Free Motion for Miscellaneous Relief - District Court of Delaware - Delaware

Case 1:06-cr-00083-GMS

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Filed 05/08/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE UNITED STATES OF AMERICA, Plaintiff, v. ANTHONY BRISCOE, Defendant. : : : : : : : : :

Cr.A. No. 06-83-GMS

MOTION FOR NON-JURY TRIAL COMES NOW, Defendant Anthony Briscoe by and through his attorney, John S. Malik, and respectfully requests that Trial in the above captioned criminal action be a non-jury trial and be conducted before a Judge of this Honorable Court based upon the following grounds: 1. Defendant Anthony Briscoe was indicted on August 1, 2006 on the

following charges: Possession with Intent to Distribute More than Fifty Grams of Cocaine Base in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), and two counts of Distribution of More than Five Grams of Cocaine Base in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). 2. A jury trial is scheduled to take place on May 212, 2007 at 9:30 A.M.

before the Honorable Gregory M. Sleet. 3. Counsel for Defendant Briscoe and counsel for the government have been

engaged in continuing discussions regarding the subject criminal action, some of which have related to the re-weighing by a defense expert of the alleged controlled substance charged in Count I of the Indictment.

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4.

At present, the sole issue that prevents this case from being resolved

through the entry of a plea is the weight of the alleged controlled substance that is the subject of Count I of the Indictment. 5. Defendant Briscoe has indicated to his legal counsel that he wishes to

proceed to trial in order to contest the weight of the alleged controlled substance that is the subject of Count I of the Indictment; however, Mr. Briscoe wishes to contest this very narrow issue through a non-jury or bench trial rather than through a jury trial. 6. Furthermore, since the sole issue to be determined at trial relates to the

weight of controlled substances, counsel for Defendant Briscoe and counsel for the government anticipate being able to stipulate to the overwhelming majority of the elements of the criminal offenses set forth in the Indictment such as jurisdiction, identification of the defendant, possession, intent, and the type of controlled substance. Again, the sole issue that the parties anticipate litigating is the weight of the alleged controlled substance that is the subject of Count I of the Indictment and Defendant Briscoe's knowledge of the weight of said alleged controlled substance. 7. Counsel for Defendant Briscoe and counsel for the government will file

written stipulations to the facts that are not in issue for the proposed bench trial. 8. Federal Rule of Criminal Procedure 24 provides for non-jury trials in

criminal cases in federal district courts. 9. Defendant Briscoe has indicated to counsel that he formally will waive his

right to a jury trial in open court in order to proceed with a non-jury trial in the case sub judice.

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10.

Defendant Briscoe submits that given the sole remaining issue to be

litigated, that both the interests of justice and judicial economy will be promoted by proceeding with a non-jury trial in the instant case. 11. Counsel has communicated his intent to file a Motion for Non-Jury Trial

to Ilana H. Eisenstein, Esquire, Assistant United States Attorney, and Ms. Eisenstein has indicated that the government does not oppose this motion. 12. On behalf of Defendant Briscoe, counsel waives any rights to a speedy

trial with respect to the subject motion if it is necessary that the May 21, 2007 trial date be rescheduled since this Motion for Non-Jury Trial has been filed at the express request of Defendant Briscoe and for the benefit of Defendant Briscoe. WHEREFORE, Defendant Anthony Briscoe respectfully requests that this Honorable Court enter an Order scheduling a non-jury trial in the above captioned criminal action. Respectfully submitted, /s/ John S. Malik JOHN S. MALIK ID No. 2320 100 East 14th Street Wilmington, Delaware 19801 (302) 427-2247 Attorney for Defendant, Anthony Briscoe Dated: May 4, 2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE UNITED STATES OF AMERICA, Plaintiff, v. ANTHONY BRISCOE, Defendant. : : : : : : : : : ORDER AND NOW, TO WIT, this _____ day of May, A.D., 2007, Defendant Anthony Briscoe' Motion for Non-Jury Trial having been duly heard and considered, IT IS SO ORDERED: That at the express request of Defendant Anthony Briscoe and with the consent of defense counsel and counsel for the government, Trial in the above captioned matter shall hereby proceed as a non-jury or bench trial; and, That any time from the date of this Order until the scheduling of any new nonjury trial date is hereby excluded from Speedy Trial Act calculations since any rescheduling is being granted at the express request of and for the benefit of Defendant Anthony Briscoe.

Cr.A. No. 06-83-KAJ

THE HONORABLE GREGORY M. SLEET

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE UNITED STATES OF AMERICA, Plaintiff, v. ANTHONY BRISCOE, Defendant. : : : : : : : : :

Cr.A. No. 06-83-KAJ

CERTIFICATE OF SERVICE I, John S. Malik, attorney for Defendant Anthony Briscoe do hereby certify that on this 8th day of May, A.D., 2007, I have had the attached Motion for Non-Jury electronically delivered to the individual(s) listed below at the following address(es): Ilana H. Eisenstein, Esquire Assistant United States Attorney United States Attorney's Office Nemours Building 1007 Orange Street, Suite 700 Wilmington, Delaware 19801 /s/ John S. Malik JOHN S. MALIK ID No. 2320 100 East 14th Street Wilmington, Delaware 19801 (302) 427-2247 Attorney for Defendant, Anthony Briscoe