United States District Court, D. Utah, Central Division
MEMORANDUM DECISION AND ORDER DENYING WITHOUT
PREJUDICE MOTION TO CONTINUE JURY TRIAL
C. Nielson, Jr. United States District Judge.
case is presently set for trial on January 24, 2020. Standby
counsel for Defendant has filed a motion for a continuance,
purportedly on behalf of Defendant. The court makes the
Defendant has been charged with attempting to evade or defeat
tax and impeding internal revenue laws. See Dkt. No. 76
(superseding indictment) (citing 26 U.S.C. § 7201 and 26
U.S.C. § 7212(a)).
November 17, 2016, Defendant made his initial appearance in
this court on the indictment returned in this matter. See
Dkt. No. 18.
July 12, 2017, a jury found Defendant guilty of Counts 1 and
2 of the Indictment. Dkt. No. 130.
September 4, 2019, the Tenth Circuit Court of Appeals vacated
the jury verdict and ordered this court to conduct further
proceedings consistent with its opinion. See United
States v. Hansen, 929 F.3d 1238 (10th Cir. 2019).
October 17, 2019, Defendant informed the court, through his
appointed counsel, that he wished to exercise his
constitutional right to conduct his defense pro se.
October 18, 2019, Defendant requested, through his appointed
counsel, a continuance of “not less than ninety
days.” Dkt. No. 205 at 1. This court granted that
request, and trial is set for January 24, 2020.
October 29, 2019, this court held a Faretta hearing and
granted Defendant's request to conduct his defense pro
se. Mr. McCaughey, who had been Defendant's
court-appointed counsel, was designated as standby counsel.
is the second request to continue trial since the Tenth
Circuit vacated and remanded the 2017 conviction.
motion for a continuance has two significant defects.
a. First, this motion was filed by standby counsel, not
Defendant, who has elected to exercise his constitutional
right to conduct his own defense. Although the motion states
that “Defendant is not in custody and agrees with the
need for a continuance of the trial and agrees that the
defense will not be hindered or prejudiced by the delay,
” Defendant has not indicated to the court that standby
counsel prepared and filed the motion at Defendant's
request. Nor has Defendant indicated to the court that he
adopts the motion submitted by standby counsel. The court has
not authorized “hybrid representation” in this
case. McKaskle v. Wiggins, 465 U.S. 168, 183 (1984).
b. Second, standby counsel's motion does not provide
sufficient explanation for why a continuance is necessary.
Standby counsel provides only conclusory representations that
Defendant needs more time to “acquir[e] additional
evidence” and “subpoena additional witnesses[,
]” but fails to describe the nature of the evidence
Defendant wishes to acquire, identify the additional
witnesses he seeks to subpoena, or explain why the desired
evidence cannot be acquired or the additional witnesses
subpoenaed in time for the currently scheduled trial date.
Given these defects, the court denies standby counsel's
motion to continue without prejudice. Defendant may file a
motion that provides additional explanation for why a
continuance is necessary. In the alternative, Defendant may
direct standby counsel to prepare and file such a motion on
his behalf, so long as Defendant clearly indicates to the