
from January 9, 2018 through January 17, 2018 and on
United States v. Jack, 1:17-cr-00037-JAW, a second
criminal case set for trial from January 29, 2018 through
February 2, 2018.
response, the Government suggested that the Court consider
resetting the matter for January 3, 2018, rather than two
months or more in the future. Gov't's
Opp'n at 1. The Government observed that Attorney
Tzovarras' services “are- properly-in high
demand” and it worries that “calendar conflicts
are likely to reoccur as the hearing is scheduled more
remotely in time.” Id. at 2. If the case
cannot be scheduled during the first week of January, the
Government urged the Court to “require counsel to
commit to a date certain, acceptable to both the Court and
the government.” Id.
reply, Attorney Tzovarras represented that he would be
“unable to fully prepare for the sentencing if it is
rescheduled to an earlier date of January 3rd as suggested by
the Government.” Def.'s Reply at 1-2. He
explained that Mr. Berry “had been planning and
preparing for a sentencing in late January since
mid-November, and Mr. Berry has holiday plans with his
family.” Id. at 2. In a footnote, Attorney
Tzovarras acknowledged that he initially suggested the
sentencing hearing be reset after February 9, 2018, but he
“now plans to be on vacation the following week.”
Id. at 2 n.1. He asked the Court to reset the
sentencing hearing until “after February 19,
2018.” Id. at 1.
Rule of Criminal Procedure 32(b)(1) requires a court to
“impose sentence without unnecessary delay.” This
case was originally scheduled for a sentencing hearing on
October 11, 2017; under Attorney Tzovarras' proposal, the
Court will not be able to sentence Mr. Berry until after
February 19, 2018, more than four months after the original
date for the sentencing hearing, and much but not all of the
delay has been caused by Attorney Tzovarras' very active
and demanding criminal defense practice.
ruling on the motion to continue, the Court has not
considered some of the Defendant's arguments. First, the
Court has not considered the Defendant's own holiday
schedule. Mr. Berry has pleaded guilty to committing a
serious federal felony and it would be inappropriate for the
Court to delay his sentencing hearing because he wants to
celebrate the holidays. Anyway, the holidays are effectively
over by January 3, 2018 and the Court would not allow him to
force a continuance of his sentencing hearing because Mr.
Berry wants a long holiday break extending past New
Year's Eve and Day.
Court also rejects Attorney Tzovarras' representation
that he could not adequately prepare for the sentencing
hearing if it were held on January 3, 2018. Attorney
Tzovarras filed his sentencing memorandum on October 24, 2017
and the case is not unduly complex. The Court is entirely
confident that if the sentencing hearing were held on January
3, 2018, Attorney ...