United States District Court, D. Connecticut
RULING DENYING DEFENDANT'S MOTION TO
DISMISS
JANET
BOND ARTERTON U.S.D.J.
Mr.
Hoskins moves to dismiss the Third Superseding Indictment
with prejudice "based on violations of his right to a
fair and speedy trial." (Def.'s Mot. to Dismiss
[Doc. # 503] at 1.) He argues that dismissal is warranted for
violation of his Speedy Trial Act (STA) rights and his Fifth
and Sixth Amendment rights. (Id.) For the reasons
that follow, Defendant's Motion to Dismiss is denied.
I.
Background
The
Court assumes the parties' familiarity with the facts of
this case and provides only a timeline of events relevant to
the Defendant's Motion to Dismiss. The offense conduct
allegedly committed by Mr. Hoskins occurred most recently in
2004. (Mem. Supp. Mot. to Dismiss [Doc. # 503-1] at 1.) The
alleged conspiracy spanned from 2002 to 2009. (Gov't Opp.
to Def.'s Mot to Dismiss [Doc. # 511] at 3.) The
Government began investigating Alstom several years later,
eventually making several requests to foreign authorities
pursuant to Mutual Legal Assistance Treaties (MLAT) between
2010 and 2013, which tolled the statute of limitations.
(Def.'s Mem. at 6.) On July 30, 2013, Mr. Hoskins was
indicted. (Id.) He was arrested upon his entry into
the U.S. Virgin Islands on April 23, 2014. (Id. at
6-7.) He was detained in St. Thomas and Puerto Rico for
twenty-seven days before his first appearance in this
District on May 19, 2014. (Id. at 7.)
Jury
selection was initially set for July 9, 2014. (Id.)
On June 3, 2014, Mr. Hoskins moved unopposed to continue the
pending deadlines and trial schedule because, "given the
large volume of discovery, the large amount of time that has
passed since the alleged conduct by Mr. Hoskins and the
foreign location of documents and witnesses that may be
material to the defense, counsel needs additional time to
prepare for trial, conduct and review discovery and file
appropriate pretrial motions." (Mot. for Extension [Doc.
# 118] at 2-3.) That motion sought a jury selection date of
October 29, 2014, (id. at 1), but during the
resulting scheduling teleconference, the parties discussed
alternative dates, (Tr. of 6/6/14 Teleconf. [Doc. # 135]).
The
Court questioned whether the October 29 date was
"realistic" and asked the parties to identify a
"final schedule so that everybody can work around
that." (Id. at 2:20-3:6, 9:25-10:2.) Defense
counsel responded that he was "in the process of getting
up to speed in the matter, and ... at this point we don't
have a firm grasp on exactly how long it will take us to get
through all of the discovery" but "recognize[d] it
is quite voluminous" and was "mindful that counsel
for [co-defendant] Mr. Pomponi needed additional time."
(Id. at 3:15-20.) Mr. Morvillo explained that the
Defendant had initially "agreed with the government to
an October 29th proposed date for jury
selection" for purposes of "judicial efficiency,
given that the co-defendant in this case [Mr. Pomponi] is
scheduled to go to trial at that time" and because
"there was a possibility that [Mr. Hoskins] might want
to proceed to trial more quickly" given that he was
"required to stay in the United States for the pendency
of these proceedings." (Id. at 3:21-4:4.)
Defense counsel concluded that "Realistically, though .
. . October 29th is an overly optimistic date
should this proceed to trial." (Id. at 4:5-7.)
"If circumstances were such that Mr. Hoskins desired an
early trial, or a quicker trial, we would, of course,
proceed, for judicial efficiency purposes, with Mr. Pomponi
to trial [on November 3, 2014]," but, Mr. Morvillo
continued, "I do believe that under the circumstances if
trial is necessary in this matter that would be overly
optimistic on our behalf." (Id. at 4:15-21.)
Defense counsel reiterated that "it is very unlikely
that if this case proceeds to trial that we would be prepared
to proceed in November." (Id. at 8:10-12.) Mr.
Morvillo explained that "it may be my client's
desire to try to see if there can be an earlier
resolution" but shared "candidly" that his
conversations with Mr. Hoskins "indicate to me that he
would much prefer for us to have sufficient time to prepare
rather than rush it." (Id. at 8:13-18.) Defense
counsel indicated that "in the range of four to six
months' additional time would probably be required."
(Id. at 8:24-25.) In support of that time range, Mr.
Morvillo explained that the "totality" of Mr.
Hoskins' emails had not been produced by Alstom,
"and, therefore, it's quite possible that we will be
seeking to take some discovery or obtain discovery from
outside of the U.S. . . . [a]nd so that's just but one
example. I think there may be other examples of additional
discovery we maybe seeking." (Id. at 9:5-14.)
Defense counsel remarked that a date around May 2015
"would be far preferable, and, frankly,
obtainable."
The
Government responded that "efficiency would likely
dictate that if we could try [Mr. Hoskins and Mr. Pomponi]
together then we should try them together" because of
significant overlap in witnesses and evidence. (Id.
at 5:3-9.) The Government argued that "it would make
sense to try them together unless, of course, you know, it
turns out that Mr. Hoskins needs such additional time"
that a joint trial would not be possible given the scheduling
of Mr. Pomponi's trial. (Id. at 5:9-15.) It
concluded that "at least until Mr. Hoskins makes a
decision that he does or does not want the use of speedy
trial, in the colloquial sense, does or does not want a
speedy trial to at least have himself the option of being
able to get back to England," a November 2014 trial date
"was a logical date." (Id. at 5:16-24.)
Counsel for the Government indicated its preference to set an
earlier "interim date to see where the defendant is at
that point," but if the Court wanted to set a final date
further out, requested a June 2015 date due to scheduling
concerns. (Id. at 10:16-11:4.)
Pursuant
to that teleconference, trial was continued until June 2,
2015. (Id. at 17:3-4; Order Granting Def.'s Mot.
for Extension [Doc. # 123].) Defendant waived his STA rights
for the period from June 10, 2014 through June 2, 2015,
(Waiver [Doc. # 131]), and the Court entered an order
excluding that time, (STA Order [Doc. # 137]).
Following
motion practice and discovery requests "highlighting
that the issue of Mr. Hoskins' agency would be central to
his defense," the Government sought and a grand jury
returned the Third Superseding Indictment, which was filed on
April 15, 2015. (Def.'s Mem. at 7-8; Third Superseding
Indictment [Doc. # 209].) One week later, on April 21, 2015,
Defendant moved again to postpone the trial, seeking a
six-month continuance "in order to allow counsel to
prepare adequately for trial" "in light of the
tremendous volume of discovery produced to date, the age,
complexity and international scope of the allegations, the
volume and likely relevance of discovery yet to be produced,
the new superseding indictment and the motions, analyses,
investigation and other tasks remaining to be
completed." (Second Mot. for Extension [Doc. # 214] at
5.) The Government opposed that motion, arguing that
Defendant's claimed reasons "do not justify a
continuance" and requesting that trial proceed as
scheduled on June 2, 2015. (Gov't Opp. to Second Mot. for
Extension [Doc. # 224] at 1.) The Government "noted that
it had produced fulsome and early discovery in this case and
that discovery was complete with the exception of remaining
Jencks Act material." (Gov't Opp. at 5 (citing
id. at 2).) On May 21, 2015, the Court granted
Defendant's Second Motion for Extension of Time, setting
a November 30, 2015 trial date "in order to allow
Defendant adequate time to prepare his defense in light of
the recently filed Third Superseding Indictment, ongoing
discovery efforts, and the Court's own trial
schedule." (Order Granting Def.'s Second Mot. for
Extension [Doc. # 243] at 2.) Mr. Hoskins waived his STA
rights for the period of time through November 30, 2015,
(Waiver [Doc. # 247]), and the Court entered an order
excluding that time (STA Order [Doc. #251]).
On
August 14, 2015, the Court granted in part Defendant's
motion to dismiss Count One of the Third Superseding
Indictment "to preclude Defendant's FCPA conspiracy
prosecution from being de-linked from proof that he was an
agent of a domestic concern." (Ruling on Def.'s
Second Mot. to Dismiss [Doc. # 270] at 1.) The Government
moved for reconsideration of this order on August 27, 2015.
(Mot. for Reconsid. [Doc. # 273].)
On
August 15, 2015, the Court granted in part several motions by
Defendant which sought additional discovery, based on the
Court's conclusion that "Defendant will be allowed
to offer evidence of his relationship with Alstom Power U.S.,
if any, beyond just his dealings on the Tarahan Project"
in order to argue that he was not an agent of a domestic
concern for that project. (Ruling on Discovery Mots, and
Gov't Mot. in Limine [Doc. # 272] at 6.) The Court
"outline[d] what it considers to be the contours of
relevancy and materiality that will limit Defendant's
document requests" and granted some of Defendant's
discovery requests in keeping with that outline.
(Id. at 12.)
"Immediately
following" that discovery ruling, "the Government
consulted with Alstom and understood that they would be
searching for responsive documents in all locations where
such documents may exist, including the United States,
Indonesia, the United Kingdom, Switzerland, and France."
(Gov't Status Report on Disc, of French Docs. [Doc. #
307] at 1.) Alstom "produced to the Government, and the
Government [] in turn produced to the defendant (typically
the same day or the following day), all of the documents
deemed responsive by Alstom from all countries except for
France." (Id.) As to the French documents, the
Government "underst[ood] that Alstom had people in
France searching for responsive documents within two weeks of
the Court's order," and the Government
"submitted for approval an MLAT request to France"
once it "learned from Alstom that there were potentially
responsive document in France." (Id.) After
undergoing Department of Justice internal procedures, the
MLAT request was "formally received by the French
Central Authority on September 30, 2015." (Id.
at 2.) The "French Government made the request to Alstom
under the MLAT on October 14, 2015." (Id.)
On
November 6, 2015, when the Government had not yet received
from France the documents sought by the Defendant, the Court
continued the November 30, 2015 trial date to April 18, 2016.
(Defs Mem. at 10; Sched. Order [Doc. # 317].) Mr. Hoskins
waived his STA rights for the period through April 18, 2016,
(Waiver [Doc. #316]), and the Court entered an order
excluding that time, (Order [Doc. # 324]).
"The
government finally produced to Mr. Hoskins certain French
documents relating to agency-which it had received via the
MLAT Request served in September 2015-on March 1, 2016."
(Def.'s Mem. at 10 (internal citation omitted).)
Following a telephonic status conference on March 2, 2016,
the Court continued trial to June 6, 2016. (Amended Sched.
Order [Doc. # 339].) The Defendant executed a waiver of his
STA rights for that time period (Waiver [Doc. # 341]), and
the Court entered an order excluding that time, (STA Order
[Doc. # 343]).
The
Court denied the Government's motion for reconsideration
of its ruling on the motion to dismiss on March 16, 2016,
([Doc. # 342]), and the Government filed its notice of appeal
regarding that order and the Court's August 27, 2015
order on April 1, 2016, (Not. of Appeal [Doc. # 344]). The
Government's opening appellate brief was filed several
months later, on September 9, 2016; on March 2, 2017, the
Second Circuit heard oral argument; and on August 24, 2018,
the Second Circuit issued its opinion in this matter.
(Def.'s Mem. at 10-11.) The Second Circuit's mandate
issued on October 31, 2018. (Mandate [Doc. # 437].)
Following
a telephonic scheduling conference held on September 12,
2018, the Court set a trial date of March 11, 2019. (Sched.
Order [Doc. # 431].) During that teleconference, the Court
indicated a preference for a trial date as early as December
2018 given the age of this case, but counsel for Mr. Hoskins
requested an April 2019 trial date due to defense
counsel's schedule, "given other pressing
matters," and because "it will take a little bit of
time for us to dust off the file and prepare for trial."
(Tr. of 9/12/18 Conf. at 5:6-6:2.) After attempting to find
an earlier date in January or February 2019 that would work
for all parties, (id. at 6:3-8, 10:22-11:7), the
Court acquiesced to counsel's request and agreed to set a
March 2019 trial date, (id. at 12:4-8). Mr. Hoskins
did not file any waiver of his STA rights with regard to that
time period. The Court memorialized its reasoning, set forth
on the record of September 12, 2018, in a ruling excluding
the period of time through March 11, 2019 from the
Defendant's STA clock (STA Order [Doc. # 513].)
On
January 10, 2019, during a telephonic scheduling conference,
the trial date was continued to September 9, 2019 due to
health issues of counsel which made the March 2019 trial date
unworkable. In accommodating the Government's request to
delay, the Court again expressed concern over delay and the
need to proceed quickly to trial and encouraged the parties
to pick an earlier date. (Tr. of 1/10/19 Conf. at 6:20-22
("Okay But a September trial date is so far away on this
old case. Why do we have to push it out that far?"),
7:14-20 ("so when you say trial would be inconvenient,
that makes me want to know what that means, because this case
really does have to take priority over other cases, given its
age and given the fact that we had what I thought was a firm
datewhy is it that we can't try the case in June?"),
8:8-9 ("So let me move to August. What about
August?").) The parties resisted the Court's efforts
to set an earlier date. "Under the circumstances, Mr.
Hoskins consented to the adjournment." (Def.'s Mem.
at 11.) Mr. Hoskins did not file any waiver of his STA rights
with regard to that time period. The Court memorialized its
reasoning, set forth on the record of January 10, 2019, in a
ruling excluding the period of time from March 11, 2019
through September 9, 2019 from the Defendant's STA clock.
(STA Order [Doc. #513].)
The
parties each filed several motions in limine on March 1,
2019.
On July
3, 2019, the Court held a telephonic scheduling conference
during which the parties discussed ongoing production of
documents. The Government represented that it "ha[s], of
course, turned over what Alstom has provided to us."
(Tr. of 7/3/19 Teleconf. [Doc. # 500] at 5:9-10.)
The Government explained that "since the GE acquisition
of Alstom Power, . . . most of the documents that had
previously been produced to us have gone over and are in the
possession of GE." (Id. at 5:11-14.) The
Government continued:
They are in the process as of recently - I say recently - a
few months ago - made a production to us consistent with an
internal investigation that they conducted, and I anticipate
they're going to and have given us additional documents
that we will provide to counsel. Again, I don't think
there's Brady material in there, but consistent
with our practice all along to provide the - to provide
counsel for the Defendant everything that we receive from the
company, we will continue to do that.
(Id. at 5:15-23.) Counsel for the Government
explained further:
the French documents, the drive that was located by Alstom
that has Mr. Hoskins' - a set of Mr. Hoskins' e-mails
for the relevant years that was in France, from which we were
able to cull a certain number of documents through the MLAT,
at least some significant portion of that I understand now
has been transferred to GE as part of that purchase or
acquisition, and we are in the process of getting whatever
they got and turning it over to the Defense. In fact, I had a
conversation with GE yesterday, trying to understand exactly
what it is that they have. But it will be, from an initial
understanding, a whole host of irrelevant things, but there
will be some things that are related to Tarahan. The
principal relevant documents have already been turned over,
because they would have hit on whatever search terms were
used when we did this back in 2014 or 2015. But there will be
additional discovery. As I said I'm trying to understand
what it is they have, so that I can adequately convey that
information to counsel. . . . what I'm suggesting here is
that the e-mail drive that was the source of the French - the
litigation around the French documents is essentially going
to be made available to us. And we will produce that... And
that was, I think, a mailbox - Mr. Hoskins' mailbox. So I
can't imagine what's more relevant than that, both in
terms of incriminating and exculpatory evidence.
(Id. at 9:20-10:13, 20:16-23.)
During
that call, the Government explained its approach to producing
documents to the defense by saying, "we have tried to be
incredibly accommodating over time to Defense document
request that we think are reasonable ... we have made
incredibly broad requests. We've asked for everything we
could, related to these cases in the grander schemes."
(Id. at 14:22-15:6.) The Government indicated its
intent to produce the documents recently received from GE by
"very early next week." (Id. at 22:20-21.)
On July
8, 2019, approximately two months before the September 9,
2019 trial date, "the government produced 33, 000 of Mr.
Hoskins' emails . . . nearly 24, 000 of which had never
been produced before." (Reply Supp. Mot. to Dismiss
[Doc. # 512] at 8; see Gov't Opp. at 34 n.2.)
The Government explains that after it "received these
materials" from GE, "it sought to understand their
origin and contents in order to locate discovery material (if
any) so as not to provide the defense voluminous unnecessary
material in advance of trial (and consistent with what the
Court previously ruled was discoverable)." (Gov't
Opp. at 34 n.2.) But apparently instead of continuing that
review to determine "origin and contents," the
Government then
opted to provide the entire file on July 8, 2019 in light of
the fact that (1) the status conference with the Court where
the defense made clear that it would not take the
Government's word for whether a particular document was
discoverable under the Court's order; and (2) the
Government did not want to wait further for GE to provide
additional answers given the proximity of the trial.
(Id.) The Government states that "many of these
documents have no bearing on the case" but acknowledges
that "approximately 20, 972 unique documents" which
"had not been previously produced" were included in
the July 8 production. (Id.)
Defense
counsel represents that an initial review of the recent
production "has already turned up highly relevant
documents, at least some of which should have been identified
and produced in connection with the" 2015 MLAT request,
including
among others: a previously unproduced organizational chart,
which is directly responsive to the Court's August 14,
2015 discovery order . . .; (ii) emails relating to Mr.
Hoskins's schedule concerning events that are a key focus
of the government's allegations; and (iii) multiple
documents critical to impeachment of cooperating witnesses.
(Id. at 9.)
A July
17, 2019 letter from the Government explained the current
...