Case 1:08-cr-20612-PAS
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 08-20612-CR-SEITZ Magistrate Judge John J. O’Sullivan
UNITED STATES OF AMERICA vs. TRAIAN BUJDUVEANU, Defendant. ________________________________/ GOVERNMENT’S RESPONSE TO DEFENDANT TRAIAN BUJDUVEANU’S OBJECTION TO ORDER SETTING TRIAL DATE The United States of America, through undersigned counsel, files this Response to Defendant Bujduveanu’s Objection to Order Setting Trial Date, filed October 24, 2008 (DE 102.), and states: To the extent that Defendant Bujduveanu seeks to have his objection treated as a Motion, the objection should be denied because the deadline for filing pretrial motions has long passed, and Bujduveanu has not given the Court good cause for his excusable neglect in filing this so late. Also, Bujduveanu is not entitled to the relief he seeks—a “trial forthwith”—because Congress’ strong preference for joint trials of codefendants, as reflected in the Speedy Trial Act, means that where the interests of justice require a delay in the trial date as to one defendant, the other defendant is not prejudiced by the delay. For the reasons that follow, this Court should overrule Bujduveanu’s objection. Factual Background On July 3, 2008, a Federal Grand Jury in Miami, Florida, indicted Bujduveanu, along with his co-defendants, Hassan Saied Keshari, Kesh Air International Corp., and Orion Aviation Corp. In that indictment, the defendants were charged with: (1) conspiracy to violate the International
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Emergency Economic Powers Act (“IEEPA”) by violating the United States Iran Trade Embargo and to violate the Arms Export Control Act, in violation of 50 U.S.C. §§ 1702 and 1705(a), 31 C.F.R. pts. 560.203 and 560.204, 22 U.S.C. § 2778(b)(2), and 22 C.F.R. §§ 121.1, 123.1, and 127.1, all in violation of 18 U.S.C. § 371; (2) violations of the IEEPA by violating the U.S. Iran Trade Embargo, in violation of 50 U.S.C. §§ 1702 and 1705(a), 31 C.F.R. pts. 560.203 and 560.204, and Executive Orders 12957, 12959, and 13059, and 18 U.S.C. § 2; (3) violations of the Arms Export Control Act, in violation of, 22 U.S.C. §§ 2778(b)(2) and (c), 22 C.F.R. §§ 121.1, 123.1, and 127.1, and 18 U.S.C. § 2; and (4) making false statements to Bureau of Immigration and Customs Enforcement and U.S. Department of Commerce officials, in violation of 18 U.S.C. § 1001(a)(2). (D.E. 25 at 5–14.) Specifically, the Indictment alleges that Defendant Keshari took orders from customers in Iran for purchases of American made aircraft parts to be shipped to Iran. (Id. at 6.) Keshari (through his company Kesh Air) placed orders with Defendant Bujduveanu (and his company Orion) to buy the aircraft parts. (Id.) Bujduveanu filled the orders and sent them to Keshari’s Iranian customers by way of Dubai, United Arab Emirates (“UAE”). (Id. at 7.) The indictment specifically identifies more than four different transactions in which Keshari solicited quotes for and purchased military aircraft parts from Bujduveanu, and Bujduveanu shipped the parts to Iran via Dubai in six different shipments. Keshari and Bujduveanu were arraigned on the same day, on July 15, 2008, (DE 31; DE 32), and the Court issued its standing discovery order. (DE 32.) The standing discovery order provided that “[a]ll motions concerning matters not covered by this Standing Order must be filed pursuant to Local Rule 88.9 within twenty-eight (28) days of this Order.” (Id. at 4.)
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On August 12, 2008, the Court heard arguments on Keshari’s appeal from the magistrate judge’s pretrial detention order. (DE 64.) After arguments were over, the Court asked about setting a trial date. Keshari’s attorney said that he would not be available until March 2009 because of other trial commitments and indicated to the Court that his client knew about the other commitments when he was hired. As such, Keshari requested a continuance until next March. The Court granted the continuance on August 15, 2008, and set the trial date for the two week period beginning on March 2, 2009. (DE 66 at 1.) “The period from the date of this order to the time of trial,” the Court said, “shall be deemed excludable in computing the time within which the trial of this case must commence pursuant to Title 18, U.S.C., § 3161(h)(8)(A).” (Id. at 3.) The Court found “that the ends of justice served by continuing the trial outweigh the best interest of the public and the defendants in a speedy trial.” (Id.) The Court also extended the deadline to file pretrial motions to “no later than September 22, 2008.” (Id. at 1.) On October 24, 2008—more than a month after the pretrial motion deadline, and more than two months after the Court’s pretrial order—Bujduveanu filed this objection to the March 2009 trial date. Argument The Court should overrule Bujduveanu’s objection for two reasons: first, it was filed after the deadline for pretrial motions, and second, Bujduveanu is not entitled to a severed and immediate trial under the Speedy Trial Act or any other rule or statute. I.
Bujduveanu’s Objection Was Filed More Than A Month After the Deadline For Pretrial Motions Had Lapsed. On August 15, 2008, the Court wrote “that all pretrial motions must be filed no later than
September 22, 2008.” (DE 66 at 1.) This includes objections. Federal Rule of Criminal Procedure 3
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12, entitled “Pleadings and Pretrial Motions,” provides that “[a] party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial of the general issue.” Fed. R. Crim. P. 12(b)(2) (emphasis added). “When an act must or may be done within a specified period, the court on its own may extend the time, or for good cause may do so on a party’s motion made . . . after the time expires if the party failed to act because of excusable neglect.” Id. R. 45(b)(1)(B). Bujduveanu’s objection should have been raised before the September 22, 2008 deadline, and not a month or so later. He tries to get around the pretrial motion deadline by noting that when the trial date was set, “Mr. Bujduveanu was not in court and did not have any input. Had the court inquired as to Mr. Bujduveanu’s position concerning the trial date, he would have vehemently objected.” (DE 102 at 1.) However, as Bujduveanu notes, “[o]n August 15, 2008, the court signed an order setting the trial date in this matter for March 2, 2009.” From that point on, he knew that the trial had been continued until next March. Yet he said nothing and filed nothing with the Court in those six weeks to express his "vehement objection." Indeed, Bujduveanu himself has filed scores of pleadings—about one a week—since August. Yet he has not said anything about the March 2009 trial date in the last two or so months. He should not be heard to complain now, one month after the deadline for speaking up has lapsed, about his trial date.1
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Bujduveanu says that “[i]n order to commence trial sooner than March 2009 (and also, in order to obtain a fair trial), Mr. Bujduveanu filed a Motion to Sever, which was denied.” (DE 102 at 2.) Bujduveanu’s severance motion, however, which was filed almost one month after the Court set the March 2009 trial date, did not give as a basis for severance that he would be prejudiced by the delay in the trial. (DE 77.) This was the appropriate avenue to raise his objections as to the trial date and how it would prejudice him, and he didn’t even mention it. Instead, Bujduveanu’s severance motion was based solely on potential Bruton problems and spillover evidence from a joint 4
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Bujduveanu’s objection does not provide, or even hint at, any good cause for his tardiness in filing it. And it does not suggest that there was any excusable neglect on his counsel’s part. (Certainly, other motions were filed in time, so it is not as if Bujduveanu was unaware of the pretrial motion deadline.) For these reasons, Bujduveanu’s objection should be overruled as being filed out of time. See Fed. R. Crim. P. 45(b)(1)(B) II.
Bujduveanu Is Not Entitled To A Trial Forthwith. Bujduveanu says in his objection that he is “‘ready for trial,’ and wishes to commence with
his trial forthwith.” (DE 102 at 2.) Even if the Court permits Bujduveanu to file his objection out of time, he is not entitled to a separate trial date from his codefendants. The Speedy Trial Act provides for a “reasonable period of delay” in one defendant’s trial when he “is joined for trial with a codefendant as to whom the time has not run and no motion for severance has been granted.” 18 U.S.C. § 3161(h)(7). Put another way, “the rule . . . is that delay caused by one defendant is excludable as to his codefendants.” United States v. Darby, 744 F.2d 1508, 1517 (11th Cir. 1983); United States v. Campbell, 706 F.2d 1138, 1142 (11th Cir. 1983) (“As indicated above, this Circuit, along with other circuits, reads (h)(7) to exclude the same amount of time for one defendant as is excluded for his co-defendants.”). “Congress enacted” the § 3161(h)(7) codefendant rule “recognizing that multidefendant trials are desirable because they promote efficiency in the disposition of trials. If the Act imposed rigid time limits without applying exclusions to codefendants, courts would be forced to ‘grant severances
trial. (Id. at 3–6.) Months after the trial date was set and the pretrial motion deadline has come and gone, this objection by Bujduveanu is the first time he has raised any issue with the March 2009 trial date. Again, he should not be heard to complain now, a month after the Court already denied the severance motion. 5
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which would otherwise not be required.’” United States v. Stafford, 697 F.2d 1368, 1372 (11th Cir. 1983) (quoting United States v. Varella, 692 F.2d 1352, 1359 (11th Cir.1982)). The legislative history of the Act indicates that the purpose of the (h)(7) [codefendant] exclusion was to avoid requiring the government to seek severance in multi-defendant trials. As we noted in United States v. Varella, 692 F.2d at 1359, “Congress recognized the utility of multi-defendant trials to effectuate the prompt efficient disposition of criminal justice. It felt that the efficiency and economy of joint trials far outweighed the desirability of granting a severance where the criterion was simply the passage of time.” United States v. Campbell, 706 F.2d 1138, 1142 (11th Cir. 1983). Here, after Keshari requested a continuance until March 2009 so his counsel would be available for trial, the Court found that “the ends of justice served by continuing the trial outweigh the best interest of the public and the defendants in a speedy trial.” (DE 66 at 3.) Bujduveanu argues that because of his pretrial detention he will be incarcerated for months longer than he should be if a severance were granted and his trial were held now. (DE 102 at 2.) Bujduveanu's claim that his pretrial detention causes him prejudice is without merit. Bujduveanu is being held prior to trial because he is a flight risk. (DE16 at 3.) Because he is a flight risk Bujduveanu is, in a sense, the one responsible for his pretrial confinement—not the Court’s finding that the March 2009 trial date serves the ends of justice and not the government. In addition, the Eleventh Circuit has said that a continuance requested by one defendant will prejudice the other only where there is “an allegation that the delay caused by the continuance prejudiced [his] defense.” United States v. Davenport, 935 F.2d 1223, 1327 (11th Cir. 1991) (emphasis added). In his objection, Bujduveanu does not allege that his defense will be prejudiced by the March 2009 trial date—only that he will be detained pretrial longer than he thinks he should be. This is insufficient.
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Finally, even if the time Bujduveanu is detained between now and March 2009 (four months) did cause him some prejudice, as the Eleventh Circuit explained of the Speedy Trial Act, Congress “felt that the efficiency and economy of joint trials far outweighed the desirability of granting a severance where the criterion was simply the passage of time.” Campbell, 706 F.2d at 1142 (quoting Varella, 692 F.2d at 1359). Here, the efficiency and economy of trying Bujduveanu and Keshari together are substantial. As with most all conspiracy cases, here: The bulk of the evidence [is] relevant to demonstrating the existence and scope of the conspiracy itself. In order to completely shield each defendant from the potentially prejudicial effect of evidence of violence in which such defendant was not directly involved, the court would have had to order separate trials for each of the defendants, and many of the witnesses would have had to testify in multiple proceedings. The need to avoid such wasteful expenditure of judicial resources is the basis for the default rule that co-conspirators should be tried together.
United States v. Baker, 432 F.3d 1189, 1238 (11th Cir. 2005). In other words, there is no reason to try the same case twice, where the evidence needed to prove the charges as to each defendant is almost identical. Avoiding the burden to witnesses and jurors and cost to the Court, the government, and the public of two trials, Congress decided, far outweighs Bujduveanu’s claim that he will be prejudiced “simply [by] the passage of time.” Thus, Congress decided that the time excludable to one defendant is excludable to all other codefendants. 18 U.S.C. § 3161(h)(7). Because the time between now and March 2009 is excludable under the Speedy Trial Act, Bujduveanu’s trial need not commence before then; his trial need not begin “forthwith.” See 18 U.S.C. § 3161(h) (certain “periods of delay shall be excluded . . . in computing the time within which the trial of any such offense must commence”). To the extent that the delay in the trial does cause Bujduveanu prejudice, four months is far from an unreasonable amount of time to wait. In Davenport, the Eleventh Circuit rejected the 7
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defendant’s contention that his codefendants’ request for a five month continuance was an unreasonable and prejudicial delay in the trial. Davenport, 935 F.2d at 1326–27. And in United States v. Tobin, 840 F.2d 867 (11th Cir. 1988), the Court held that the defendant had failed to allege substantial prejudice resulting from an eight month, ten day delay in the trial because his codefendant was on the lam. Id. at 869–70. Four months, in other words, falls well within the Court’s comfort zone for reasonable continuances and delays in the trial caused by one codefendant to another. Conclusion For these reasons, Bujduveanu has not overcome the strong policy in favor of a joint trial in this case, even with a four month delay in the trial date. The Court should therefore overrule Bujduveanu’s Objection to Order Setting Trial Date.
Respectfully submitted, R. ALEXANDER ACOSTA UNITED STATES ATTORNEY By:
S/ Robert J. Luck_____________________________ ROBERT J. LUCK ASSISTANT UNITED STATES ATTORNEY Fla. Bar No. 0028065 99 N.E. 4th Street, Suite 600 Miami, Florida 33132 Telephone: (305) 961-9031 Facsimile: (305) 530-7976 Robert.Luck@usdoj.gov MELISSA DAMIAN ASSISTANT UNITED STATES ATTORNEY Fla. Bar No. 0068063 99 N.E. 4th Street, Suite 600 Miami, Florida 33132 Telephone: (305) 961-9018 Facsimile: (305) 536-4675 Melissa.Damian@usdoj.gov
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CERTIFICATE OF SERVICE I hereby certify that on November 13, 2008, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system which will send a notice of electronic filing to Mark Eiglarsh, counsel for Defendant Traian Bujduveanu.
S/ Robert J. Luck Robert J. Luck Assistant United States Attorney
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