United States District Court, D. Oregon
OPINION AND ORDER ON MOTION TO RESCIND AND MOTION TO
Michael H. Simon United States District Judge
Neil Cramer (“Cramer”) and Theron J. Marrs
(“Marrs”) are Defendants in United States v.
Cramer and Marrs, No. 3:17-cr-267-SI (“Case
'267”). Marrs also is a Defendant (indeed, the only
Defendant) in United States v. Marrs, No.
3:17-cr-271-SI (“Case '271”). With the
express consent of all parties, and pursuant to Rule 13 of
the Federal Rules of Criminal Procedure, both cases will be
tried together, as though brought in a single indictment. ECF
129.The Court has scheduled trial to commence
on April 23, 2019. In Case '267, Cramer filed a motion
titled, “Motion to Rescind Order of 12/14/17 and Motion
to Dismiss with Prejudice” (“Motion”). ECF
127. Marrs joined Cramer's Motion. ECF 130. After
reviewing the parties' written arguments and evidence,
including Cramer's reply, the Court does not believe that
oral argument is likely to be helpful or that an evidentiary
hearing is needed. For the reasons that follow, the Motion is
denied and the hearing scheduled for February 22, 2019 is
18, 2017, a grand jury returned a four-count indictment
against Cramer and Marrs in Case '267. Count 1 charges
both Cramer and Marrs with conspiracy to defraud the United
States, in violation of 18 U.S.C. § 371. Count 2 charges
only Cramer with evasion of payment of taxes, in violation of
26 U.S.C. § 7201. Count 3 charges only Cramer with
filing a false federal tax return in 2014 for calendar year
2013, in violation of 26 U.S.C. § 7206(1). Count 4
charges only Marrs with aiding and assisting in the filing of
a false federal tax return in 2014 for calendar year 2013, in
violation of 26 U.S.C. § 7206(2). ECF 1.
July 18, 2017, a grand jury returned a seven-count indictment
against only Marrs in Case '271. Count 1 charges Marrs
with evasion of payment of taxes, in violation of 26 U.S.C.
§ 7201. Count 2 charges Marrs with filing a false
federal tax return in 2013 for calendar year 2005, in
violation of 26 U.S.C. § 7206(1). Count 3 charges Marrs
with filing a false federal tax return in 2013 for calendar
year 2006, in violation of 26 U.S.C. § 7206(1). Count 4
charges Marrs with filing a false federal tax return in 2013
for calendar year 2007, in violation of 26 U.S.C. §
7206(1). Count 5 charges Marrs with filing a false federal
tax return in 2013 for calendar year 2009, in violation of 26
U.S.C. § 7206(1). Count 6 charges Marrs with filing a
false federal tax return in 2013 for calendar year 2010, in
violation of 26 U.S.C. § 7206(1). Count 7 charges Marrs
with obstructing or impeding the due administration of the
tax laws, in violation of 26 U.S.C. § 7212(a). ECF 1 in
Case '271. On April 18, 2018, a grand jury returned a
superseding indictment against Marrs in Case '271,
charging the same violations alleged in the original
indictment, but with a correction in the text of Count 7 to
conform to a change in the case law. ECF 51 in Case '271.
Procedural History Regarding Defendant Marrs
20, 2017, Marrs was arrested pursuant to a warrant, had his
initial appearance, arraignment, and detention hearing on
both indictments, and was released on conditions. The Court
scheduled trial for September 26, 2017. Marrs filed motions
to continue both trials, which the Court granted. On November
20, 2017, Marrs filed motions to declare both cases complex
(ECF 32) and motions to dismiss both cases (ECF 33). On
December 14, 2017, the Court declared both cases complex, set
both cases for trial on June 4, 2018 (with the order of which
trial would proceed first to be determined at a later date),
and found the continuances entered in each case constituted
excludable delay pursuant to 18 U.S.C. § 3161(h)(7)(A).
March 29, 2018, Marrs filed a motion to sever his trial in
Case '267 from the trial of Cramer in that case. ECF 68.
(Cramer filed a similar motion the day before. ECF 67.) On
April 16, 2018, Marrs fired his counsel in both cases, Chief
Deputy Federal Defender Stephen Sady. ECF 76. The Court
appointed Paul Hood as Marr's new counsel in both cases.
Id. As previously noted, a grand jury issued a
superseding indictment in Case '271 on April 18, 2018.
ECF 51 in Case '271. Marrs was arraigned on the
superseding indictment on April 25, 2018. ECF 57 in Case
'271. On May 24, 2018, at Cramer's unopposed request,
the Court rescheduled the trial date in Case '267 from
June 4 to June 14, 2018. ECF 82. (The Court also reset the
trial date in Case '271 to June 14. ECF 58 in Case
11, 2018, the Court denied Marrs's motion to dismiss Case
'267 and denied in part and granted in part his motion to
dismiss Case '271. ECF 86. On June 14, 2018, the Court
held a status and scheduling conference, rather than a trial,
in the two cases. ECF 91. At that status conference, the
Court set a briefing and hearing schedule on the pending
motions to sever in Case '267. Id. The Court
also reset the trial of Case '267 and the trial of Case
'271 for April 23, 2019 (again, with the precise order of
which case would be tried first to be determined later).
6, 2018, Marrs, joined by Cramer, filed a motion requesting
to withdraw their previously-filed motions to sever. ECF 95.
The Court promptly granted Defendants' requests to
withdraw their motions to sever. ECF 96. On August 8, 2018,
both Cramer and Marrs filed a joint motion to allow hybrid
counsel. ECF 97. On October 19, 2018, after conducting a
hearing required under Faretta v. California, 422
U.S. 806 (1975), the Court granted in part both
Defendants' motions for hybrid counsel. ECF 109; ECF 110.
Also on October 19, 2018, both Cramer and Marrs requested
additional time of almost three months to file substantive
pretrial motions, which the Court allowed. ECF 108.
January 9, 2019, the Court held a status and scheduling
conference in both cases. After the Government, on the one
hand, and both Defendants, on the other, disagreed over
whether Case '267 should be tried before or after Case
'271, the Court asked all parties whether both cases
should be tried together on April 23, 2019, as though brought
in a single indictment. See Fed. R. Crim. P. 13.
Without waiving their objections based on speedy trial
issues, Marrs and Cramer both expressly consented to trying
Case '267 and Case '271 jointly on April 23, 2019, as
did the Government. The Court agreed and scheduled both cases
to be tried together in a 15-day jury trial commencing on
April 23, 2019. The Court also set a final schedule for the
filing of substantive pretrial motions. ECF 129.
Procedural History Regarding Defendant Cramer
Cramer was a fugitive for five months after the grand jury
returned the indictment in Case '267, despite Cramer
being aware of the charges and, as discussed below, even
filing pro se several documents in that case shortly
thereafter in which Cramer challenged the case against him.
On December 8, 2017, local police in South Bend, Washington,
arrested Cramer pursuant to a federal warrant. On December
11, 2017, Cramer had an initial appearance before U.S.
Magistrate Judge Theresa L. Fricke, in the U.S. District
Court for the Western District of Washington (Tacoma),
pursuant to Fed. R. Crim. P. 5(c)(3). Judge Fricke appointed
counsel for Cramer, had the prosecutor read the charges and
penalties to Cramer, and set an identity and detention
hearing. On December 14, 2017, Judge Fricke determined that
Cramer was the person charged in the indictment, detained
him, and ordered that he be transferred to the District of
Oregon. As Cramer correctly asserts in his Motion, at neither
hearing did Judge Fricke ask Cramer to plead to the charges.
January 19, 2018, Cramer made an initial appearance in the
District of Oregon (Eugene) before U.S. Magistrate Judge
Thomas M. Coffin. Judge Coffin appointed counsel for Cramer,
briefly advised Cramer of the charges against him, and
ordered that Cramer be detained to ensure his appearance in
federal court in Portland.
appeared before U.S. Magistrate Judge Stacie F. Beckerman in
Portland on January 29, 2018, for a detention hearing and
status conference. Judge Beckerman ordered that Cramer
continue to be detained. On March 8, 2018, U.S. Magistrate
Judge John V. Acosta conducted a review of Cramer's
detention and continued to detain him as a flight risk. On
March 20, 2018, the undersigned district judge held a status
and scheduling conference in both cases, explained that the
Court had previously designated both cases as complex, set
the trial date in Case '267 for June 4, 2018, and found
excludable delay pursuant to 18 U.S.C. § 3161(h)(1)(D),
(6), and (7)(A). ECF 64.
discussed above, on March 28, 2018, Cramer filed a motion in
Case '267 to sever his trial from the trial of Marrs in
that case. ECF 67. (As also previously noted, Marrs filed a
similar motion on March 29, 2018. ECF 68.) At Cramer's
unopposed request, the Court rescheduled trial from June 4 to
June 14, 2018. ECF 82. On June 14, 2018, with the motions to
sever still pending, the Court ordered Cramer's release
on conditions and reset the trial of both cases to April 23,
2019. As also discussed above, on July 6, 2018, both Marrs
and Cramer filed requests to withdraw their previously-filed
motions to sever, which the Court promptly granted. After
July 6, 2018, the rest of the proceedings regarding Cramer
are as described above regarding Marrs.
previously noted, on October 19, 2018, the Court granted in
part Cramer and Marrs's separate requests to proceed with
hybrid counsel. Among other things, the Court allowed Cramer
and Marrs to decide what motions to present, even if their
counsel recommended otherwise. The Court, however, required
that any motion by a Defendant actually be filed only by an
attorney for that Defendant. Cramer's Motion, titled
“Motion to Rescind Order of 12/14/17 and Motion to
Dismiss with Prejudice” (which Marrs has joined), does
not reflect the lawyerly craftsmanship that the Court has
come to expect from Cramer's attorney, Robert Salisbury.
The Court, nevertheless, will address and resolve the
material points raised in the pending Motion.
Complex Case Designation and the Hearing Held on December 14,
November 20, 2017, Marrs, through his then-counsel, Stephen
Sady, the Chief Deputy Federal Defender for the District of
Oregon, filed a motion to declare both cases (Case '267
and Case '271) complex pursuant to 18 U.S.C. §
3161(h)(7)(B)(ii). ECF 32. The Government responded that it
had no objection to Marrs's request. ECF 35. On December
14, 2017, the Court granted Marrs's request and declared
both cases complex. ECF 38.
was not present at the status and scheduling conference held
on December 14, 2017. As previously noted, Cramer had been a
fugitive for five months after the indictment was issued. He
was arrested by local police on December 8, 2017, in South
Bend, Washington. On December 11, 2017, Cramer had his
initial appearance before a U.S. Magistrate Judge in Tacoma,
Washington, during which the prosecutor read the charges and
penalties to Cramer, and the Court set an identity and
detention hearing. On December 14, 2017, the U.S. ...