Free Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona TIMOTHY DUAX Assistant U.S. Attorney Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004 Arizona State Bar No. 012694 Telephone (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, CR-03-1167-PHX-DGC Plaintiff, v. Robert McKay, Defendant. The United States hereby responds to the Motion to Dismiss for Violation of Right to UNITED STATES' RESPONSE TO DEFENDANT MCKAY'S MOTION TO DISMISS FOR VIOLATION OF RIGHT TO SPEEDY TRIAL

15 Speedy Trial (the "Motion") filed by Defendant Robert McKay ("Defendant") and respectfully 16 requests that the Motion be denied. 17 18 Factual Background The original indictment in this case charging Defendant and fifteen others with

19 numerous counts of criminal conduct was filed on November 18, 2003. Defendant entered his 20 initial appearance on December 3, 2003. On December 23, 2003, the United States filed a 21 Notice of Complex Matter. [Docket # 138] Defendant was released with conditions on December 22 5, 2003. A number of trial postponements and the filing of a superseding indictment ensued. 23 On January 29, 2004 the case was designated complex pursuant to 18 U.S.C. § 3161(H)(8)(B)(ii) 24 and L.R. 16.4. [Docket # 205] As a result of ongoing investigation, a Second Superseding 25 Indictment was filed on October 4, 2004, charging the sixteen co-defendants with a total of 26 forty-three counts of criminal conduct encompassing conspiracy, RICO, and various firearms27 and drug-related offenses. Trial in this matter is now set for April 25, 2006. 28

Case 2:03-cr-01167-DGC

Document 1053

Filed 01/13/2006

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Defendant is charged in the Second Superseding Indictment with the following charges:

2 Violent Crime in Aid of Racketeering (Count 6), Violent Crime in Aid of Racketeering (Count 3 8), and Threatening a Federal Officer (Count 9). On August 31, 2004, Defendant had contact 4 with an agent working for the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") 5 at a bar in Tucson. Defendant told the agent he knew who he was and threatened the agent with 6 physical harm in retaliation for the agent's presumed participation in the undercover 7 investigation that lead to the charges in this case. On September 1, 2004, Defendant was 8 charged by complaint for threatening the ATF agent and received a detention hearing. Based 9 on a finding that Defendant was a serious flight risk and a danger to the safety of the community, 10 United States Magistrate Judge Bernardo Velasco issued an Order of Detention on September 11 10, 2004. United States Magistrate Judge Virginia Mathis affirmed Judge Velasco's findings 12 on October 6, 2004. Defendant has been incarcerated since that time. 13 14 15 I. Legal Standard The Barker v. Wingo Balancing Test.

The Supreme Court has made clear that the right to a speedy trial is not defined by precise

16 timelines, but is defined on a case-by-case basis. Beavers v. Haubert, 198 U.S. 77, 87 (1905) 17 ("The right of a speedy trial is necessarily relative. 18 upon circumstances."). 19 In Barker v. Wingo, 407 U.S. 514, 530 (1972), the Supreme Court set forth the following It is consistent with delays and depends

20 standard for evaluating claims of violation of the Speedy Trial guarantee: 21 22 23 24 25 26 27 28 2
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A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.

1 (Emphasis added.) The Court further explained that the length of delay at issue is a "triggering 2 mechanism." Id. Unless the length of the delay at issue is shown to be "presumptively 3 prejudicial," the reviewing court need go no further in its analysis. Id. 4 In Barker, over five years passed between defendant's arrest and trial and defendant was

5 held in custody for ten months of that period. Id. at 533-34. Although it considered the five year 6 pretrial delay "presumptively prejudicial," the Court found that Defendant's Sixth Amendment 7 right had not been infringed. Id. at 536. Application of the factors established in Barker to the 8 facts of this case demonstrates that Defendant has not been deprived of his right to a speedy trial. 9 The Motion should therefore be denied. 10 11 A. The Length of the Pretrial Delay.

The delay in this case is not excessive. Only twenty five months have passed since the

12 original indictment was filed. Although the Supreme Court said in Doggett v. United States, 505 13 U.S. 647, 652 (1992), that delay of a year is "presumptively prejudicial" for purposes of 14 triggering an evaluation of the Barker factors, upon applying the Barker balancing test, the 15 Supreme Court and Ninth Circuit have held that similar­and even longer­delays have not 16 violated the Sixth Amendment. See, e.g., United States v. Loud Hawk, 474 U.S. 302 (1986) (no 17 violation of speedy trial right despite 90-month delay); United States v. Gregory, 322 F.3d 1157 18 (9th Cir. 2003) (22-month delay between indictment and trial did not violate right to speedy trial); 19 United States v. Manning, 56 F.2d 1188 (9th Cir. 1995) (30-month delay between indictment and 20 trial did not violate right to speedy trial); United States v. Aguirre, 994 F.2d 1454 (9th Cir. 1993) 21 (five year delay did not deprive defendant of his constitutional right to a speedy trial when all 22 of the Barker factors were balanced); United States v. Beamon, 992 F.2d 1009 (9th Cir. 1993) 23 (17- and 20-month delays did not violate Sixth Amendment). A case relied upon by Defendant, 24 United States v. Walker, 92 F.3d 714 (8th Cir. 1996), actually undermines Defendant's argument. 25 In that case, the court found no violation of the speedy trial right despite a 37-month delay 26 between indictment and arraignment. 27 28 3
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As Barker noted, "the delay that can be tolerated for an ordinary street crime is

2 considerably less than for a serious, complex conspiracy charge." 407 U.S. at 531. In Gregory, 3 the sole defendant was charged with money laundering and the Ninth Circuit found that a twenty 4 two month delay was not excessive. 322 F.3d at 1162. In United States v. Lam, the sole 5 defendant was charged with arson and aiding and abetting and the Ninth Circuit found that a 6 fourteen and a half month delay was not excessive. 251 F.3d 852, 856 (9th Cir. 2001). By 7 contrast, the case at bar is a complex conspiracy case involving fourteen defendants and forty 8 three counts. The docket contains over 1000 entries. Based on the admonition in Barker, the 9 pretrial delay that should be reasonably expected in a case of this magnitude is significantly 10 longer. 11 One of the primary purposes of the Sixth Amendment is to protect against excessive

12 pretrial incarceration. Barker, 407 U.S. at 532. Here, although Defendant was arrested in 13 December 2003 pursuant to the original indictment, he was released from custody only a few 14 days later. Defendant was not ordered detained until after he threatened the ATF agent on 15 August 31, 2004. Thus, Defendant has only spent slightly more than sixteen months

16 incarcerated, and that period of incarceration was attributable to his misconduct while on pretrial 17 release, not the result of the operative indictment. 18 Even if this Court determines that the length of the delay itself warrants further analysis,

19 examination of the remaining relevant factors demonstrates that Defendant's Speedy Trial right 20 has not been infringed in this case. 21 22 B. Cause for the Delay.

In Barker, the Court made clear that in cases where the government has prosecuted the

23 case in good faith, it will weigh in favor of finding no violation of the speedy trial right. Id. at 24 531. Defendant's Motion contains no allegation that any delay was intentionally or even 25 negligently caused by the United States. Indeed, the delay in this case was caused, in part, by 26 the complexity of the pending conspiracy and RICO charges, the possibility of the death penalty 27 being at issue, the number of co-defendants, and amount of evidence stemming from an 28 investigation that lasted almost two years. 4
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In United States v. Murillo, 288 F.3d 1126 (9th Cir. 2002), the defendant argued that a

2 13-month delay in a case involving charges of conspiracy and murder-for-hire against three co3 defendants violated the Sixth Amendment. The Ninth Circuit disagreed. The pretrial delay had 4 been caused by typical pretrial motions, deliberations, rulings, and investigation. Id. at 1131. 5 The delay was exacerbated by the fact that the death penalty was a possibility and the Justice 6 Department had to give consideration to seeking that penalty. Id. The Court noted that these 7 pretrial activities were "unremarkable" in such a complex prosecution and that there was "no 8 evidence, circumstantial or direct, that the government sought any tactical advantage by delay." 9 Id. Similarly, in Lam, the Ninth Circuit observed that where murder charges against the 10 defendant potentially implicated the death penalty, the case involved significant scrutiny of the 11 evidence, and consequently, the fourteen and a half month pretrial delay did not violate the Sixth 12 Amendment. 251 F.3d at 856; see also Walker, 92 F.3d at 717 (a defendant cannot complain 13 that the government has denied him a `speedy' trial if it has, in fact, prosecuted his case with 14 customary promptness") (internal quotations omitted). The case at bar, involving fourteen 15 defendants and forty-three counts, is significantly more complex than the case in Murillo or Lam. 16 Adding to the complexity, the death penalty was at one time a potential penalty, the varied 17 charges include conspiracy, RICO, and firearms- and drugs-related offenses, and the defendants 18 have filed dozens of pretrial motions.1 19 Defendant's reliance on United States v. Shelton, 820 F. Supp. 461 (W.D. Mo. 1992), is

20 misplaced. In that case, the court found pretrial delay unreasonable where "[t]here was no 21 ongoing investigation, no co-defendants, and no indication that the defendant was about to go 22 23 24 25 26 27 28 Contrary to Defendant's contention, the pretrial delay has not been caused by the United States' alleged withholding of discovery. Defendant's argument is an attempt to rehash disputes with the United States over alleged discovery violations and to bootstrap the Sixth Amendment into a mechanism to enforce Rule 16. But that is not what the speedy trial right is designed to do. Other protections are in place to ensure that parties comply with their obligations under Rule 16. Moreover, any delay caused while the parties resolved discovery issues has only served to benefit Defendant. Had trial taken place before all needed discovery was ferreted out, Defendant may have had a more difficult time preparing his defense. See Loud Hawk, 474 U.S. at 315 (noting that delay can be a "two-edged sword" because the "[p]assage of time may make it difficult or impossible for the Government to prove its case"). This Court has already considered and addressed defendants' discovery grievances and should not revisit them in the context of a Sixth Amendment challenge. 5
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1 into hiding." Id. at 466. By contrast, in the case at bar, there are numerous co-defendants and 2 additional investigation. As soon as sufficient evidence was gathered, the indictments were filed 3 with the "customary promptness" required. Accordingly, this factor weighs in the United States' 4 favor. 5 6 C. Defendant Has Not Asserted His Right and Has Contributed To the Delay.

In Loud Hawk, the Court held that the defendant could not complain about delay that was

7 caused in part by his own motion practice. 474 U.S. at 316 ("`Having sought the aid of the 8 judicial process and realizing the deliberateness that a court employs in reaching a decision, the 9 defendants are not now able to criticize the very process which they so frequently called upon.'") 10 (quoting United States v. Auerbach, 420 F.2d 921, 924 (5th Cir. 1969)). Here, Defendant joined 11 in a motion to continue trial filed by Defendant Walters on December 30, 2003. [Dkt # 152] 12 Meanwhile, the United States has never filed a motion to continue trial in this matter. 13 Moreover, nothing in the record indicates that Defendant objected to any of the other trial 14 continuances. Until he filed the Motion, Defendant never affirmatively requested a speedy trial. 15 Accordingly, this factor weighs in the United States' favor. 16 D. Prejudice to the Defendant.

17 The fourth and final factor that this Court must consider is whether Defendant has been 18 prejudiced by the pretrial delay. In support of his argument that he has been prejudiced, 19 Defendant "contends that time has eroded memories and physical evidence resulting in actual 20 prejudice," [Mot. at 5], yet the Motion does not identify a single fact to support this contention. 21 Nor does the Motion identify whose memory may have been eroded or name a single piece of 22 evidence that is in danger of erosion­much less actual destruction or loss. In Barker, the Court 23 found that any prejudice to defendant was "minimal" because there was "no claim that any of 24 the witnesses died or otherwise became unavailable owing to the delay." 407 U.S. at 534. 25 Similarly here, there is no specific claim that any particular witness has become unavailable to 26 Defendant. Rote incantation of the standard does not suffice to raise an issue of prejudice. 27 Walker, 92 F.3d at 719 ("Walker points to no specific prejudice to his defense by the passage 28 of time; instead he merely states a conclusion that his ability to prepare his defense was 6
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1 impaired. Such a showing will not suffice to show specific prejudice."). Rather, where the delay 2 is not excessive, the defendant must "[d]emonstrate actual prejudice to prevail on his [Sixth 3 Amendment] claim." Gregory, 322 F.3d at 1163. Defendant has failed to do so. Accordingly, 4 this factor also weighs in the United States' favor. 5 Conclusion

6 For the foregoing reasons, the United States respectfully requests that this Court deny Defendant 7 McKay's Motion to Dismiss for Violation of Right to Speedy Trial. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7
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Respectfully submitted this 13th day of January, 2006. PAUL K. CHARLTON United States Attorney District of Arizona s/ Timothy Duax TIMOTHY DUAX Assistant U.S. Attorney

1 I hereby certify that on January 13, 2006, I electronically transmitted the attached 2 document to the Clerk's Office using the CM/ECF system for filing and 3 transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: 4 Joseph E. Abodeely, [email protected], [email protected] 5 David Zeltner Chesnoff, [email protected] 6 Carmen Lynne Fischer, [email protected], [email protected] 7 Patricia Ann Gitre, [email protected], [email protected] 8 Alan Richard Hock, [email protected] 9 Thomas M Hoidal, [email protected], [email protected] 10 Barbara Lynn Hull, [email protected] 11 12 David M Ochoa, [email protected] 13 Jose S Padilla, [email protected], [email protected] 14 Mark A Paige, [email protected] 15 James Sun Park, [email protected], [email protected],[email protected] 16 C Kenneth Ray, II, [email protected] 17 Brian Fredrick Russo, [email protected], [email protected] 18 Michael Shay Ryan, [email protected], [email protected] 19 Philip A Seplow, [email protected], [email protected] 20 Robert Storrs, [email protected], [email protected] 21 22 s/ Timothy Duax 23 TIMOTHY DUAX 24 25 26 27 28 8
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