United States District Court, D. South Dakota, Central Division
OPINION AND ORDER DENYING MOTION TO CONTINUE
ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE
Christopher Lamont Bradshaw was indicted on August 16, 2017,
along with a codefendant on three counts-conspiracy to
distribute a controlled substance, possession with intent to
distribute a controlled substance, and distribution of a
controlled substance, with each count alleging the controlled
substance to be methamphetamine. Doc. 1. The codefendant was
arrested soon after August 16, 2017, was appointed counsel,
pleaded guilty, and has been sentenced. Bradshaw was arrested
in the District of Arizona on or about January 8, 2018,
according to CM/ECF docket entries.
January 17, 2018, Bradshaw was appointed Wade Fischer, an
experienced Pierre defense attorney, as his counsel under the
Criminal Justice Act. Doc. 34. The next day, Fischer made a
series of discovery requests to the United States, Docs.
35-39, and has dutifully represented Bradshaw ever since.
This Court initially set Bradshaw's jury trial for April
17, 2018. Doc. 55. Bradshaw sought to continue that jury
trial and signed a consent to continue the trial. Docs.
58-59. The Court then set the jury trial for May 29, 2018,
granting the motion to continue. Doc. 61. Bradshaw filed a
second motion to continue, Doc. 78, which this Court granted,
Doc. 81, setting the jury trial for July 17, 2018. Bradshaw,
on June 26, 2018, filed a third motion to continue and waiver
of speedy trial rights, Docs. 90-91, which this Court
granted, Doc. 92, rescheduling the jury trial for September
Court had a number of jury trials set for the week of
September 18, 2018. Bradshaw made known that he refused to
waive his speedy trial rights anew and insisted on a trial
during the week of September 18, which is within his rights
to do. Proceedings on Bradshaw's motion to suppress were
expedited, with evidence on that motion being heard on August
28, 2018, and the motion now being denied. Docs. 113, 122.
Because of what counsel were advising, to be the length of
the trial, this Court moved up the start of the jury trial by
one day to 1:00 p.m. on Monday, September 17, 2018, moving a
number of hearings to do so. This Court also convinced
counsel in another case to move back a jury trial to the week
of September 24 to accommodate Bradshaw's jury trial
during the week of September 17.
week the Court has entered four orders on pretrial motions
anticipating the jury trial. Docs. 122-23, 127, 130.
Subpoenas are served, and certain witnesses in Bureau of
Prison custody, the Court understands, have been transported
to Pierre to testify at trial Meanwhile, Fischer, in service
to Bradshaw, has filed four motions in ]imine, Docs. 135-36,
139, 141, as well as having obtained jury questionnaires and
subpoenas for defense witnesses.
the blue, on Tuesday of this week, Nichole Carper, an
experienced Sioux Falls defense attorney, filed a Notice of
Appearance and Substitution of Counsel, purporting to
represent Bradshaw. Doc. 121. The pleading was not signed by
Bradshaw, Carper has not been appointed as CJA counsel for
Bradshaw, and no motion has been filed at any point seeking
removal of Fischer as counsel for Bradshaw. Since
Carper's Notice, Fischer appropriately has continued to
filed pleadings on behalf of Bradshaw. Docs. 126, 133,
Carper filed a Motion to Continue, Doc. 132, on behalf of
Bradshaw. The motion reveals that Bradshaw's family
retained Carper, and that Bradshaw's family led Carper to
believe that Bradshaw only faced state charges and that she
first learned that Bradshaw faced federal charges through a
communication with a non-family member on August 30, 2018.
Doc. 132. Despite the apparent unreliability of information
from Bradshaw's family, Carper then relies on hearsay
recounted from Bradshaw's family as part of an
explanation to seek a continuance. Doc. 132. Carper
apparently spoke with Bradshaw about his wanting a
continuance now and filed a Waiver of Speedy Trial rights
today signed by Bradshaw. Doc. 143. Carper advises that she
would not have agreed to represent Bradshaw if she knew that
the September trial date was set and would not be moved, and
requests a 90-day continuance. Doc. 132.
not hyperbole for the Court to note that it grants likely in
excess of 99% of the motions for continuances filed by
defendants in criminal cases. However, this case and this
motion for continuance falls into the exceptional less than
1% where the Court denies the continuance. First, Fischer is
Bradshaw's attorney of record appointed by the Court and
has not filed a motion for continuance. Fischer remains
Bradshaw's attorney even though Bradshaw's family
hired (and misled evidently) another attorney who in turn
filed a Notice purporting to substitute for court-appointed
counsel. Under the District of South Dakota Criminal Local
Rules, Fischer can be replaced "only by order of the
court," and not by virtue of Carper's filing of a
Notice. D.S.D. Crim. L.R. 57.4A. Under Criminal Local Rule
57.4.B, there is a procedure for voluntary substitution of
counsel, but the procedure requires a certificate that
substitution will not delay the case and is only available
"30 or more days in advance of trial." D.S.D. Crim.
L.R. 57.4.B. This Court could ignore altogether any motion or
document filed by Carper under the Criminal Local Rules as it
is Fischer who remains Bradshaw's attorney of record.
there appears to be no good cause, let alone a compelling
reason, for granting a continuance. A district court has
broad discretion in determining whether to grant or deny a
motion for continuance. Unites States v. Howard, 540
F.3d 905, 907 (8th Cir. 2008) (citing United States v.
Hyles, 479 F.3d 958, 967 (8th Cir. 2007)).
"Continuances are generally disfavored and are not
granted without a compelling reason." Id.;
see also United States v. Swinney, 970 F.2d 494,
498-99 (8th Cir. 1992) (holding that the district court did
not abuse its discretion in denying the defendant's
motions made on the second day of trial for a continuance and
appointment of new standby counsel so that new counsel could
represent him). The Eighth Circuit will only reverse a
district court's decision to deny a motion for
continuance if the court abused its discretion and the moving
party was prejudiced by the denial. Howard, 540 F.3d. at 907.
Here, Bradshaw has had the benefit of capable court-appointed
defense counsel working with him for over seven months.
Thrice previously this Court has granted Bradshaw's
motions for continuances. Bradshaw's case is ready for
trial next week, so there appears to be no prejudice to him.
The intervention this week of an attorney hired by
Bradshaw's family is insufficient justification for a
continuance. Therefore, it is hereby
that the Motion to Continue, Doc. 132, is denied. If Bradshaw
wants to have attorney Carper assist in his trial, he may do
so, but attorney Fischer remains his court-appointed attorney
and only ...