United States District Court, D. Massachusetts
MEMORANDUM & ORDER
Nathaniel M. Gorton United States District Judge
Martin Gottesfeld ("Gottesfeld" or
"defendant") has filed (1) a motion to continue the
jury trial (Docket No. 180), (2) an ex parte motion
seeking appointment of additional counsel (Docket No. 181)
and (3) an emergency motion for leave to file an opposition
to the government's motion in limine in two
separate parts (Docket No. 182). Those motions are the
subject of this memorandum.
Motion to Continue Trial and for Appointment of
21, 2018, Gottesfeld filed a motion to continue the trial to
a date in October or November, 2018, which the government has
opposed. In support of the motion, defendant submits that the
current defense counsel (the fourth appointed lawyer for the
defendant) was appointed in March, 2018. Since his
appointment, defense counsel has filed a number of
substantive motions which are the subject of an upcoming
hearing. He notes that two prosecutors have entered
appearances for the government and that he is therefore
outnumbered. Finally, defense counsel points to personal
obligations in other criminal matters.
determining whether a continuance is appropriate, a district
court may consider the reasons contemporaneously presented,
the amount of time needed for preparation, how diligently the
movant has used that time to date, the complexity of the
case, other available assistance, the probable utility of a
continuance, inconvenience to others and the likelihood of
injustice if there is no continuance. United States v.
Rosario-Otero, 731 F.3d 14, 18 (1st Cir. 2013) (citing
West v. United States, 631 F.3d 563, 568 (1st Cir.
has been incarcerated for a period of over two years because
he was determined to be a flight risk. The trial has been
continued on three separate occasions in the past year to
allow successor counsel (requested by defendant) to get up to
speed with the case. The long-ago filed pre-trial motions
(including motions to suppress, to dismiss and in
limine) are finally ready for hearings. As the
government notes, disposition of the motion in
limine seeking to preclude the so-called
"torture defense" will, if allowed, significantly
narrow the scope of the trial. If denied, the government
suggests that it will likely assent to defendant's
request for a continuance. One factor the Court must consider
in connection with that request is the availability of legal
assistance. To that end, defendant has filed an ex
parte motion for appointment of additional counsel,
which this Court will allow, subject to the certain
parameters set out in the Court's separate order filed
all relevant factors, including the length of time defendant
has been incarcerated, the status of the briefing in the
case, its complexity and the availability of assistance to
defense counsel, the Court will deny the motion to continue
Emergency Motion for Leave to File an Opposition to
the Government's Motion in Limine in Two
23, 2018, Gottesfeld filed an emergency motion for leave to
file his opposition to government's motion in
limine to preclude defendant's "torture
defense" based on necessity and defense of another in
two separate parts. The government opposes that motion.
contends that requiring him to file an opposition addressing
the merits of the government's motion would improperly
impose upon him the burden of proof and would require him to
divulge constitutionally-protected aspects his defense.
Gottesfeld objects to the use of a motion in limine
to preclude an entire defense, particularly in what he
contends is a politically-charged case. He suggests that use
of a motion in limine to preclude a defense
undermines the purpose of the jury. He contends that if he is
required to oppose the motion on the merits, he will need
additional preparation time.
limine procedure is proper to determine whether
defendant's anticipated defense is sufficient, as a
matter of law, to present to the jury. A criminal defendant
has a constitutional right to a ""meaningful
opportunity to present a complete defense". Brown v.
Ruane, 630 F.3d 62, 71-72 (citing Crane v.
Kentucky, 476 U.S. 683, 690 (1967)). The right to
"present relevant evidence is not unlimited, but rather
is subject to reasonable restrictions". United
States v. Guzman, 603 F.3d 99, 108 (1st Cir. 2010)
(citing United States v. Scheffer, 523 U.S. 303, 308
(1998)). Specifically, a defendant has no right "to
present irrelevant evidence". United States v.
Maxwell, 254 F.3d 21, 26 (1st Cir. 2001).
context of an affirmative defense, the First Circuit Court of
Appeals ("the First Circuit") has held that
when the proffer in support of an anticipated affirmative
defense is insufficient as a matter of law to create a
triable issue, a district court may preclude the presentation
of that defense entirely.
Id. (citing United States v. Bailey, 444
U.S. 394, 414-15 (1980) ("[P]recisely because a
defendant is entitled to have the credibility of his
testimony . . . judged by the jury, it is essential that the
testimony given or proffered meet a minimum standard as to
each element of the defense so that, if a jury finds it to be
true, it would support an affirmative defense- here that of
duress or necessity.")). To conclude that a defendant is
entitled to an affirmative defense, the defendant must
"carry [an] entry-level burden of adducing competent
proof" of the affirmative defense. Id. If
Gottesfeld does not oppose the motion in limine on
the merits, ...