UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 04-cr-216-01-SM

James Tobin

O R D E R

The prosecution and the defendant jointly move to continue

the trial of this case for ninety days, until December 6, 2005.

The motion to continue is the second filed since the

superceding indictment was returned by the grand jury on May 18,

2005. Trial on the original indictment was scheduled for June of

this year and, obviously, the first motion to continue was a

practical necessity given the late-May return of the superceding

indictment. So, in substance if not form, this joint motion is

the first relative to the new indictment. If granted, trial on

the controlling indictment will occur within seven months of its

return, which hardly seems an “unreasonable” or “undue” delay,

particularly given what appear to be legally and factually

complex motions in the offing.

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The New Hampshire Democratic Party (“NHDP”), casting itself

as a victim of the charged offenses under the Crime Victim’s

Rights Act (“CVRA”), 18 U.S.C. § 3771, has filed an objection to

the joint motion to continue. Essentially, the superceding

indictment alleges that this defendant conspired with others to

interfere with New Hampshire citizens’ rights to vote freely, by

jamming phone lines set up to facilitate “get out the vote”

efforts by the NHDP and the Manchester Professional Firefighters’

Association.

It may be that the NHDP is a “person” who has been “directly

and proximately harmed as a result of the commission of a federal

offense” within the meaning of the CVRA (18 U.S.C. § 3771(e)). 

Of course, whether this defendant committed such an offense

remains to be seen - he is merely accused at this point; he has

pleaded not guilty; and the government has yet to meet its high

burden of proving every essential element of any charged offense

beyond a reasonable doubt.

If the NHDP is a victim under the CVRA, and I will assume it

falls within that category, then it is entitled to specific

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rights enumerated in that statute. 18 U.S.C. § 3771(a). Among

those rights are two that seem pertinent for purposes of this

motion. The first is “the right to be reasonably heard at any

public proceeding in the district court involving release, plea,

sentencing, or any parole proceeding.” 18 U.S.C. § 3771(a)(4). 

I doubt, but need not decide, whether a pending motion to

continue constitutes a public proceeding at which the NHDP is

entitled to be heard. It seems evident that even if the pending

motion to continue qualifies as a “public proceeding” within the

statute’s reach, it plainly is not one “involving release, plea,

sentencing, or any parole proceeding.” 18 U.S.C. § 3771(a)(4). 

But, in any event, the CVRA provides another more appropriate

basis for the NHDP’s limited participation.

The second pertinent victim’s right conferred by the statute

is the right to “proceedings free from unreasonable delay.” 18

U.S.C. § 3771(a)(7). That right “shall be asserted in the

district court” and, if relief is denied, a petition for a writ

of mandamus lies in the court of appeals. Accordingly, the

NHDP’s objection to the joint motion for continuance is properly

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asserted by pleading - here an objection - in the district court. 

18 U.S.C. § 3771(a)(7).

Although properly asserted, the NHDP’s objection is without

merit. Congress, in enacting the CVRA did not mean to undermine

the Speedy Trial Act, 18 U.S.C. § 3161, et seq., nor to deprive

either criminal defendants or the government of a full an

adequate opportunity to prepare for trial. The defendant’s right

to adequate preparation is, of course, of constitutional

significance as well. Both the defendant and the prosecution

agree that an additional ninety days will facilitate each’s

preparation, and will allow for hearing and deliberate

consideration of legally and factually complex motions to be

filed, before trial commences. The record discloses no reason to

doubt their joint assessment.

Although the NHDP’s interest in having this case proceed

forthwith is important, of equal importance is the court’s duty

to ensure that both the defendant and government receive due

process and a fair trial. This litigation may be proceeding with

less speed than the NHDP would prefer, given its own discrete

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interests, but it is worthwhile to reflect on the old adage that

the wheels of justice grind slowly, but they grind exceedingly

fine. The alternative - precipitous spinning of the powerful

wheels of justice merely to satisfy popular demand - runs the

unacceptable risk of those wheels running over the rights of both

the accused and the government, and in the end, the people

themselves.

A trial within seven months of the superceding indictment

does not constitute either “undue” or “unreasonable” delay. The

requested continuance is consistent with the Speedy Trial Act’s

purposes, is consistent with the defendant’s constitutional right

to due process of law, and violates no legitimate claim of right

advanced by the NHDP.

Conclusion

The joint motion for continuance is granted. Trial on the

superceding indictment shall be scheduled for the trial period

commencing on December 6, 2005. However, recognizing the

statutory right of victims (which, if the allegations are proven,

include the entire body-politic and not just the organized NHDP)

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and taking into account the court’s statutory obligation to

“ensure that [all] crime victim[s] [are] afforded the rights

described,” the parties are hereby put on notice that no further

continuance will be granted in the absence of extraordinary

circumstances.

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

July 22, 2005

cc: Todd M. Hinnen, Esq.

Brian T. Tucker, Esq.

Dane Butswinkas, Esq.

Dennis M. Black, Esq.

Tobin J. Romero, Esq.

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