K. Michael Moore, chief judge of the United States District Court for the Southern District of Florida. (J. Albert Diaz)
A federal appeals panel rejected an appeal by a man caught with nearly eight kilograms of cocaine at the Miami airport but suggested the defendant had a valid complaint about one aspect of his trial.
The U.S. Court of Appeals for the Eleventh Circuit said U.S. Chief District Judge K. Michael Moore would have been wise to grant a defense request for a continuance when new video evidence was discovered on the eve of trial. But the appeals court said the new evidence wouldn’t have exonerated the defendant, and the judge had not abused his discretion in denying the motion for a continuance.
Accordingly, the panel ruled against the defendant, Max Jeri, who was sentenced to 10 years in prison for bringing drugs into the U.S. from Peru. He claimed he unwittingly carried the drugs in luggage he was bringing for a friend.
“[W]hile the district court would have been wiser to allow a continuance, we are hard-pressed to say, on this record, that the error was fatal,” wrote Judge Stanley Marcus. “Jeri has not come close to showing specific and substantial prejudice because the video revealed the contents of the luggage only after they had been removed from the various bags, and none of the film exculpated Jeri.”
“Despite this obvious conclusion, it is worth reiterating ‘that a scheduled trial date should never become such an overarching end that it results in the erosion of a defendant’s right to a fair trial.’ The costs attendant to a continuance were low, but the potential risk to the defendant was real,” wrote Marcus, citing a 2005 case. Judge Frank Hull of the Eleventh Circuit and visiting Judge Raymond Clevenger III of the Federal Circuit signed on to the ruling.
Jeri’s lawyer, assistant federal public defender Sowmya Bharathi, requested the continuance on Sunday, Dec. 13, 2015 — less than 16 hours before Jeri’s trial. She wrote that she had just learned from prosecutors that a freelance camera crew for a TV show called “Drug Wars” had recorded video of of Jeri while he was in custody and some of the drugs in his luggage.
“It is now 6:30 p.m. the night before trial and undersigned counsel does not have the footage. It is critical evidence that must be obtained, viewed, and reviewed with Mr. Jeri — all with the assistance of an interpreter,” wrote Bharathi. “There is no way undersigned can do that and begin trial tomorrow at 9 a.m.”
Bharathi said the prosecutors, Cary Aronovitz and Chris Browne, “have no objection to the motion to continue.”
Moore denied the motion and Bharathi saw the video at the end of the first day, after five prosecution witnesses had testified, according to the appeals court. A written order by Moore was not attached on PACER to the notation that he denied the continuance request, and the appeals court did not suggest the judge gave any reasons for the denial.
Lori Barrist of the Federal Public Defender’s office represented Jeri on appeal. She referred calls to Federal Public Defender Michael Caruso in Miami; he could not be reached Wednesday morning.
Phillip Drew DiRosa represented the government on appeal. Two spokespeople for the U.S. attorney’s office could not be reached in Miami, which was under threat of a hurricane Wednesday.