The opinion of the court was delivered by: Arthur J. Schwab United States District Judge
MEMORANDUM OPINION RE: TEXT ONLY ORDER DATED JULY 15, 2010 STRIKING "NOTICE OF CLARIFICATIONS AND CORRECTIONS TO THE RECORD"
At 9:38 a.m. on the morning of July 15, 2010, the day scheduled for a 10:00 a.m. change of plea hearing for defendant Youa Vue, the lead Assistant Federal Public Defender for Mr. Vue filed a document entitled "Notice of Clarifications and Corrections to the Record." Doc. No. 93. At 11:10 a.m. that same day, this Court entered a Text Only Order striking Doc. No. 93 "for failure to cite any rule or law permitting the filing" of such a Notice purporting to correct or clarify the record, and noting that if counsel objected to the Memorandum Order, Doc. No. 87, Denying Defendant's Motion to Stay Proceedings, the proper procedure would have been an appeal to the United States Court of Appeals for the Third Circuit. ECF Docket, July 15, 2010. The Court also advised counsel in open court that it would entertain a motion to clarify or correct the record and requested counsel to provide legal authority in the rules of procedure or elsewhere for such motion. To date, no such motion has been filed.
This Memorandum Opinion is in further explanation of the July 15th Text Only Order.
The Federal Public Defender's ("FPD's") document entitled "Notice of Clarifications and Corrections to the Record" ("FPD Notice") is in fact neither a clarification nor a correction to the record in Mr. Vue's case. Rather, the FPD Notice consists of (i) the unverified statements of counsel, with no supporting affidavits, about extraneous matters regarding the FPD's representation of Mr. Vue that did not occur in open court and were not part of this record,*fn1 Doc. No. 93 at 1-3; and (ii) statements regarding the guilty plea and sentencing in an unrelated case (about facts on and extraneous to the record in that case) that this Court referenced in its Memorandum Order, Doc. No. 87, denying Defendant's Motion to Stay Proceedings at Doc. No. 75, Doc. No. 93, at 3-14, with two transcripts attached from the record in that other case. The Court's reference to United States v. Marvin Hall, Criminal Action No. 08-215, Doc. No. 87, at 4, 20-21, in support of not granting the FPD's motions to withdraw from the case and further delay Mr. Vue's trial, was to illustrate the serious speedy trial and due process problems caused by the Court's granting this AFPD's numerous motions for enlargement of time to file pretrial motions, Doc. No. 93, at 3-14, and the detriment that can befall defendants where those repeated continuances result in serving more time imprisoned than the term of imprisonment calculated under the advisory guidelines.
Because the FPD Notice is neither a correction nor a clarification of the record in Mr. Vue's case, it has no bearing on Mr. Vue's guilty plea or sentencing, but that was not immediately apparent. By not filing the document as a Motion, the AFPD did not provide the government the opportunity to respond or this Court the opportunity to consider the matter and make an informed decision. Moreover, the last minute filing (some 22 minutes before the change of plea hearing commenced) set forth nothing relevant or material to Mr. Vue's change of plea, and in fact, Mr. Vue had not authorized or been consulted with respect to this document and had not seen it until he arrived in court for the change of plea hearing. The Court recessed the hearing until the afternoon to give Mr. Vue the opportunity to review the document and discuss it with additional appointed counsel to determine whether it had any impact on his decision to change his plea to guilty. Ultimately, defendant and additional counsel determined it did not impact his decision.
Given that the FPD Notice pertains primarily to matters on and extraneous to the record in the Hall case, given that the FPD announced its intention to seek a writ of mandamus in the United States Court of Appeals for the Third Circuit to stay these proceedings pending the Court of Appeals' resolution of its mandamus challenge to this Court's orders denying permission to withdraw from the case,*fn2 and given that the FPD has appeared in this Court twice represented by independent counsel,*fn3 see Docs. Nos. 85, 86 and 99, it seems fair to conclude that the FPD's Notice of Clarifications and Corrections to the Record is not intended to clarify or correct the record in Mr. Vue's case.
On June 22, 2010, this Court issued a Memorandum Order, Doc. No. 70, which, inter alia, denied two motions by the Federal Public Defender to withdraw its representation of defendant Youa Vue based on a recently discovered*fn4 potential conflict of interests. On those issues, this Court stated:
E. Second Motion to Withdraw as Counsel (doc. no. 68)
Defense counsel has been counsel of record in this case for more than a year, since February 17, 2009. Doc no. 13.
As stated above, defense counsel filed nine (9) motions for extensions of time "to complete the investigation of the facts and law." Only after the Court denied the ninth motion for an extension of time, and set the date for trial, did defense counsel file their [first] Motion to Withdraw as Counsel (doc no. 56) on June 16, 2010, alleging that the CI was a former client of the Federal Public Defender's Office.
The next day, June 17, 2010, in denying this first Motion without prejudice, this Court's Order indicated that counsel for the defendant could not merely withdraw; instead the Court ordered that the case be transferred to counsel who could maintain the trial schedule. Immediately thereafter, on June 18, 2010, this Court then supplemented the June 17, 2010 Order noting that the Government had filed a response indicating that it would not call the CI as a witness, thereby rendering defense counsel's alleged conflict of interest between the CI and the defendant moot at that point in time. The supplemental Order also indicated that if this Court determined a Franks hearing was warranted, it would "revisit the issue and adjust the date for the Franks hearing to fit the schedule of substitute counsel" but would still require the pretrial and trial dates to remain in place. This Order, therefore, indicated the Court's willingness to again allow counsel for Defendant to move to ...