Case 1:09-cr-00234-DDD-JDK Document 97 Filed 01/19/11 Page 1 of 9 PageID #: 262

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

ALEXANDRIA DIVISION

UNITED STATES OF AMERICA * CRIMINAL NO.: 1:09-cr-00234-01-05

*
*
VERSUS *
*
* JUDGE DEE D. DRELL
ROY EUGENE HEBRON, ET AL * MAGISTRATE JUDGE KIRK

GOVERNMENT’S OPPOSITION TO THE DEFENDANT’S MOTION FOR

RECONSIDERATION

COMES NOW the United States of America, by and through the undersigned

Assistant United States Attorney, and hereby respectfully opposes the motion to

reconsider by the Defendant, ROY EUGENE HEBRON.

HEBRON seeks further consideration of this court’s pre-trial conference ruling

regarding a continuance of the February 2, 2011 trial date. Doc. No. 90, p. 3. HEBRON

contends that requiring him to proceed to trial as scheduled would deprive him of his

constitutional right to be represented by counsel of his choice. Id. His motion should

be denied for the reasons discussed below.

I. Factual and Procedural History

A. United States v. Hebron et al.

On or about May 5, 2009, the Federal Bureau of Investigation executed a search

warrant at the Town of Ball’s municipal building. At that time, Henry H. Lemoine, Jr.

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indicated that he was counsel for the Defendant. Subsequently, a federal grand jury

sitting in the Western District of Louisiana returned a three-count indictment against

the Defendant and others on September 25, 2009. Doc. No. 1. At the Defendant’s initial

appearance and arraignment hearing on October 15, 2009, attorney J. Michael Small

appeared as co-counsel for the Defendant. Doc. No. 25. A status conference was held

on October 23, 2009. Doc. No. 55. After consultation with counsel for all of the parties,

a trial date almost a year away was chosen (i.e., October 12, 2010). Doc. Nos. 55 and 57.

Over the ensuing months, several extensions of the motions deadline were

granted at the request of counsel for the Defendant without objection from the

Government. See e.g., Doc. No. 72, 73, and 76. Despite this accommodation, the

October 12, 2010 trial date was eventually upset. On April 26, 2010, attorney Small

participated in a status conference before this court in United States v. Belt et al. during

which it was decided that the Belt trial would proceed on October 12, 2010 instead of

the Hebron et al. trial. Doc. No. 75. As a result, the Hebron et al. trial was delayed

another four months until February 2, 2011 without objection from counsel for the

Government in this matter. Id.

A pretrial conference was held in this matter on December 7, 2010.1 During the

conference, counsel for the Government, not defense counsel, advised the court of a

potential conflict with respect to the Hebron et al. trial date and attorney Small’s

involvement in another matter in the Monroe Division which was scheduled to proceed

to trial before February 2, 2011. According to court records, attorney Small has been
1
Attorney Small was not present for the pre-trial conference due to a trial that was in progress in the Eastern District
of Louisiana.

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aware of the proximity of the Hebron et al. trial date and the Pruett trial date since June

7, 2010. See Pruett Doc. No. 44.

A federal grand jury indicted Jeffrey Pruett on or about May 29, 2009. See Crim.

No. 3:09-cr-00112, Pruett Doc. No. 1. On June 25, 2009, attorney Small and co-counsel,

Allyn Stroud, filed a motion to enroll as counsel for Pruett. Pruett Doc. No. 16. A

couple of weeks later, the Pruett matter was scheduled for trial beginning August 17,

2010. Pruett Doc. No. 25. On April 21, 2010, the court issued a minute entry advising

that the trial date was considered “a firm setting and Defendant should be prepared to

go to trial with one or both of his retained attorneys on this date.” Pruett Doc. No. 40.

In another matter, United States v. Charles Jones, the April 12, 2010 trial date was

delayed until May 10, 2010 the night before the first day of trial due to attorney Small’s

health issues2 and his co-counsel’s representation that he was not prepared to proceed

to trial for Jones. See Crim. No. 3:08-cr-00023, Doc. Nos. 49 and 51. The first trial of

Jones resulted in a mistrial. Jones was re-tried on August 16, 2010 which caused the

Pruett matter to be delayed. Pruett Doc. No. 44. On June 14, 2009, after consulting with

attorney Small and other attorneys, the Pruett matter was re-set for trial on January 10,

2011. Pruett Doc. No. 45. Thus, attorney Small agreed to try the Pruett case in January

2
The Government has repeatedly accommodated trial scheduling in several matters based on the complications
brought about by attorney Small’s caseload and other issues. Having been indicted since June 2007, United
States v. Michael Thompson, a public corruption case, was scheduled to begin trial on November, 9,
2009. See generally Crim. No. 3:07-cr-30022. On November 3, 2009, the court continued the trial because
attorney Small reported that he was ill. The Thompson matter was rescheduled for January 11, 2010.
After one day in jury selection, attorney Small checked himself into the hospital. At that time, the court
ordered that Allyn Stroud (co-counsel) be prepared to proceed with trial the next day. Ultimately,
attorney Small recovered and was able to continue representing his client in that trial.
Similarly, in United States v. Belt, et al., after being underway just one day trial was delayed two weeks due to
attorney Small’s hospitalization. See Crim. No. 1:07-cr-10018, Doc. No. 189.

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2011 knowing: (1) the trial was estimated to last three weeks or more and (2) that he

would have to try the Hebron matter shortly thereafter in February 2011.

II. Law and Analysis

“A motion for continuance is addressed to the sound discretion of the trial court,

and its ruling will not be disturbed on appeal unless there … [is] a showing that there

has been an abuse of discretion.” United States v. Medina-Arellano, 569 F.2d 349, 353

(5th Cir. 1978)(citations omitted).

It would not be an abuse of the court’s discretion to press forward with the

current trial setting.

Trial judges necessarily require a great deal of latitude in scheduling trials.

Not the least of their problems is that of assembling the witnesses,
lawyers, and jurors at the same place at the same time, and this burden
counsels against continuances except for compelling reasons.
Consequently, broad discretion must be granted trial courts on matters of
continuances; only an unreasoning and arbitrary “insistence upon
expeditiousness in the face of a justifiable request for delay violates the
right to the assistance of counsel.” Morris v. Slappy, 461 US. 1, 11-12, 103
S.Ct. 1610, 1616 (1983) citing Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct.
841, 849 11 L.Ed.2d 921 (1964).

In Morris the lead attorney required surgery and six days before the trial was

scheduled to commence he was replaced by one of his colleagues from the Public

Defender’s Office. The original attorney had done extensive investigation regarding the

charges of rape, forcible oral copulation, burglary, robbery and false imprisonment.

Substitute counsel was able to proceed because he could rely on the work done by the

original counsel and he was an experienced attorney. Morris, 461 U.S. at 5-6, 103 S.Ct.

at 1613-14.

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While Defendant relies on United States v. Gonzalez-Lopez, the Court

specifically said that nothing in that opinion “casts any doubt or places any

qualification upon our previous holdings that limit the right to counsel of choice…”

including, specifically Morris and considerations of the demands of the Court’s

calendar.” United States v. Gonzalez-Lopez, 548 U.S. 140, 151-52, 126 S.Ct. 2557, 2565

(2006). The right to counsel of choice, unlike the right to counsel in general, is not

absolute. At some point, that right must bend before countervailing interests involving

effective administration of the courts. Birt v. Montgomery, 725 F.2d 587, 593 (11th Cir.

1984). Thus, when a defendant asks for a continuance on the eve of his trial to allow

time for retained counsel to prepare, the court must balance that request against the

other pertinent factors. Birt v. Montgomery, 725 F.2d at 593.

The court in United States v. McManaman held that it was proper to deny the

defendant’s request for a continuance even though one of his two attorneys, ostensibly

the lead trial attorney, could not be present at the beginning of his trial. United States v.

McManaman, 653 F.2d 458, 461 (10th Cir. 1981)(citing Giacalone v. Lucas, 445 F.2d 1238

(6th Cir. 1971)(citations omitted) and Rolon Marxuach v. United States, 398 F.2d 548 (1st

Cir. 1968). Factors that the court considered persuasive included that defendant’s co-

counsel was thoroughly conversant with the case (due to two prior trials), all trial

counsel had been advised months earlier that the trial date was firm, and the motion for

continuance had been filed at a very late date. McManaman, 653 F.2d at 461.

In United States v. Larson, the court identified five factors trial courts must

weigh when exercising discretion regarding requests for continuances:

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(1) The nature of the case and whether parties have been allowed adequate time
for trial preparation;
(2) The diligence of the party requesting the continuance;
(3) The conduct of the opposing party and whether a lack of cooperation has
contributed to the need for a continuance;
(4) The effect of the continuance and whether a delay will seriously disadvantage
either party; and
(5) The asserted need for the continuance, with weight to be given sudden
exigencies and unforeseen circumstances. United States v. Larson, 760 F.2d
852, 856-57 (8th Cir. 1985).

A motion to continue was filed two days before trial in Larson because one of the

defendant’s attorneys was in trial in another matter. Larson, 760 F.2d at 856. The

defendant in Larson had three sets of attorneys who, according to the affidavit

accompanying the motion for continuance, had been hired to perform specific tasks.

Again, it was proper to deny the motion to continue under these circumstances because

defense counsel had adequate time for trial preparation, adequate notice of the trial date

and the scheduling conflict was not altogether unforeseeable. Larson, 760 F.2d at 857.

In United States v. Pederson, the trial court did not commit reversible error when

it granted only a two day continuance in a tax case in which trial counsel enrolled only,

apparently, the day before the trial was originally scheduled to commence as new

counsel “was already somewhat familiar with the case.” United States v. Pederson, 784

F.2d 1462, 1464 (9th Cir. 1986).

The Defendant has a qualified right to counsel of his choice. “The Sixth

Amendment simply does not provide an inexorable right to representation by a

criminal defendant’s preferred lawyer.” United States v. Hughey, 147 F.3d 423, 428 (5th

Cir. 1998). Moreover, the public has a right to a speedy trial and the Government has an

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interest in “efficient and effective administration of justice.” Birt v. Montgomery, 725

F.2d at 593. This case has already been continued once in the past four months due to

accommodating the trial schedule of attorney Small. Indeed, the conflict of which the

Defendant now complains (i.e., the length of the Pruett trial) was created with full

knowledge that this matter was scheduled to proceed in February. As of now, we do

not know when the Pruett trial will end. It could very well end in advance of February

2, 2011, in which case HEBRON would not be denied either counsel of his choice.

Whether proceeding to trial in the Hebron et al. matter days after concluding the

Pruett trial denies the Defendant counsel of his choice is another matter. Throughout

the pendency of this case, HEBRON has continually been represented by both attorney

Lemoine and attorney Small. Indeed, attorney Lemoine’s involvement in the case pre-

dates attorney Small’s enrollment. Attorney SmaIl may be the preferred lead trial

counsel but attorney Lemoine, also retained by the Defendant, is thoroughly conversant

with this case and his motion does not allege otherwise. Denying the motion for

reconsideration would not result in the Defendant being without representation or with

counsel that is inadequately prepared. HEBRON has been afforded a fair and

reasonable opportunity to obtain counsel of his choice. He has exercised his Sixth

Amendment right by independently choosing attorney Lemoine and attorney Small.

The Constitution requires nothing further.

It has now been well over a year since the Defendant was arraigned on the

charges in this matter. The original October 12, 2010 trial date for the Hebron et al. case

was chosen in part to afford defense counsel adequate time to prepare. The allegations

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and the relevant law in this case are not complex. But for the Belt trial, this matter

should have and would have gone to trial last year. The Defendant cannot now

credibly claim not to have had sufficient time to prepare for trial in this matter.

III. Conclusion

WHEREFORE, for the foregoing reasons, the Government respectfully requests

the Court deny the Defendant’s motion to reconsider.

Respectfully submitted this 19th day of January, 2011.

Respectfully submitted,

STEPHANIE A. FINLEY
United States Attorney

By: __/s/ Cytheria D. Jernigan________________

CYTHERIA D. JERNIGAN (D.C. Bar #494742)
Assistant United States Attorney
300 Fannin Street, Suite 3201
Shreveport, LA 71101
(318) 676-3600 (o)

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

ALEXANDRIA DIVISION

UNITED STATES OF AMERICA * CRIMINAL NO.: 1:09-cr-00234-01-05

*
*
VERSUS *
*
* JUDGE DEE D. DRELL
ROY EUGENE HEBRON, ET AL * MAGISTRATE JUDGE KIRK

CERTIFICATE OF SERVICE

I, Assistant United States Attorney Cytheria D. Jernigan, hereby certify that on

January 19, 2011, a copy of the foregoing was filed electronically with the Clerk of Court

using the CM/ECF system. Notice of this filing will be sent to counsel for the

Defendants by operation of the court’s electronic filing system.

_/s/ Cytheria D. Jernigan ____

CYTHERIA D. JERNIGAN
Assistant United States Attorney

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