United States v. Hoskins

          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 29^th 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 29^th 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 ...