financial havoc, as do mounting legal bills.” (/d. at 2-3.) The government responds that these
factors are insufficient to defeat the presumption of joint trials in light of the purpose of §
3161(h)(7), the lack of prejudice to Warner, the complexity of the case, and Warner's failure to
move for a severance. (Government's Brief in Opposition to Defendant Wamer’s De Facto Motion
for Severance and in Support of a Joint Trial (hereinafter, “Gov't Mem.”), at 17-18.)

4. Purpose of § 3161(h)(7)

Section 3161(h)(7) “was intended to help avoid the time, expense and inconvenience of
separate prosecutions.” U.S. v. Dennis, 737 F.2d 617, 621 (7th Cir. 1984); U.S. v. Salerno, 108
F.3d 730, 737 (7th Cir. 1997) (noting § 3161(h)(7)’s “preference for the judicial efficiency of joint
trials”). See also U.S. v. Hall, 181 F.3d 1057, 1062 (9th Cir. 1999) {“[t]he general purpose of §
3161(h)(7) is to facilitate the efficient use of judicial resources by enabling joint trials where
appropriate”). There can be little question that this general purpose would be ill-served by
conducting two trials in this case. By all estimates, trial of these charges is expected to be lengthy
and complex. To proceed with such a trial not once, but twice, would tax the resources of the U.S.
Attorney’s office and disrupt the court's calendar for, in the parties’ estimation, at least ten months.
Significantly, two trials would necessitate two very difficult and arduous jury selections, which would
be particularly burdensome and prejudicial to the second Defendant tried, who will be faced not
only with the inevitable pretrial publicity, but also the publicity that the first trial will generate. More
importantly, both trials would involve nearly identical lists of witnesses offering nearly identical
testimony, with the second Defendant getting a full and complete preview of the government’s
case. These facts all support a joint trial in this case and militate against Warner's contention that
the court ought not exclude from his Speedy Trial clock the delay attributable to Ryan’s trial

preparation.


The rules do authorize severance under appropriate circumstances: “If the joinder of
offenses or defendants in an indictment . . . or a consolidation for trial appears to prejudice a
defendant or the government, the court may order separate trials of counts, sever the defendants’
trials, or provide any other relief that justice requires.” FED. R. CRim. P. 14(a). When defendants
have been properly joined under Rule 8(b), however, severance is appropriate only where “there
is a serious risk that a joint trial would compromise a specific trial right of one of the defendants,
or prevent the jury from making a reliable judgment about guilt or innocence.” Zafiro, 506 U.S. at
539; Souffront, 338 F.3d at 828. In addition, to obtain severance, a defendant must show that a
joint trial would result in actual prejudice, meaning that “the defendant could not have a fair trial
without severance, not merely that a separate trial would offer him a better chance of acquittal.”
U.S. v. Mohammad, 53 F.3d 1426, 1431 (7th Cir. 1995) (internal quotations omitted).

Here, there is no question that had Warner and Ryan been indicted for the first time
together, there would be no basis for severance. Warner's only argument in support of severance
is that “a joint trial over a year from now would compromise a specific trial right belonging to Mr.
Warner - the constitutional right to a speedy trial.” (Warner Mem., at 5.) The court has already
concluded that Warner has not demonstrated that he will suffer any evidentiary or substantive
prejudice due to the delay and that conducting two trials will be significantly taxing to both the
government and the court. Warner does not claim that without severance, he will be unable to get
a fair trial, or that a jury will be unable to make a reliable judgment about his guilt or innocence.
Moreover, as noted earlier, if Warner and Ryan are tried together, the government has announced
it will not pursue its appeal of the court’s ruling on Warner's motion to dismiss. Warner's speedy
trial rights, standing alone, are insufficient to overcome the strong presumption in favor of joint trials

and do not warrant severance in these circumstances. See Souffront, 338 F.3d at 828.


is later. 18 U.S.C. § 3161(c)(1). In calculating the 70 day period, “one does not simply count off
seventy days from the starting date and see whether the defendant's trial commenced by that
date.” U.S. v. Piontek, 861 F.2d 152, 153 (7th Cir. 1988). Rather, the Act “provides for the
exclusion of certain periods of time from this calculation.” U.S. v. Garrett, 45 F.3d 1135, 1138 (7th
Cir. 1995); U.S. v. Griffin, 194 F.3d 808, 824 (7th Cir. 1999) (Act requires a trial within 70 days after
the filing of an information or indictment “unless certain excludable periods exist’).

One of those excludable periods is “[a] reasonable period of delay when the defendant is
joined for trial with a codefendant as to whom the time for trial has not run and no motion for
severance has been granted.” 18 U.S.C. § 3161(h)(7). “Where more than one defendant is
charged in an indictment, the Speedy Trial clock begins running on the date of the last co-
defendant's arraignment.” Garrett, 45 F.3d at 1138 (citing Henderson v. U.S., 476 U.S. 321, 323
n.2 (1986)). In addition, “absent a severance, any time excludable to one defendant is excludable
to his co-defendants.” U.S. v. Mustread, 42 F.3d 1097, 1106 (7th Cir. 1994); U.S. v. Tanner, 941
F.2d 574, 580 (7th Cir. 1991). Under these principles, the “clock” for Defendant Warner began to
run on the date of Defendant Ryan’s arraignment, and because no severance has been granted,
time that Ryan’s attorneys reasonably devote to motions and trial preparation is excludable for
Ryan and therefore excludable with respect to Warner, as well.

Warner argues that the Speedy Trial clock should not begin to run for him on the date Ryan
was first arraigned in December 2003 because he has already been under indictment for nearly
17 months. He urges: “Mr. Warner and his family are not made of ice. The indictment has taken
considerable emotional and physical toll both on himself and his family, including his wife, daughter
and father-in-law. They all want to put this stigma to bed as quickly as possible.” (Defendant
Warner's Position Paper Relative to the Trial Date, (hereinafter, “Warner Mem.”), at 2.) Warner

also claims that his “business phone no longer rings with any degree of frequency,” which “wreaks


2. Prejudice to Warner

The court is aware that Warner has been under indictment for nearly 17 months and is not
unsympathetic to his desire to put this matter behind him. In light of the circumstances reviewed
above, however, the court believes that a separate trial for Warner must be ordered only if Warner
can establish that he will be unduly prejudiced if time is excluded under § 3161(h)(7). In Salerno,
the defendant was charged with, among other things, murder and with conspiring with four co-
defendants to commit murder. 108 F.3d at 734. A jury could not reach a verdict on these two
charges, and 17 months later the government announced its intention to retry Salerno alone. In
the second trial, a jury found Salerno guilty on both counts. /d. On appeal, Salerno claimed that
the 17-month delay violated the Speedy Trial Act. The court disagreed, finding that the 17 months
spent litigating post-trial motions and sentencing issues was reasonable. /d. at 737. As for
Salerno’s claim of substantial prejudice, the court held that “[t]he mere passage of time, without
more, is not dispositive,” and that Salerno failed to demonstrate that he was unable or less able to
present an adequate defense due to the delay. /d. at 738. Salerno argued, as Defendant Warner
argues here, that he was prejudiced by the “unresolved criminal charges looming over his head,”
but the court summarily rejected that argument, noting that Salerno was out on bond during the 17-
month period. /d.

As noted, the only prejudice Warner has identified here is the stigma and stress of being
under indictment, and the corresponding financial and business repercussions. (Warner Mem., at
2-3.) Warner is no doubt frustrated by the government's delay in obtaining an indictment against
Ryan, but he has not demonstrated that he will be unable or less able to present his own defense
ifthe February 23, 2004 trial date is postponed. Indeed, Warner himself previously requested three
delays and agreed to waive his right to a speedy trial to accommodate his attorney's trial schedule

and lengthy surgery. At no time has Warner suggested that evidence will be lost or that witnesses


In sum, the court finds that it is reasonable to make any delay attributable to Ryan for
motions and trial preparation excludable to Warner, and to try both defendants together. Having
made this determination, the court next considers an appropriate date for trial.

B. Trial Date

In this court's view, a fall 2004 trial date would best accommodate Ryan’s need to prepare
and Warner's reasonable desire for closure. Unfortunately, Mr. Webb has a previous trial
commitment that will fully absorb his time for four months, beginning in September. Mr. Webb
insists that the four-month trial is not the reason he has requested fifteen months for preparation;
the court suspects, however, that regardless how many attorneys are working with Mr. Webb on
either of these cases, at least some of the long delay he requests is a function of this other trial.
The court could simply set this matter for trial in the fall and direct Mr. Ryan to find substitute
counsel. But Mr. Ryan’s Sixth Amendment right to counsel of his choice certainly ranks at least
as important as Warner's right to a speedy trial. See U.S. v. Santos, 201 F.3d 953, 958 (7th Cir.
2000) (“there is indeed a constitutional right to counsel of one’s choosing”). As noted earlier,
Warner himself agreed to waive his right to a speedy trial so that his own chosen attorney, Edward
Genson, could try the case.

With reluctance, the court concludes that the best resolution to this problem is an early firm
2005 trial date. If Mr. Webb’s trial schedule should change, the court expects he will promptly
report any such change to this court.

ENTER:

Dated: January 15, 2004

REBECCA R. PALE
United States Distri (e}


Mihute Order Form (65/97)

United States District Court, Northern District of Hlinois

Name of Assigned Judge Rel R. Pallmeyer Sitting Judge if Other
or Magistrate Judge ” than Assigned Judge
CASE NUMBER 02 CR 506 -1 DATE 1/15/2004
CASE USA vs. Lawrence Warner
TITLE
[In the following box (a) indicate the party filing the motion, e.g, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
(1) oO Filed motion of [ use listing in “Motion” box above.]
Q) Oo Brief in support of motion due
@) Oo Answer brief to motion due . Reply to answer brief due
4@ oOo Ruling/Hearing on set for at _.
(5) Oo Status hearing[held/continued to] [set for/re-set for] on set for at
(6) o Pretrial conference[held/continued to] [set for/re-set for] on set for at :
(op) oO Trial[set for/re-set for] on at
(8) o [Bench/Jury trial] [Hearing] held/continued to at
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) CLocal Rule 41.1 CFRCP41(a\(1) CJ FRCP41(a\(2).
do) i [Other docket entry] | Enter Memorandum Opinion And Order. Warner’s de facto motion for
severance denied.
(1) ff [For further detail see order attached to the original minute order.]
No notices required, advised in open court.
No notices required. ser of pte
Y_ | Notices mailed by judge’s staff. J AN 4 5 2004
Notified counsel by telephone, date docketed
Docketing to mail notices.
Mail AO 450 form, rp »
Copy to judge/magistrate judge. ed - Z. t/
- 1/1sr2008
courtroom gehts my date mailed notice
ETV deputy’s a ~ - EIV
initials = Fz
Datestime received in
"central Clerk's Office mailing deputy initials



will be unavailable to testify if his trial does not proceed in February 2004 as planned. Moreover,
the court notes that at least some of the delay in proceeding with the trial on the earlier indictment
may be attributed to the court’s consideration of Warner’s own well-argued motion to dismiss the
indictment, filed in April 2003. Notably, Warner prevailed on a significant portion of that motion,
which reduced some of the charges against him. See U.S. v. Warner, __F. Supp. 2d__, 2003 WL
22697289 (N.D. Ill. Nov. 13, 2003). The government has filed a notice of appeal from that ruling,
but has also announced its intention to withdraw the appeal absent an order severing the Warner
trial from the Ryan trial. (Gov't Mem., at 4.) Thus, to the extent Warner's own motion raises issues
as to which the Court of Appeals might part company with this court, he arguably benefits from this
concession. Finally, like the defendant in Salerno, Warner has been out on bond throughout this
case. On these facts, the mere passage of time will not result in undue prejudice to Warner or any
Speedy Trial Act violation.

3. Severance

In determining whether a delay is reasonable for purposes of § 3161(h)(7), courts have also
considered whether the defendant moved for a severance. See Dennis, 737 F.2d at 621 (144-day
delay not “presumptively prejudicial” where the defendant “at no time moved to sever his case” and
“failed to allege any substantial prejudice resulting from the delay”). Warner has assertedly been
reluctant to seek a severance here because he does not wantto toll the Speedy Trial clock by filing
such a motion. (Warner Mem., at 3.) See 18 U.S.C. § 3161(h)(1)(F) (excluding “delay resulting
from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or
other prompt disposition of, such motion’). In his written submission to the court, Warner does
suggest that is an appropriate alternative. On this record, however, the court finds the arguments

for severance less than compelling.


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA,
Plaintiff,
v. No. 02 CR 506

LAWRENCE E. WARNER and
GEORGE H. RYAN, SR.,

Judge Rebecca R. Pallmeyer

wee eee eS SS

Defendants.

MEMORANDUM OPINION AND ORDER

Defendant Lawrence Warner was indicted nearly 17 months ago on charges of
racketeering, money laundering, extortion, and mail fraud. The indictment alleged that Warner,
who operates commercial insurance and real estate businesses, conspired with high-ranking
officials of the Illinois Secretary of State’s office, including unnamed “Official A,” to steer lucrative
state contracts in the direction of vendors from whom Warner took bribes. For reasons related to
his lead attorney’s trial schedule and need for surgery, Warner requested continuances of the trial
date. Some delay resulted, as well, while the court considered his motion to dismiss the indictment
on several grounds. Most recently, the trial date on the original indictment was set for February
23, 2004. At the request of government attorneys, Warner signed a written waiver of his rights
under the Speedy Trial Act when he agreed to the February 2004 trial date.

On December 17, 2003, the grand jury returned a Second Superseding Indictment,
restating many of the same charges against Warner and now identifying former Governor George
H. Ryan as Official A involved in the alleged wrongdoing. Mr. Ryan was arraigned on December
23, 2003. His attorney, Daniel K. Webb, asserts that adequate preparation for the trial in this case
will take 15 months and asks the court to set a trial date in March 2005.

Defendant Warner strenuously objects to such a lengthy extension for his own trial, which

he justifiably expected would be completed long before the end of this year. Warner requests that

4


his own trial be conducted on February 23, 2004, as previously scheduled and, if necessary to
achieve that end, that he and Ryan be tried separately. The government objects to this request,
characterizing it as a de facto severance motion, one the court must deny. For the reasons
explained below, the court concludes that Warner’s request for an early trial date, separate from
that of his co-Defendant, must be denied.
DISCUSSION

Under the Federal Rules of Criminal Procedure, more than one defendant may be charged
in a single indictment if the defendants “are alleged to have participated in the same act or
transaction or in the same series of acts or transactions, constituting an offense or offenses.” FED.
R. CRIM. P. 8(b); U.S. v. Thompson, 286 F.3d 950, 968 (7th Cir. 2002). It is undisputed that Warner
and Ryan have been charged with engaging together in a racketeering conspiracy and a scheme
to defraud, which satisfies the requirements of Rule 8. Thus, there is a presumption that Warner
and Ryan should be tried together. See U.S. v. Souffront, 338 F.3d 809, 828 (7th Cir. 2003) (“there
is a preference in the federal system for joint trials of defendants who are indicted together”); U.S.
v. Ramirez, 45 F.3d 1096, 1100 (7th Cir. 1995) “[t]here is a presumption that co-conspirators who
are indicted together are properly tried together”). As the Seventh Circuit recently explained,

Joint trials “play a vital role in the criminal justice system.” They promote efficiency

and “serve the interests of justice by avoiding the scandal and inequity of

inconsistent verdicts.”
Souffront, 338 F.3d at 828 (quoting Zafiro v. U.S., 506 U.S. 534, 537 (1993)).
A. The Speedy Trial Act

Warner does not object on substantive grounds to a joint trial with Ryan. He has, however,
invoked his right to a speedy trial, knowing that Ryan cannot be ready for trial by February 23,
2004. The Speedy Trial Act mandates that a defendant be tried within 70 days after the filing of

an indictment, or the date on which the defendant first appears before a judicial officer, whichever