United States v. Neighbors, Case No. 07–20124–CM.

22 F.Supp.3d 1158

UNITED STATES of America, Plaintiff

v.Guy NEIGHBORS, Defendant.

Case No. 07–20124–CM.

United States District Court, D. Kansas.

Signed May 19, 2014.

Donald Christopher Oakley, Terra D. Morehead, Office of United States Attorney, Kansas City, KS, for Plaintiff.

Carrie Marie Neighbors, Hazelton, Bruceton Mills, WV, D. Craig Hughes, Law Offices of D. Craig Hughes, Houston, TX, Daniel J. Martinez, The Law Offices of Daniel J. Martinez, Shawnee, KS, John M. Duma, Duma Law Offices LLC, Olathe, KS, for Defendant.

MEMORANDUM AND ORDER

CARLOS MURGUIA, District Judge.

This criminal case is before the court on Defendant's Pro–Se Motion to Dismiss the Pending Indictment[ ] with Prejudice on Grounds of Due Process of Law Violation (Doc. 635), filed while defendant was represented by counsel on January 9, 2014, and defendant's Motion to Dismiss with Prejudice (Doc. 656), filed while defendant proceeded pro se with standby counsel on March 13, 2014. On March 6, 2014, the court held a hearing to address Doc. 635, among other motions. During that hearing, the court denied Doc. 635 in part (relating to defendant's allegations of due process violations). But the court noted that defendant had also made a constitutional speedy trial argument in his motion that the government did not address in its brief. The court asked for additional briefing on the constitutional speedy trial issue—specifically addressing the Barker v. Wingo factors. The court also instructed the parties to address only the constitutional speedy trial issue in their supplemental briefs.

In response to the court's order, defendant filed Doc. 656. In this motion, defendant argues that both his statutory speedy trial rights have been violated, as well as his constitutional speedy trial rights. The government's response addresses only whether defendant's statutory speedy trial rights have been violated—omitting any discussion of the constitutional right to a speedy trial or the Barker factors.

Despite the parties' focus on defendant's statutory speedy trial rights, the court is going to turn first to defendant's constitutional speedy trial rights. That is the issue that the court ordered briefed. And if the court finds that defendant's constitutional speedy trial rights have been violated, there is no need to further consider his statutory rights. The remedy for a constitutional violation is dismissal with prejudice, while a statutory violation may result in dismissal either with or without prejudice. United States v. Toombs, 574 F.3d 1262, 1274 (10th Cir.2009) (citation omitted).

A defendant has a Sixth Amendment right to a speedy trial. Barker v. Wingo, 407 U.S. 514, 515, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). This right is both “amorphous” and “fundamental.”

United States v. Seltzer, 595 F.3d 1170, 1172–73 (10th Cir.2010) ; see also Barker, 407 U.S. at 521, 92 S.Ct. 2182 (“[T]he right to speedy trial is a more vague concept than other procedural rights. It is, for example, impossible to determine with precision when the right has been denied. We cannot definitely say how long is too long in a system where justice is supposed to be swift but deliberate.”). Regardless of whether a defendant's statutory right to a speedy trial has been violated, the court may still find a constitutional violation. See United States v. Gomez, 67 F.3d 1515, 1523 n. 10 (10th Cir.1995) (“[U]nder the law of this circuit, analysis of a Speedy Trial Act claim is separate from analysis of a Sixth Amendment violation.” (citation omitted)). But cf. United States v. Abdush–Shakur, 465 F.3d 458, 464–65 (10th Cir.2006) (“It is unusual to find a Sixth Amendment violation when the Speedy Trial Act has been satisfied.” (citation omitted)).

In evaluating whether a defendant's Sixth Amendment right has been violated, the court considers (1) the length of the delay, (2) its reasons, (3) whether the defendant asserted the right to a speedy trial, and (4) whether the defendant suffered prejudice. Barker, 407 U.S. at 530, 92 S.Ct. 2182. The court should consider these factors together, in conjunction with any other relevant circumstances. Toombs, 574 F.3d at 1274 (citation omitted).

This is not the first time the court has considered whether defendant's constitutional right to a speedy trial has been violated. In October 2011, defense counsel filed a motion to dismiss on the same basis. In November 2011, the court denied the motion. At that time, the court found that the Barker factors weighed against finding a constitutional violation. Nearly two-and-a-half more years have passed since that ruling. Defendant has still not had a jury trial in this case. It is time to re-examine the factors.

Length of the Delay

First: the length of the delay. This inquiry serves as a threshold consideration; the court need only look at the remainder of the factors if the delay is presumptively prejudicial. United States v. Hill, 197 F.3d 436, 443–44 (10th Cir.1999) (citations omitted). While there is no bright line rule for a length of time that is presumptively prejudicial, generally a one-year delay will qualify for the presumption. Castro v. Ward, 138 F.3d 810, 819 (10th Cir.1998) (citing Doggett v. United States, 505 U.S. 647, 652 n. 1, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992) ); see also United States v. Batie, 433 F.3d 1287, 1290 (10th Cir.2006) (“Delays approaching one year generally satisfy the requirement of presumptive prejudice.”). The weight of the delay depends on the length—the longer the delay, the more this factor weighs in favor of defendant, unless the nature of the charge justifies the delay. United States v. Jackson, 627 F.2d 1198, 1208 (10th Cir.1980). The relevant inquiry is “the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim.” Doggett, 505 U.S. at 652, 112 S.Ct. 2686 (citation omitted).

In this case, over six-and-a-half years have passed since defendant was indicted. Without doubt, this delay is presumptively prejudicial. See Barker, 407 U.S. at 533, 92 S.Ct. 2182 (referring to a five year delay between arrest and trial as “extraordinary”). The charges in the case are complex—but not so complex as to single-handedly justify the delay. The court tried defendant's co-defendant in September 2010. Although there were valid reasons that the court was unable to also conduct defendant's trial at that time, it is certainly debatable whether an additional delay of nearly four years is reasonable. And significantly, more delay is on the horizon. The earliest the court expects to conduct a trial in this case is the fall of 2014. This case will likely span at least seven years before it is resolved. This factor weighs heavily in favor of defendant.

Reasons for the Delay

Second: the reasons for the delay. In reviewing the justification for delay, the court examines where the blame lies for the delay. Doggett, 505 U.S. at 651, 112 S.Ct. 2686. The burden lies with the government to show “an acceptable rationale for the delay.” Seltzer, 595 F.3d at 1177 ; Jackson v. Ray, 390 F.3d 1254, 1261 (10th Cir.2004) (citation omitted). Delay designed to interfere with the defense weighs heavily against the prosecution, Barker, 407 U.S. at 531, 92 S.Ct. 2182, while delay caused by the defense weighs against the defendant, id. at 529, 92 S.Ct. 2182 ; Toombs, 574 F.3d at 1274 (citations omitted). “[T]he reason for the delay[ ] ‘weighs against the government in proportion to the degree to which the government caused the delay.’ ” United States v. Yehling, 456 F.3d 1236, 1244 (10th Cir.2006) (quoting Batie, 433 F.3d at 1291 ). When the defendant does not argue deliberate delay and the government does not fault the defendant for the delay, the court must assess negligence against the government and weigh this factor moderately against the government. Jackson, 390 F.3d at 1262 (citations omitted). Finally, delay caused by defense counsel is charged against the defendant. Vermont v. Brillon, 556 U.S. 81, 90–91, 129 S.Ct. 1283, 173 L.Ed.2d 231 (2009) (citation omitted); Coleman v. Thompson, 501 U.S. 722, 753, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).

Determining where the blame lies for delay in this case is complicated. Because the government responded to defendant's motion only with statutory speedy trial arguments, it missed the opportunity to give reasons for the various delays. And—as explained above—the government bears the burden on this factor. Nevertheless, the court will attempt to determine where the responsibility should lie for this case's lengthy history.

Generally, this case can be broken into seven time periods of delay. These time periods are precise in neither span nor types of case activity. But they do help form a picture of the reasons this case is still pending.

Period One—Complexity and Blogging

The government indicted defendant in September 2007. The indictment charged nineteen counts of conspiracy, wire fraud, and money laundering. The first two years of the case passed without trial largely because of the complexity of the charges and the amount of discovery. The parties also spent a good amount of time litigating the propriety of defendant's outside activities (such as blogging), and during the first two years, the government filed two superseding indictments and multiple motions to revoke bond. Both sides bear some responsibility for slowing the prosecution during this time period.

Period Two—Competency

The third year—beginning around August 2009—was spent resolving questions of defendant's competency. During this year, the court found defendant incompetent to stand trial and ordered him hospitalized to attempt to restore his competency. Year three ended with an unfinished Sell¹ proceeding to determine whether to involuntarily medicate defendant. The length of time that this process took was unnecessarily extended by about a month-and-a-half because defendant was not transported between facilities with requisite speed. While the slow travel...