Free Order on Motion to Dismiss All Charges - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

United States of America, Plaintiff, vs. Robert McKay, Defendant.

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No. CR 03-1167-PHX-DGC

ORDER DENYING MOTION TO DISMISS

Pending before the Court is Defendant Robert McKay's Motion to Dismiss for Violation of Right to Speedy Trial. (Dkt. 945.) The Government filed a response opposing the motion (dkt. 1053) and Defendant filed a reply (dkt. 1076). For the reasons set forth below, the Court will deny the motion. BACKGROUND The original indictment in this case, charging Defendant McKay and fifteen codefendants with various criminal counts, was filed on November 18, 2003. (Dkt. 1.) Defendant was charged with one count of Violent Crime in Aid of Racketeering ("VICAR"). Defendant entered his initial appearance on December 3, 2003, and trial was set for January 13, 2004. Defendant was released with conditions on December 5, 2003. On January 8, 2004, this Court reset the trial for February 10, 2004, and found that the 28-day delay between the trial dates was excludable for speedy trial purposes under the Speedy Trial Act, 18 U.S.C. § 3161 (the "Act"). (Dkt. 167 at 2.)

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On December 23, 2003, the Government filed a Notice of Complex Criminal Matter. (Dkt. 138.) On February 2, 2004, the Court designated the case complex for speedy trial purposes under the Act and set the trial date for October 12, 2004. (Dkt. 200, ¶ 2.) On June 17, 2004, the Court reset the trial date for January 18, 2005, again finding that this is a complex case and excluding time under the Act. (Dkt. 292, ¶ 5.) On August 31, 2004, Defendant had contact with an agent of the Bureau of Alcohol Tobacco, Firearms and Explosives ("ATF") and allegedly threatened the agent with physical harm. On September 1, 2004, Defendant was charged by complaint with threatening a federal officer. On September 10, 2004, United States Magistrate Judge Bernardo Velasco issued an order of detention, finding that Defendant was a flight risk and a danger to the community. This Court subsequently affirmed Magistrate Judge Velasco's order. (Dkt. 645.) A superceding indictment was filed on September 30, 2004. (Dkt. 384.) Defendant was charged with an additional VICAR count and a count of threatening a federal law enforcement officer. A second superceding indictment was filed on January 19, 2005. (Dkt. 541.) On May 10, 2005, the Court reset the trial date for February 14, 2006, again confirming that this was a complex case and excluding time under the Act. (Dkt. 693, ¶ 4.) On September 14, 2005, the Court continued the trial to the final date of April 25, 2006. (Dkt. 813.) The Court again noted that this was a complex case and excluded time under the Act. (Id. at ¶ II.J) Defendant argues that his Sixth Amendment right to a speedy has been violated and as a result the charges against him should be dismissed. ANALYSIS The Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial." To evaluate a claimed violation of the Sixth Amendment right to a speedy trial the Court applies a balancing test involving four factors: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his -2-

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right to a speedy trial; and (4) the prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530 (1972). 1. Length of the delay. The first Barker factor, the length of the delay, is a threshold issue. Defendant "must show that the period between indictment and trial passes a threshold point of `presumptively prejudicial' delay." United States v. Beamon, 992 F.2d 1009, 1012 (9th Cir. 1993). If he makes such a showing, the Court proceeds to consider the other Barker factors. Id. While there is no bright-line rule, courts generally have found that delays approaching one year are presumptively prejudicial. Doggett v. United States, 505 U.S. 647, 652 n. 1 (1992). Defendant was first indicted in this matter in November 2003, approximately 30 months before the trial date of April 25, 2006. This delay is presumptively prejudicial and sufficient to trigger further analysis. The Court also finds that the delay is lengthy enough to militate moderately in Defendant's favor as the Court assesses the Barker factors. Cf. United States v. Gregory, 322 F.3d 1157, 1162 (9th Cir. 2003) (22-month delay exceeded the threshold but was not "excessively long" and did not "weigh heavily in Gregory's favor"); United States v. Tahn Lam, 251 F.3d 852, 857 (9th Cir. 2001) (15-month delay was long enough to trigger a Barker inquiry, but only "militate[d] slightly in Lam's favor"); Beamon, 992 F.2d at 1014 (17-month and 20-month delays passed the threshold but were not "great"). 2. Reason for the delay. As the Supreme Court noted in Barker, a finding that the Government intentionally delayed its prosecution in order to "hamper the defense" or gain some advantage at trial would weigh heavily in favor of Defendant's claim, while a "more neutral reason such as negligence . . . should be weighed less heavily but nevertheless should be considered . . ." 407 U.S. at 531. Defendant cites the Government's failure to provide timely and complete discovery as a cause of the delay. The Court has considered this aspect of the Government's

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conduct in a variety of contexts, including a co-defendant's motion to dismiss the indictment on speedy trial grounds (dkt. 583) and motions to dismiss for disclosure violations (e.g., dkts. 944, 1015). The Court has found that the Government's conduct was not "flagrant" (dkt. 712 at 5) or "outrageous" (dkt. 1132 at 3), but has noted that "the Government's disclosure efforts might at times be characterized as negligent or incompetent." (Dkt. 1132 at 4.) In an order dated September 14, 2005, the Court, citing the Government's handling of its discovery obligations, continued the trial date from February 14 to April 25, 2006. (Dkt. 813.) In addition to these discovery issues, however, a number of legitimate factors have contributed to the length of the delay between indictment and trial. The most significant of these is the size, complexity, and seriousness of the case. In Barker, the Supreme Court explained that "the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge." 407 U.S. at 530­31 (see Lam, 251 F.3d at 856). The second superceding indictment charges 16 defendants with 43 counts involving offenses alleged to have occurred over a period of four years. The charges include racketeering under the Racketeer Influenced and Corrupt Organization Act ("RICO") and RICO conspiracy, with the RICO counts encompassing 20 predicate acts. The second superceding indictment asserts numerous narcotics and firearms violations and charges several defendants with violent crimes, including murder, attempted murder, and conspiracy to murder. Trial preparation has entailed the review of an enormous volume of material, including physical evidence, videotapes, and recorded conversations. The seriousness of the charges is also reflected in the fact that at the outset of the case the death penalty was a potential sentence; the Justice Department's review of the file necessarily occasioned a delay in the proceedings. See United States v. Murillo, 288 F.3d 1126, 1131 (9th Cir. 2002) (Justice Department's consideration of the death penalty was a factor in 13-month delay); Lam, 251 F.3d at 856 (fact that the case "potentially involved the death penalty" added to its

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complexity and the attendant delay). The size and complexity of the case have also occasioned an extensive pretrial motion practice. See Doggett, 505 U.S. at 656 (listing the government's need for time to oppose the defendant's motions as a "wholly justifiable" cause for pretrial delay); United States v. Aguirre, 994 F.2d 1454, 1457 (9th Cir. 1993). Thus, although some of the delay is attributable to the Government's poor handling of discovery, a greater portion has resulted from the scope and seriousness of the case. This would have been a long and complicated trial for which to prepare even if the Government had complied perfectly with its disclosure obligations at the very outset of the litigation. Therefore, the Court finds that this factor only slightly favors Defendant. 3. Defendant's assertion of his right to a speedy trial. Defendant has been present or represented at each of the fourteen case management conferences held to date. Trial extensions have been discussed and requested at several of these conferences. (Dkts. 200, 292, 693, 813.) The Government asserts that it has never sought a continuance and that McKay has never objected to continuances sought by other Defendants. (Dkt. 1053.) The Government further notes that McKay has joined in at least one of these requests. (Dkt. 152.) Defendant McKay does not disagree with any of these assertions in his reply memorandum. (Dkt. 1076.) The Court's review of the record shows that Defendant McKay did object to the sixmonth continuance sought by Defendant Johnston at the case management conference held on August 25, 2005. The Court rejected Defendant Johnston's request and instead granted a two-month continuance, setting the final and firm trial date of April 25, 2006. (Dkt. 813.) Thus, it appears that Defendant McKay asserted his speedy trial rights only with respect to the final two-month extension of the trial. Defendant's motion to dismiss based on denial of a speedy trial was not filed until more than two years after the original indictment. (Dkt. 945.)

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Thus, Defendant McKay's assertion of his speedy trial rights is only a recent development in this case. A substantial majority of the delay about which he now complains occurred without his objection or motion. As a result, this factor of the Barker analysis weighs heavily against him. As the Supreme Court has explained, "failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial." Barker, 407 U.S. at 532; see United States v. Sears Roebuck, 877 F.2d 734, 740 (9th Cir. 1989) ("failure to assert [the] right to a speedy trial in a timely fashion . . . weighs heavily against dismissal"); United States v. Simmons, 536 F.2d 827, 831 (9th Cir. 1976) ("failure to demand a speedy trial will make it difficult for [defendant] to prove that there was an abridgement of this guarantee"). See also United States v. Kalady, 941 F.2d 1090, 1095 (10th Cir. 1991) (court was "unimpressed" when defendant's speedy trial demand was not asserted until "trial itself was imminent"); United States v. Vasquez, 918 F.2d 329, 338 (2d Cir. 1990) ("defendants waited roughly 22 months before advancing their speedy trial claims, and this hardly renders plausible their contention that an expeditious resolution of their cases was a matter of pressing constitutional importance for them").1 4. Prejudice. Prejudice typically is shown in three ways: (1) oppressive pretrial incarceration; (2) the anxiety and concern of the accused; and (3) the possibility that the accused's defense will be impaired. Id. at 654; Beamon, 992 F.2d at 1014. Defendant cites the length of his pretrial incarceration and impairment to his defense as sources of prejudice. (Dkt. 945 at 5.) Defendant "contends that time has eroded memories and physical evidence resulting in actual prejudice." (Dkt. 945 at 5.) Specifically, Defendant expresses concern about the memories of witnesses to the shootout at Harrah's Casino in Laughlin, Nevada, on April 27, 2002. These events were recorded on videotape, but Defendant argues that the witness'

Defendant McKay might also have objected to Defendant Smith's recent request for an additional 60-day extension, but this objection cannot aid his motion because the Court denied Defendant Smith's request and refused to extend the trial date. (Dkt. 1012.) -6-

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memories of the incident take on additional significance because the Government "has concealed the videotapes." (Dkt. 1076 at 4.) Although it is true that some of the videotapes have not been produced in viewable form ­ an issue the Court has addressed in other orders ­ Defendant is not directly charged in the Laughlin incident. As noted above, Defendant is charged with VICAR offenses, and the racketeering at issue in these offenses presumably includes the same pattern of racketeering that includes the Laughlin incident. Thus, it is possible that the Government will seek to introduce evidence of the Laughlin events in support of the racketeering portion of its claim against Defendant. But Defendant McKay makes no attempt to demonstrate what memories have been impaired or how that impairment will adversely affect his defense of the VICAR counts.2 Beyond citing the Laughlin incident, Defendant McKay offers no specific information to support his claim of prejudice. Defendant has been incarcerated since September 2004, when he was arrested for allegedly threatening a federal officer while on pretrial release, but he offers only conclusory allegations that the period of pretrial incarceration has impaired his defense. (Dkt. 945 at 5.) Because Defendant has not "credibly point[ed] to any specific damage to his defense stemming from the delay in his trial," he has failed to make a showing that he has suffered prejudice under the Barker test. Lam, 251 F.3d at 860; see Loud Hawk, 474 U.S. at 315 ("possibility of prejudice is not sufficient to support [defendant's] position that their speedy trial rights were violated"); Sears, 877 F.2d at 740.3

Defendant's prejudice argument is compromised somewhat by the fact that he filed this motion only four months before trial. If time has eroded witness memories, that erosion likely occurred during the two years that passed between the filing of the indictment and Defendant's assertion of his speedy trial rights. Even if the Court were to presume prejudice given the length of the delay in this case, such a presumptive is simply one factor to be considered in ruling on Defendant's motion. Doggett, 505 U.S. at 656; see Beamon, 992 F.2d at 1012. The Court cannot conclude that any presumed prejudice outweighs Defendant's failure to assert his speedy trial rights, and therefore would not grant Defendant's motion even if prejudice is presumed. -73

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5.

Balancing. Two of the four Barker factors slightly favor Defendant (length of delay and reasons

for delay), one factor weighs heavily against him (Defendant's failure to assert his speedy trial rights in a timely manner), and one weighs slightly against him (Defendant's failure to show specific prejudice). Balancing these factors, the Court concludes that Defendant has not established that the case against him should be dismissed. The Court particularly is persuaded by the fact that Defendant acquiesced in several necessary trial extensions and did not assert his speedy trial rights until shortly before trial. IT IS ORDERED that Defendant's Motion to Dismiss for Violation of Right to Speedy Trail (dkt. 945) is denied. DATED this 15th day of February, 2006.

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