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Date: 03-18-2019
Case Style:
United States of America v. Rodshaun Black, Daniel Rodriguez and Ernest Green
Case Number: 18-496-CR
Judge: Newman, Pooler and Cote
Court: United States Court of Appeals for the Second Circuit on appeal from the Western District of New York (Erie County)
Plaintiff's Attorney: Michael P. Felicetta and Tiffany H. Lee
Defendant's Attorney: Donald M. Thompson for Rodshaun Black
Barry N. Covert and Erin E. McCampbell for David Rodriguez
Jesse C. Pyle for Ernest Green
Description:
The case before us treads on familiar ground—the fundamental
protections for criminal defendants that are enshrined in the Sixth Amendment
to the Constitution. Defendants‐Appellees Rodshaun Black, Daniel Rodriguez,
and Ernest Green (collectively, “Defendants‐Appellees”) were indicted on March
6, 2012, and charged with one count of Hobbs Act conspiracy. On March 7, 2012,
prosecutors informed the district court that the case against Defendants‐
Appellees might become eligible for capital prosecution. Two years and nine
months later, having not yet reached a decision on whether to seek the death
penalty, the prosecution filed a superseding indictment that added new charges
and accused Green and Black of an entirely new crime. On January 13, 2015—
two years and ten months after the government informed Defendants‐Appellees
that they could face capital prosecution—the government decided that it would
not seek the death penalty. With the nature of the case finally settled, it took
another two years and ten months to bring Defendants‐Appellees to trial. In all,
Defendants‐Appellees waited sixty‐eight months for a trial.
Today we hold for the third time in two years that criminal defendants’
rights to a speedy trial have been violated in the Western District of New York.
United States v. Tigano, 880 F.3d 602 (2d Cir. 2018); United States v. Pennick, 713
F. App’x 33 (2d Cir. 2017) (summary order). Defendants‐Appellees endured an
extraordinary sixty‐eight‐month delay, suffered anxiety occasioned by the
5
government’s nearly three‐year deliberation over whether to argue that they
should be sentenced to death, and repeatedly requested a speedy trial.
Accordingly, we AFFIRM the district court’s dismissal of the remaining charges
against Defendants‐Appellees because Defendants‐Appellees’ rights to a speedy
trial were violated.
BACKGROUND
I. Proceedings on the Original Indictment
On March 6, 2012, a grand jury indicted Rodshaun Black, Daniel
Rodriguez, and Ernest Green on one count of Hobbs Act conspiracy. Rodriguez
was arraigned on the charge on March 7, Green on March 9, and Black on March
13.
Although Black, Green, and Rodriguez were all confined in federal
custody during the pendency of this case, each was detained under different
circumstances. Black was serving a state sentence when he was arraigned on the
federal charges; Green was arrested and detained on February 24, 2012, to
answer to the charges in this case; and Rodriguez was at large at the time of the
indictment and was subsequently arrested and detained on March 7, 2012.
6
A. The Government’s Death‐Penalty Decision
During Rodriguez’s arraignment hearing on March 7, the government
alerted the court that the case might become a capital case. Specifically, the
prosecution informed the district court:
[T]here is the possibility if not [the] likelihood of additional charges
down the road. . . . [I]n terms of appointment of counsel, it could be
a death penalty eligible case, Judge. So, no decisions have been
made in that regard obviously, no charges have brought in that
regard yet. But I would just urge the Court to appoint[] experienced
counsel.
Gov’t App’x at 102. Thereafter, Black, Green, and Rodriguez were each
appointed learned counsel.
Mindful of the government’s statements regarding death‐eligible charges,
the magistrate judge (to whom all pre‐trial matters were referred) gave the
parties until April 9, 2012, to complete discovery. But on the day discovery was
scheduled to close, the government sought an extension to facilitate obtaining
additional discovery from law‐enforcement agencies and to accommodate the
prosecutor’s vacation. The court granted a three‐week extension until April 30,
2012, with pre‐trial motions due on May 29, 2012.
7
With discovery in progress, Defendants‐Appellees expressed concern that
the pre‐trial motion deadline would force them to submit motions before the
government had issued its decision on whether to seek the death penalty, which
would necessarily change the posture of the defense and impact Defendants‐
Appellees’ arguments in their motions. Therefore, on April 19, Black, Rodriguez,
and Green requested adjournment of the pre‐trial motion deadline until the
government had issued its death‐penalty decision. The court granted the motion
and vacated the pre‐trial motion deadlines, with the intention of setting new
deadlines when it could assess the government’s progress on the death‐penalty
decision at a May 11, 2012, status conference. That status conference was
subsequently postponed until May 17, 2012, because the government failed to
produce the defendants.
At the May 17 conference, speedy trial concerns permeated the hearing.
The government admitted that it had “not requested authorization from
Washington” to seek the death penalty. Gov’t App’x at 126. Nonetheless, the
government simultaneously objected to Defendants‐Appellees’ request to defer
pre‐trial motion practice until the government issued a notice of intent. “[T]he
8
government should not be in a position to have to justify speedy trial exclusions
when the government is more than ready and satisfied to proceed in this case
with the schedule,” the prosecutor informed the court. Gov’t App’x at 127.
Defendants‐Appellees indicated that they would be amenable to a limited
exclusion of time from the speedy trial clock, but they remained hesitant to
proceed with motions without a decision because if the government sought the
death penalty, the defense would need to scrap existing motions and begin anew.
Counsel for Green then noted, “My client has indicated to me that he will agree
to a definite extension of the motion schedule, but he is anxious to have this case
move along.” Gov’t App’x at 132. Counsel for Rodriguez and Black echoed this
concern. Striking a middle ground, the court extended the deadline for filing
motions to July 28, 2012.
But by July 24, 2012—just four days before the deadline—the government
still had not determined whether it would seek the death penalty. Defendants‐
Appellees therefore moved for an extension of time to file pre‐trial motions
pending the government’s decision, noting that the government had informed
them that it expected to have a decision within sixty days. At a status conference
9
on August 2, 2012, the government told the court that the decision might come in
October. Nonetheless, Defendants‐Appellees expressed a desire to press forward
on the assumption that the government would not bring a superseding
indictment. Heeding this request, the court made pre‐trial motions due on
September 28, 2012. Defendants‐Appellees timely filed their motions, and after
receiving a 10‐day extension, the government responded to Defendants‐
Appellees’ motions.
At a December 4, 2012, hearing on the motions, the court again addressed
Defendants‐Appellees’ concerns about obtaining a speedy trial in the face of the
government’s ever‐pending death‐penalty decision. The government refused to
provide a timeline for its decision—noting, “Obviously my prediction games
have been inaccurate so far, so I’m sort of hesitant to keep predicting.” Gov’t
App’x at 179. The government at first indicated that the Department of Justice
was proceeding with the death‐penalty process, but after further prodding from
the court, it disclosed that, in fact, the prosecution had not met with the
Department of Justice to discuss whether to seek the death penalty.
10
B. Delay Due to Missing Evidence
While the government contemplated its death‐penalty decision, the parties
engaged in extensive litigation regarding the unexplained disappearance of
several of the photo arrays that law enforcement had shown to witnesses to
identify Defendants‐Appellees. Defendants‐Appellees requested additional
discovery and to suppress identification evidence on December 28, 2012. On
February 5, 2013, with some of the arrays still missing, the court ordered the
government to produce all photo arrays used to identify Defendants‐Appellees.
The government failed to produce one of the photo arrays that Rodriguez
sought, and on March 11, 2013, the court directed the government to consult with
the Buffalo Police Department again, which had previously claimed that the
photo array used to identify Rodriguez was not in its possession.
On June 7, 2013, with little headway being made on locating the photo
arrays, the court issued a scheduling order giving the government until June 21,
2013, to make supplemental disclosures related to the photo arrays. Then, on the
day of the deadline, the government sought and obtained a two‐week extension
11
to make supplemental disclosures to accommodate the prosecutor’s military
commitments.
On August 14, the court decided that an evidentiary hearing was necessary
to resolve the pending pre‐trial motions and scheduled a hearing for October 2,
2013—a full fifty days from the order. But even this date was not to be: the
government moved to adjourn the hearing due to the lead prosecutor’s
commitments in another case and a death in his family. The court rescheduled
the hearing for November 6, 2013. But on November 6, the government
requested another adjournment because one of the government’s witnesses was
unavailable. The hearing was rescheduled a third time for December 3, 2013. But
on December 3, the government failed to produce Black, and the hearing had to
be rescheduled for December 20. On December 20, the government again failed to
produce Black, and the hearing was rescheduled for February 19, 2014. Finally,
on February 19, 2014—140 days after it was originally scheduled—the court held
a hearing at which it ordered the government to look again for the missing photo
array and for any documents regarding the missing photo array’s parameters.
The court also scheduled a follow‐up hearing for March 7, 2014, if necessary.
12
The hearing was necessary. Defendants‐Appellees argued that the
government had not produced all documents and witnesses related to the photo
arrays. The court gave Defendants‐Appellees until March 24, 2014, to file
supplemental motions regarding unproduced witnesses and discovery. On
March 19, 2014, Defendants‐Appellees moved for an extension of that deadline,
and the court moved the deadline to April 14, 2014. But after the government
informed Defendants‐Appellees that the missing photo arrays had been
discovered in a retired police detective’s house, Rodriguez requested additional
time. The court vacated the scheduling order and set a conference for May 8,
2014, that was subsequently accelerated to April 18, 2014, by consent of the
parties. Defendants‐Appellees filed additional motions regarding the photo
arrays on April 21 and April 23.
By the end of June, both sides reported that after meeting and conferring,
the remaining discovery disputes were largely resolved. Following a one‐day
adjournment requested by Black’s counsel, on August 19, 2014, the court held
oral argument on the last of the parties’ suppression motions and reserved
decision. On August 22, 2014, however, the judge decided another evidentiary
13
hearing was necessary and scheduled one for October 14, 2014. On August 28,
Black requested that the evidentiary hearing be delayed by two weeks. The
magistrate granted the request, and the court held an evidentiary hearing and
reserved decision on October 28, 2014.
II. Proceedings on the Superseding Indictment
Before the magistrate judge issued his report and recommendation, on
December 12, 2014, the government filed a nine‐count superseding indictment.
The indictment charged Green, Black, and Rodriguez and Amilcar Ramos and
John Coronado with the following in relation to the murder of Jabril Harper:
Hobbs Act conspiracy (Count 1); Hobbs Act robbery and extortion (Count 2);
kidnapping (Count 3); and use, brandishing, and discharge of a firearm (Count
5). Green, Black, Rodriguez, and Coronado were also charged with discharge of a
firearm causing death (Count 4). Finally, the indictment charged Green and Black
with the following in relation to the kidnapping of Morris Singer in January of
2010: Hobbs Act conspiracy (Count 6); Hobbs Act robbery and extortion (Count
7); kidnapping (Count 8); and possession and brandishing of a firearm (Count 9).
The indictment was filed just days before the statute of limitations was set to run
14
on certain charges related to Morris Singer and made Green, Black, and
Rodriguez eligible for the death penalty.1
On January 13, 2015—two years and ten months after notifying the court
that the government was considering seeking the death penalty—the
government informed the parties and the court that it would not seek the death
penalty against any defendant.
During arraignment proceedings for Green, Black, Rodriguez, and Ramos
on the superseding indictment, Green expressed his frustration with the age of
the case:
I mean, I [would] rather represent myself. Like this is
unconstitutional. I don’t feel like this is right. I feel like counsel is
ineffective. This whole proceeding, like it’s a five year . . . statute of
limitation[s] on the Hobbs Act. I’m very abreast with the law. This
whole proceeding seem[s] illegal and it’s like it’s nothing being
happening, like it’s no bail.
I’ve been incarcerated five years[2] and then come up with this
superseding indictment. Like I don’t understand it and everybody—
1 The government explains that it could not bring the additional charges until it
secured the cooperation of Antoine Callahan, who pled guilty on February 14,
2014. We note that the government had secured Callahan’s cooperation ten
months prior to filing the superseding indictment.
2 At the time of Green’s statement, he had in fact been detained on federal
charges for just under three years.
15
I mean, we put in for a speedy trial. We don’t want to file no
motions.
Gov’t App’x at 229. Thereafter, the court held a hearing on February 3, 2015, to
address Green’s concerns and evaluate his relationship with counsel. The court
relieved Green’s counsel at the hearing and appointed new counsel two weeks
later.
A. Pre‐Trial Matters on the Superseding Indictment
On March 30, 2015, pre‐trial briefing began anew with a motion from
Green. Black and Rodriguez requested extensions, which the court granted,
extending the deadline to file motions to May 1, 2015. The parties participated in
three evidentiary hearings in June and July, and the court ordered post‐hearing
briefing due by September 28, 2015. After Black sought an extension of that due
date, the court extended the deadline for all defendants’ briefing to October 9,
2015. Green timely filed his briefing. Black and Rodriguez twice requested
additional time, which caused a twenty‐six‐day delay. This was insufficient for
Black, who requested even more additional time and ultimately filed his posthearing
brief on January 20, 2016.
16
Before the magistrate judge could consider the briefing, however, it
needed to address several conflict‐of‐interest motions concerning Green, Ramos,
and Coronado, which were not resolved until June 8, 2016.
Less than one month later on July 6, 2016, the magistrate judge issued a
report and recommendation on the pre‐trial motions. Upon a motion by
Rodriguez, the court granted Defendant‐Appellees a forty‐three‐day extension to
file objections to the report and recommendation. Black and Rodriguez requested
and received an additional four‐week extension for filing objections until
September 30, 2016. Green did not join in this request and timely filed his
objections on September 2, 2016.3 Black and Rodriguez then requested an
additional extension of time because they were being held far outside the district
and their counsel were encountering difficulty consulting with them. The court
accommodated the request, making objections due on November 30, 2016. But
Black and Rodriguez, again citing in part counsel‐access issues, requested an
additional extension of time to file objections until January 30, 2017, which was
3 On September 23, 2016, counsel for Green died. Green was appointed
replacement counsel six days later, without occasioning delay.
17
granted. Black and Rodriguez requested one last extension for their objections,
and the court ordered their objections to be filed by March 1, 2017. Despite
requesting an extension, Rodriguez filed his objections on January 30. Black filed
his objections on February 27. After receiving a nine‐day extension to file its
response, the government responded to Defendants‐Appellees’ objections on
March 29.
On April 26, 2017, the court resolved the parties’ objections to the
magistrate judge’s report and recommendation. At a May 25, 2017, status
conference, Green again objected to the delay in the proceedings, and the district
court set trial for October 31, 2017.
B. Motion to Dismiss and Trial
Prior to trial, Defendants‐Appellees moved to dismiss the superseding
indictment on speedy trial grounds. The motion was fully briefed before the jury
reached a verdict.
On November 7, 2017, the jury was sworn in and opening statements
began. There were numerous delays during the trial, occasioned by attorney
illnesses, late‐breaking evidentiary disclosures, and several prolonged,
18
unexplained delays. Thus, the jury did not begin deliberating until January 5,
2018, almost two months later. On January 17, the jury returned a partial verdict
that acquitted Green and Black of Counts 6‐9—the charges related to the Singer
kidnapping. On January 18, 2018, the jury hung on the remaining counts (Counts
1‐5) related to the Harper murder.
By opinion dated February 8, 2018, the district court granted Defendants‐
Appellees’ motion to dismiss Counts 1‐5 (the Harper counts) on speedy trial
grounds. United States v. Green, No. 12‐CR‐83S (1)(2)(3), 2018 WL 786185, at *1
(W.D.N.Y. Feb. 8, 2018). The district court denied reconsideration on February 20,
2018. The government timely appealed.
DISCUSSION
The Sixth Amendment guarantees that “the accused shall enjoy the right to
a speedy and public trial.” U.S. Const. amend. VI. The right to a speedy trial has
been deemed “fundamental” to our system of justice since its inception. Klopfer v.
North Carolina, 386 U.S. 213, 223‐26 (1967) (“The history of the right to a speedy
trial and its reception in this country clearly establish that it is one of the most
basic rights preserved by our Constitution.”). Pursuant to the Sixth Amendment,
19
the court and the government owe an “affirmative obligation” to criminal
defendants and to the public to bring matters to trial promptly. United States v.
New Buffalo Amusement Corp., 600 F.2d 368, 377 (2d Cir. 1979). This burden
weighs particularly heavily on the government, which “owe[s] the additional
duty of monitoring the case and pressing the court for a reasonably prompt
trial.” United States v. Vispi, 545 F.2d 328, 334 (2d Cir. 1976).
The right to a speedy trial primarily protects three interests of criminal
defendants: “(i) to prevent oppressive pretrial incarceration; (ii) to minimize
anxiety and concern of the accused; and (iii) to limit the possibility that the
defense will be impaired.” Barker v. Wingo, 407 U.S. 514, 532 (1972); United States
v. Ewell, 383 U.S. 116, 120 (1966) (“This guarantee is an important safeguard to
prevent undue and oppressive incarceration prior to trial, to minimize anxiety
and concern accompanying public accusation and to limit the possibilities that
long delay will impair the ability of an accused to defend himself.”). In addition,
the right to a speedy trial serves a societal interest in the fair and efficient
operation of the criminal justice system and in limiting the costs to the
20
community of pretrial detention and its deleterious effects. Barker, 407 U.S. at
519‐21.
Noting that “[i]t is . . . impossible to determine with precision when the
right has been denied,” the Supreme Court shaped the now‐familiar inquiry for
whether a defendant’s right to a speedy trial has been violated in Barker v. Wingo.
Id. at 521. We consider four factors: the “[l]ength of delay, the reason for the
delay, the defendant’s assertion of his right, and prejudice to the defendant.” Id.
at 530. The Supreme Court emphasized in Barker that any individual factor
cannot be a “necessary or sufficient condition” for a speedy trial violation but
instead the factors are “related” and “must be considered together” in the
context of the case. Id. at 533. Because we agree with the district court that the
balanced factors reveal a speedy trial violation, we affirm the district court’s
dismissal of the remaining charges against Black, Green, and Rodriguez.
I. Standard of Review
We review the dismissal of an indictment for a violation of the Sixth
Amendment’s guarantee of a speedy trial for abuse of discretion, United States v.
Moreno, 789 F.3d 72, 78 (2d Cir. 2015), though we have indicated that the abuse21
of‐discretion standard authorizes broad review of a district court’s balancing of
the Barker factors, United States v. Ghailani, 733 F.3d 29, 44 (2d Cir. 2013) (“[I]n
evaluating a defendant’s rights under the Speedy Trial Clause, a district court is
in no better position than a reviewing court to undertake the required
balancing.”). We review the district court’s factual findings for clear error. See
Moreno, 789 F.3d at 78.
II. The Length of Delay Is Presumptively Prejudicial
The first factor, the length of delay, serves as a “triggering mechanism”
that places a speedy trial violation on the table and requires us to balance the
other factors. Barker, 407 U.S. at 530. Once a defendant demonstrates a
“presumptively prejudicial delay” based on “the interval between accusation
and trial,” then we can consider the reason for the delay, the assertion of the
right, and prejudice. Ghailani, 733 F.3d at 43 (internal quotation marks omitted).
Where a defendant establishes a particularly substantial delay, “the burden is
upon the government to prove that the delay was justified and that [the
defendant’s] speedy trial rights were not violated.” New Buffalo Amusement Corp.,
600 F.2d at 377.
22
Whether a delay is presumptively prejudicial “is necessarily dependent
upon the peculiar circumstances of the case.” Barker, 407 U.S. at 530‐31.
Nonetheless, the Supreme Court has noted that a post‐accusation delay
approaching one year may be considered presumptively prejudicial, Doggett v.
United States, 505 U.S. 647, 652 n.1 (1992), and that a delay of “well over five years
[] was extraordinary,” Barker, 407 U.S. at 533. This Court has held that a delay of
“four and one‐half years is unquestionably substantial,” New Buffalo Amusement
Corp., 600 F.2d at 377, and has stated that a delay of nearly seven years is
“extreme,” Tigano, 880 F.3d at 612.
Defendants‐Appellees waited nearly five years and eight months to stand
trial. The delay exceeds the “extraordinary” delay of over five years in Barker and
the “unquestionably substantial” delay of four and one‐half years in New Buffalo
Amusement Corp. See Barker, 407 U.S. at 533; New Buffalo Amusement Corp., 600
F.2d at 377. In fact, the government has conceded that the delay in this case was
presumptively prejudicial, and the circumstances of the case affirm the propriety
of that concession. While the present case evolved from a single‐count
indictment against three defendants to a nine‐count indictment against five
23
defendants, the myriad delays here did not arise from any unique complexities
in the case, and there is no suggestion that a case of this nature would require
sixty‐eight months of pre‐trial litigation. We therefore easily find that the delay
of five years and eight months in this case is substantial and presumptively
prejudicial.
Our dissenting colleague, however, would hold that the delay in this case
as to Counts 2 to 5 was substantially shorter than sixty‐eight months and was not
presumptively prejudicial. The dissent urges that the district court improperly
calculated the length of delay by measuring the delay for all charges (that is, for
both the charge in the original indictment and the additional charges in the
superseding indictment) as the period between when Black, Green, and
Rodriguez were first indicted and when they were tried. The district court’s
measure will not do for our dissenting colleague, who concludes that the time for
measuring Defendants‐Appellees’ constitutional speedy trial claims as to Counts
2 to 5 starts with the date of the superseding indictment. Drawing upon double
jeopardy jurisprudence from Blockburger v. United States, 284 U.S. 299 (1932), the
dissent would hold that each charge brought on a superseding indictment that
24
requires proof of a different element than the charges in the original indictment
marks the beginning of the period for assessing Defendants‐Appellees’
constitutional speedy trial claim for that charge. The dissent would therefore find
that the district court erred in dismissing Counts 2 to 5.
We decline to adopt the dissent’s view for three primary reasons. First, the
government forfeited this argument by not raising it below or even in its briefs to
this Court. Second, the dissent’s advocacy for a Blockburger‐type analysis rests on
the flawed premise that the Sixth Amendment right to a speedy trial attaches
only after formal charges are filed and thus that it is possible for the relevant
time period for a speedy trial claim to attach separately to each charge that a
defendant faces. And finally, we are convinced that importing Blockburger to
determine when the relevant time period for a speedy trial claim begins to run
on charges brought on superseding indictments would vitiate the bedrock
purposes of the Sixth Amendment.
As a preliminary matter, were it not for the dissent, we would not here
consider whether the superseding indictment marked the start of the relevant
speedy trial time period for Counts 2 to 5 because the government did not
25
argue—or even suggest—that the December 2014 indictment was the relevant
trigger for Defendants‐Appellees’ speedy trial calculation for Counts 2 to 5.
Instead, the government accepted the district court’s timeframe and argued that
the district court erred in allocating the responsibility for the delay between the
parties and in finding that Defendants‐Appellees had regularly asserted their
rights to a speedy trial. “It is well established that an argument not raised on
appeal is deemed abandoned, and we will not ordinarily consider such an
argument unless manifest injustice otherwise would result.” United States v.
Quiroz, 22 F.3d 489, 490‐91 (2d Cir. 1994) (citations omitted) (internal quotation
marks omitted).
No manifest injustice would inure from deciding this case on the terms the
government presented to us. This is the third speedy trial case the United States
Attorney for the Western District of New York has argued before us in the last
two years. Tigano, 880 F.3d 602; Pennick, 713 F. App’x 33. Given the familiarity
with speedy trial cases in the United States Attorney’s Office in the Western
District of New York, we conclude the government’s failure to raise this
argument was most likely a strategic decision. But for the dissent, we would
26
decline to save Appellant from its own choices. We thus do not perceive manifest
injustice as a consequence of our refusal to entertain an argument that we should
revolutionize Sixth Amendment speedy trial jurisprudence by shifting the trigger
of the relevant time period for a speedy trial.
More importantly, we disagree with the dissent’s predicate conclusion that
the Sixth Amendment is triggered only by formal charges and is therefore
compatible with double‐jeopardy jurisprudence. The dissent uses right‐tocounsel
jurisprudence to justify a traverse to the Fifth Amendment in
adjudicating a speedy trial claim, but the right to counsel is fundamentally
distinct from the right to a speedy trial. Binding precedent establishes that the
right to a speedy trial can attach before any formal charge is filed, and we
therefore conclude it would be inappropriate to assign each charge against
Defendants‐Appellees its own time period for a speedy trial based on the time of
indictment.
The right to counsel and the right to a speedy trial attach at different points
in a defendant’s journey through the criminal justice system. The right to counsel
engages “at or after the time that judicial proceedings have been initiated against
27
him whether by way of formal charge, preliminary hearing, indictment,
information, or arraignment.” Brewer v. Williams, 430 U.S. 387, 398 (1977)
(internal quotation marks omitted); see also Rothgery v. Gillespie County, 554 U.S.
191, 194 (2008) (“[T]he right to counsel guaranteed by the Sixth Amendment
applies at the first appearance before a judicial officer at which a defendant is
told of the formal accusation against him and restrictions are imposed on his
liberty.”). The right to a speedy trial, in contrast, is engaged by “either a formal
indictment or information or else the actual restraints imposed by arrest and
holding to answer a criminal charge.” United States v. Marion, 404 U.S. 307, 320
(1971). As a consequence, unlike the right to counsel, the right to a speedy trial
attaches at arrest—not when formal charges are filed. Dillingham v. United States,
423 U.S. 64, 65 (1975).
In Dillingham, the Supreme Court reversed the Fifth Circuit when it
calculated the speedy trial delay from the date the indictment was filed and
thereby failed to account for the twenty‐two months between the defendant’s
arrest and the indictment. Id. at 64‐65. The Supreme Court concluded that
accounting was contrary to its precedent, which counseled, “Invocation of the
28
speedy trial provision . . . need not await indictment, information, or other
formal charge.” Id. at 65 (internal quotation marks omitted) (quoting Marion, 404
U.S. at 321). The Court made the relevance of arrest emphatically clear: “[T]he
Government constituted petitioner an ‘accused’ when it arrested him and thereby
commenced its prosecution of him.”4 Id. at 65 (emphasis added).
4 The full passage in which this sentence appears elaborates the point:
The Court of Appeals for the Fifth Circuit affirmed, holding that
under United States v. Marion, 404 U.S. 307 (1971), the 22‐month “preindictment
delay . . . is not to be counted for the purposes of a Sixth
Amendment motion absent a showing of actual prejudice.” 502 F.2d
1233, 1235 (1974). This reading of Marion was incorrect. Marion
presented the question whether in assessing a denial of speedy trial
claim, there was to be counted a delay between the end of the
criminal scheme charged and the indictment of a suspect not
arrested or otherwise charged previous to the indictment. The Court
held: “On its face, the protection of the (Sixth) Amendment is
activated only when a criminal prosecution has begun and extends
only to those persons who have been ‘accused’ in the course of that
prosecution. These provisions would seem to afford no protection to
those not yet accused, nor would they seem to require the
Government to discover, investigate, and accuse any person within
any particular period of time.” 404 U.S. at 313. In contrast, the
Government constituted petitioner an “accused” when it arrested him and
thereby commenced its prosecution of him. Marion made this clear, id. at
320‐21, where the Court stated:
“To legally arrest and detain, the Government must
assert probable cause to believe the arrestee has
29
In United States v. MacDonald,5 the Supreme Court again made it clear that
when a defendant is arrested, a criminal prosecution has begun, and a
defendant’s speedy trial right attaches. 456 U.S. 1, 7 (1982). The Court noted that
while “[a] literal reading of the [Sixth] Amendment suggests that this right
committed a crime. Arrest is a public act that may
seriously interfere with the defendant’s liberty, whether
he is free on bail or not, and that may disrupt his
employment, drain his financial resources, curtail his
associations, subject him to public obloquy, and create
anxiety in him, his family and his friends. These
considerations were substantial underpinnings for the
decision in Klopfer v. North Carolina [386 U.S. 213 (1967)];
see also Smith v. Hooey, 393 U.S. 374, 377‐78 (1969). So
viewed, it is readily understandable that it is either a
formal indictment or information or else the actual
restraints imposed by arrest and holding to answer a
criminal charge that engage the particular protections of
the speedy trial provision of the Sixth Amendment.
“Invocation of the speedy trial provision thus need not
await indictment, information, or other formal charge.”
Dillingham, 423 U.S. at 64‐65 (alterations in original) (emphases added) (citations
edited) (quoting Marion, 404 U.S. at 313, 320‐21).
5 In MacDonald, the Supreme Court was presented with the question of whether
the time between when military charges were filed and when a later indictment
containing civil criminal charges was filed based on the same conduct counted
toward speedy trial delay. 456 U.S. 1, 3 (1982). The Court held that it did not. Id.
at 9‐10.
30
attaches only when a formal criminal charge is instituted and a criminal
prosecution begins,” the right to a speedy trial properly attaches after the
government has “legally arrest[ed] and detained” the defendant—in which case,
a criminal prosecution implicating a defendant’s Sixth Amendment right to a
speedy trial has begun. Id. at 6, 8 (emphasis added) (internal quotation marks
omitted). That is true because “the speedy trial guarantee is designed to
minimize the possibility of lengthy incarceration prior to trial . . . [and] shorten
the disruption of life caused by arrest and the presence of unresolved criminal
charges.” Id. at 8. Therefore, the Court reasoned, “[i]n addition to the period after
indictment, the period between arrest and indictment must be considered in
evaluating a Speedy Trial Clause claim.” Id. at 7.
The Supreme Court has, in fact, repeatedly instructed that courts are
required to count the time between a defendant’s arrest and the filing of an
indictment in the duration of the relevant speedy trial time period. In Doggett,
the Court said, “Once triggered by arrest, indictment, or other official accusation,
. . . the speedy trial enquiry must weigh the effect of delay on the accused’s
defense just as it has to weigh any other form of prejudice that Barker
31
recognized.” 505 U.S. at 655 (emphasis added). And in Betterman v. Montana, the
Court held “that the [Sixth Amendment speedy trial] guarantee protects the
accused from arrest or indictment through trial . . . .” 136 S. Ct. 1609, 1612 (2016)
(emphasis added). The Supreme Court has therefore left little doubt that the right
to a speedy trial is not mechanistically linked to the filing of formal charges but
instead attaches at arrest.
The difference between the points at which the right to counsel and the
right to a speedy trial attach reflects the substantive differences between the two
Sixth Amendment protections. The Supreme Court has made it clear that “the
right to counsel exists to protect the accused during trial‐type confrontations,”
while “the speedy trial right exists primarily to protect an individual’s liberty
interest.” United States v. Gouveia, 467 U.S. 180, 190 (1984). Since a criminal
defendant’s liberty interest is jeopardized by an arrest even prior to the
defendant facing an indictment, the speedy trial right must attach in some cases
before formal charges are filed. See MacDonald, 456 U.S. at 7.
Deployment of the Blockburger test, however, is only viable if the right to a
speedy trial triggers at the time formal charges are filed. To apply the Blockburger
32
test to speedy trial claims with superseding indictments, a court would need to
compare two or more indictments and determine whether the superseding
indictment brought new charges that required additional elements to be proven
in order to determine the duration of the relevant period of delay. To do so
would require us to ignore the fact that a defendant’s liberty interests had been
compromised since the original indictment was filed. Giving each charge its own
relevant time period for assessing delay could subject a criminal defendant to
nearly ceaseless pre‐trial detention due to superseding indictments, each time
justified by a new charge with a new element. Instead of condoning this
troubling consequence, we conclude that the mechanistic inquiry that Blockburger
requires is at odds with the “amorphous” right to a speedy trial, the scope of
which is attuned to the facts of each case rather than just to the charges the
government brings. See Barker, 407 U.S. at 522, 531‐32.
Third and finally, we disagree with the dissent because we conclude that
the application of a Blockburger test to speedy trial cases with superseding
indictments would vitiate the important interests that the Speedy Trial Clause
protects. As we have noted, the Sixth Amendment protects defendants against
33
“oppressive pretrial incarceration,” seeks to minimize the accused’s “anxiety and
concern” in the face of criminal charges, and “limit[s] the possibility that the
defense will be impaired.” Id. at 532. But if we allowed the government to use an
indictment as a placeholder while contemplating more severe charges based on
the same conduct, as it did here, those protections would fall. For example, if we
marked the beginning of the relevant period of delay in this case for all charges
other than Hobbs Act conspiracy at the time of the second indictment, we would
ignore the two years and nine months prior that Defendants‐Appellees had been
actually restrained, cf. United States v. Sorrentino, 72 F.3d 294, 297 (2d Cir. 1995)
(determining whether the appellant was either arrested or subjected to
substantial restrictions for purposes of answering a criminal charge), overruled in
part on other grounds by United States v. Abad, 514 F.3d 271, 274 (2d Cir. 2008).
Thus, not only does the Supreme Court’s instruction to count “the period
between arrest and indictment” make such an accounting impermissible,
MacDonald, 456 U.S. at 7, the practical application of this principle would require
us to turn a blind eye to years of pre‐trial incarceration that ultimately became
oppressive.
34
No more easily could we ignore that the accused persons’ anxiety and
concern regarding the charges and their potential consequences persisted from
the filing of the first indictment until the jury declined to convict Defendants‐
Appellees. Such anxiety was only increased, not initiated, when the government
filed a superseding indictment. Lastly, where charges on a superseding
indictment arise from the same conduct as the original indictment, allowing the
superseding indictment to start a new relevant speedy trial time period for
certain charges would only exacerbate our concerns about aging evidence.
Witnesses’ memories and availability are preciously limited, and adopting a
framework that permits the government to indict by placeholder and prolong the
time between the wrongful act and trial fails to fiercely guard a defendant’s
access to unimpaired evidence.
We therefore hold that the relevant interval for Defendants‐Appellees’
Sixth Amendment speedy trial claim is from the first indictment or arrest to trial.
In so doing, we, like six of our sister circuits, do not apply the dissent’s suggested
Blockburger approach to calculate the relevant delay for a speedy trial violation
where a superseding indictment is filed. See United States v. Handa, 892 F.3d 95,
35
106‐07 (1st Cir. 2018) (measuring duration of delay from the first indictment
where charges in the superseding indictment arose from the same occurrence
and the government reasonably could have brought all charges at once); United
States v. Battis, 589 F.3d 673, 679 & n.5 (3d Cir. 2009) (calculating delay as the
period “between the [first] federal indictment . . . and the start of trial,” and
holding “that the speedy trial right was not affected by the filing of a
superseding indictment”); United States v. Oriedo, 498 F.3d 593, 595, 597 (7th Cir.
2007) (finding presumptive prejudice where “nearly three years passed from
original indictment to trial” in a case with four superseding indictments); United
States v. Milhim, 702 F.2d 522, 524‐25 (5th Cir. 1983) (starting speedy trial time
period upon filing of original indictment despite superseding indictment being
filed four months later); see also United States v. Black, 830 F.3d 1099, 1103–09, 1112
(10th Cir. 2016) (calculating speedy trial delay where parties agreed on length of
delay by combining “the three periods during which an indictment was pending
against Black”); United States v. Jeanetta, 533 F.3d 651, 653‐54, 656 (8th Cir. 2008)
(counting, without discussion, delay from original indictment until trial despite
superseding indictment nine months after original indictment).
36
III. Significant Delay Is Attributable to the Government
The second factor, the reason for the delay in bringing the defendant to
trial, asks us to consider whether the delay was deliberate, neutral, or valid.
Barker, 407 U.S. at 531. Even where the delay at issue is neutral, we must
determine who bears responsibility for the delay. E.g., New Buffalo Amusement
Corp., 600 F.2d at 377‐78 (considering whether the government or defendants
were responsible for numerous delays); see also, e.g., Tigano, 880 F.3d at 613
(engaging in similar analysis). Nonetheless, we routinely count neutral delay
“such as negligence or overcrowded courts” against the government because
“the ultimate responsibility for such circumstances must rest with the
government rather than with the defendant.” Barker, 407 U.S. at 531; see also Vispi,
545 F.2d at 334 (“We have repeatedly emphasized that affirmative action by the
government in bringing cases to trial is mandated and that it cannot escape this
duty on the ground that the delay is for institutional reasons.”). Thus,
“[a]lthough negligence is obviously to be weighed more lightly than a deliberate
intent to harm the accused’s defense, it still falls on the wrong side of the divide
between acceptable and unacceptable reasons for delaying a criminal prosecution
37
once it has begun.” Doggett, 505 U.S. at 657. “[O]ur toleration of such negligence
varies inversely with its protractedness and its consequent threat to the fairness
of the accused’s trial.” Id. (citation omitted).
The district court concluded that there was no evidence of deliberate delay
but there was significant neutral delay. The court also considered some delay to
be valid given the complexity of the case. We agree with the district court that
much of the delay in this case was neutral but properly charged to the
government. The neutral delay we charge to the government largely emanates
from: (1) the government’s delayed decision on whether to seek the death
penalty; (2) protracted litigation over missing evidence; (3) the government’s
decision to file the superseding indictment just before the statute of limitations
on certain charges was set to run; and (4) the government’s failure to produce
witnesses and Defendants‐Appellees at court proceedings. Defendants‐
Appellees, particularly Black and Rodriguez, are also charged with some delay
from filing objections to the magistrate judge’s report and recommendation,
though some of this delay is tempered by the fact that attorney–client access
issues occasioned it.
38
A. Delay from the Government’s Death‐Penalty Decision
The government informed the court that the prosecution might seek the
death penalty as early as March 7, 2012. The district court concluded that despite
the prominence of a possible death sentence in the pre‐trial proceedings, the
government took no action for over two years to decide whether to pursue the
death penalty. The government urges us to overturn this conclusion, but it has
not provided any indication that it took more action on the issue than the district
court gave it credit for. Indeed, while we understand that whether to seek the
death penalty is a complex and appropriately deliberative process, the
government has not explained why this particular deliberation lasted nearly
three years.
The government urges that its deliberations were not the source of delay in
this case but instead that, prior to the superseding indictment, the parties were
prepared to proceed as if the death penalty were not on the table. The parties
may have been prepared to proceed on the single‐charge indictment as of
December 2012, but the death‐penalty decision was explicitly noted as the reason
for numerous extensions in the early months of the case. From April 2012 until
39
December 2012 (when it became clear that the prosecutor’s predictions as to
when the government would receive a death‐penalty determination were
woefully inaccurate), Defendants‐Appellees repeatedly sought extensions to
avoid filing motions that would be substantively useless if the prosecution
sought the death penalty. Even the magistrate judge explicitly recognized that
the government’s death‐penalty deliberations were the driving force behind the
extensions. Gov’t App’x at 157 (after vacating briefing schedule due to pending
death‐penalty decision, setting the schedule “to accommodate what is now some
60‐day timeline”). And even still, the progress made in prosecuting the original
indictment was substantially compromised by the late‐breaking superseding
indictment, which required new rounds of motion practice. The government’s
attempts to minimize its responsibility for the delay are unavailing.
While we agree that the looming death‐penalty decision cannot properly
charge the government with the entirety of the two years and ten months of
delay before the government filed notice of its intent not to seek the death
penalty, the government bears the burden of the delay between April 2012 and
December 2012 occasioned by the death‐penalty decision and can properly be
40
credited with some delay produced by the continuing threat that the proceedings
would ultimately turn capital and nullify the work done to date.
B. Delay Arising from Litigation over Missing Photo Arrays
The district court also attributed about five months of delay to the
government for its failure to efficiently manage its case, arising largely from
protracted litigation about photo arrays that were used to identify Defendants‐
Appellees and had gone missing. Beginning in December 2012 and continuing
until the last of the missing arrays was found in April of 2014, the photo arrays
were a central focus of pre‐trial litigation, and the photo array used to identify
Rodriguez alone accounted for at least five months of delay between February
and June of 2014.
We find this failure particularly egregious. The government lost a piece of
evidence for over two years after the indictment was filed, only for the array to
be found in the home of a retired Buffalo police detective who was not even
involved in police identification efforts. We find no difficulty in attributing to the
government a five‐month delay based on the time spent litigating the photo
41
arrays and the government’s failure to produce key evidence and witnesses
related to the photo arrays.
C. Delay Occasioned by the Late‐Breaking Superseding Indictment
The government’s decision to file a superseding indictment just as the
statute of limitations was about to run on some charges and two years and nine
months after it filed the original indictment created significant additional delay.6
Effectively, between March of 2012 and January of 2015, Defendants‐Appellees
were waiting to find out what type of case this would become: for almost three
years it was unclear what the ultimate charges against Defendants‐Appellees
would be and whether the government would pursue the death penalty. Once
the dust settled, much of the pre‐trial litigation prior to the superseding
indictment needed to be restarted because the superseding indictment added
6 The dissent would also exclude the government’s “investigative delay” in
bringing the superseding indictment. While we concur that it is good practice for
a prosecutor to wait to bring a superseding indictment until she is satisfied that a
suspect can be shown to be guilty beyond a reasonable doubt, the dissent offers
no reason that this investigative delay is not properly counted as neutral delay
attributed to the government for purposes of the Speedy Trial Clause. See Barker,
407 U.S. at 531 (noting that a “neutral reason” for delay “should be weighted less
heavily but nevertheless should be considered”).
42
new charges related to the conduct that Defendants‐Appellees were already
defending against, brought charges regarding completely unrelated conduct, and
made Defendants‐Appellees eligible for a death sentence.7 While some of the
delay in litigating pre‐trial issues anew is attributable to Defendants‐Appellees’
requests for extensions, the fact that there was a new round of pre‐trial litigation
at all is attributable to the government’s poor case management.
D. Delay from the Government’s Failure to Produce Defendants‐
Appellees and Witnesses and Extension Requests
The government’s total delay must also recognize smaller “neglects” that
nonetheless extended the case. Tigano, 880 F.3d at 606. Most significantly, the
government brought proceedings to a standstill between October 2, 2013, and
December 3, 2013. During that time, the government requested a postponement
of an evidentiary hearing—from October 2 to November 6—to accommodate the
prosecutors’ other commitments (thirty‐five days of delay). But on November 6,
when the hearing was to go forward, the prosecution did not produce a key
7 We of course acknowledge that the government finally issued its “no‐seek”
decision approximately one month after it filed the superseding indictment.
Nonetheless, the new charges meant that Defendants‐Appellees faced a life
sentence.
43
witness, causing another twenty‐seven‐day delay. On the rescheduled date for
the evidentiary hearing, the government failed to produce Black (resulting in a
seventeen‐day delay). At the parties’ next attempt to hold a hearing, the
government again failed to produce Black, and after that misstep, the hearing did
not go forward for another sixty‐one days. All told, the delay in holding this
single evidentiary hearing totaled almost five months. Added to the
government’s extension requests and other failures to produce Defendants‐
Appellees, these small delays amount to five‐and‐a‐half months of delay
attributable to the government.
E. Delays Accrued from Defendants‐Appellees’ Extension Requests
Defendants‐Appellees also shoulder the blame for some of the five years
and eight months between when the original indictment was filed and the start
of trial. Two delays in Defendants‐Appellees’ filings are particularly noteworthy
here. First, Defendants‐Appellees significantly delayed post–evidentiary‐hearing
briefing in the fall of 2015. Submissions were originally due by September 28,
2015, but Defendants‐Appellees sought and received a ten‐day extension to file.
Green timely filed his post‐hearing brief, but Black and Rodriguez sought and
44
received a two‐week extension. Upon Rodriguez’s motion, the magistrate judge
granted Black and Rodriguez another two‐week extension. Black and Rodriguez
sought and received yet another extension of the post‐hearing briefing deadline,
this time postponing the due date by sixty‐four days. Rodriguez then filed his
post‐hearing submission, but Black did not file his submission until January 20,
2016—a full thirteen days after the deadline. Thus, while Green caused a brief,
ten‐day delay, Black and Rodriguez were significantly more dilatory.
Defendants‐Appellees also requested numerous extensions to file
objections to the magistrate judge’s report and recommendation. Black, Green,
and Rodriguez all requested a forty‐four‐day extension for submitting their
objections, and thereafter Green timely filed. Black and Rodriguez, however,
each received twenty‐eight extra days to file their objections due to their
attorneys’ scheduling conflicts. Thereafter, Black and Rodriguez requested an
additional sixty‐day extension, citing attorney–client access issues caused by
Black and Rodriguez being held outside the district. As that extension expired,
they sought and received a second sixty‐day extension, again in part due to
attorney–client access issues. Rodriguez and Black also sought one final
45
extension of thirty days, which Rodriguez ultimately did not use. While we
count these delays against Black and Rodriguez, we attribute little weight to
delays that Defendants‐Appellees incurred due to institutional considerations,
such as Black and Rodriguez being held in distant federal facilities. See Tigano,
880 F.3d at 612‐13 (noting the “spectrum of weights” to be applied to different
delays).
F. The Government Is Responsible for Significant Delay
In sum, we agree with the district court that a significant portion of the
delay is attributable to the government. The government bungled its production
of documents used in identification procedures, failed to produce Defendants‐
Appellees and witnesses, and poorly managed the case against Defendants‐
Appellees. Significantly, the government’s inaction and subsequent indecision
over whether to seek the death penalty loomed over the case for two years and
ten months, and just when the case was nearly ready for trial, the government
superseded the indictment, effectively scrubbing two years and nine months of
belabored pre‐trial litigation.
46
IV. Defendants‐Appellees Regularly Asserted Their Rights to a
Speedy Trial
On the third Barker factor, we consider Defendants‐Appellees’ assertions of
their rights to a speedy trial. Barker, 407 U.S. at 531‐32. This inquiry is closely
related to the other three inquiries—we expect a defendant’s assertion of his
right to a speedy trial “will be affected by the length of the delay, to some extent
by the reason for the delay, and most particularly by the personal prejudice,
which is not always readily identifiable, that he experiences.” Id. at 531. We have
previously noted that this inquiry is a fluid one that concerns itself with whether
the government and the court were “put on notice” that a defendant has asserted
his right to a speedy trial. New Buffalo Amusement Corp., 600 F.2d at 378; see also
Tigano, 880 F.3d at 617‐18.
The district court concluded that Defendants‐Appellees frequently
expressed their desire for a speedy trial. We agree. Defendants‐Appellees first
raised their preference to “mov[e] the case along to the extent possible” in
August of 2012 at a status conference held to determine how best to proceed in
the absence of the promised superseding indictment. Gov’t App’x at 156‐57.
Defendants‐Appellees again asserted their desire for a speedy trial and voiced
47
their concerns that a delayed death‐penalty decision might interfere with a
speedy trial at a status conference on December 4, 2012. In the midst of
protracted litigation over the photo arrays, Defendants‐Appellees for a third
time, on April 18, 2014, noted that they were preserving their right to a speedy
trial. On January 21, 2015, when Defendants‐Appellees were arraigned on the
superseding indictment, Green raised his concerns about the age of the case
directly with the court. Speaking for himself, Green stated, “This whole
proceeding seem[s] illegal and it’s like it’s nothing being happening, like it’s no
bail. I’ve been incarcerated five years and then come up with this superseding
indictment . . . . [W]e put in for a speedy trial.” Gov’t App’x at 229. He reiterated,
“We scheduled for a trial after 71 days, that’s what we want a speedy trial, all
three of us, we [are] all in concurrence with that . . . .” Gov’t App’x at 229. The
court ultimately even held a separate conference with Green to discuss the issue
and Green’s relationship with his attorney. Defendants‐Appellees’ invocation of
the right continued over the next two years, as they raised concerns with pre‐trial
delay on June 3, 2015, and Green objected to the delay of trial yet again at a May
25, 2017, status conference.
48
These assertions, standing on their own, undoubtedly put the government
on notice that there would be consequences if Defendants‐Appellees’ speedy trial
rights were not protected. Tigano, 880 F.3d at 617. While the government on
appeal makes much of the district court’s references to Defendants‐Appellees’
motions for severance, we find the aforementioned assertions of their speedy
trial rights sufficient to preserve the right even absent consideration of the
severance motions. The fact that Defendants‐Appellees also sought severance
does not affect our analysis of the direct assertions of their rights. Thus, since
Defendants‐Appellees raised speedy trial concerns frequently and explicitly, we
conclude that they have satisfied their obligation to preserve their right, and this
factor weighs in their favor.
V. The Delay Was Prejudicial to Defendants‐Appellees
We assess the prejudice to criminal defendants “in the light of the interests
. . . the speedy trial right was designed to protect”—namely, “(i) to prevent
oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the
accused; and (iii) to limit the possibility that the defense will be impaired.”
Barker, 407 U.S. at 532. While prejudice to the defense is “the most serious” of
49
these interests, we also consider the “dead time” defendants spend in pre‐trial
detention, the effect of detention on a defendant’s ability to “prepare his
defense,” and the detrimental effect of “living under a cloud of anxiety,
suspicion, and often hostility.” Id. at 532‐33. “Affirmative proof of impairment of
the defense is not required in order to find a Sixth Amendment violation.”
Tigano, 880 F.3d at 618; see also Doggett, 505 U.S. at 655 (“[A]ffirmative proof of
particularized prejudice is not essential to every speedy trial claim.”). To the
contrary, “we generally have to recognize that excessive delay presumptively
compromises the reliability of a trial in ways that neither party can prove or, for
that matter, identify.” Doggett, 505 U.S. at 655.
We agree with the district court that a significant portion of the prejudice
in this case arises from the government’s delayed death‐penalty decision. In
addition to the psychological effects of pre‐trial custody, Black, Green, and
Rodriguez were forced for two years and ten months to worry over whether the
government would seek not just their liberty, but their lives. The magnitude of
the anxiety and concern incurred by this decision is great, and this consideration
50
weighs heavily in our determination that the delay here prejudiced Defendants‐
Appellees.
The prejudice against Defendants‐Appellees did not end there, however.
Indeed, they were forced to endure five years and eight months of pre‐trial
detention, time that the Supreme Court has noted “is simply dead time.” Barker,
407 U.S. at 533. The sheer length of time at issue here makes this pre‐trial
detention “egregiously oppressive.” Tigano, 880 F.3d at 618.
We recognize that this consideration weighs less strongly in favor of Black,
who was already in state custody serving a lengthy sentence when he was
charged in this case. Black nonetheless argues that he was prejudiced by the
extensive pre‐trial detention because if the case had proceeded more quickly, he
could have served his state sentence concurrently with his federal sentence.
Although Black is correct that “[j]udges have long been understood to have
discretion to select whether the sentences they impose will run concurrently or
consecutively with respect to other sentences that they impose, or that have been
imposed in other proceedings, including state proceedings,” Setser v. United
States, 566 U.S. 231, 236 (2012), we need not hazard a guess as to whether the
51
district court would have imposed a concurrent sentence on Black in this case or
whether Black was realistically concerned that a trial delay would shorten the
portion of his state sentence to which a federal sentence could run concurrently
in order to find that the delay prejudiced Black. This is because Black faced the
oppressive weight of the death‐penalty decision, making the lengthy pre‐trial
time served concurrently with his state sentence particularly harsh.
We are also cognizant that Defendants‐Appellees have not obviously
suffered prejudice to their defense—indeed, they were acquitted on the charges
related to Morris Singer, and the jury hung on the charges related to Jabril
Harper. However, the delay in this case did present obstacles for the defense to
overcome. First, the government’s decision to file a superseding indictment two
years and nine months into the case forced Defendants‐Appellees to restructure
their defense strategy while living with the decisions they had made in litigating
the one‐count indictment for years. Thus, facing a drastically changed case
against them, Defendants‐Appellees’ defense options were constrained by their
prior choices in defending against a significantly lighter indictment. Second,
particularly later in the pre‐trial detention, Black and Rodriguez were housed far
52
from their counsel,8 making it difficult for them to file objections to the
magistrate’s report and recommendation and prolonging their already
extraordinary detention. As such, we recognize that prejudice to building a
meritorious defense was modest, but the consequences of an extensive delay
between indictment and trial nonetheless exacerbated the anxiety of the accused
and impacted the defense.
VI. The Factors Balance in Favor of Dismissal on Speedy Trial Grounds
Bearing heavily in mind the sheer length of the time between indictment
and trial, the neglected death‐penalty decision, and the tardy superseding
indictment, we conclude that the district court correctly dismissed the remaining
counts on speedy trial grounds. The government bears responsibility for making
8 While Black would have been detained in state custody if not for this case,
because he was placed in federal custody for a portion of the pretrial
proceedings, he was housed in the Northeast Ohio Correctional Center. Motion
for an Extension of Time at 3, United States v. Green, No. 1:12‐cr‐83 (W.D.N.Y.),
ECF No. 326; Motion for an Extension of Time at 3, Green, No. 1:12‐cr‐83, ECF
No. 351. He had originally been serving his state sentence in Coxsackie, New
York. Petition & Order for Writ of Habeas Corpus Ad Prosequendum at 1, Green,
No. 1:12‐cr‐83, ECF No. 2. Thus, these attorney‐access issues were a unique
feature of Black’s time in federal custody.
53
no effort to resolve the death‐penalty question for two years, for waiting until the
eve of the expiration of the statute of limitations to file a superseding indictment,
for losing key evidence, and for repeatedly failing to produce Defendants‐
Appellees at court proceedings. Defendants‐Appellees’ requests for scheduling
accommodations pale in comparison to these delays. Defendants‐Appellees
made known their desire to proceed expediently to trial throughout the
litigation, but these repeated requests failed to spur the government into
upholding its “affirmative duty” to bring the case to trial without “unnecessary
delay.” Tigano, 880 F.3d at 613. And while Defendants‐Appellees successfully
avoided a guilty verdict in this case, they did so at the cost of five years and eight
months of incarceration and at the psychological expense of uncertainty over
whether they would face the death penalty for two years and ten months.
Defendants‐Appellees’ rights to a speedy trial were violated and dismissal is
appropriate.
CONCLUSION
Our holding today reiterates the affirmative obligation of both the court
and the government to bring criminal defendants to trial promptly. New Buffalo
54
Amusement Corp., 600 F.2d at 377. The court and government here made Black,
Green, and Rodriguez await trial for five years and eight months. For two years
and ten months of that extraordinary time, the government dangled the prospect
of a capital prosecution. The Sixth Amendment right to a speedy trial requires
significantly more vigilance from the court and the government than was
demonstrated here. Accordingly, for the reasons given above, the judgment of
the district court is AFFIRMED.9
9 The grounds for the cross‐appeals by Green and Rodriguez were rejected by
this Court’s order of May 16, 2018, denying Green’s request for immediate pretrial
release without conditions and Rodriguez’s request for less restrictive
conditions of release. No. 18‐574, ECF No. 39; No. 18‐548, ECF No. 46.
Accordingly, the cross‐appeals, Nos. 18‐574 and 18‐548, are dismissed as moot.
1
DENISE COTE, District Judge, concurring in part in the judgment and dissenting
in part:
The majority decides today that the Sixth Amendment’s speedy trial right
attaches at the time of initial arrest, not at the commencement of adversarial
proceedings, and that the amount of delay in bringing a defendant to trial is
measured for Sixth Amendment purposes from that date not only for the crime
with which a defendant is initially charged but also for any charges that may be
filed later and that arise out of the “same conduct” underlying that arrest. It also
concludes that the time the government spent investigating the murder before
filing a superseding indictment containing death‐eligible counts constituted
unreasonable delay and requires dismissal of the counts added in the
superseding indictment despite the district court’s finding that the government
engaged in no intentional delay in its investigation. I respectfully dissent from
the dismissal of the counts included for the first time in the superseding
indictment.
Delaying a trial for almost six years after indictment is extraordinary and
merits the most careful examination of the reasons for that delay and of whether
the district court should have acted differently to enforce the Sixth Amendment’s
2
Speedy Trial Clause. As the majority appropriately observes, this is the third
appeal to come before us in recent years in which there were unacceptable delays
in scheduling criminal trials in the Western District of New York. I have no
quarrel, therefore, with this court expressing dismay over the length of delay,
even in the absence of any showing of prejudice to a defendant’s right to present
a defense. My dissent is prompted by concern about the legal framework the
majority adopts to arrive at its decision affirming the district court’s dismissal of
all of the charges against the defendants. I believe that that legal framework runs
contrary to controlling Sixth Amendment jurisprudence and will improperly
restrict the government’s ability to investigate and prosecute criminal activity.
As set out below, Sixth Amendment rights do not attach at arrest; they
attach when adversarial judicial proceedings are initiated, customarily through
indictment, information, or a presentment on a criminal complaint. This is true
whether it is the Sixth Amendment right to counsel or the Sixth Amendment
right to a speedy trial. When a superseding indictment is filed that adds new
charges, the Blockburger test determines whether the Sixth Amendment’s speedy
trial rights attach for those new charges at that time or at some earlier time, just
as it does when the Sixth Amendment right to counsel is at stake. This is true
3
whether or not the new charges arise out of the “same conduct” as the earlierfiled
charges. If the government intentionally delays the filing of new charges,
the Fifth Amendment’s Due Process Clause provides a defendant with additional
protections.
In this case, the defendants were indicted on March 6, 2012 with a single
charge arising from a murder that occurred on December 16, 2009. Almost three
years later, the government filed a superseding indictment adding four
additional counts related to that murder, including two death‐eligible counts,
and three charges arising from an armed robbery that had occurred in January
2010. The defendants were tried on all charges roughly thirty‐five months later;
they were acquitted of the 2010 armed robbery charges; the jury hung on the five
charges related to the 2009 murder. Neither the district court nor the majority
concludes that there was any violation of the Speedy Trial Clause based solely on
the interval of time between the filing of the superseding indictment and the
trial. This appeal largely turns therefore on whether the majority is correct in
concluding that all charges must be dismissed with prejudice because the fiveyear
eight‐month period between the initial indictment and the trial may
properly be attributed not just to the charge in the initial indictment but also to
4
each of the charges brought for the first time through the superseding
indictment. I find it may not.
BACKGROUND
On December 16, 2009, Buffalo police found the body of Jabril Harper in
Roosevelt Park. He had two gunshot wounds to his head.
On February 23, 2012, the government filed a criminal complaint charging
Ernest Green with a single count of Hobbs Act Robbery in connection with the
Harper murder. At the time of the filing, Green was in state prison. He was
released to federal custody on February 24. He made his initial appearance
before a magistrate judge on March 5.
On March 6, 2012, a Grand Jury returned a single‐count indictment
charging Green, Rodshaun Black, and Daniel Rodriguez with Hobbs Act
Conspiracy. Over the next sixty‐eight months, these three defendants were held
in custody awaiting trial.1
1 Black, who is serving a state sentence, shuttled back and forth between state
custody and federal pretrial detention.
5
At a court appearance on March 7, 2012 ‐‐ the day after the initial
indictment was filed ‐‐ the government informed the magistrate judge to whom
this case was assigned for pretrial management:
there is a possibility if not likelihood of additional charges down the
road. I know that’s not really to be considered by the Court right
now, but in terms of appointment of counsel, it could be a death
penalty eligible case, Judge. So, no decisions have been made in that
regard obviously, no charges have been brought in that regard yet.
But I would just urge the Court to appoint[] experienced counsel.
Gov’t App’x at 102. In light of this statement, the magistrate judge appointed
“learned” counsel to represent the defendants.2
In a letter to the magistrate judge dated April 17, 2012, defense counsel
asked the court to “suspend its Scheduling Order concerning motions
(dispositive and non‐dispositive) until the government makes a decision”
concerning its notice of intent to seek the death penalty. Id. at 116. Defense
2 Pursuant to 18 U.S.C. § 3005, defendants who have been charged with crimes
eligible for the imposition of the death penalty are entitled to appointment of a
second attorney learned in death penalty jurisprudence. The Western District of
New York’s plan for criminal proceedings in which CJA counsel will be
appointed requires that the court specifically inquire whether the government
will be considering a future death‐eligible charge if the underlying facts may
permit such a subsequent filing. See Western District of New York Criminal
Justice Act Plan 17 (Jun. 18, 2010), available at
http://www.nywd.uscourts.gov/sites/nywd/files/CJA‐2010‐
91%20Criminal%20Justice%20Act%20Plan%2C%206‐18‐10.pdf.
6
counsel argued that “[g]oing forward with the filing of motions at this time, only
to have the government subsequently file a superseding indictment and issue its
[notice of intent], will require a whole new set of motions and motion practice,
impinging on judicial economy in addressing the pre‐trial stage of this case.” Id.
at 117.
At a conference held on May 17, 2012, the government opposed that
request, noting that it was difficult to predict when or if a superseding
indictment would be filed. The government took the position that
there is a . . . relatively simple pending case. It’s a one‐count Hobbs
Act conspiracy. And I don’t know that the motion schedule and the
proceedings in this one‐count fairly simple case should be held up . .
. pending something . . . that’s difficult to pin down.
Id. at 126. The government specifically noted that “speedy trial is certainly an
issue and a concern,” and that it was “more than ready and satisfied to proceed
in this case with the schedule.” Id. at 127. The magistrate judge expressed an
unwillingness to adjourn the case generally to accommodate the timeline for
reaching a decision on death‐eligible charges, noting that he “had one similar
experience where it went on for months, perhaps even more than a year.” Id. at
129. Nevertheless, the magistrate judge extended the motion schedule for two
months, making motions due July 28, 2012.
7
On July 24, 2012, the defendants moved for a further extension of time to
file defense motions because the government had not yet come to a decision
regarding death‐eligible charges. A conference was held before the magistrate
judge on August 2 to discuss the potential for a superseding indictment and the
government’s submissions to the Department of Justice regarding the death
penalty. At that conference, the government stated:
[W]e’re informed, Judge, by main justice that it will be
approximately a 60‐day period or 60 days from the present to get [a
decision on whether to issue a notice of intent to seek the death
penalty]. Actually the normal protocol is 90 days. But we’ve been
informed they believe we could get a decision in a 60‐day period.
As the Court is probably aware, the Attorney General ultimately
makes that decision. So, we are looking, Judge, at taking us into the
very beginning of October before having that decision.
Id. at 156. Defense counsel, expressing their clients’ desire to move the case
along, then suggested that the Court “set a motion schedule, and we’ll file those
motions within that schedule without awaiting a superseding indictment . . . .”
Id. The magistrate judge then made motions due September 28 and set oral
argument for November 27. That hearing was later rescheduled to December 4
at the government’s request.
At the December 4 hearing, when asked about the status of the death
penalty determination, the government stated: “I’m sort of hesitant to keep
8
predicting. But the bottom line is there’s a one‐count Hobbs Act indictment, and
that’s what we’re litigating now.” Id. at 179. The government also represented
that “the Department of Justice is proceeding with that process,” but there had
not yet been a meeting between the U.S. Attorney’s Office and the Capital
Review Committee in Washington. Id. at 179‐80. Defense counsel for Black
agreed that “[w]e’re proceeding as if this is a noncapital case at this point.” Id. at
180.
While the parties litigated their motions, the government developed
further evidence in connection with Harper’s murder. In particular, Antoine
Callahan entered a plea of guilty in another criminal case on February 14, 2014.
As part of his plea agreement, Callahan agreed to cooperate with the government
and to testify at the trial of the defendants on the Harper murder and robbery.
On December 12, 2014, the Grand Jury returned a superseding indictment.
It included additional charges and added two new defendants, John Coronado
and Amilcar Ramos. Count One charged the Hobbs Act Conspiracy count from
the original indictment. The additional charges arising from the 2009 robbery
and murder of Harper were Counts 2‐5, and included a substantive Hobbs Act
Robbery count, a kidnapping count asserting that the crime resulted in Harper’s
9
death in violation of 18 U.S.C. § 1201(a) (the “Kidnapping count”), and two
firearms charges for violations of 18 U.S.C. §§ 924(j) and 924(c) (together, the
“Firearms counts”). Each of the original three defendants were charged in
Counts 1‐5. The two new defendants were both added to Count One. One was
named as well in Counts 2‐5, and the other was named in Counts Two, Three,
and Five. Two of the new charges, Counts Three and Four, were death‐eligible
charges, and Count Three, the charge of Kidnapping resulting in death, carried a
mandatory minimum sentence of life imprisonment. See 18 U.S.C. § 924(j)(1); 18
U.S.C. § 1201(a)(1).
The additional charges added by the superseding indictment also included
four counts associated with a robbery of Morris Singer on or about January 4,
2010 (the “Singer Counts”). Those charges were Hobbs Act Conspiracy, Hobbs
Act Robbery, a kidnapping charge, and a firearms charge. These charges were
brought against only Green and Black.
On January 13, 2015, approximately one month after the filing of the
superseding indictment, the government advised the defendants that it would
not be seeking the death penalty. Following the government’s production of
discovery on the newly charged offenses and to the newly charged defendants,
10
the defendants engaged in extensive motion practice. In addition, shortly after
the superseding indictment was filed, Green requested new counsel. Green’s
new counsel was appointed on February 3, 2015, but unexpectedly died on
September 21, 2016. Green’s third attorney was appointed on September 29,
2016. Issues of defense counsel conflict also had to be resolved. The defendants
requested numerous extensions to file their submissions in support of their
motions, and to file their objections to the magistrate judge’s lengthy Report and
Recommendation in response to those motions. That Report was adopted by the
district court, which then addressed severance motions filed by the defendants.3
On October 27, 2017, four days before the trial was due to commence,
Green filed a motion to dismiss the superseding indictment on the ground that
the five years and seven months of delay between the original one‐count
indictment and the trial violated his speedy trial rights under the Sixth
Amendment. Black and Rodriguez promptly joined the motion. The court and
3 On October 19, 2017, the district court granted Coronado’s motion to sever his
trial from the other defendants pursuant to Bruton v. United States, 391 U.S. 123
(1968). On November 17, 2017, Coronado pled guilty to Count 2 of the
Superseding Indictment, which charged him with Hobbs Act Robbery and
Extortion. Coronado subsequently testified at trial against the defendants here.
11
parties agreed that the trial would proceed as scheduled and the motion would
be addressed thereafter.
The trial began on October 31, 2017, and concluded on January 18, 2018.
The jury acquitted Green and Black on the Singer Counts and acquitted Ramos
on every count brought against him. The jury was unable to reach a verdict on
the five Harper Counts brought against Green, Black and Rodriguez.
On February 8, 2018, the district court granted the defendants’ motion to
dismiss the superseding indictment on constitutional speedy trial grounds.4
Calculating the pretrial delay from the filing of the original indictment, the court
found that there had been approximately sixty‐eight months of delay before trial.
It separately calculated that each of the three defendants had been detained for
over five years, seven months.
In examining the reasons for the delay, the district court could detect no
deliberate delay by the government. It found, however, that there was
considerable delay that was valid and considerable other delay that was
4 Just two weeks prior to the decision, this court had reversed a conviction in the
Western District of New York on speedy trial grounds and admonished the
district court for its “failure . . . to comply with [its] obligation to bring
defendants to a speedy and public trial.” United States v. Tigano, 880 F.3d 603,
619 (2d Cir. 2018) (citation omitted).
12
“neutral,” as that term is understood in Sixth Amendment jurisprudence. The
neutral delay chargeable to the government included its “mishandling” of the
death‐penalty determination, which resulted in the Department of Justice not
reaching a decision for two years, ten months, and six days after the initiation of
the prosecution. The district court also found that substantial delay was
attributable to the government’s decision to supersede the indictment. Five
months of delay were also attributed to the government’s conduct during
discovery. Another five‐and‐a‐half months of delay was caused by the
government’s failure to produce the defendants or witnesses for pretrial
hearings. Finally, approximately four months of delay were attributed to the
government because of the distance between Buffalo and the institutions in
which the defendants were detained, which made it difficult for their attorneys
to consult with them.5 Some of these delays were overlapping and they largely
occurred in the period before the superseding indictment was filed.
5 As explained at oral argument of this appeal, due to disciplinary infractions and
separation orders, Black was moved among several institutions pending trial,
many of them outside New York and at a considerable distance from the Buffalo
courthouse.
13
The district court also attributed some neutral delay to the court and to the
defendants. It attributed six months to the court’s scheduling delays and eightand‐
one‐half months to the requests for extensions and adjournments by
defendants Black and Rodriguez.
The court found that the defendants had consistently asserted their rights
to a speedy trial and had been prejudiced by the delay. While the defendants
had not alleged any specific impairments to their ability to present a defense,
they had suffered for over two years from the specter of facing the death penalty,
and for over five years from the oppressive conditions of pretrial detention.
Balancing all of the factors identified in Barker v. Wingo, 407 U.S. 514
(1972), the district court concluded that the defendants each suffered over sixtyeight
months of prejudicial delay and that the delays were principally chargeable
to the government. It dismissed the superseding indictment for a violation of the
defendants’ Sixth Amendment rights, and on February 20, 2018, denied the
government’s motion for reconsideration.
In denying reconsideration, the district court acknowledged that the
government had advocated against delaying pretrial proceedings pending a
death‐penalty decision, but observed that the government’s representations that
14
this could become a death‐eligible case had prompted the magistrate judge to
postpone pretrial motions in the interest of economy, which had resulted in
delay. The district court also acknowledged that Green had calculated 650 days’
worth of extensions and adjournments attributable to the defendants, while the
district court had attributed only eight‐and‐a‐half‐months of delay to the
defendants. The district court explained that some of that delay was not
attributable to the defendants because it occurred during the period before the
defendants were advised that the government would not seek the death penalty.
Finally, it acknowledged that none of the defendants had moved to sever their
trials on the basis that their Sixth Amendment rights to a speedy trial were being
violated. None of these, or the other issues described in its opinion, however,
caused the court to alter its dismissal order.
DISCUSSION
The government appeals the dismissal of the five counts associated with
the robbery, kidnapping and murder of Harper that are Counts 1‐5 in the
superseding indictment. It asserts that there was no violation of the Sixth
Amendment’s Speedy Trial Clause (“Speedy Trial Clause”), and that the district
15
court erred in determining that the defendants’ rights under the Speedy Trial
Clause had been violated.
1. The Speedy Trial Right
The Sixth Amendment to the United States Constitution provides:
“In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and district
wherein the crime shall have been committed; which district shall
have been previously ascertained by law, and to be informed of the
nature and cause of the accusation; to be confronted with the
witnesses against him; to have compulsory process for obtaining
witnesses in his favor, and to have the assistance of counsel for his
defence.”
U.S. Const. amend. VI (emphasis added).
This is the third occasion in recent years that the court has examined
prosecutions pursued in the Western District of New York to determine whether
dismissal is required by the Speedy Trial Clause. See United States v. Tigano,
880 F.3d 602 (2d Cir. 2018); United States v. Pennick, 713 F. App’x 33 (2d Cir.
2017).6 As a result, the fundamental rights secured by the Clause need only be
6 In January 2014, Pennick moved to dismiss the two charges against him that
had been pending for four years. Pennick, 713 F. App’x at 34. A second
superseding indictment filed in May 2014 charged Pennick with eleven
additional counts. Id. The district court dismissed the two original charges for a
violation of the Speedy Trial Clause and we affirmed. Id. We “express[ed] no
16
summarized here. See Tigano, 880 F.3d at 611 (citing Klopfer v. North Carolina,
386 U.S. 213, 223 (1967)).
The Speedy Trial Clause is “designed to minimize the possibility of
lengthy incarceration prior to trial, to reduce the lesser, but nevertheless
substantial, impairment of liberty imposed on an accused while released on bail,
and to shorten the disruption of life caused by arrest and the presence of
unresolved criminal charges.” United States v. MacDonald, 456 U.S. 1, 8 (1982).
The rights guaranteed by the Speedy Trial Clause cannot be waived through
mere failure to promptly assert them. Barker v. Wingo, 407 U.S. 514, 529‐30
(1972); Tigano, 880 F.3d at 611. To determine when a violation of the Speedy
Trial Clause has occurred, we apply the four‐part balancing test established by
the Supreme Court in Barker. We look to the length of the delay, the reason for
the delay, the defendant’s assertion of his right, and prejudice to the defendant.
407 U.S. at 530; see also United States v. Abad, 514 F.3d 271, 274‐75 (2d Cir. 2008)
(applying the four‐part Barker test).
view” as to the merits of any motion that Pennick might bring to dismiss the
remaining eleven counts on speedy trial grounds. Id. at 36.
17
Sixth Amendment jurisprudence recognizes that “different weights should
be assigned to different reasons” for delay. Tigano, 880 F.3d at 612 (citing
Barker, 407 U.S. at 531). We recently described the three broad categories of
delay and the varying weights accorded to each:
[D]eliberate attempts to delay trial weigh[] most heavily against the
government, valid reasons for delay such as missing witnesses are
taken off the scale entirely, and reasons of negligence or
overcrowded dockets are weighted somewhere in the middle
because the ultimate responsibility for such circumstances must rest
with the government rather than with the defendant.
Id. at 612‐13 (citation omitted). The third category of delay ‐‐ such as
“misunderstandings” or a court’s inefficiencies ‐‐ is referred to as “neutral”
delay. Id. at 616 (citation omitted).
The presumption that pretrial delay has prejudiced the accused
“intensifies over time.” Doggett v. United States, 505 U.S. 647, 652 (1992).
Accordingly, the “toleration” of negligence in bringing a defendant to trial
“varies inversely” with the degree to which delay is protracted. Id. at 657. The
length of time between accusation and adjudication, however, is not dispositive
of the speedy trial analysis.
[I]n large measure because of the many procedural safeguards
provided an accused, the ordinary procedures for criminal
prosecution are designed to move at a deliberate pace. A
requirement of unreasonable speed would have a deleterious effect
18
both upon the rights of the accused and upon the ability of society to
protect itself.
United States v. Ewell, 383 U.S. 116, 120 (1966).
2. Attachment of the Speedy Trial Right at Time of Adversarial
Proceedings7
The rights guaranteed by the Sixth Amendment attach in “criminal
prosecutions” for the benefit of an “accused.” U.S. Const. amend. VI.
Accordingly, Sixth Amendment rights attach at the time a criminal defendant is
accused of a crime, which is customarily through presentment on an arrest
complaint or the filing of an indictment or information. They do not attach at
arrest.
This reading derives directly from the words of the Constitution. “On its
face, the protection of the [Sixth] Amendment is activated only when a criminal
prosecution has begun and extends only to those persons who have been
7 The majority notes that neither party has raised the issue of attachment on
appeal, and that the issue was not addressed by the district court. Because the
time of attachment of Sixth Amendment rights presents a pure question of law,
because no Sixth Amendment analysis should proceed without reaching this
threshhold legal issue, and because I believe that the majority’s statement of the
law is not only wrong but will mislead both district courts and litigants in ways
that may have profound and deleterious effects on the administration of justice, I
address the merits of the attachment question. We both believe, apparently, to
borrow a phrase from the majority opinion, that the other’s approach will
“revolutionize Sixth Amendment speedy trial jurisprudence.”
19
‘accused’ in the course of that prosecution.” United States v. Marion, 404 U.S.
307, 313 (1971); see also Rothgery v. Gillespie Cty., 554 U.S. 191, 194 (2008) (right
to counsel applies at the first appearance before a judicial officer). The Court
explained in MacDonald that the “literal reading” of the Amendment suggests
that the rights under the Speedy Trial Clause attach “only when a formal
criminal charge is instituted or a criminal prosecution begins.” MacDonald, 456
U.S. at 6. We have also observed that the “‘key Sixth Amendment issue is
whether [the accused] was either arrested or subjected to substantial
restrictions for purposes of answering a criminal charge.’” United States v.
Jones, 129 F.3d 718, 724 (2d Cir. 1997) (quoting United States v. Bloom, 865 F.2d
485, 491 (2d Cir. 1989)) (emphasis in Jones).
Accordingly, the Sixth Amendment right of the accused to a speedy trial
“has no application beyond the confines of a formal criminal prosecution.”
Doggett, 505 U.S. at 655; see also United States v. Sorrentino, 72 F.3d 294, 297 (2d
Cir. 1995) (speedy trial right had not attached where “there was no restraint on
Sorrentino’s liberty and no charges were filed against him following the first
arrest”); Cowart v. Hargett, 16 F.3d 642, 645 (5th Cir. 1994) (“A defendant’s
speedy trial rights attach only when he is formally charged with a crime or
20
actually restrained in connection with that crime.” (citation omitted)). “[T]o
trigger a speedy trial analysis, an accused must allege that the interval between
accusation and trial” is “presumptively prejudicial.” Doggett, 505 U.S. at 651
(emphasis added) (citation omitted). The provisions of the Sixth Amendment
“afford no protection to those not yet accused, nor would they seem to require
the government to discover, investigate, and accuse any person within any
particular period of time.” Marion, 404 U.S. at 313.
As far back as 1989, we applied these principles and held that “the key
Sixth Amendment issue is whether [the defendant] was either arrested or
subjected to substantial restrictions for purposes of answering a criminal
charge.” Bloom, 865 F.2d at 491. Because the defendant had been released from
custody following his arrest without being subjected to any formal charges, we
held that the restrictions imposed by his arrest and questioning “were intended
only to protect an ongoing investigation and did not trigger his Sixth
Amendment rights” under the Speedy Trial Clause. Id.
The majority acknowledges that the Sixth Amendment right to counsel
attaches at the time an indictment or information is filed or “at the first
appearance before a judicial officer at which a defendant is told of the formal
21
accusation against him and restrictions are imposed on his liberty.” Rothgery,
554 U.S. at 194. It asserts, however, that the Sixth Amendment rights to counsel
and to a speedy trial attach at different points in a defendant’s journey through
the criminal justice system.
This distinction between the two Sixth Amendment rights is critical to the
majority’s holding. Because it finds that the constitutional right to a speedy trial
attaches at an arrest, it concludes that the period of delay before trial is measured
from that arrest for any charges that arise from the “same conduct” underlying
that arrest, no matter when those charges are filed. Because of that conclusion, it
finds it would be “inappropriate” to assign each charge against a defendant its
own time period for a speedy trial based on the time an indictment or
information is filed or the defendant is presented on an arrest complaint
containing that charge.
The text of the Sixth Amendment does not allow for such a distinction
between these two constitutional rights. Both rights apply in “criminal
prosecutions” for the benefit of “the accused.” U.S. Const. amend. VI; see United
States v. Gouveia, 467 U.S. 180, 188 (1984) (relying on these Sixth Amendment
terms in determining the point at which Sixth Amendment rights attach). The
22
majority’s approach would give the same words in the Constitution two different
meanings. Cf. United States v. Dixon, 509 U.S. 688, 704 (1993) (“[I]t is
embarrassing to assert that [a] single term . . . has two different meanings . . . .”).
In light of the clear text of the Sixth Amendment and governing precedent, I
would reaffirm that the Sixth Amendment right to a speedy trial, like the Sixth
Amendment right to counsel, attaches at the initiation of adversarial judicial
proceedings. This can be through presentment on an arrest complaint or the
filing of an indictment or information.
The majority contends that Marion, Dillingham v. United States, 423 U.S.
64 (1975), MacDonald, and Betterman v. Montana, 136 S. Ct. 1609 (2016),
establish that the Speedy Trial Clause right attaches at arrest and not at the time
a defendant is presented on an arrest complaint. I disagree. Through a series of
cases beginning with Marion, the Supreme Court has consistently held that the
rights protected by the Speedy Trial Clause attach prior to the filing of an
indictment or information. In doing so, it has frequently used the term “arrest”
to indicate as much. But, beginning in Marion, and in decisions that followed,
the Court has employed more concrete formulations to describe more precisely
the point at which the rights attach. As explained in Marion, it is the “holding to
23
answer a criminal charge” following an arrest that triggers the attachment of the
Sixth Amendment’s speedy trial rights. Marion, 404 U.S. at 320; see also
MacDonald, 456 U.S. at 6, 8; Dillingham, 423 U.S. at 65. I see little daylight
between Marion’s formulation and the formulation in Rothgery that the right to
counsel under the Sixth Amendment “applies at the first appearance before a
judicial officer at which a defendant is told of the formal accusation against him.”
Rothgery, 554 U.S. at 194.
In the right to counsel context the Court has had multiple occasions to be
precise about the point at which a “criminal prosecution” renders a defendant
“accused.” The Supreme Court has made clear that Sixth Amendment rights
attach at “the initiation of adversary judicial criminal proceedings ‐‐ whether by
way of formal charge, preliminary hearing, indictment, information, or
arraignment.” Rothgery, 554 U.S. at 198 (quoting Gouveia, 467 U.S. at 188). It is
at that point that “the government has committed itself to prosecute, the adverse
positions of government and defendant have solidified, and the accused finds
himself faced with the prosecutorial forces of organized society and immersed in
the intricacies of substantive and procedural criminal law.” Id. (citation
omitted).
24
I also perceive no tension with the interests which the Supreme Court has
identified as protected by the Speedy Trial Clause in holding that the attachment
of the rights protected by the Clause begins, where no indictment or information
has yet been filed, not at arrest but at presentment on an arrest complaint. The
Sixth Amendment’s liberty interests, whether addressed to the right to counsel or
to a speedy trial, are those that accompany a prosecution, not the act of arrest.
The right to be free from a wrongful arrest is largely protected by the Fourth
Amendment, not the Sixth.
3. Impact of Superseding Indictment on Sixth Amendment Rights
The Supreme Court has used the Blockburger test to determine when a
violation of the Sixth Amendment right to counsel in connection with one
criminal charge fatally undermines the prosecution on another charge. See
Blockburger v. United States, 284 U.S. 299 (1932). That same test should be used
to determine when the Sixth Amendment right to a speedy trial attaches. If the
new charge is a separate offense, as determined under Blockburger, then the
Sixth Amendment right attaches at the time the superseding indictment
including that charge is filed. If not, then the right attaches at the same time as it
attached to the original offense from which it cannot be separated.
25
In Texas v. Cobb, 532 U.S. 162 (2001), the Supreme Court stressed, as it had
in MacDonald, that the Sixth Amendment’s protections apply only after the
initiation of adversarial judicial proceedings. Id. at 167. In Cobb, the defendant
confessed to and was indicted for a burglary. He was thereafter advised of his
Miranda rights and questioned. He then confessed to the murder of two victims
who lived in the house he had burglarized. Id. at 165. The Supreme Court held
that the Sixth Amendment right to counsel is “‘offense specific,’” and does not
automatically attach “to crimes that are factually related to those that have
actually been charged.” Id. at 167 (citation omitted). It concluded that the right
to counsel attaches to an uncharged offense only if that offense “would be
considered the same offense under the Blockburger test.” Id. at 173. It
explained, “we could just as easily describe the Sixth Amendment as
‘prosecution specific,’ insofar as it prevents discussion of charged offenses as
well as offenses that, under Blockburger, could not be the subject of a later
prosecution. And, indeed, the text of the Sixth Amendment confines its scope to
‘all criminal prosecutions.’” Id. at 173 n.3 (emphasis in Cobb). Applying this
analysis, the Court held that the Sixth Amendment right to counsel did not bar
26
police from interrogating the defendant regarding the murders and that his
confession to those murders was admissible at trial. Id. at 174.
Under Blockburger, two charges are considered separate offenses if “[e]ach
of the offenses created requires proof of a different element.” Blockburger, 284
U.S. at 304. “[T]he test to be applied to determine whether there are two offenses
or only one, is whether each provision requires proof of a fact which the other
does not.” Id. If the charges fail this test, they are considered to be the “same
offense” for purposes of the Fifth Amendment’s Double Jeopardy Clause, id.,
and the Sixth Amendment. Cobb, 532 U.S. at 173. “It is not determinative
whether the same conduct underlies the counts; rather it is critical whether the
‘offense’ ‐‐ in the legal sense, as defined by Congress ‐‐ complained of in one
count is the same as that charged in another.” United States v. Chacko, 169 F.3d
140, 146 (2d Cir. 1999).
The Eleventh Circuit applied a similar framework in rejecting a challenge
brought under the Speedy Trial Clause to charges added through an indictment.
In United States v. Derose, 74 F.3d 1177 (11th Cir. 1996), the defendants were
charged with a drug conspiracy in a criminal complaint following their arrest
and indicted almost two years later for that conspiracy and the substantive
27
offense of drug possession. Finding that the crime of possession “is a distinct
and separate offense” from the crime of conspiracy, the Eleventh Circuit held
that the prosecution on the possession charge did not violate the Sixth
Amendment’s Speedy Trial Clause even though the proof of the possession
charge “relied on the same facts that supported the conspiracy charge.” Id. at
1185.
This court has not yet considered how Sixth Amendment jurisprudence
applies to a Speedy Trial Clause issue like the one here. The majority opposes
application of the Blockburger test for several reasons. It argues that deployment
of the Blockburger test is only viable if the right to a speedy trial is triggered by
the filing of a charge, as opposed to an arrest. That observation is certainly
correct. After all, application of the Blockburger test requires a comparison of
elements of the crimes contained in charging instruments, whether an arrest
complaint or an indictment or information. But, for the reasons already
explained, I believe that the majority is wrong in concluding both that the right
to speedy trial can attach at a time earlier than the right to counsel, and that it
attaches at the time of arrest.
28
The majority resists application of the Blockburger test for other reasons as
well. It contends that use of this test would allow courts to ignore that a
defendant’s liberty interests had been compromised since the original indictment
had been filed, could subject a defendant to ceaseless pretrial detention justified
by the filing of new charges with new elements, and might allow the government
to use an indictment as a placeholder while it contemplated more severe charges.
There are several reasons that this parade of horribles need not and certainly
should not occur.
A district court is under an obligation at all times to protect the interests
embodied in the Speedy Trial Clause. The Speedy Trial Act was enacted to assist
courts in that task. See United States v. Loud Hawk, 474 U.S. 302, 304 n.1 (1986)
(remarking that Speedy Trial Act is generally “more stringent” than Speedy Trial
Clause); United States v. Rice, 746 F.3d 1074, 1081 (D.C. Cir. 2014) (“[A]s a
number of courts have noted, it will be an unusual case in which the [Speedy
Trial] Act is followed but the Constitution violated.” (citation omitted)).
Moreover, a court is under no obligation to delay scheduling a trial on an
indictment until the government completes an ongoing investigation that may or
may not lead to the filing of additional charges. Even after a superseding
29
indictment is filed, a court has the discretion to proceed with trial on the
originally‐filed charges alone if it determines that further delay to permit
discovery and motion practice on the new charges would violate the defendant’s
rights. A verdict at that trial will bar a future prosecution to the extent new
charges are not separate offenses, as measured under Blockburger. Moreover, as
described below, should the court determine that there has been undue
investigative delay that prejudices a defendant, it may dismiss the new charges
as brought in violation of the Due Process Clause.
I believe that application of the uncontroversial and well‐established
principles found in Sixth Amendment jurisprudence will fully protect a
defendant’s rights. Indeed, I believe that any other result invites manipulation of
the criminal justice system and interferes improperly with the executive’s duty to
investigate criminal activity with care and to exercise its discretion to file charges
with prudence. After all, if the defendants here had been brought to trial at any
point in 2014 on the single charge contained in the 2012 indictment, the Double
Jeopardy Clause would not have prevented the Grand Jury from returning a new
indictment against them in 2014 containing each of the additional charges that
were included in the 2014 superseding indictment. The only restraint under the
30
law would have been that supplied by the Due Process Clause. While the
executive may have chosen to allocate its resources differently, the law would
not have required it to do so. The result should be no different simply because
the district court did not schedule a timelier trial on the Hobbs Act Conspiracy
charge pleaded in the original indictment.
Two other observations about this very prosecution underscore this point.
The December 2014 superseding indictment added two new defendants and
charged both of them in counts arising from the 2009 Harper robbery and
murder.8 With respect to those defendants, the length of delay in bringing them
to trial on those counts clearly is measured from the time they were first charged
in the superseding indictment in 2014, and not from the 2009 murder. Similarly,
the superseding indictment charged the appellees here not only with additional
crimes related to the Harper robbery and murder, but also the Singer Counts.
The length of delay on those counts would similarly be measured from the time
of the superseding indictment, and not from the 2010 Singer robbery. There is no
principled basis to treat the four new charges relating to the Harper robbery and
8 One of those two defendants, John Coronado, pleaded guilty before trial and
was a government witness at trial. Another, Amilcar Ramos, was acquitted at
trial on all counts.
31
murder as to the defendant‐appellees in any different way than the charges
described in these two fact patterns so long as these four new charges are
“separate” offenses for purposes of Blockburger from the Hobbs Act Conspiracy
charge in the 2012 indictment.
This is a particularly poor vehicle to create the new law proposed by the
majority. First, the majority does not suggest that the government bears any
significant responsibility for any delay that occurred between the filing of the
superseding indictment and the trial. Nor did the district court. As described
further below, that period of close to three years is almost entirely attributable to
motions made by the defendants. Second, the district court was clear that it
found no deliberate delay by the government at any time and acknowledged that
the government had advocated in 2012 against delaying pretrial proceedings
pending a death‐penalty decision. There is certainly no basis on the record
before us to find that the government engaged in any manipulation of the kind
that the majority fears may occur on occasion. Should there be a record of such
abuse, the law as it currently exists provides defendants with a remedy.
Finally, the majority adopts the “same conduct” test, which is a test
recently created by the First Circuit in United States v. Handa, 892 F.3d 95, 106‐07
32
(1st Cir. 2018). The majority holds that where charges in an original and
superseding indictment arise from the “same conduct”, the relevant period for
purposes of the Speedy Trial Clause is the period measured from the original
arrest or first indictment.9
In Handa, the First Circuit declined to apply a Blockburger analysis in
determining whether a successive prosecution violated the Speedy Trial Clause.
The defendant in Handa was indicted in March 2011 on fraud charges while
living abroad. He was arrested in 2017 when he reentered the country. Id. at 99.
Following his arrest, and shortly after the defendant moved to dismiss the
indictment for a violation of his Sixth Amendment right to a speedy trial, the
government filed a superseding indictment that contained the same fraud counts
and a single new count of bank fraud. The district court dismissed all of the
9 The majority characterizes my dissent as suggesting that the filing of a
superseding indictment with new charges starts a new relevant time period. I do
not suggest that the filing of a superseding indictment alters the clock for any
previously filed charge. That clock remains unaffected by the filing of additional
charges. Because Sixth Amendment rights are offense specific, the relevant start
of the speedy trial period for any new charge will be the date the superseding
indictment is filed or an earlier date as determined by application of the
Blockburger test.
33
charges, and the government appealed only the dismissal of the bank fraud
charge. Id. at 100.
The First Circuit held that the constitutional speedy trial right on the bank
fraud charge should be deemed to run from the date of the original indictment.
Id. at 105. Because the Sixth Amendment Speedy Trial Clause and the Fifth
Amendment’s Double Jeopardy bar arise from their “own unique historical
roots,” it viewed “with skepticism the government’s call for us to import Double
Jeopardy principles into our Sixth Amendment speedy trial jurisprudence.” Id.
(citation omitted). Instead, the First Circuit constructed a diligence and
relatedness test for determining when the speedy trial right attaches to a laterfiled
charge. It held that, in circumstances like the one before it, the bringing of
an additional charge would not “reset the Sixth Amendment speedy trial clock”
where
(1) the additional charge and the charge for which the defendant
was previously accused are based on the same act or transaction, or
are connected with or constitute parts of the common scheme or
plan previously charged, and (2) the government could have, with
diligence, brought the additional charge at the time of the prior
accusation.
Id. at 106‐07.
34
The First Circuit’s approach in Handa effectively requires that all possible
criminal charges be brought at the time of the initial prosecution, or risk their bar
unless a showing of diligence can be made. The First Circuit’s test borrows
word‐for‐word much of the joinder rule in the Federal Rules of Criminal
Procedure, see Fed. R. Crim. P. 8(a). But that rule is permissive, rather than
compulsory, in nature. It provides that an indictment or information “may”
charge a defendant with two or more offenses in one indictment if the offenses
are “of the same or similar character, or are based on the same act or transaction,
or are connected with or constitute parts of a common scheme or plan.” Id.
(emphasis added).
The Handa approach, adopted by the majority, effectively imposes
through the Speedy Trial Clause the very requirements the Supreme Court has
rejected elsewhere. In the double jeopardy context, the Supreme Court has
explicitly rejected any requirement that charges arising out of the same criminal
transaction be brought in the same prosecution. See Dixon, 509 U.S. at 704‐05;
United States v. Felix, 503 U.S. 378, 386 (1992). And, as a matter of due process, it
has rejected a requirement of prosecutorial expedition. United States v. Lovasco,
431 U.S. 783, 790‐91 (1977). The First Circuit also appears to have overlooked
35
that the Blockburger test has already been “import[ed]” into the Sixth
Amendment in the right to counsel context. Compare Handa, 892 F.3d at 105,
with Cobb, 532 U.S. at 173.
Sixth Amendment jurisprudence is clear that the protections offered by
that Amendment are offense specific. See Cobb, 532 U.S. at 167; McNeil v.
Wisconsin, 501 U.S. 171, 175 (1991); MacDonald, 456 U.S. at 7; United States v.
Moore, 670 F.3d 222, 235 (2d Cir. 2012). Where a successive charge is not barred
by a Blockburger analysis or the relevant statutes of limitations, then a defendant
must rely on the protections provided by the Due Process Clause of the Fifth
Amendment.
The majority refers to five other circuit cases which used the date of first
indictment in their analysis of Speedy Trial Clause claims. These five decisions
did not use the “same conduct” test adopted by the majority or the Blockburger
analysis set out above. Each of them used a single time frame in their Barker
analysis and assumed, albeit without much discussion or analysis, that the
relevant time period for Speedy Trial Clause purposes is the period between the
initial indictment and the start of trial. These five decisions in our sister circuits
provide little support for the path the majority has embarked upon.
36
Only one of the five cases, United States v. Battis, 589 F.3d 673 (3d Cir.
2009), reversed a conviction. It comes the closest to addressing the effect of a
superseding indictment on its Barker analysis. In Battis, the defendant was first
charged by state authorities in connection with his firing of a weapon at a police
officer in 2003. The defendant was indicted by federal authorities for possession
of a firearm by a convicted felon in 2004, id. at 675, and in a superseding
indictment in 2006 for possession of ammunition by a convicted felon. Both
counts charged a violation of 18 U.S.C. § 922(g)(1) and arose out of the same
shooting incident. Id. at 676. Forty‐five months following the initial indictment,
the federal trial commenced. Id. After conducting an analysis of the Barker
factors, the Third Circuit vacated Battis’s conviction. Id. at 684. In a footnote, the
Third Circuit wrote: “We also hold that the speedy trial right was not affected by
the filing of a superseding indictment in 2006.” Id. at 679 n.5.
In United States v. Black, 830 F.3d 1099 (10th Cir. 2016), the court rejected a
Speedy Trial Clause challenge to a conviction where it calculated that there were
roughly twenty‐three months of delay before trial, after aggregating each of the
time periods during which an indictment was pending and excluding the
periods between dismissal and the filing of a superseding indictment. Id. at
37
1112. Each of the indictments contained the same charges: conspiring to
distribute cocaine, using a telephone to facilitate the conspiracy, and possessing
cocaine with intent to distribute. Id. at 1103 n.1, 1104 n.4, 1106 n.11, 1107 n.15.
In United States v. Jeanetta, 533 F.3d 651 (8th Cir. 2008), the court rejected a
defendant’s claim that the fifteen‐month delay between his indictment on drug
charges and trial had violated his Sixth Amendment rights. Id. at 656‐57. Eight
months after his indictment, the defendant was found and arrested. Two
handguns were seized during that arrest. Weeks before his trial, a superseding
indictment added firearms charges to the drug charges. Id. at 653‐54.
In United States v. Oriedo, 498 F.3d 593 (7th Cir. 2007), the court affirmed a
conviction after finding that there was a delay of almost three years between the
original indictment and trial. During that interval, there were four superseding
indictments to add defendants and substantive drug charges to the original drug
conspiracy charge. Id. at 597‐98. In its Barker analysis, the Seventh Circuit
applied the almost three‐year period of delay to even those substantive drug
counts added in the superseding indictments. Id. at 599. It concluded that it did
not need to “decide the appropriate treatment of delays occasioned by
superseding indictments . . . because, even if we were to conclude that every
38
such delay should be charged to the government, Mr. Oriedo remains
responsible for multiple additional and significant delays.” Id. at 599.
Finally, in United States v. Milhim, 702 F.2d 522 (5th Cir. 1983), the
defendant’s Speedy Trial Clause challenge to his conviction was also rejected. In
Milhim, there was a seven‐month delay between an initial indictment and trial.
Id. at 525. The Fifth Circuit did not separately discuss the shorter time period
between the superseding indictment and trial, even though that second
indictment had added several new charges.
4. Investigative Delay
To the extent that there has been investigative or other delay in bringing a
charge against a defendant, the prejudice caused by that passage of time is
“primarily” addressed through the Due Process Clause of the Fifth Amendment
and the relevant statutes of limitations. MacDonald, 456 U.S. at 8. Similarly,
“[a]ny undue delay after charges are dismissed, like any delay before charges are
filed, must be scrutinized under the Due Process Clause, not the Speedy Trial
Clause.” Id. at 7. Prosecutors are, however, under no obligation to file charges
“as soon as probable cause exists but before they are satisfied they will be able to
39
establish the suspect’s guilt beyond a reasonable doubt.” Lovasco, 431 U.S. at
791.
Where it is shown that pre‐indictment delay “caused substantial prejudice
to” the right to a fair trial and that the delay “was an intentional device to gain
tactical advantage over the accused,” the Due Process Clause requires dismissal
of the indictment. Marion, 404 U.S. at 324. While the Supreme Court has
declined to define the precise circumstances that will constitute a violation of a
defendant’s rights under the Due Process Clause for undue delay, Lovasco, 431
U.S at 797, “proof of actual prejudice” to a defendant makes a due process claim
“concrete and ripe for adjudication.” Id. at 789.
We have held that “where pre‐indictment delay has been shown to cause
‘substantial prejudice’ to the defendant’s ability to present his defense and ‘the
delay was an intentional device to gain a tactical advantage over the accused,’”
then a violation of a defendant’s due process rights may be found. United States
v. Cornielle, 171 F.3d 748, 752 (2d Cir. 1999) (quoting Marion, 404 U.S. at 324); see
also United States v. Ray, 578 F.3d 184, 199‐200 (2d Cir. 2009); Sorrentino, 72 F.3d
at 297. Prejudice from an impairment of the right to a fair trial “is commonly
40
demonstrated by the loss of documentary evidence or the unavailability of a key
witness.” Cornielle, 171 F.3d at 752.
5. Application of Blockburger Test to Counts 1‐5
As just discussed, Sixth Amendment rights are offense specific. Therefore,
a court must decide as to each count whether a defendant’s right to a speedy trial
was violated. To do so, the court must first consider when Sixth Amendment
rights attached to the count.
In this case, the Hobbs Act Conspiracy charge first appeared in the original
indictment filed on March 6, 2012 and was incorporated into the superseding
indictment as Count One. The defendants’ Sixth Amendment rights attached as
to that charge, therefore, on March 6, 2012. With a limited exception, the
defendants’ Sixth Amendment rights for the other four Harper counts added
through the superseding indictment did not attach until the superseding
indictment was filed on December 12, 2014.
Using a Blockburger analysis, the Hobbs Act Robbery and Kidnapping
charges are separate offenses from the Hobbs Act Conspiracy charged in the
original indictment. A substantive crime is a separate offense from a conspiracy
to commit that substantive crime. Felix, 503 U.S. at 389; United States v. Sessa,
41
125 F.3d 68, 71 (2d Cir. 1997). Kidnapping is also a separate offense from the
Hobbs Act Conspiracy charge; each requires proof of an element not contained in
the other. Compare 18 U.S.C. §§ 1951(a)(b)(1), (b)(2) with 18 U.S.C. § 1201(a).
The two Firearms counts charged in Counts Four and Five, however, are
the same offense as the Hobbs Act Conspiracy charged in Count One to the
extent that a conviction under either count rests on a jury finding a violation of
the Hobbs Act Conspiracy charged in Count One. Count Five charges a violation
of § 924(c), which addresses use of a firearm during a “crime of violence.”10 The
crimes of violence identified in Count Five were the crimes charged in Counts
One, Two, and Three of the superseding indictment. Count Four charges a
violation of § 924(j), which addresses the use of a firearm to cause a death during
a “crime of violence.”11 The crimes of violence identified in Count Four are again
the crimes charged in Counts One, Two, and Three of the superseding
10 18 U.S.C. § 924(c)(1)(A) in pertinent part provides that “any person who,
during and in relation to any crime of violence . . . uses or carries a firearm, or
who, in furtherance of any such crime, possesses a firearm, shall, in addition to
the punishment provided for such crime of violence” be punished as set out in
the statute. (Emphasis added.) Sections 924(c)(1)(A)(ii) and (iii) provide
enhanced penalties for brandishing and discharging the firearm.
11 Section 924(j) provides enhanced penalties for a defendant “who, in the course
of a violation of subsection (c), causes the death of a person through the use of a
firearm.” 18 U.S.C. § 924(j).
42
indictment. To the extent, therefore, that the Hobbs Act Conspiracy charged in
Count One serves as the predicate crime of violence for the two Firearms
counts,12 those counts charge the same offense as the Hobbs Act Conspiracy
count.13 For the remainder of this discussion, however, it will be assumed that
the government will not rely on Count One as a predicate crime of violence to
support a conviction for either Firearms count should the dismissal of the
superseding indictment be reversed.
6. The Superseding Counts: Counts 2‐5
For the reasons already explained, the defendants’ Sixth Amendment
rights on the four counts added in the superseding indictment attached at the
12 This court recently held that Hobbs Act Conspiracy categorically constitutes a
“a crime of violence” for the purposes of § 924(c). United States v. Barrett, 903
F.3d 166 (2d Cir. 2018).
13 This court has previously held that violent crime predicates and § 924(c)
firearms offenses are not the “same offense” for the purposes of multiple
punishment. United States v. Mohammed, 27 F.3d 815 (2d Cir. 1994). That
conclusion does not alter the analysis here. The Double Jeopardy Clause of the
Fifth Amendment not only protects against a second prosecution for the same
offense, it protects as well “against multiple punishments for the same offense.”
North Carolina v. Pearce, 395 U.S. 711, 717 (1969). “Where consecutive sentences
are imposed at a single criminal trial, the role of the constitutional guarantee is
limited to assuring that the court does not exceed its legislative authorization by
imposing multiple punishments for the same offense.” Brown v. Ohio, 432 U.S.
161, 165 (1977).
43
time that indictment was filed, which was December 12, 2014. Those new counts
were Hobbs Act Robbery, Kidnapping, and two Firearms charges.14 While
almost three years elapsed before the defendants’ trial began on October 31, 2017,
there is no basis in this record to find that these counts must be dismissed for a
violation of the Speedy Trial Clause.
The district court found that the government engaged in no deliberate
delay during this prosecution and the defendants did not identify any specific
impairment from any delay to their ability to defend themselves at trial. While
almost three years elapsed between the filing of the superseding indictment
before the trial began, there is no significant delay ‐‐ whether deliberate or
neutral ‐‐ that may be properly attributed to actions taken by the court or the
government during that period, or to their inaction. Almost all of the time was
spent in the ordinary course of responding to the new charges contained in the
superseding indictment or was delay that is attributable to the defendants.
14 Green was transferred to federal custody on February 24, 2012 on a complaint
charging him with the substantive crime of Hobbs Act Robbery. That charge,
however, was effectively dismissed under the Speedy Trial Act once he was
indicted on a single count of Hobbs Act Conspiracy, and after 30 days had
elapsed without indictment on the substantive charge. 18 U.S.C. § 3161(b). “Any
undue delay after charges are dismissed . . . must be scrutinized under the Due
Process Clause, not the Speedy Trial Clause.” MacDonald, 456 U.S. at 7.
44
Following the government’s production of discovery related to the new
charges contained in the superseding indictment, the defense filed omnibus
motions. The earliest of these motions was filed on March 30, 2015, and the last
was submitted on May 1. Two oral arguments and an evidentiary hearing took
place in May, June, and July of 2015. A month was lost between July and August
2015 waiting for a court reporter to file a transcript. From August 2015 to
January 2016, the defendants completed the filing of their post‐hearing
submissions.15 From January to June 2016, Curcio proceedings took place to
determine whether counsel for the two newly added defendants ‐‐ John
Coronado and Amilcar Ramos ‐‐ and for Green had a conflict of interest. After
those proceedings concluded, the magistrate judge issued a fifty‐seven‐page
Report and Recommendation on July 6, 2016 (“Report”). The defendants were
granted extensions until April 7, 2017 to complete briefing on their objections to
the Report. Although some of these extension requests referenced issues with
defense counsel obtaining access to their clients, not all did. On April 26, 2017,
the district court adopted the Report in full.
15 Green timely filed his post‐hearing brief on October 9, 2015, but Rodriguez did
not file until January 7, 2016, and Black did not file until January 20, 2016.
45
At a conference on May 25, 2017, the district court scheduled a trial to
begin on October 31, 2017. During this interval, Green’s counsel was unavailable
for extended periods, codefendant Coronado’s motion to suppress was resolved,
and the parties’ motions in limine were filed and resolved. On October 19, the
defendants’ motions for severance, with the exception of Coronado’s, were
denied.
When Green filed his October 2017 motion to dismiss the superseding
indictment on the ground that his right to a speedy trial under the Sixth
Amendment had been violated, he principally complained that the long delay in
his trial was attributable to the government’s filing of a superseding indictment
twenty‐one months after filing the original indictment, and to the government’s
and his codefendants’ motions for extensions of time to file pretrial motion
papers. He identified at most four months of the delay that followed the filing of
the superseding indictment as attributable to the government.16
16 In Green’s motion to dismiss the indictment for violation of the Speedy Trial
Clause, he calculated 654 days of delay following the filing of the superseding
indictment. The motion included a table identifying each delay, including which
party sought the delay or was responsible for it. The chart attributes the majority
of the delay during the period following the filing of the superseding indictment
to extension requests sought by defense counsel. Less than four months of the
delay identified in the chart is attributed to the government or to the court.
46
For their part, the magistrate judge and district judge acted with
reasonable dispatch. The magistrate judge issued his fifty‐seven‐page Report
within a month of the defendants’ massive omnibus motions being fully
submitted.17 With similar efficiency, the district judge ruled on all of the many
objections to that Report within a month of those objections being fully
submitted.
While the delay of almost three years between the filing of the superseding
indictment and the trial is long, the record does not permit a finding that this
delay violated the Speedy Trial Clause. The defendants did not make any
developed argument below, or on appeal, that their rights under the Speedy
Trial Clause were violated because of any particular failure by the government or
the court that occurred after the superseding indictment was filed. Equally
significant, they have never contended that the Speedy Trial Act was ever
violated in this case.
17 Among the motions filed by Green that the magistrate judge denied was a
motion to dismiss Counts 6‐9, the Singer Counts, of the superseding indictment
for pre‐indictment delay in violation of the Due Process Clause of the Fifth
Amendment.
47
The omission of any such argument is easily explained. When the
superseding indictment was filed, it added two defendants, four more Harperrelated
counts, and charges relating to the Singer robbery, a robbery entirely
separate from the robbery and murder of Harper. The defendants requested and
were granted numerous extensions to pursue their challenges to the indictment
and the government’s trial evidence. There is no reason to be critical of those
many requests. If convicted at trial on the most serious count, they faced a
mandatory term of life imprisonment. In each instance the judges supervising
the proceedings found the extensions were in the interest of justice.
Reduced to its essence, the defendants complain principally that the
government continued its investigation into Harper’s murder following the filing
of the 2012 indictment and that they suffered from the knowledge that that
continuing investigation might yield a superseding indictment that included
death‐eligible counts. In granting the defendants’ Sixth Amendment motion, the
district court adopted that argument and emphasized that the defendants
suffered throughout the period before the government filed the superseding
indictment from the unique anxiety that comes with the looming prospect of the
death‐penalty. In affirming the dismissal of Counts 2‐5, the majority also
48
emphasizes the prejudice to the defendants from the prospect that they might be
facing a capital prosecution. Within a month of the filing of the superseding
indictment, however, the government notified the defendants that it would not
pursue the death penalty. The concern expressed about the nearly three years of
uncertainty that the defendants experienced is, therefore, a concern about the
government’s alleged investigative delay in filing the superseding indictment.
But, as discussed earlier in this dissent, to the extent there was any investigative
delay in filing new charges, a defendant’s right to obtain a dismissal of those
charges because of that delay “is protected by the Due Process Clause and by
statutes of limitations.” MacDonald, 456 U.S. at 8. Such investigative delay, even
if the record developed below permitted us to find that it existed, does not
constitute a basis for dismissing the four counts added in the superseding
indictment pursuant to the Speedy Trial Clause.18
Therefore, because the Sixth Amendment does not allow a court to dismiss
the four new counts in the superseding indictment because of presumed preindictment
delay, the present record does not provide a basis to dismiss those
18 As noted above, the defendants moved to dismiss the Singer Counts based on a
violation of the Due Process Clause; they did not move to dismiss Counts 2 to 5
of the superseding indictment on such a theory.
49
counts. Because the district court’s legal analysis of the Sixth Amendment
challenge to these four counts was legally flawed, I would reverse its decision to
dismiss the four Harper Counts added in the superseding indictment. Because
its fact finding (and the positions taken by the defendants below) foreclose any
finding of a Sixth Amendment violation as to these counts, I do not find that a
remand is necessary for further development of the record.
7. Count One: Hobbs Act Conspiracy Count
There was a delay of sixty‐eight months in the trial of Count One: from
March 2012 to October 2017. This is presumptively prejudicial. I would affirm
dismissal of that count, although not for the reasons given by the district court.
See Flood v. Just Energy Marketing Corp., 904 F.3d 219, 238 (2d Cir. 2018)
(Courts of Appeals may affirm on any grounds that are supported in the record.).
The Sixth Amendment requires significantly more vigilance from both the
court and the government than was demonstrated here. Having not yet held a
trial on the Hobbs Act Conspiracy charge when the superseding indictment was
filed in December of 2014, the district court should have promptly convened the
parties and considered with them whether the trial on the Hobbs Act Conspiracy
charge alone should proceed promptly or not. If the court did not initiate that
50
inquiry, then the government should have requested that it do so. Since that was
not done, we are left to speculate how the parties would have weighed that
calculus and what positions they would have taken. Whatever positions the
parties took, the court should have timely weighed the relevant factors under
Barker and set a schedule accordingly. Instead, on the eve of trial in the Fall of
2017 the defendants filed their motion seeking dismissal of all counts in the
superseding indictment ‐‐ including those counts related to the Singer robbery ‐‐
for a violation of their Sixth Amendment speedy trial rights.
Significant delay is also attributable to the fact that the district judge
referred pretrial proceedings to the magistrate judge. Even when an able and
diligent magistrate judge is managing pretrial proceedings, as was the case here,
proceedings are almost invariably more extended than they would be without
the additional layer of judicial supervision. Because the parties have a right to
appeal any decision made by the magistrate judge, see Fed. R. Crim. P. 59, a
magistrate judge is often less likely to rule from the bench and rely on the record
created of his or her decision by the court reporter. The time needed to reduce
the reasons for a ruling to a written decision adds to the length of proceedings.
The parties must also be afforded an opportunity to object to that written
51
decision, and the district court must be given an opportunity to review the
magistrate judge’s rulings in light of those objections, further extending the
length of the proceedings. If a district court employs a magistrate judge to assist
it in managing its busy criminal docket, the district court must ensure that any
division of responsibilities does not adversely impact its own duty to schedule a
speedy trial.
I cannot affirm the dismissal of Count One, however, for the reasons on
which the majority places its greatest emphasis. We do not have a record to
support the harshest of the majority’s judgments about the government.19 The
majority acknowledges that the district court did not find any intentional delay
19 The majority finds that the government bears the burden of nine months of
delay between April 2012 and December 2012 because of the “threat” that the
proceedings might “ultimately turn capital and nullify the work done to date.”
The majority accuses the government of inaction and indecision over whether to
seek the death penalty, and describes it as a “the neglected death‐penalty
decision.” It accuses the government of “dangl[ing]” the prospect of a capital
prosecution. It also notes that a new round of pretrial litigation, occasioned by
the filing of the superseding indictment, is properly attributable “to the
government’s poor case management.” It asserts that the filing of the
superseding indictment effectively “scrubb[ed]” two years and nine months of
belabored pre‐trial litigation.
52
by the government. Nonetheless, the majority is highly critical of the
government. Its criticism is essentially a criticism that the government continued
its investigation of Harper’s murder and that the charges accusing the
defendants of causing that murder were not filed until almost three years after
the defendants were initially indicted.
First, as explained by the Supreme Court, prosecutors are encouraged to
investigate crimes thoroughly and to exercise their discretion to prosecute with
care.
Rather than deviating from elementary standards of fair play and
decency, a prosecutor abides by them if he refused to seek
indictments until he is completely satisfied that he should prosecute
and will be able promptly to establish guilt beyond a reasonable
doubt. Penalizing prosecutors who defer action for these reasons
would subordinate the goal of orderly expedition to that of mere
speed.
Lovasco, 431 U.S. at 795 (citation omitted).
In any event, as early as May 17, 2012, the government indicated that it did
not want to delay the proceedings on the pending one‐count indictment because
it might one day develop sufficient evidence to file a superseding indictment
with a death‐eligible count. By August 2, 2012, defense counsel agreed that a
motion schedule should be set based on the single charge in the pending
indictment, with the understanding that supplemental motions addressed to a
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superseding indictment could be filed in the event one were forthcoming. The
government reiterated at a December 4, 2012 conference that “the bottom line is
there’s a one‐count Hobbs Act indictment, and that’s what we’re litigating now.”
The Assistant United States Attorney acknowledged that there was a possibility
that a superseding indictment would be filed at some time, but he was hesitant to
make any prediction about that.
Then, having obtained a plea of guilty and cooperation from Callahan on
February 14, 2014, the government obtained a superseding indictment in
December of 2014, and advised the defendants one month later that it would not
be seeking the death penalty. The district court did not find, and the record does
not permit us to find, that the government was less than diligent in connection
with seeking additional evidence against the defendants or in filing the
superseding indictment with additional counts related to the murder. We have
no record of what leads the government pursued, what strategies it employed,
how it staffed its investigation, what hurdles it confronted and overcame, or
virtually anything else that would permit us to find that the government was or
was not diligent in pursuing the murder investigation and filing the December
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2014 superseding indictment. The record does contain, however, the district
court’s finding that “there is no deliberate delay that this Court can detect.”
The majority principally faults the government for its statements in 2012
about when the Department of Justice might make the final decision on whether
it would pursue the death penalty. It also faults the government because the
specter of potential death‐eligible charges hung over the case.20 For example, the
majority attributes to the government significant delay “from the threat that the
proceedings would ultimately turn capital and nullify the work done to date.”21
But, the fact that prosecutors would continue their investigation into Harper’s
murder was neither surprising nor unusual; everyone understood that Harper
had been murdered. It was also well understood that the procedural protections
surrounding a decision to seek the death penalty are substantial and complex.
No final decision regarding the death penalty could be communicated unless and
until the government amassed the evidence to file a superseding indictment with
20 The majority criticizes the government for its “inaction and subsequent
indecision over whether to seek the death penalty.”
21 While I disagree that any work was nullified by the filing of a superseding
indictment, I readily acknowledge that the progress toward a trial date was
impacted by that filing and required all the parties and the district court to
confront head‐on the impact of that filing on the scheduling of trial.
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death‐eligible charges. And the final decision resided not with the local U.S.
Attorney’s Office but with the Attorney General of the United States. When the
superseding indictment was filed, the decision not to seek the death penalty was
promptly communicated.22
When a criminal charge is eligible for imposition of the death penalty,
there is a process that federal prosecutors are required to follow. They do not
have the option of telling the Department of Justice or defendants that they have
independently decided not to pursue the death penalty.23 As reflected in the
United States Attorney’s Manual,24 prior to seeking an indictment for an offense
potentially punishable by death, a local United States Attorney’s Office is
required, absent extenuating circumstances, to consult with the Department of
Justice’s Capital Case Section in Washington, D.C. Ordinarily, the U.S. Attorney
must give defense counsel a reasonable opportunity to present information
22 The record does not include information about either the investigative work
done by prosecutors or their efforts to comply with Department of Justice death
penalty procedures during the period following February 14, 2014, when
Antoine Callahan pleaded guilty and decided to cooperate.
23 The Department of Justice’s decades‐old decision to remove local discretion
over death penalty decisions, even decisions not to pursue the death penalty,
was motivated in part by a desire to minimize racial disparities across the nation
in death penalty decisions.
24 U.S. Dep’t of Justice, Justice Manual, Chapter 9‐10.000.
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which may bear on the decision whether to seek the death penalty and must
submit its own recommendation to the Capital Case Section, along with
extensive documentation.25 The U.S. Attorney is encouraged to consult with the
family of the victim. The case is reviewed by the DOJ Capital Review
Committee.26 The Deputy Attorney General makes a recommendation to the
Attorney General and the Attorney General makes a final decision on whether
the government should file a notice of intent to seek the death penalty. The
prosecutor is instructed to “promptly” inform the district court and counsel for
the defendant once the Attorney General has made the final decision. The timing
here suggests that the prosecutor had responsibly done the groundwork with the
Department of Justice; the “no seek” decision was communicated to the
defendants promptly after the filing of the death‐eligible counts.
25 In this case, although defense counsel was prepared to present mitigating
information, that information was never sought by the government.
26 The majority notes, with some disapproval, that at the December 4, 2012
conference the government disclosed that it “had not even met with the
Department of Justice to discuss whether to seek the death penalty.” According
to Department of Justice procedures, however, such meetings are only held
where a member of the Capital Review Committee requests them or when the
prosecutor has recommended seeking the death penalty. U.S. Dep’t of Justice,
Justice Manual § 9‐10.130. There is no indication in the record that either of those
circumstances ever occurred here.
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Accordingly, I would affirm the dismissal of Count One on the ground
that the delay of sixty‐eight months between indictment and trial violated the
defendants’ rights under the Sixth Amendment’s Speedy Trial Clause. I reject,
however, the majority’s conclusion that such a result is required because the
“government dangled the prospect of a capital prosecution” over the defendants
for two years and ten months. The record does not provide a basis to find the
investigative delay that the majority presumes.
Conclusion
To summarize, I would hold that the Sixth Amendment right to a speedy
trial, like other Sixth Amendment rights, attaches at the initiation of adversary
proceedings. This is customarily the filing of an indictment or information, or
presentment on a criminal complaint.
A corollary to that conclusion is that the speedy trial right is offense
specific, and attaches to the charges listed in the complaint, indictment or
information. Later‐filed charges only relate back to the date of an initial charge
for speedy trial purposes when those later charges are the “same offense” as
determined through a Blockburger analysis.
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Because, under Blockburger, the crimes charged in Counts 2‐5 of the
superseding indictment are not the same offense as the count charged in the
initial indictment (which is repleaded as Count One in the superseding
indictment), the length of delay with respect to these counts is measured from
the time the superseding indictment was filed, that is, December 12, 2014. With
respect to those four counts, any investigative delay that occurred before that
time is addressed by the Due Process Clause of the Fifth Amendment, not the
Speedy Trial Clause of the Sixth Amendment.
I agree with the majority that the length of delay between the filing of the
charge contained in Count One in March 2012 and the beginning of trial in
October 2017 is presumptively prejudicial and I would affirm the dismissal of
that count. I disagree with the majority’s conclusion that that delay is
attributable, on this record, to a delay by the government in either its continued
investigation of the murder or its death penalty determination.
I believe it would be wrong to conclude from the majority’s decision either
that prosecutors should defer filing any charge until they have exhausted their
investigation and can bring all appropriate charges at one time, or that having
filed initial charges prosecutors should not continue to pursue investigative leads
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and file a superseding indictment with more charges where it is appropriate to
do so. This disturbing case should not make the challenging work of prosecutors
and defense counsel more difficult. I believe that the appropriate lesson to draw
from this case is that judges and prosecutors must be diligent to ensure that the
Sixth Amendment’s guarantee of a speedy trial is fully enforced. Defendants
must be given timely opportunities to make informed decisions about the
scheduling of their trials, courts must carefully manage criminal proceedings so
that trials are scheduled with the dictates of the Sixth Amendment and Barker in
mind, and a record must be created of those opportunities and the decisions
made by all parties and the court.
Outcome: Affirmed
Plaintiff's Experts:
Defendant's Experts:
Comments: