Petition for Writ of Certiorari — Jean Buteau Remarque, Petitioner v. United States

Supreme Court briefAug 3, 2023

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 22-4002

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

JEAN BUTEAU REMARQUE,

Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Greenbelt.

Stephanie A. Gallagher, District Judge. (8:19-cr-00039-SAG-l)

Submitted: January 19, 2023

Decided: April 6, 2023

Before NIEMEYER, KING, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Bernard V. Kleinman, LAW OFFICE OF BERNARD V. KLEINMAN

PLLC, Somers, New York, for Appellant. Erek L. Barron, United States Attorney,

Baltimore, Maryland, Timothy F. Hagan, Jr., Assistant United States Attorney, John M.

Blumenschein, Special Assistant United States Attorney, OFFICE OF THE UNITED

STATES ATTORNEY, Greenbelt, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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"APPENDIX A."

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PER CURIAM: .

Jean Buteau Remarque appeals his conviction and sentence for two counts of receipt

of child pornography and one count of possession of child pornography. Although he

confessed his crimes to an investigating officer, Remarque went to trial, where a jury found

him guilty on all counts.

The district court’s sentence varied downward from the

Guidelines range. On appeal, Remarque argues that (1) his indictment was deficient, (2)

he was denied a speedy trial. (3) there was insufficient evidence to convict him of receipt

of child pornography, (4) the affidavit that led to the government’s search warrants was

deficient, and (5) the district court’s sentence was substantively unreasonable. Finding no

error, we affirm.

Rather than reciting the full factual and procedural history here, we discuss the

relevant aspects below as they relate to each of Remarque’s arguments on appeal.

First, Remarque argues that his possession charge is multiplicitous of his receipt

charges because of a lack of factual allegations in the indictment. But the operative Third

Superseding Indictment lists the date and time for Remarque’s two receipt charges, which

are distinct from the date of the possession charge (the date the agents searched Remarque’s

apartment and found child pornography). United States v. Fall, 955 F.3d 363, 373 (4th

Cir. 2020) (possession and receipt charges “are not multiplicitous” when they “involve

different conduct on different dates”). And as in Fall, there were many more files at issue

in Remarque’s possession charge than in the two receipt charges, such that “any overlap

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... is much too small to warrant a finding that the offense conduct charged in [the

possession count] was in.fact the same as that charged in the receipt counts.” Id. at 374.

So the district court correctly held there was no multiplicity issue.

We also reject Remarque’s argument that his indictment doesn’t allege mens rea, as

the Third Superseding Indictment states he “did knowingly” receive and possess child

pornography.

J.A. 213, 214, 215 (emphasis added).

Remarque is correct that the

knowledge requirement applies both to “the sexually explicit nature of the materials as well

as ... the involvement of minors in the materials’ production.” United States v. Miltier,

882 F.3d 81, 86 (4th Cir. 2018) (cleaned up). But his indictment doesn’t have to spell that

out in detail. Rather, indictments need only “allege each element of the offense, so that

fair notice is provided.” United States v. Bolden,, 325 F.3d 471, 490 (4th Cir. 2003).

Remarque doesn’t challenge the district court’s finding that he was sufficiently on notice

of his charges. So this argument fails, too.

II.

Next, Remarque argues that his trial was illegally delayed. He raises only a

constitutional challenge, appearing to concede that his trial accorded with the Speedy Trial

Act.1

That’s for good reason, because on all but 43 days between his initial appearance

and his trial, there was either at least one pending motion or an “ends ofjustice” exclusion

because of COYID-19. On some days, both exceptions applied. Those 43 countable days

are well within the Speedy Trial Act’s 70-day limit. See 18 U.S.C. § 3161(c)(1), (h).

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Remarque doesn’t challenge the trial delays attributable to the COVE)-19

pandemic. Rather, he faults the government for taking too long (ten months) to respond to

the motions to suppress he filed thirteen days after his initial appearance. This, he argues,

pushed the trial into the pandemic, leading to unconstitutional delays that could have been

avoided if the government had timely responded.

But we agree with the district court that the government’s response was timely under

the court’s routine scheduling practices. And guided by the factors laid out in Barker v.

Wingo, 407 U.S. 514, 530-32 (1972)—the length of delay, the reason for the delay, the

defendant’s responsibility to assert his right, and prejudice—we agree with the district

court that Remarque did not suffer a constitutional speedy-trial violation. At bottom, most

of th$ delay is not the fault of the government, but rather is attributable to Remarque’s own

decision to change counsel repeatedly—and, we would add, to file dozens of pretrial

motions—along with the COVID-19 pandemic, which neither party could foresee.

III

Despite his confession, Remarque challenges the sufficiency of the evidence

underlying his two receipt convictions. He asserts there was insufficient evidence that he

(1) actually received images, (2) received them in interstate commerce, (3) knew they were

sexually explicit or involved minors, (4) received depictions of real children, or (5)

received the images in Maryland. But the trial record forecloses his arguments. There was

“substantial evidence, taking the view most favorable to the Government, to support” his

convictions. Fall, 955 F.3d at 375.

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First, substantial evidence supported the jury’s finding that Remarque received the

two images at issue. The jury heard a recorded confession in which Remarque admitted to

Department of Homeland Security Special Agent Christine Carlson that he’d used his

phone to view and save images of child pornography. The jury also heard from a forensic

expert who testified that the two images at issue were screenshots taken on an Android

phone from the internet and transferred to a USB drive that Remarque admitted was his.

Second, substantial evidence likewise supported the federal nexus, interstate

commerce. Using the internet satisfies this element See Fall, 955 F.3d at 375. And the

government “introduced evidence that, taken together, would allow a reasonable juror to

conclude that the two files” came “from the internet.” Miltier, 882 F.3d at 88. Remarque

confessed that he used his phone to access 4-Share, which he called both a “platform” and

a “website.” See, e.g., J.A. 330-31; S.J.A. 25-28, 32-34. Forensic evidence backed this

up, as several images showed partial web addresses.

And Agent Carlson testified

specifically about the two images underlying the^eceipt charges, explaining that they were

screenshots from a phone connected to Wi-Fi. One screenshot showed a partial URL. With

this record, a reasonable juror could find that Remarque used the internet on his phone to

access the two images and screenshot them.

Third, substantial evidence supported a finding that Remarque acted knowingly with

respect to both the images’ sexually explicit nature and the fact that they involved minors.

The jury had Remarque’s confession to Agent Carlson, in which he even expressly

acknowledged that he knew the images were illegal. S.J.A. 29 (“I know. I know.”); S J.A.

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37 ("Yeah, the act is illegal, yeah.”).

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He also described being “addicted” to child

pornography. S.J.A. 35.

Fourth, Remarque’s argument that there was insufficient proof the images “depicted

a real child,” Appellant’s Br. at 28, is similarly meritless. Agent Carlson provided

unrebutted trial testimony that all images shown at the trial—including the two Remarque

was charged with receiving—were database-verified images of identified children.

Finally, Remarque’s argument that the government never proved venue in Maryland

likewise fails. The search that produced the contraband, including the images in the receipt

charges, took place in Remarque’s apartment in Greenbelt, Maryland. Remarque told

Agent Carlson he lived there, and his laptop and USB drive were recovered there. At the

very least, this is substantial circumstantial evidence that Remarque committed the

“essential conduct” of receipt in Maryland. United States v. Sterling, 860 F.3d 233, 241

(4th Cir. 2017) (holding that circumstantial evidence of venue, supported by the record as

a whole, is sufficient).

IV.

Next, Remarque challenges the search warrants that uncovered his offenses. We

hold that Agent Carlson’s affidavit, attached to the warrant applications, established

probable cause under a “totality-of-the-circumstances analysis,” consistent “with the

practical, common-sense decision demanded of the magistrate.” Massachusetts v. Upton,

466 U.S. 727, 732 (1984) (per curiam) (cleaned up).

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The warrants were based on the personal knowledge of a named informant,

Remarque’s then-wife, Wanna Remarque. Remarque challenges Wanna’s credibility, but

she was a named informant—not an anonymous one:—who described her personal

knowledge of the facts. Cf. United States v. Perez, 393 F.3d 457, 462 (4th Cir. 2004)

(“Unlike an anonymous tipster, an informant who meets face-to-face with an officer

provides the officer with an opportunity to assess his credibility and demeanor and also

exposes himself to accountability for making a false statement.” (cleaned up)). And Agent

Carlson independently corroborated several facts she learned from Wanna, including

Remarque’s address, the kind of car he drove, his current job and employment history, and

even what his cell phone looked like. Wanna also described images she personally saw in

Remarque’s possession, and her description left no room to doubt that those images were

child pornography.

At bottom, the affidavit supported probable cause. But even if the affidavit had

fallen short of probable cause, the district court correctly denied suppression because goodfaith reliance on the warrants was objectively reasonable. See Fall, 955 F.3d at 371.

Finally, Remarque challenges the factual basis for his sentence enhancements and

argues that his below-Guidelines sentence was substantively unreasonable. We find both

arguments to lack merit.

The district court conducted its own review of the images at issue and rejected

Remarque s challenges to: (1) the number-of-images enhancement because the district

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court counted them, (2) the use-of-computer enhancement because there was evidence

linking Remarque’s phone, laptop, and USB drive, (3) the sadistic/masochistic

enhancement because the court found depictions of children being bound, and (4) the

prepubescent enhancement because the court found a pornographic image of a baby. Given

these findings by the district court, which Remarque doesn’t and can’t meaningfully

challenge, applying these enhancements wasn’t an abuse of discretion. Cf. Gall v. United

States, 552 U.S. 38, 51-52 (2007). (“The sentencing judge is in a superior position to find

facts and judge their import under § 3553(a) in the individual case.”). Nor were the district

'court’s findings clearly erroneous. United States v. Barnett, 48 F.4th 216, 219 (4th Cir.

2022).

Remarque’s argument that his below-Guidelines sentence is substantively

unreasonable under 18 U.S.C. § 3553(a) is also unfounded. While he argues his case

involved a shorter time span and fewer images than more egregious child-pomography

cases, the district court’s downward variance accounts for this, The record shows proper

consideration of the parties’ positions and the factors relevant to the case, so we see no

abuse of discretion with respect to the sentence’s substantive reasonableness, United States

v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).2

to hav Rei^an*Ue ra*ses otiier challenges to his conviction and sentence, but we find none

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VI.

We affirin the district court’s judgment And we dispense with oral argument

because the facts and legal contentions are adequately presented in the materials before this

Court and argument would not aid in our decision.

AFFIRMED

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FILED: April 6,2023

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 22-4002,

US v. Jean Remarque

8:19-cr-00039-SAG-1

NOTICE OF JUDGMENT

Judgment was entered on this date in accordance with Fed. R. App. P. 36. Please

be advised of the following time periods:

PETITION FOR WRIT OF CERTIORARI: The time to file a petition for writ

of certiorari runs from the date of entry of the judgment sought to be reviewed, and

not from the date of issuance of the mandate. If a petition for rehearing is timely

filed in the court of appeals, the time to file the petition for writ of certiorari for all

parties runs from the date of the denial of the petition for rehearing or, if the

petition for rehearing is granted, the subsequent entry ofjudgment. See Rule 13 of

the Rules of the Supreme Court of the United States; www.supremecourt. gov.

VOUCHERS FOR PAYMENT OF APPOINTED OR ASSIGNED

COUNSEL: Vouchers must be submitted within 60 days of entry ofjudgment or

denial of rehearing, whichever is later. If counsel files a petition for certiorari, the

60-day period runs from filing the certiorari petition. (Loc. R. 46(d)). If payment is

. being made from CJAfunds, counsel should submit the CJA 20 or CJA 30

Voucher through the CJA eVoucher system. In cases not covered by the Criminal

Justice Act, counsel should submit the Assigned Counsel Voucher to the clerk's

office for payment from the Attorney Admission Fund. An Assigned Counsel

Voucher will be sent to counsel shortly after entry ofjudgment. Forms and

instructions are also available on the court's web site, www.ca4.uscourts.gov. or

from the clerk's office.

BILL OF COSTS: A party to whom costs are allowable, who desires taxation of

costs, shall file a Bill of Costs within 14 calendar days of entry ofjudgment.

(FRAP 39, Loc. R. 39(b)).

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PETITION FOR REHEARING AND PETITION FOR REHEARING EN

BANC: A petition for rehearing must be filed within 14 calendar days after entry

ofjudgment, except that in civil cases in which the United States or its officer or

agency is a party, the petition must be filed within 45 days after entry ofjudgment.

A petition for rehearing en banc must be filed within the same time limits and in

the same document as the petition for rehearing and must be clearly identified in

the title. The only grounds for an extension of time to file a petition for rehearing

are the death or serious illness of counsel or a family member (or of a party or

family member in pro se cases) or an extraordinary circumstance wholly beyond

the control of counsel or a party proceeding without counsel.

Each case number to which the petition applies must be listed on the petition and

included in the docket entry to identify the cases to which the petition applies. A

timely filed petition for rehearing or petition for rehearing en banc stays the

mandate and tolls the running of time for filing a petition for writ of certiorari. In

consolidated criminal appeals, the filing of a petition for rehearing does not stay

the mandate as to co-defendants not joining in the petition for rehearing. In

consolidated civil appeals arising from the same civil action, the court's mandate

will issue at the same time in all appeals.

A petition for rehearing must contain an introduction stating that, in counsel's

judgment, one or more of the following situations exist: (1) a material factual or

legal matter was overlooked; (2) a change in the law occurred after submission of

the case and was overlooked; (3) the opinion conflicts with a decision of the U.S.

Supreme Court, this court, or another court of appeals, and the conflict was not

addressed; or (4) the case involves one or more questions of exceptional

importance. A petition for rehearing, with or without a petition for rehearing en

banc, may not exceed 3900 words if prepared by computer and may not exceed 15

pages if handwritten or prepared on a typewriter. Copies are not required unless

requested by the court. (FRAP 35 & 40, Loc. R. 40(c)).

MANDATE: In original proceedings before this court, there is no mandate. Unless

the court shortens or extends the time, in all other cases, the mandate issues 7 days

after the expiration of the time for filing a petition for rehearing. A timely petition

for rehearing, petition for rehearing en banc, or motion to stay the mandate will

stay issuance of the mandate. If the petition or motion is denied, the mandate will

issue 7 days later. A motion to stay the mandate will ordinarily be denied, unless

the motion presents a substantial question or otherwise sets forth good or probable

cause for a stay. (FRAP 41, Loc. R. 41).

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UNITED STATES OF AMERICA, Plaintiff - Appellee v. JEAN BUTEAU REMARQUE, Defendant Appellant

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

2023 U.S. App. LEXIS 11181

No. 22-4002

May 5, 2023, Filed

Editorial information: Prior History

{2023 U.S. App. LEXIS 1K8:19-cr-00039-SAG-1LUnited States v. Remarque. 2023 U.S. App. LEXIS

8231, 2023 WL 2810288 (4th Cir. Md., Apr. 6, 2023)

Counsel

For UNITED STATES OF AMERICA, Plaintiff - Appellee: Erek L.

Barron, U. $. Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, MD;

Timothy Francis Hagan Jr., Assistant U. S. Attorney, OFFICE OF THE UNITED STATES

ATTORNEY, Greenbelt, MD.

For JEAN BUTEAU REMARQUE, Defendant - Appellant:

Bernard Victor Kleinman, LAW OFFICE OF BERNARD V. KLEINMAN PLLC, Somers, NY.

Opinion

ORDER

The petition for rehearing en banc was circulated to the full court. No judge requested a poll under

Fed. R. Add. P. 35. The court denies the petition for rehearing en banc.

and terms and conditions ofthe Matthew Bender Master Agreement

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"APPENDIX

B."

UNITED STATES, Plaintiff, v. JEAN BUTEAU REMARQUE, Defendant.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

2021 U.S. Dist. LEXIS 28016

Criminal No. SAG-19-0039

February 12, 2021, Decided

____

February 12, 2021, Filed

Counsel

{2021 U.S. Dist. LEXIS 1}For Jean Buteau Remarque, Defendant:

Michael D Montemarano, LEAD ATTORNEY, Michael D Montemarano PA, Ellicott City, MD.

For USA, Plaintiff: Kristi Noel O'Malley, LEAD ATTORNEY,

Office of the United States Attorney, Greenbelt, MD USA; Jared Hernandez, U.S. Attorney’s

Office for the District of Maryland, Greenbelt, MD.

Judges: Stephanie A. Gallagher, United States District Judge.

CASE SUMMARYTwo of three indictment counts in a child pornography case, while not overly

descriptive, satisfied standards because the counts tracked the statutory language and also included

"essential facts" distinctive enough to allow preparation of the defense and to bar a second prosecution •

for the same offense.

OVERVIEW: HOLDINGS: [1j-Two of three indictment counts in a child pornography case, while not

overly descriptive, satisfied standards because the counts tracked the statutory language and also

included "essential facts" distinctive enough to allow preparation of the defense and to bar a second

prosecution for the same offense; [2]-Count Three was deficient because it supplemented its recitation of

the statutory language with only a date, providing no "essential facts" regarding what pornography was

allegedly possessed, such that it was merely a generic reformulation of the elements rather than a

sufficiently distinctive charge; [3]-lndictment was not multiplicitous because receipt and possession of

separate child pornography images and files constituted distinct conduct; [4]-Government's failure to give

defendant the opportunity to turn himself in did not constitute misconduct.

OUTCOME: Motion to quash indictment granted in part, although Government permitted to supersede

the indictment. Motions to dismiss denied. Government's motion to stay denied.

A valid indictment must: (1) allege the essential facts constituting the offense; (2) allege each element of

the offense, so that fair notice is provided; and (3) be sufficiently distinctive that a verdict will bar a

second prosecution for the same offense. Tracking of statutory language is sufficient if the words fully,

directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to

constitute the offence intended to be punished. However, when the words of a statute are used to

describe the offense generally, they must be accompanied with such a statement of the facts and

circumstances as will inform the accused of the specific offence, coming under the general description,

and terms and conditions of the Matthew Bender Master Agreement

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"APPENDIX

C."

with which he is charged.

Constitutional Law > BUI of Rights > Fundamental Rights > Procedural Due Process > Double

Jeopardy

An indictment must merely identify those essential facts necessary to inform a defendant of the charge,

prepare a defense, and avoid double jeopardy, not layout the whole of the Government's case.

Computer & internet Law > Criminal Offenses > Child Pornography

Criminal Law & Procedure > Criminal Offenses > Sex Crimes > Child Pornography > Elements

Criminal Law & Procedure > Criminal Offenses > Sex Crimes > Child Pornography > Penalties

Receipt and possession of separate child pornography images and files constitute distinct conduct, and

those charges therefore are not multiplicitous.

Criminal Law & Procedure > Grand Juries > Evidence Before the Grand Jury > Admissible

Evidence

Criminal Law & Procedure > Grand Juries > Investigative Authority > Independence

Criminal Law & Procedure > Grand Juries > Evidence Before the Grand Jury > Illegally Obtained

Evidence

In Bank of Nova Scotia v. United States, the Supreme Court held that as a general matter, a district court

may not dismiss an indictment for errors in grand jury proceedings unless such errors prejudiced the

defendants. Against this backdrop, challenges to the reliability of evidence presented to the grand jury

are particularly disfavored. Indeed, the Fourth Circuit has held in no uncertain terms that it will not hear a

challenge to the reliability or competence of the evidence presented to the grand jury, and the mere fact

that evidence is unreliable is not sufficient to require a dismissal of the indictment.

Criminal Law & Procedure > Appeals > Standards of Review > Plain Error > Definitions

Disagreement with the Government's legal theory is not equivalent to prejudicial error.

Opinion

Opinion by:

Stephanie A. Gallagher

Opinion

MEMORANDUM OPINION

Defendant Jean Buteau Remarque, who faces charges of receipt and possession of child

pornography, has now filed a number of pending motions: a Motion to Quash the Indictment for Lack

of Sufficiency, ECF 174, a Motion to Dismiss for Arbitrary Multiplication of Offenses, ECF 175, and a

Motion to Dismiss for Bad Faith Prosecution and Abuse of the Grand Jury Process, ECF 176

(collectively "the Motions"). 1 The Government has opposed the Motions, ECF 177, and Mr.

Remarque has replied, ECF 179,180,181. Following a telephone conference in which the Court

provided the parties with its initial views on the merits of the Motions, ECF 183, Mr. Remarque filed

an Opposition to the Government's forthcoming third superseding indictment. ECF 184. The

Government also filed a Motion to Stay Ruling{2021 U.S. Dist. LEXIS 2} as to Count Three on

and terms and conditions of the Matthew Bender Master Agreement

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Defendant's Motion to Quash. ECF 187. Upon review of those filings, for the reasons

betow,

the Motion to Quash will be granted in part, although implementation of the ruling willjh°

permit the Government to supersede the indictment, and the Motions to Dismiss will be denied. The

Government's Motion to Stay will also be denied.

I. Factual and Procedural Background

A review of this case's procedural history is central to several facets of the Court's analysis. Mr

Remarque's initial appearance in federal court, on a one-count indictment charging possession of

child pornography, o^urred on January 30, 2019. ECF 6. The Federal Public Defende^®^e

entered its appearance on Mr. Remarque’s behalf, ECF 14, and filed two suppression mot,on

thirteen daysteter, on February 12, 2019. ECF 16,17. The early months of the case were marked by

several changes in attorney for Mr. Remarque, as well as hrs withdrawal from a plea agreement

ECF 19 22, 27, 33, 36, 42. During that time, Mr. Remarque filed a motion for discovery. ECF_30

Judae Paula Xinis the then-presiding judge in this case, held a telephone conference on Septembe

25 2019 and subsequently{2021 U.S. Dist. LEXIS 3} entered the case’s initial pretrial scheduling

order ECF 46 The scheduling order set, inter alia, a December 2, 2019 deadline for Mr R^rque

to file or supplement pretrial motions, a motions hearing date of January 3, 2020, and a trial date of

March 25, 2020. ECF 46.

During this entire period, while Mr. Remarque was repeatedly replacing his c°unse' , the motions filed

on Mr Remarque's behalf by the assistant Federal Public Defender remained pending. Ori orbefore

the December^2, 2019 deadline, Mr. Remarque's then-counsel, Michael Montemarano ^q., filed six

additional pre-trial motions. ECF 56, 57, 59, 60, 61,64. A motions hearing occurred on February 4

at which Judge Xinis denied Mr. Remarque s various pretrial motions. ECF 74, n>.

2020,

custody for health and safety reasons, citing the pandemia ECF{2021 U S. DisL LEXIS > _

from

Mr. Remarque's current counsel, Donald LaRoche, Esq., entered his appearance.

On June 11, 2020

ECF 102.

ECF 121 sought review of his detention order, ECF 127, moved to dismiss on the g^nds of

E<y 151 ■,na “"•?

160. The trial was, unfortunately, again delayed multiple times unW its cu^en%

ECF 155, 159,

scheduled date of March 1, 2021. ECF 173. Without seeking furthfr'ep^

has continued to file motions. He filed a speedy trial motion in early December, ECF 169, before

and terms and conditions of the Matthew Bender Master Agreement.

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ultimately filing the instant motions in early January, ECF 174,175,176.

In light of the approaching trial date, upon review of Mr. Remarque's most recent motions, the Court

scheduled a February 5, 2021 conference call to provide both parties with ample notice of its

forthcoming rulings. On the call, the Court stated that it would be issuing this written opinion in due

course, but that it intended to deny the Motions, with the exception of the Motion to Quash, ECF 174,

as it pertained to Count Three of the second superseding indictment. It stated that it would give the

Government the opportunity, if desired, to file a third superseding indictment in an attempt to remedy

the defects{2021 U.S. Dist. LEXIS 6} the Court had identified in Count Three, see Section ll(A) infra.

Mr. Remarque, meanwhile, was given the option of continuing the trial should he wish to do so in

light of the Government's impending third superseding indictment. This written opinion provides more

detail regarding the basis for those oral rulings.

II. Analysis

A. Motion to Quash for Lack of Sufficiency and Specificity

"A valid indictment must: (1) allege the essential facts constituting the offense; (2) allege each

element of the offense, so that fair notice is provided; and (3) be sufficiently distinctive that a verdict

will bar a second prosecution for the same offense." United States v. Bolden, 325 F.3d 471, 490 (4th

Cir. 2003). Here, all three counts of the second superseding indictment track the language of the

statutes charged. Such tracking of statutory language is sufficient if the words "fully, directly, and

expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the

offence intended to be punished." Hamling v. United States, 418 U.S. 87, 117, 94 S. Ct. 2887, 41 L.

Ed. 2d 590 (1974) (internal citation omitted); United States v. Wicks, 187 F.3d 426, 427 (4th Cir.

1999); United States v. Brandon, 298 F.3d 307, 310 (4th Cir. 2002). However, "[wjhen the words of a

statute are used to describe the offense generally, they must be accompanied with such a statement

of the facts and circumstances as will inform the accused of the{2021 U.S. Dist. LEXIS 7} specific

offence, coming under the general description, with which he is charged." Brandon, 298 F.3d at 310

(internal citations omitted).

Counts One and Two of the indictment, while not overly descriptive, satisfy these standards. Not only

do the counts track the statutory language and thus expressly set out all the elements necessary to

constitute the offense of receipt of child pornography, but they also include "essential facts"

distinctive enough to allow preparation of the defense and to bar a second prosecution for the same

offense-namely the inclusion of a precise date and time when the child pornography was allegedly

received. For a charge centering on the receipt of images, such date and time details are sufficient

to allow the defendant to identify what conduct and images the government are alleging violated the

statute, particularly given that the dates and times align with the filenames of screenshots of the

alleged child pornography found here.2 While Mr. Remarque challenges the validity of the

Government's Mfilenames-as-timestamps" theory, that question will be determined by the jury. For

notice and double jeopardy purposes, the specific date and time sufficiently protect Mr. Remarque as

to Counts{2021 U.S. Dist. LEXIS 8} One and Two.

Count Three, by contrast, supplements its recitation of the statutory language with only a date,

providing no "essential facts" regarding what pornography was allegedly possessed, such that it is

merely a generic reformulation of the elements rather than a sufficiently distinctive charge. Nothing

in the indictment protects Mr. Remarque from being charged for the same possession crime at some

point in the future, because there is no information specifying the alleged child pornography being

charged. As such, the indictment is deficient, per Bolden, 325 F.3d at 490. The Government need

not detail the evidence it intends to use to prove Mr. Remarque's guilt, nor is it cabined to any

particular type of facts that must be included in order to satisfy the indictment's notice requirements,

and terms and conditions of the Matthew Bender Master Agreement.

P.16

whether it be the inclusion of image file names, reference to particular devices on which the

pornography was stored, or some other avenue entirely. Whatever route the prosecution chooses,

however, must involve sufficient inclusion of "essential facts" to allow Mr. Remarque to prepare a

defense and to ensure that he cannot again be charged for possession of the same alleged

pornography at a later{2021 U.S. Dist. LEXIS 9} date. That concern is particularly acute where, as

here, the date alleged in the indictment represents a search of a defendant's home, where multiple

items are often seized and could potentially undergird the charge.

The question, then, is the appropriate remedy in this unique situation. The Court has no concerns

about actual notice to Mr. Remarque regarding the nature of the government's charges. Mr.

Remarque’s own filings demonstrate that he is aware of the items being alleged to contain child

pornography. See, e.g., ECF 160 at 2 (referencing the flash drive with child pornography found in his

living room). Any double jeopardy concerns that might result from Count Three's language have not

come to fruition, since there is no evidence that he has been charged with any other offenses. Thus,

as discussed during the February 5, 2021 conference call, this Court will afford the Government the

opportunity to supersede the indictment to remedy Count Three’s technical deficiencies, prior to

dismissing that count as stated in the second superseding indictment.3 While Mr. Remarque objects

to allowing the Government to seek a superseding indictment and suggests dismissal with prejudice

is the{2021 U.S. Dist. LEXIS 10} appropriate remedy instead, ECF 184, the very case law he cited in

his Motion to Quash demonstrates that, in these circumstances, the Government is permitted to

supersede. See, e.g., United States v. Bryant-Royal, No.WDQ-12-0040, 2013 U.S. Dist. LEXIS

93780, 2013 WL 3364476, at *1 (D. Md. July 3, 2013) (noting that "the second superseding

indictment repled and reinstituted the charge" that had been dismissed earlier for lack of sufficient

specificity); United States v. Hooker, 841 F.2d 1225, 1232 (4th Cir. 1988) (stating that "[i]t is obvious

that the government could easily have obtained a superseding indictment" to cure defects in the

original indictment identified prior to trial). See also, e.g., United States v. Schmidt, No.

4:09CR00265 ERW, 2009 U.S. Dist. LEXIS 76516, 2009 WL 2836460, at *8 (E.D. Mo. Aug. 27,

2009) (finding an indictment sufficient because it described the hard drive containing the child

pornography and identified images of child pornography contained on the drive); United States v.

Brooks, 648 F. App'x 791, 796 (11th Cir. 2016) (deeming a child pornography indictment sufficient

because it alleged not just a date but also a name of the child pornography file in question). The third

superseding indictment will incorporate specific references to the alleged child pornography being

charged, which has long been identified to Mr. Remarque in discovery.

This case is, admittedly, mere weeks away from trial. Mr. Remarque has, however, been{2021 U.S.

Dist. LEXIS 11} given the opportunity to seek a continuance, which he declined, ECF 188. What is

more, the offending Count Three language has been present in this indictment since the inception of

this case in early 2019. Mr. Remarque, despite roughly two-dozen rounds of motions challenging

many different aspects of the indictment, his detention, and the prosecution's conduct, did not raise

this issue until less than two months before trial, and more than a year after the December 2, 2019

deadline for filing pretrial motions, ECF 46. The Court is sensitive to the fact that Mr. Remarque has

experienced extensive pre-trial detention as a result of the pandemic and the resuiting public health

restrictions on jury trials. Thus, this Court is not inclined to bar his belated motions on timeliness

grounds. That said, he should not benefit from his two-year delay in raising the issue of Count

Three's sufficiency, to the prejudice of the government. See Section I, supra (outlining the long

history of this case). The Government will be afforded the opportunity to supersede to correct the

deficiency, just as it would have if the issue had been raised in a timely fashion. See United States v.

Hillie, 227 F. Supp. 3d 57, 82 (D.D.C. 2017) ("[T]his Court will hold in abeyance the order

dismissing{2021 U.S. Dist. LEXIS 12} the federal counts for 14 days, which should give the

government adequate time to determine whether a superseding federal indictment that contains

and terms and conditions of the Matthew Bender Master Agreement.

P.17

constitutionally sufficient child pornography charges will be sought."). The Government is permitted

until February 18, 2021 to supersede Count Three.

B. Motion to Dismiss for Arbitrary Multiplication of Offenses

Mr. Remarque has made variations of this same argument regarding the multiplicitous nature of the

indictment counts several times already, ECF 64,121, and it has been rejected each time by the

then-presiding judges, ECF 110, 148. The Government has stated that the evidence it will present in

support of the possession offense is distinct from the two images charged in the receipt counts, ECF

177 at 7, and the forthcoming third superseding indictment will presumably clarify the details

surrounding that position. Receipt and possession of separate child pornography images and files

constitute distinct conduct, and those charges therefore are not multiplicitous. See United States v.

Fall, 955 F.3d 363, 373 (4th Cir. 2020), United States v. Schnittker, 807 F.3d 77, 83 (4th Cir. 2015).

There is no debate that Mr. Remarque cannot be punished twice for the same offense, and he will

not be sentenced for receipt and possession of the same child pornography{2021 U.S. Dist. LEXIS

13} images. Thus, even if the Government did ultimately rely on the same child pornography images

and files to prove possession and receipt, the Court would remedy the situation at trial or before

sentencing to ensure that Mr. Remarque's rights are protected. As an example, should Mr.

Remarque ultimately be found guilty of both receipt and possession, the Court could sentence him

only on the counts for which distinct evidence was provided without inputting any multiplicitous

counts into the guidelines calculations. While the Court understands that Mr. Remarque will argue

that the screenshot filenames provided by the Government do not adequately evidence two distinct

acts of receipt of child pornography, that is a factual issue to be presented to the jury, not a question

to be adjudicated by the Court prior to trial. Thus, while Court will continue to monitor the case for

multiplicity and will take appropriate action if any is discovered, Mr. Remarque's motion to dismiss

the indictment on that ground will be denied.

C. Motion to Dismiss for Bad Faith Prosecution and Abuse of the Grand Jury Process

As evidence of bad faith prosecution, Mr. Remarque cites 1) the Government's decision to

arrest{2021 U.S. Dist. LEXIS 14} him at his home instead of arranging for self-surrender, 2) the

insufficient specificity of the indictment, 3) the "unsubstantiated and frivolous accusations that Mr.

Remarque engaged in questionable conduct with a minor female in Haiti" which he claims is a lie fed

to prosecutors by his estranged ex-wife Ms. Wanna Crevecoeur, and 4) his claim that he "continues

to lack any information with which to investigate or defend himself against these accusations." ECF

176.

Regarding the Government's arresting Mr. Remarque at his home, he cites no authority for the

proposition that such arrests (which are routine practice) constitute misconduct or bad faith. Instead,

that decision is permissible and within the Government's discretion. See, e.g., United States v.

Khimani, No. 1:14-CR-00455-PGG, 2015 WL 13876771, at *6 (S.D.N.Y. Apr. 27, 2015) (rejecting

defendant’s argument that the government’s failure to give him the opportunity to turn himself in

constituted misconduct). His concerns about the sufficiency of the indictment, meanwhile, have been

addressed in Section ll(A). His assertion that the prosecution is relying on evidence manufactured by

Ms. Crevecoeur is another point of factual dispute that he may present as part of his defense to

the{2021 U.S. Dist. LEXIS 15} jury, but does not amount to evidence of prosecutorial misconduct.

Lastly, Mr. Remarque's apparent confusion as to what information to investigate or how to defend

himself does not demonstrate prosecutorial misconduct, either. The Government has produced to

Mr. Remarque and his counsel, among other evidence, images of child pornography found on a

device found in his living room, a recording of his custodial interrogation, and statements made by

Ms. Crevecoeur. See ECF 160 at 2 (referencing Mr. Remarque's receipt of the thumb drive found in

and terms and conditions of the Matthew Bender Master Agreement.

P.18

Dated: February 12, 2021

Is/ Stephanie A. Gallagher

United States District Judge

ORDER

For the reasons stated in the accompanying memorandum{2021 U.S. Dist. LEXIS 19} opinion, it is

this 12th day of February, 2021, ORDERED that Defendant's Motion to Dismiss for Arbitrary

Multiplication of Offenses, ECF 175, and Motion to Dismiss for Bad Faith Prosecution and Abuse of

the Grand Jury Process, ECF 176, are DENIED. The Government's Motion to Stay Ruling as to

Count Three on Defendant's Motion to Quash, ECF 187, is also DENIED.

Is/ Stephanie A. Gallagher

United States District Judge

Footnotes

Several motions in limine, ECF 155,159,160, remain pending because this Court has deferred their

adjudication. One additional motion, seeking to obtain additional grand jury records, is not yet ripe,

ECF 178.

Mr. Remarque alleges several other issues with the indictment, including its use of the word "any"

and its alleged failure to outline how he allegedly affected interstate commerce with his receipt and

possession of child pornography. ECF 174. To the extent Mr. Remarque objects to the language

used in the indictment, it closely tracks the statutory language, such that there can be little doubt that

it sufficiently and clearly alleges each element of the charged offenses. Mr. Remarque's arguments

regarding the indictment's lack of highly specific details regarding interstate commerce and other

matters, meanwhile, find no purchase in Bolden or other relevant precedent. The Government need

not flesh out the entirety of its case at the indictment stage. See, e.g., United States v. Elbaz, 332 F.

Supp. 3d 960, 970 (D. Md. 2018) ("[Ajn indictment must merely identify those essential facts

necessary to inform her of the charge, prepare a defense, and avoid double jeopardy, not layout the

whole of the Government's case.").

The Government filed a motion requesting that the Court defer consideration of Mr. Remarque’s

Motion to Quash regarding Count Three because it intends to seek the third supersedihg indictment.

ECF 187. Thus, it argues that the issue raised by Mr. Remarque will be moot. Id. The Government is

only seeking to supersede, however, because the Court indicated on the February 5, 2021

conference call that it intended to issue a written opinion finding Count Three deficient. The

conference call's purpose was to give the parties the maximum possible notice of the indictment's

insufficiency (and the opportunity to supersede in particular), given the looming trial date in just a few

weeks. There are thus no mootness concerns, since the Court functionally already made its ruling

regarding Count Three on the teleconference, and is using this opinion to formalize its reasoning.

At several points in his filings, Mr. Remarque accurately highlights the fact that "time" is not a

and terms and conditions of the Matthew Bender Master Agreement.

P.19

material element of the crimes charged. Eg., ECF 180 at 4. He thus asserts the Government's

heavy reliance on the screenshot filenames as timestamps in the indictment and grand jury

proceedings ”border[s] on ridiculous." Id. That contention overlooks the fact that the Government’s

theory is that the date and time stamps prove that Mr. Remarque received and/or possessed these

images at separate times. While the Government does not have to prove the date or the time, it

does need to prove separate instances of receipt/possession and can argue to the jury that the date

and time stamps suffice.

Mr. Remarque has filed a separate motion seeking the Government's instructions to the Grand Jury.

ECF 178. That motion is not yet ripe and is not addressed herein, although the Court notes that the

same rationale articulated here is likely to govern its assessment of that motion.

and terms and conditions of the Matthew Bender Master Agreement.

P.20

RE: USA v. Jean Buteau Remarque

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

2020 U.S. Dist. LEXIS 204666

Criminal Case No. SAG-19-0039

November 3, 2020, Decided

November 3, 2020, Filed

Editorial Information: Prior History

United States v. Remarque. 2020 U.S. Dist. LEXIS 73000 (D. Md.t Apr. 27, 2020)

Counsel

{2020 U.S. Dist. LEXIS 1}For Jean Buteau Remarque, Defendant:

Michael D Montemarano, LEAD ATTORNEY, Michael D Montemarano PA, Ellicott City, MD.

For USA, Plaintiff: Kristi Noel O'Malley, LEAD ATTORNEY,

Office of the United States Attorney, Greenbelt, MD; Jared Hernandez, U.S. Attorney's

Office for the District of Maryland, Greenbelt, MD.

Judges: Stephanie A. Gallagher, United States District Judge.

Opinion

Opinion by:

Stephanie A. Gallagher

Opinion

Dear Counsel:

i have reviewed Mr. Remarque's Motion to Dismiss the Indictment for Unnecessary Delay in Bringing

the Defendant to Trial, ECF 139, the Government's Opposition, ECF 149, and Mr. Remarque’s reply,

ECF 161. No hearing is necessary. For the reasons stated below, the motion will be DENIED.

Procedural Background

A detailed review of this case's procedural history is crucial to the Court's analysis. Mr. Remarque's

initial appearance in federal court, on a one-count indictment charging possession of child

pornography, occurred on January 30, 2019. ECF 6. The federal public defender's office entered its

appearance on Mr. Remarque's behalf, ECF 14, and filed two suppression motions thirteen days

later, on February 12, 2019. ECF 16,17. According to Mr. Remarque's own timeline, "Before the

Court held a{2020 U.S. Dist. LEXIS 2} hearing to dispose of the motions to suppress and pretrial

conference scheduled for March 5, 2019, the Assistant Public Defender brought a plea agreement to

Defendant."1 ECF 135 at 3. The docket reflects that the former presiding judge, United States

District Judge Paula Xinis, held a hearing that had been noticed as a rearraignment on March 20,

2019. ECF 19. Mr. Remarque withdrew from the plea agreement, id., and Judge Xinis referred the

case to a magistrate judge for an attorney inquiry hearing. ECF 20. Following that hearing, an

attorney from this Court's Criminal Justice Act ("CJA") panel, Michael D. Montemarano, Esq.,

entered his appearance on March 25, 2019. ECF 22. However, just a few weeks later on April 8,

2019, private retained counsel, Seth Russell Okin, Esq., replaced Mr. Montemarano as counsel for

Mr. Remarque. ECF 27. Mr. Okin quickly filed a motion for discovery, ECF 28, which Judge Xinis

and terms and conditions of the Matthew Bender Master Agreement

P.21

"APPENDIX

D."

denied, ECF 30.

The docket reflects that Judge Xinis held status conference calls with counsel on April 15, 2019, and

May 30, 2019. However, on June 14, 2019, Mr. Remarque docketed a letter in which he represented

that he had "not heard from Attorney Seth Okin Esq. since April 8, 2019,"{2020 U.S. Dist. LEXIS 3}

the date he had entered his appearance. ECF 33. Mr. Okin subsequently filed a motion to withdraw

as counsel. ECF 36. Judge Xinis re-referred the case to a magistrate judge for another attorney

inquiry hearing, which occurred on July 19, 2019, and resulted in the termination of Mr. Okin's

appearance. ECF 41. Mr. Montemarano again became counsel of record, and requested sixty days

to provide a status report to the Court. ECF 42. Judge Xinis held a telephone conference on

September 25, 2019, and subsequently entered the case's initial pretrial scheduling order. ECF 46.

The scheduling order set, inter alia, a December 2, 2019 deadline for Mr. Remarque to file or

supplement pretrial motions, a motions hearing date of January 3, 2020, and a trial date of March 25,

2020. ECF 46.

During this entire period, while Mr. Remarque was repeatedly replacing his counsel, the motions filed

on Mr. Remarque's behalf by the assistant federal public defender remained pending. On or before

the December 2, 2019 deadline, Mr. Montemarano filed six additional pre-trial motions. ECF 56, 57,

59, 60, 61, 64. A motions hearing occurred on February 4, 2020, at which Judge Xinis denied Mr.

Remarque's pre-trial motions.{2020 U.S. Dist. LEXIS 4} ECF 74, 75.

On March 5, 2020, Mr. Montemarano sought a brief extension of time to file motions in limine for the

expected trial on March 25, 2020. ECF 80. He timely filed a motion in limine on March 6, 2020. ECF

82. However, on March 9, 2020, the Clerk docketed a letter from Mr. Remarque, which was dated

March 4, 2020, asking that Mr. Montemarano be removed as his counsel. ECF 83. On March 10,

2020, Judge Xinis again referred the case to a magistrate judge for a third attorney inquiry hearing.

ECF 84. Before that hearing, however, on March 11,2020, Chief Judge James K. Bredar issued the

first of a long series of orders restricting access to Court facilities in light of the COVID-19 pandemic.

See Standing Order No. 2020-02. Two days later, Mr. Montemarano filed a joint request to vacate

the schedule in this case "since the Court will /be closed over most of these dates as now set and all

jury trials have been cancelled." ECF 85.

On March 30, 2020, Mr. Montemarano filed a motion seeking Mr. Remarque's release from custody

for health and safety reasons, citing the pandemic. ECF 86. After briefing, United States Magistrate

Judge Timothy J. Sullivan denied the motion. ECF 90. Mr. Montemarano{2020 U.S. Dist. LEXIS 5}

sought review by the presiding judge, Judge Xinis, who denied the motion for release on April 27,

2020, following additional briefing. ECF 92, 100.

On May 17, 2020, the Government filed its first motion to exclude time pursuant to the Speedy Trial

Act. ECF 101. Judge Xinis held a teleconference on June 11, 2020, but just two days later, another

privately retained attorney, Donald LaRoche, Esq., entered his appearance for Mr. Remarque. ECF

102. Judge Xinis granted the Government's motion to exclude time on June 19, 2020, in a lengthy

order detailing the procedural history of this case and the Court’s operational status in light of the

public health concerns engendered by the pandemic. ECF 103.

On July 18, 2020, Mr. LaRoche filed a motion to withdraw the motion in limine that had been filed by

Mr. Montemarano. ECF 104. On July 26, 2020, the Government filed a second motion to exclude

time pursuant to the Speedy Trial Act, which Judge Xinis granted in another detailed order on July

27, 2020. ECF 105, 106. In August, 2020, the Court began scheduling a very limited number of jury

trials in priority cases, because it had then implemented sufficient public safety measures including,

but not{2020 U.S. Dist. LEXIS 6} limited to, physical rearranging of courtroom facilities, installation

of plexiglass barriers, and consultation with epidemiologists and engineers regarding air circulation.

and terms and conditions of the Matthew Bender Master Agreement.

P.22

As a result, Judge Xinis entered a new scheduling order, which set a pre-trial conference for

September 15, 2020 and a trial date for September 21, 2020. ECF 109. The order noted that the

expected length of trial would be one week. Id. On August 17, 2020, the case was reassigned from

Judge Xinis to my docket.

Upon review of the record, and consultation with the judges who had presided over the first jury trials

held during the pandemic, this Court ordered counsel to provide an estimated number of the

witnesses to be called at trial, and the approximate length of their testimony. ECF 120. Those

estimates reflected that the Government's case would last approximately 1.5 days, but that the

defense anticipated calling up to ten witnesses, and thought that with a Haitian Creole speaking

interpreter, the testimony of those witnesses would be estimated to last 3 days. ECF 122, 123. By

this time, the Court had learned that jury selection for a criminal case, using the new procedures

designed to protect public health and{2020 U.S. Dist. LEXIS 7} safety, consumed one full trial day.

Accordingly, the Court became concerned that the trial would not be able to be completed during a

single trial week, which would not allow for a full day of jury selection plus four-and-one-half days of

testimony (not including opening statements, closing argument, or jury instructions).

The trial calendar in the Greenbelt courthouse, where Mr. Remarque's trial had been scheduled,

would not permit this trial to extend past its one-week allotted window. However, on September 4,

2020, this Court notified counsel that if the trial were held in the Baltimore Courthouse (located

roughly twenty-five miles from the Greenbelt Courthouse), the trial could start as scheduled and

could extend into the following week to accommodate all of the anticipated witnesses. ECF 124.

On September 8, 2020, Mr. LaRoche indicated that Mr. Remarque objected to reducing the number

of trial days, and also objected to relocating the trial to Baltimore. ECF 125. Accordingly, on

September 8, 2020, this Court removed the September trial date from the Court's trial calendar, and

directed counsel to meet and confer to provide the Court with additional trial dates. ECF 126.

After several{2020 U.S. Dist. LEXIS 8} attempts to obtain a list of dates agreed by both counsel, on

October 2, 2020, this Court calendared the trial for its present trial date, November 16, 2020. ECF

138. Absent an uptick in viral activity causing the Court to reduce its operations to protect public

health, the case will proceed to trial as scheduled.

Legal Analysis

Mr. Remarque argues that the Government failed to comply with constitutional and statutory

requirements that he be afforded a speedy trial. ECF 139. This Court looks first to the Speedy Trial

Act, 18 U.S.C. § 3161(c)(1), which generally requires that "the trial of a defendant charged in an

information or indictment with the commission of an offense shall commence within seventy days

from the filing date (and making public) of the information or indictment.” The Speedy Trial Act

provides that its seventy-day "clock" is tolled in certain circumstances, including when the defendant

files a pre-trial motion, 18 U.S.C. § 3161(h)(1)(D), or when the ends of justice so require, 18 U.S.C. §

3161(h)(7)(A).

Mr. Remarque’s initial appearance in court occurred on January 30, 2019. His attorney filed pre-trial

motions thirteen days later, and those motions remained pending between February 12, 2019 and

February 4, 2020. Mr. Remarque's counsel filed{2020 U.S. Dist. LEXIS 9} additional motions on

March 5, 2020, and March 6, 2020, and the later of those motions remained pending until October

13, 2020. By that time additional defense motions had been filed, one of which remained pending

until October 30, 2020. Thus, as of this writing, in this Court’s view the only time credited against the

seventy-day speedy trial clock is (1) the initial thirteen days before the initial motions were filed, plus

(2) the thirty days between February 4, 2020 and March 5, 2020, for a maximum total of forty-three

■»

and terms and conditions of the Matthew Bender Master Agreement.

P.23

days.2 No Speedy Trial Act violation has occurred.

Though his statutory speedy trial claim is unavailing, Mr. Remarque also contends that the

Government violated his constitutional right to a speedy trial. ECF 139. Such claims are governed by

the four-factor test the Supreme Court elucidated in Barkerv. Wt'ngo, 407 U.S. 514, 92 S. Ct. 2182,

33 L. Ed. 2d 101 (1972). Specifically, the Court is to weigh: (1) the length of the delay: (2) the reason

for the delay; (3) whether defendant timely asserted his right; and (4) whether the delay prejudiced

the defendant’s case. Id. at 530. The inquiry requires a "difficult and sensitive balancing process." Id.

at 533.

The court will assume that the first factor, the 20-month length of this delay, weighs in favor of

Mr.{2020 U.S. Dist. LEXIS 10} Remarque, and thus that the Court should inquire “into to the other

factors that go into the balance." Id. at 530. However, the second factor, the reason for the delay,

weighs overwhelmingly in favor of the Government. Despite Mr. Remarque’s attempt to portray the

delay as resulting from the Government's delinquent response to his motions to suppress, ECF 139

at 8, the docket conclusively tells a much different story. The delay from the filing of the motions to

suppress in February, 2019, through the setting of the case schedule in September, 2019, was

directly attributable to the initial but ultimately unsuccessful plea negotiations, Mr. Remarque's

repeated replacement of his counsel, and the attendant delays with each replacement. See, e.g.,

ECF 42 (July 22, 2019 letter from Mr. Montemarano requesting a sixty-day continuance upon his

re-entry of appearance). In September, 2019, Judge Xinis set a reasonable trial schedule that the

parties adhered to, until the pandemic necessitated an indefinite postponement. ECF 109. Even Mr.

Remarque concedes that ”a pandemic such as COVID-19 is a neutral reason for trial delay,” ECF

139-at 11, but suggests that the Government should still be held at fault,{2020 U.S. Dist. LEXIS 11}

because his trial would have occurred pre-pandemic absent the initial periods of delay. As described

above, that logic is belied by the record, which unequivocally rests blame for the initial delays on Mr.

Remarque's recurring dissatisfaction with, and replacement of, his attorneys.3 No one contests Mr.

Remarque's right to counsel of choice, but he is not entitled to attribute the delays resulting from his

decisions to the Government.

The third factor is the defendant's assertion of his speedy trial rights. Certainly, the record indicates

that Mr. Remarque has asserted his speedy trial rights throughout the pendency of this litigation.

While those assertions would typically weigh in Mr. Remarque's favor, they are undermined, as

noted above, by his repeated replacement of his attorneys, including his attempt to remove his

attorney just two weeks before his scheduled March, 2020 trial (at which point he had already been

detained for over one year). See, e.g., ECF 83. The record clearly reflects that Mr. Remarque

prioritized his satisfaction with counsel over his proffered desire to proceed expeditiously to trial. His

priorities other than a speedy trial also became clear when he declined{2020 U.S. Dist. LEXIS 12} to

proceed to trial on September 21, 2020 in the Baltimore Courthouse, in favor of an indefinitely

delayed trial in the Greenbelt Courthouse. Thus, this factor is neutral.

The final factor is the prejudice caused by the delay. The primary prejudice cited by Mr. Remarque

arises from the pandemic: witnesses that are unavailable because of pandemic-related travel

restrictions and/or the expiration of their visas, and public health restrictions preventing his attorney

from visiting him in jail.4 ECF 139 at 11-13. Again, the delay that eventually resulted in his trial being

impacted by the pandemic was caused by Mr. Remarque's own choices. He replaced his federal

public defender with a privately retained attorney who, Mr. Remarque alleges, failed to provide

adequate representation, resulting in the need to again replace that second attorney with counsel

from the Criminal Justice Act panel. Without those actions, months of delay could have been

avoided, and Mr. Remarque's trial may have concluded in 2019. Similarly, most of the oppressive

conditions of pretrial incarceration cited by Mr. Remarque stem from the pandemic and the related

and terms and conditions of the Matthew Bender Master Agreement.

P.24

public health measures that had to be instituted within{2020 U.S. Dist. LEXIS 13} correctional

institutions.

Ultimately, a balancing of the relevant factors reveals that the blame for the early delay rests with the

defense, not with the Government. The latter portion of the delay results from the global pandemic

that could not have been foreseen by any party, and the severe public health concerns preventing

jury trials from proceeding safely for many months. Under these highly unusual circumstances,

despite the delay in this case, the Government has not infringed Mr. Remarque's constitutional right

to a speedy trial.

For the foregoing reasons, Mr. Remarque's motion to dismiss for unnecessary delay in bringing the

defendant to trial, ECF 139, is DENIED. Despite the informal nature of this letter, it is an Order of the

Court and will be docketed as such.

Sincerely yours,

/s/ Stephanie A. Gallagher

United States District Judge

Footnotes

Mr. Remarque's understanding of the case’s posture appears flawed, as Judge Xinis had scheduled

an initial conference call for March 5, 2019, not a motions hearing or a pretrial conference. ECF 18.

In addition to the time being excludable under § 3161(h)(1)(D) because of the pending defense

motions, Judge Xinis also made two separate findings that the ends of justice required, exclusion of

the time between March 16, 2020 and September 28, 2020. ECF 103, 106.

Mr. Remarque correctly notes that the Government also changed counsel on several occasions. ECF

161 at 7. The docket does not reflect any delays resulting from the replacement of AUSAs.

Mr. Remarque also suggests that witnesses now have "dimmed memories," but has proffered or

established no evidence of such failures of recollection. ECF 161 at 1.

and terms and conditions of the Matthew Bender Master Agreement.

P.25

RE: USA v. Jean Buteau Remarque

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

2020 U.S. Dist. LEXIS 204666

Criminal Case No. SAG-19-0039

November 3, 2020, Decided

November 3, 2020, Filed

Editorial Information: Prior History

United States v. Remarque. 2020 U.S. Dist. LEXIS 73000 (D. Md., Apr. 27, 2020)

Counsel

{2020 U.S. Dist. LEXIS 1}For Jean Buteau Remarque, Defendant:

Michael D Montemarano, LEAD ATTORNEY, Michael D Montemarano PA, Ellicott City, MD.

For USA, Plaintiff: Kristi Noel O'Malley, LEAD ATTORNEY,

Office of the United States Attorney, Greenbelt, MD; Jared Hernandez, U.S. Attorney's

Office for the District of Maryland, Greenbelt, MD.

Judges: Stephanie A. Gallagher, United States District Judge.

Opinion

Opinion by:

Stephanie A. Gallagher

Opinion

Dear Counsel:

I have reviewed Mr. Remarque's Motion to Dismiss the Indictment for Unnecessary Delay in Bringing

the Defendant to Trial, ECF 139, the Government's Opposition, ECF 149, and Mr. Remarque's reply,

•ECF 161. No hearing is necessary. For the reasons stated below, the motion will be DENIED.

Procedural Background

A detailed review of this case's procedural history is crucial to the Court's analysis. Mr. Remarque's

initial appearance in federal court, on a one-count indictment charging possession of child

pornography, occurred on January 30, 2019. ECF 6. The federal public defender's office entered its

appearance on Mr. Remarque's behalf, ECF 14, and filed two suppression motions thirteen days

later, on February 12, 2019. ECF 16,17. According to Mr. Remarque's own timeline, "Before the

Court held a{2020 U.S. Dist. LEXIS 2} hearing to dispose of the motions to suppress and pretrial

conference scheduled for March 5, 2019, the Assistant Public Defender brought a plea agreement to

Defendant."! ECF 135 at 3. The docket reflects that the former presiding judge, United States

District Judge Paula Xinis, held a hearing that had been noticed as a rearraignment on March 20,

2019. ECF 19. Mr. Remarque withdrew from the plea agreement, id., and Judge Xinis referred the

case to a magistrate judge for an attorney inquiry hearing. ECF 20. Following that hearing, an

attorney from this Court's Criminal Justice Act ("CJA") panel, Michael D. Montemarano, Esq.,

entered his appearance on March 25, 2019. ECF 22. However, just a few weeks later on April 8,

2019, private retained counsel, Seth.Russell Okin, Esq., replaced Mr. Montemarano as counsel for

Mr. Remarque. ECF 27. Mr. Okin quickly filed a motion for discovery, ECF 28, which Judge Xinis

and terms and conditions ofthe Matthew Bender Master Agreement.

P.26

"APPENDIX

E."

denied, ECF 30.

The docket reflects that Judge Xinis held status conference calls with counsel on April 15, 2019, and

May 30, 2019. However, on June 14, 2019, Mr. Remarque docketed a letter in which he represented

that he had "not heard from Attorney Seth Okin Esq. since April 8, 2019,'"{2020 U.S. Dist. LEXIS 3}

the date he had entered his appearance. ECF 33. Mr. Okin subsequently filed a motion to withdraw

as counsel. ECF 36. Judge Xinis re-referred the case to a magistrate judge for another attorney

inquiry hearing, which occurred on July 19, 2019, and resulted in the termination of Mr. Okin’s

appearance. ECF 41. Mr. Montemarano again became counsel of record, and requested sixty days

to provide a status report to the Court. ECF 42. Judge Xinis held a telephone conference on

September 25, 2019, and subsequently entered the case's initial pretrial scheduling order. ECF 46.

•The scheduling order set, inter alia, a December 2, 2019 deadline for Mr. Remarque to file or