United States v. Paitsel ( 2021 )


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  •                             UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    UNITED STATES OF AMERICA,
    Plaintiff,
    v.
    Criminal Action No. 19-0156 (CKK)
    BRIAN WINSTON BAILEY, et al.,
    Defendants.
    MEMORANDUM OPINION
    (December 7, 2021)
    This criminal matter was scheduled for trial beginning December 3, 2021, the fifth trial
    date set by this court after diligent efforts to ensure Defendants their right to a speedy trial. At
    5:17 PM, December 2, 2021––the evening before voir dire was scheduled to begin––Mark
    Schamel (“Mr. Schamel”) and his co-counsel Ana Jara, counsel for Defendant Bailey, filed a
    Motion to Withdraw as Counsel (“Motion to Withdraw”). The Motion argued that counsel for
    Defendant Bailey had not sufficiently prepared for trial such that they would be unable to provide
    their client with the Sixth Amendment’s guarantee of effective assistance of counsel. Rather than
    continuing to trial, the Court held a hearing on the Motion to Withdraw at 8:00 AM, December 3,
    2021, during which Mr. Schamel indicated that if the Court proceeded with trial as scheduled, his
    representation of Defendant Bailey would be constitutionally deficient. In addition, the Court
    inquired of Mr. Schamel what he had done to prepare for his client’s trial, and what tasks he felt
    that he still needed to complete. Based on Mr. Schamel’s representations, the Court orally granted
    the Motion. This Memorandum Opinion further explains why it granted the Motion.
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    I.      Ineffective Assistance of Counsel
    At the December 3, 2021, motions hearing, Mr. Schamel demonstrated to the Court that
    his lack of preparation for the December 3, 2021, trial date would have stripped his client of his
    right to effective assistance of counsel. Mr. Schamel further demonstrated a troubling lack of
    preparation and diligence throughout the recent life of this case. To that end, both Defendant
    Paitsel and Defendant Bailey, himself, consented to counsel Schamel’s motion. Consequently, the
    Court made the difficult choice to grant the Motion to Withdraw. See Local Rule 44.5(d)
    (providing circumstances when Court may deny motion to withdraw in criminal case); United
    States v. Kelly, No. 87-cr-0008, 
    1986 WL 17592
    , at *1 (D.D.C. Aug. 26, 1987) (granting motion
    to withdraw where client’s intransigence prevented counsel from adequately preparing for trial).
    Counsel Schamel has twice previously moved the Court to continue the trial date in this
    case. As the Court explained at more length in its November 29, 2021 [143] Order denying
    Defendant Bailey’s [141] Motion to Continue the trial date, this criminal case has been pending
    against both Defendants since May 24, 2019, more than thirty months ago. It was first set for trial
    on September 14, 2020. On April 30, 2020, the Court set a new trial date of May 26, 2021 due to
    the COVID-19 pandemic. Second Amended Pretrial Scheduling Order at 2, ECF No. 63. Due to
    scheduling conflicts and the challenges posed by the ongoing pandemic, the Court continued the
    trial date a second time to September 7, 2021. Minute Order (Mar. 12, 2021).
    On August 27, 2021, less than two weeks before trial, counsel Schamel moved to continue
    the trial date to January, citing, broadly, concerns surrounding the transmissibility of COVID-19.
    See generally Mot. to Continue, ECF No. 120 (Aug. 27, 2021). On September 1, 2021, the Court
    continued the trial date, but not because of the concerns raised by Mr. Schamel’s motion. Rather,
    the illness (believed at the time to be COVID) of counsel for Defendant Paitsel necessitated a
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    continuance to December 1, 2021. Order at 3, ECF No. 128 (Sept. 7, 2021).                            As the Court
    explained in its order denying counsel Schamel’s August 27 motion, “the Court cannot delay
    criminal proceedings indefinitely. Indeed, Congress has made clear by statute that the public has
    a salient interest in the timely administration of criminal trials,” even during a pandemic. 1 
    Id.
    While this case was pending, counsel Schamel entered an appearance in United States v.
    Peter Bolos, 2:18-cr-140 (E.D. Tenn.) (Greer, J.) (“Tennessee trial”) on June 4, 2021. Motion for
    Leave to Appear, ECF No. 359. At the time of his appearance, Mr. Schamel was on notice that
    the Tennessee trial was set to begin on October 18, 2021, for approximately five weeks. On
    September 22, 2021, and without informing this Court, Mr. Schamel filed a motion to continue the
    Tennessee trial to January 2022, apparently ignorant of a separate trial before Judge Greer in
    January 2022. 2 See ECF No. 424. This motion to continue, as with counsel Schamel’s August 27,
    2021, motion to continue before this Court, advanced various concerns regarding COVID-19
    transmissibility.      ECF No. 424 at 1-6. The motion also informed the court of Mr. Schamel’s
    client’s recent COVID-19 symptoms. Id. at 6-7. After Judge Greer denied his motion to continue
    on generalized COVID grounds, Mr. Schamel made a battery of additional filings representing
    that his client’s health was worsening to the extent that Mr. Schamel could not effectively prepare
    for trial with his client. E.g., ECF Nos. 436, 442, 443, 446, 447, and 451. In none of these filings
    did Mr. Schamel inform Judge Greer of the trial in this case, then set for December 1, 2021.
    Without realizing the conflict, Judge Greer continued the Tennessee trial––set for five weeks––for
    two weeks to November 1, 2021. See Order, ECF No. 453 (Sept. 30, 2021).
    1
    The U.S. District Court has made concerted efforts to protect the health and safety of those involved in trial. As
    the Court explained, these actions include regularly testing the airflow in courtrooms, mandatory masks at all times,
    seating six feet apart counsel, parties, and specifically the jury in courtrooms.
    2
    This motion was also filed under seal, resulting in additional logistical challenges in acquiring a copy of the
    motion from the Clerk’s Office at the United States District Court for the Eastern District of Tennessee.
    3
    Counsel Schamel did not inform this Court or Judge Greer of this scheduling conflict for
    two weeks. Notice, ECF No. 129 (Oct. 13, 2021); Notice, ECF No. 492 (Oct. 13, 2021). After
    that delay, and as Chambers subsequently informed the parties via email, the Court alerted Judge
    Greer to the scheduling conflict. The Court then worked proactively with Judge Greer to address
    the conflict. Because Judge Greer assured the Court that the trial in Tennessee would be completed
    prior to December 3, 2021, the Court vacated the December 1 and December 2 trial dates and
    ordered the parties to appear for trial at 8:00 AM December 3, 2021, expecting to engage in voir
    dire of the jury panel, who had been informed of the delay. Order, ECF No. 145 (Nov. 29, 2021). 3
    Jury deliberation in the Tennessee trial began on December 1, 2021, and the jury returned a guilty
    verdict as to all counts on December 2, 2021. ECF No. 661.
    At 3:44 PM on December 2, 2021, Chambers asked the parties via email to respond to a
    particular change to the Court’s proposed voir dire, cc’ing Mr. Schamel and his co-counsel. At
    7:33 PM, Mr. Schamel represented that he did not “see[] [any] emails as I was driving” in an email
    response to Chambers. In fact, Mr. Schamel had been speaking with the Government via phone
    seeking their consent to the Motion to Withdraw (which, presumably, was being drafted during
    the same car trip). See Resp. to Mot. to Withdraw, ECF No. 148, at ¶ 1 (Dec. 2, 2021). Mr.
    Schamel filed his Motion to Withdraw at 5:17 PM that day.
    The Court held a hearing on Mr. Schamel’s Motion to Withdraw at 8:00 AM on December
    3, 2021. During the hearing, Mr. Schamel offered only one scheduling proposal that might, he
    said, ensure effective assistance of counsel: jury selection beginning December 6, his preparation
    3
    The original trial plan was to conduct voir dire in the Ceremonial Courtroom, which would accommodate up to
    fifty of the sixty prospective jurors seated six feet apart, over the course of December 1 to December 3. Given the
    difficulty of securing the Ceremonial Courtroom, even for criminal jury selection, the Court was to share the
    Ceremonial Courtroom with two other judges. With this schedule, there would be two, uninterrupted weeks of trial
    before the Christmas holiday. This plan ensured the trial would be completed by the end of December.
    4
    for trial the rest of that week, and the trial continuing on December 13. Trans. at 27. Before
    turning to the specifics of his proposal, the Court asked Mr. Schamel to explain to the Court what
    preparation he had done so far and what work needed to be done to ensure effective assistance of
    counsel. Trans. at 13.
    Mr. Schamel represented that he performed the following work during the summer of 2021:
    Mr. Schamel: I will tell Your Honor since getting into this case – I don’t recall the date –
    up until September, we’ve had – I’d have to go back and look at my bills and notes a
    number of meetings with Mr. Bailey. I’ve had meetings with Mr. Benowitz, both
    telephonically – and I don’t know if we have met in person, candidly, on this case at all
    because of COVID. I certainly met with Mr. Bailey, as codefendant counsel. Ms. Jara and
    I have looked and have had assistance with junior lawyers on the research on some of the
    issues we would raise on the defense . . . We have looked into some of the background of
    a couple of the witnesses. [And] we have reviewed . . . the [discovery] that has been turned
    over.
    Trans. at 14. As September neared, however, Mr. Schamel began to neglect the case:
    Mr. Schamel: . . . As then you recall, there was a period of time where we really weren’t
    talking to Mr. Bailey at all leading up to the September date because of the tragic loss of
    his mother. And then Mr. Benowitz was also sick. Se we had a loss of contact there going
    into that September date. . . .
    The Court: Okay. Were you prepared if the case had gone forward in September or not?
    . . . . Mr. Benowitz’s request to move it was just a few days before the September date.
    Mr. Schamel: We would have been in a wind sprint. If Mr. Benowitz had not gotten sick,
    and we had all been able to spend that time together, I think we would have been ready for
    jury selection
    Trans. at 16-17. As for preparation between September and December 3, 2021:
    Mr. Schamel: Your Honor, I am getting passed notes [from co-counsel and Mr. Benowitz]
    about things I just don’t remember because I frankly haven’t looked at the case in six
    weeks.
    The Court: You haven’t looked at it at all?
    Mr. Schamel: Your Honor, I have had one conversation with Mr. Bailey. One in person
    since September. It was to touch base with him and let him know I was going to be out of
    pocket in this case in Tennessee, which was going to be all-consuming. I had one telephone
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    conversation with him – that was in or around the time we came back in front of Your
    Honor and we talked about this was going to be a problem . . .
    And then on Thanksgiving morning I had a telephone conversation with Mr. Bailey, which
    is the only time I’ve talked to him since this last court date until today when he walked into
    the courtroom.
    So since September, I’ve had a couple of emails with the government telling them that this
    problem was coming. I have had one conversation with another lawyer . . . I’ve talked to
    Mr. Benowitz I think twice.
    Trans. at 18-22. (emphasis added). From that time, Mr. Schamel went on to explain that he had
    not reviewed any discovery in this case, nor had he reviewed the Government’s trial brief, filed
    October 20, 2021, discussing the admissibility of the Government’s exhibits for trial as well as
    identifying potential Government witnesses. Moreover,
    Mr. Schamel: I haven’t met with Mr. Bailey [in advance of trial]. I haven’t prepared with
    Mr. Bailey. We haven’t had any discussions about what we are looking for in jurors or
    what jury selection is like. We haven’t talked about any of the exhibits. I haven’t gone
    through them with Mr. Bailey. I haven’t met with Mr. Benowitz, with whom we are going
    to be engaged in jury selection.
    Trans. at 20. The Court notes that that there are materials from earlier in the life of the case that
    have remained fairly constant.     For instance, the parties proposed their voir dire and jury
    instructions in July 2021. And Mr. Schamel could have discussed jury selection with Mr.
    Benowitz in advance of the September trial date. Nevertheless, the question for the Court is not
    whether Mr. Schamel might have prepared differently, but whether the lack of preparation would
    render his representation deficient within the meaning of Strickland v. Washington, 
    466 U.S. 668
    (1984) if he had continued with jury selection on December 3, 2021.
    On that question, the Court agrees that counsel’s neglect of his client and this case is
    constitutionally deficient, and that, as such, the Court should grant the Motion to Withdraw. The
    Court is loath to grant a motion to withdraw on the basis of alleged ineffectiveness, because the
    court “presume[s] that the lawyer is competent to provide the guiding hand that the defendant
    6
    needs.” See United States v. Cronic, 
    466 U.S. 648
    , 658 (1984). Nevertheless, the court should be
    troubled when, as here, an attorney’s representation has or will become a “complete denial of
    counsel.” 
    Id. at 659
    . This is so because “of all the rights than an accused person has, the right to
    be represented by counsel is by far the most pervasive for it affects his ability to assert any other
    rights he may have.” United States v. McLaughlin, 
    164 F.3d 1
    , 17 (D.C. Cir. 1998) (Tatel, J.,
    dissenting) (cleaned up). Here, Mr. Schamel has discussed this case with his client no more than
    twice in the past two months, has not read the Government’s trial brief or any other pleading filed
    in the last two months, and has evidently barely looked at this case in general in the past two
    months, such as reviewing 302 reports (all of which Mr. Schamel was not sure he had ever
    reviewed).
    Still, as the Court of Appeals has explained, Cronic claims are particularly difficult to state,
    as they are “‘reserved for situations in which counsel has entirely failed to function as the client’s
    advocate.’” United States v. Bell, 
    795 F.3d 88
    , 94 (D.C. Cir. 2015) (quoting Florida v. Nixon, 
    543 U.S. 175
    , 189 (2004)) (collecting cases). Generally, a Cronic claim is of the sort where an attorney
    slept through trial. E.g., Burdine v. Johnson, 
    262 F.3d 336
    , 349 (5th Cir. 2001) (unconscious
    attorney presumptively prejudicial if unconscious during trial). Even the Cronic court, for
    example, did not find per se deficient representation where the defense counsel was quite young,
    had only twenty-five days to prepare versus the Government’s four-and-a-half years, the attorney
    did not specialize in criminal law, and it was his first jury trial. 466 U.S. at 649-50.
    This is why, as the Court explained in its November 29, 2021 Order, the Court found it
    difficult to believe that Mr. Schamel could permit himself and his team to be so utterly unprepared
    as to preemptively commit ineffective assistance of counsel. Mr. Schamel is, in his firm’s words,
    a sophisticated attorney with more than 20 years experience, practicing at a sizable, well-resourced
    7
    firm. Order at 2, ECF No. 145. The idea that he would permit himself and his litigation team to
    do so little pretrial preparation struck the Court as difficult to believe. The Court does not doubt
    that the Tennessee trial was demanding for Mr. Schamel, but attorneys appearing before this Court
    regularly manage multiple trials in close temporal proximity to one another. Nevertheless, those
    are Mr. Schamel’s representations, and his lack of preparation constitutes ineffective assistance of
    counsel. See Farrell v. United States, 
    391 A.2d 755
    , 762 (D.C. 1978) (holding failure to interview
    a number of witnesses and not to meet with client until a few days before trial would be
    constitutionally deficient).
    Similar cases are all the more difficult to locate because a continuance is generally a
    panacea for preparedness-related ineffectiveness claims. Mr. Schamel, however, only proposed
    later dates in December. As the Court explains below––and has explained to the parties numerous
    times––any later December date is not feasible.
    Finally, as a general matter, a court should grant a motion to withdraw in a criminal matter
    where, among other things, requiring the attorney to continue his representation would unduly
    prejudice the Court or the parties. See Local Rule 44.5(d) (providing circumstances when Court
    may deny motion to withdraw in criminal case); United States v. Kelly, No. 87-cr-0008, 
    1986 WL 17592
    , at *1 (D.D.C. Aug. 26, 1987) (granting motion to withdraw where client’s intransigence
    prevented counsel from adequately preparing for trial).
    II.      Logistical Challenges During COVID-19
    Mr. Schamel further represented that with an additional continuance to December 6 for
    jury selection, he would have been ready to engage in voir dire. Putting aside whether one business
    day would make a meaningful difference to his prior record of neglect and that voir dire could
    even be completed in a day, the Court explained that any additional continuance would make a
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    December trial untenable. As the Court explained in its November 26, 2021 Order, the Court has
    imposed a number of COVID-related restrictions to ensure the health and safety of those involved
    in trials. Throughout the courthouse, the Court requires six feet of distance between counsel, the
    parties, and individual jurors. As a result, voir dire can only be conducted in the Ceremonial
    Courtroom, which even then can accommodate only fifty of the sixty jurors on a special panel See
    In re: Limited Resumption of Criminal Jury Trials in Light of Current Circumstances Relating to
    the COVID-19 Pandemic, Standing Order No. 21-47 (BAH) (D.D.C. Aug. 25, 2021), at 6.                 In
    addition to the courtroom in which the trial will occur, two more courtrooms must be reserved:
    one as the jury room and one as an overflow room for the public. The court maintains a master
    trial calendar to assist judges as they compete for a finite number of courtrooms. Courtrooms, and
    particularly the Ceremonial Courtroom, are thus reserved months in advance while the courthouse
    continues to operate during the COVID-19 pandemic. The courtroom where the trial itself is
    conducted has the jury seated in the gallery to allow for six-foot spacing between jurors. If more
    than fourteen jurors are to be seated, the Ceremonial Courtroom must be used for the trial.
    Beyond COVID-19 challenges, the court also takes special steps to assemble a voir dire
    panel for trials that may last longer than two weeks. For these trials, the Jury Office assembles a
    special panel of sixty jurors. Notice is sent out in advance of the trial date to a pool of prospective
    jurors that requests that they indicate when they will be unavailable––in this case, the month of
    December. Those requests for excusals are then either granted or denied by the Court. Generally,
    this process is begun 8-10 weeks in advance of trial. As such, if the trial extended beyond
    December, the court would likely have to assemble a new panel. The Court further concluded that
    a separate voir dire of the current panel of sixty prospective jurors regarding their availability in
    January would be counterproductive, time-consuming, and would not accommodate Mr.
    9
    Schamel’s proposed trial plan. Such a result would mean the trial would have to start all over
    again during, at the earliest, March 2022.
    The dates proposed by Mr. Schamel would make such an unacceptable result likely. In
    this Court’s experience, jury selection can take up to three days. As a result, if jury selection had
    been continued to December 6, then the panel might not have been seated by December 9, not
    providing Mr. Schamel the time he requested to prepare for trial. Resuming the trial on December
    13, 2021 would leave eight-and-a-half days before the Christmas holiday. As the Government
    represented in the motions hearing, the Government intended initially to call seven to nine
    witnesses, reserving the right to call additional witnesses as necessary. Trans. at 37. If that were
    to be necessary, the Government’s case could take much longer than the four to five days that the
    Government suggested as the length of their direct testimony. See 
    id.
             Although counsel for
    Defendants Paitsel and Bailey previously represented that they planned to call up to eight witnesses
    between them, neither Mr. Benowitz nor Mr. Schamel offered any indication at the hearing that
    they would rest their cases in time for a December verdict. As such, Mr. Schamel’s proposal was
    unworkable.
    In essence, Mr. Schamel’s motion to withdraw offered the Court two choices: (1) proceed
    with constitutionally deficient representation or (2) adopt a logistically untenable trial schedule.
    As no party offered any other proposal that might have both remedied Mr. Schamel’s
    ineffectiveness and permitted the Court to move forward with a December trial, the Court instead
    granted Mr. Schamel’s Motion to Withdraw.
    The U.S. District Court for the District of Columbia is committed to the efficient and
    effective administration of justice.    At the same time, the Court is equally committed to
    safeguarding the health and safety of all those involved in criminal trials. Mr. Schamel’s dilatory
    10
    motion to withdraw further complicated the Court’s delicate balancing of these interests with the
    rights of the criminal defendants before it. It also inconvenienced the sixty District of Columbia
    residents who appeared for jury service and incurred $2,320 in costs upon the Court. Weighing
    the foregoing interests and Mr. Schamel’s representations, the Court concluded that it should grant
    Mr. Schamel’s Motion to Withdraw.
    Dated: December 7, 2021                                /s/
    COLLEEN KOLLAR-KOTELLY
    United States District Judge
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