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Case 4:22-cr-00372 Document 33 Filed on 10/25/22 in TXSD Page 1 of 6
IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
UNITED STATES OF AMERICA
§
§
VS. § CASE NO. 4:22-CR-372
§
CALEB JORDAN MCCRELESS, and §
CHRISTOPHER LUKE MCGINNIS §
UNOPPOSED
DEFENDANT’S MOTION TO AMEND SCHEDULING
ORDER AND DECLARATION OF COMPLEX LITIGATION
TO THE HONORABLE SIM LAKE, UNITED STATES DISTRICT JUDGE FOR
THE SOUTHERN DISTRICT OF TEXAS:
COMES NOW, the Defendant, Caleb Jordan McCreless, in the above styled
and captioned cause, by and through his attorney of record, Allison Secrest, and
hereby requests that the current scheduling order be amended. The Defendant makes
this request in light of the complex nature of this litigation and in order to provide the
Defendant the opportunity to conduct meaningful discovery. In support of this
Motion, the Defendant offers the following:
1. The underlying indictment covers nearly an eighteen month
period and alleges one count of Conspiracy to Commit Wire
Fraud and five counts of Wire Fraud. The alleged amount of loss
is just under $40,000,000.00. The underlying subject matter is
complex and was investigated over a two year period by more
than one law enforcement agency.
Case 4:22-cr-00372 Document 33 Filed on 10/25/22 in TXSD Page 2 of 6
2. At least six civil lawsuits were filed against the Defendant
alleging facts similar to those set out in the indictment. The
defendant retained several different attorneys to represent him. It
is Counsel’s understanding that at least one additional lawsuit
with allegations arising out of the same facts alleged in the
indictment was recently filed against the Defendant. Counsel
needs additional time to request her client’s file from his previous
attorneys, review those documents, conduct additional
investigation, and to confer with her client who is presently
detained in the Federal Detention Center.
3. Defendant was represented by another attorney prior to Defense
counsel being appointed on September 1, 2022. This his her first
request for a continuance. The Government produced discovery
on September 6, 2022 and September 29, 2022 which was
provided on a hard drive containing approximately 4.23 GB of
documents, as well as four CDs totaling approximately 41 GB of
documents, comprised of bank records, contracts, investigative
reports, audio recordings, emails, text messages and other lengthy
documents. A fifth CD with an unknown volume of documents
was also provided but is unreadable and will be reproduced by the
Government. The Government has also agreed to provide
additional discovery of approximately 5,500 emails and/or
documents that were set aside due to attorney-client privileged
material concerns by a taint team of lawyers with The Department
of Justice. The Government has also represented that additional
discovery will be forthcoming which is comprised of an unknown
volume of material.
4. Both the Defendant, counsel for the co-defendant, and the
Government agree that based on the allegations in the indictment,
the complex subject matter, and the voluminous amount of
discovery, support a judicial determination of “complex
litigation” pursuant to the Speedy Trial Act (18 U.S.C. § 3161).
5. The Defendant expressly acknowledges that the granting of this
Motion will toll the time limits set forth in the Speedy Trial Act
and has duly executed a Waiver of his Rights thereunder.
Case 4:22-cr-00372 Document 33 Filed on 10/25/22 in TXSD Page 3 of 6
6. This Motion is not made for the purpose of delay, but in the interests of
justice. Undersigned counsel requests this continuance in order to
preserve Defendant's constitutional rights to effective assistance of
counsel and due process, pursuant to the Fifth and Sixth Amendments
to the United States Constitution.
II.
It is respectfully requested that the motions deadline be rescinded and that a
new date be entered. Until the voluminous discovery provided to date, and the
additional discovery that is forthcoming can be thoroughly reviewed, legal research
conducted on issues arising from the Government’s investigation of this matter, as
well as defenses that may be applicable to this prosecution, it cannot be determined
what motions may be necessary and pertinent to the defense of the pending
accusations.
III.
In addition, it is respectfully requested that the January 30, 2023, trial date be
extended in order to afford counsel necessary additional time to prepare for
trial. Pursuant to 18 U.S.C. § 3161(h)(7)(A),
[a]ny period of delay resulting from a continuance granted by any judge
on his own motion or at the request of the defendant or his counsel or at
the request of the attorney for the Government, if the judge granted such
continuance on the basis of his findings that the ends of justice served
by taking such action outweigh the best interest of the public and the
defendant in a speedy trial.
“shall be excluded ... in computing the time within which the trial of any such offense
Case 4:22-cr-00372 Document 33 Filed on 10/25/22 in TXSD Page 4 of 6
must commence....” The district court may consider a number of factors in making
the determination that the granting of a motion for continuance is appropriate in a
given case, including:
[w]hether the case is so unusual or so complex, due to the number of
defendants, the nature of the prosecution, or the existence of novel
questions of fact or law, that it is unreasonable to expect adequate
preparation for pretrial proceedings or for the trial itself within the time
limits established by this section.
18 U.S.C. § 3161(h)(7)(B)(ii). The Court may also consider “[w]hether the failure
to grant such a continuance....would deny counsel for the defendant...the reasonable
time necessary for effective preparation, taking into account the exercise of due
diligence.” 18 U.S.C. § 3161(h)(7)(B)(iv). And, “[a]n ends-of-justice continuance
may be justified on grounds that one side needs more time to prepare for trial.” United
States v. Dota, 33 F.3d 1179, 1183 (5th Cir. 1994), cert. denied, 514 U.S. 1052
(1995).
IV.
The undersigned counsel has conferred with Mr. Assistant United States
Attorney Hayward Carter, III, as well as counsel for the co-defendant, Mr. Dennis
Hester, who do not oppose the granting of this motion. It is respectfully requested that
the Court consider rescinding the scheduling order and setting the instant case for a
status conference in 120 days to determine where the undersigned counsel is in her
review of the voluminous discovery, including documents that will be produced from
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the Defendant’s other previous lawyers, and the outstanding discovery that is
forthcoming from the Government. The undersigned counsel represents that she will
continue to diligently review the discovery she has received to date and come up to
speed in order to be ready to try this case in future, in the event that the matter cannot
be resolved short of trial.
WHEREFORE, the Defendant moves the Court to declare this matter "complex
litigation" and to rescind the current scheduling order and schedule the case for a
status conference in 120 days or until such time as is consistent with the orderly
dispatch of the Court's docket.
Respectfully submitted,
/s/ Allison Secrest
ALLISON SECREST
State Bar No.: 24054622
1545 Heights Blvd., Suite 300
Houston, Texas 77008
(713) 222-1212 Telephone
(713) 650-1602 Facsimile
allison@allisonsecrestlaw.com
Case 4:22-cr-00372 Document 33 Filed on 10/25/22 in TXSD Page 6 of 6
CERTIFICATE OF CONFERENCE
I, Allison Secrest, do hereby certify that on the 18th day of October 2022, I
communicated with Hayward Carter III, Assistant United States Attorney for the
United States Department of Justice, who is UNOPPOSED to this request. I also
communicated with Dennis Hester, attorney for co-defendant, Luke McGinnis who
stated he would join this Motion.
/s/ Allison Secrest
ALLISON SECREST
CERTIFICATE OF SERVICE
I, Allison Secrest, do hereby certify that on the 25th day of October 2022, a true
and correct copy of the foregoing Motion was delivered to Hayward Carter III,
Assistant United States Attorney for the United States Department of Justice, and
Denis Hester, Assistant Federal Public Defender for the Southern District of Texas,
via ECF Filing and email.
/s/ Allison Secrest
ALLISON SECREST