16‐3069‐cr United States v. Pennick

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 2nd day of November, two thousand seventeen.

PRESENT: DENNY CHIN, CHRISTOPHER F. DRONEY, Circuit Judges, JANE A. RESTANI, Judge.* ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

UNITED STATES OF AMERICA, Appellant,

v. 16‐3069‐cr

TYRONE PENNICK, AKA Stuff, Defendant‐Appellee,

RODNEY HILL, AKA Rock, DAVID MANUEL, AKA Day Day, WARDELL EPPS, AKA Whoa Whoa, SHARON JACKSON, MYKALE KING, AKA Mookie, PAULINE MANUEL, ANTHONY NEWMAN, EVELINA STOKES, SWAZINE SWINDLE, AKA Swazzie, AKA Swizzie, RAUL

* Jane A. Restani, Judge for the United States Court of International Trade, sitting by

designation. L. GARNICA, RENE I. GARNICA, AKA Judy Thomas, YOLANDA HODGE, AKA La La, JERMAINE HOWARD, AKA Jay, ARTHUR HUBBARD, AKA Art, AKA Fatboy, JESSE HUGHES, LOUIS MANUEL, Jr., AKA Stank, JOSEPH MARBLE, TONYA MAYE, BRYANT WOODS, JUDITH ASKEW, AKA Judy Thomas, Defendants.

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FOR APPELLANT: ELIZABETH R. MOELLERING, Assistant United States Attorney, for James P. Kennedy, Jr., Acting United States Attorney for the Western District of New York, Buffalo, New York.

FOR DEFENDANT‐APPELLEE: DONALD M. THOMPSON, Easton Thompson Kasperek Shiffrin, LLP, Rochester, New York.

Appeal from the United States District Court for the Western District of

New York (Arcara, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

On December 15, 2009, Defendant‐Appellee Tyrone Pennick and 26

codefendants were charged by criminal complaint with various drug trafficking

offenses in violation of

(a)(1), 843(b), 846, and 848. He was indicted

with nine codefendants on June 29, 2010, and charged in a Superseding Indictment with

nineteen codefendants on May 3, 2011. In a May 20, 2014 Second Superseding

Indictment, he was also charged with eleven additional counts. In all three indictments,

Pennick was charged with (1) participating in a continuing criminal enterprise and (2) a

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conspiracy to possess cocaine with intent to distribute and to distribute cocaine.1 On

August 2, 2016, the district court entered a decision and order dismissing Counts One

and Two with prejudice on the ground that Pennickʹs Sixth Amendment right to a

speedy trial had been violated. The eleven additional counts remain pending. The

government appeals. We assume the partiesʹ familiarity with the underlying facts,

procedural history, and issues on appeal.

Pennick was arrested and detained pending trial on December 16, 2009.

Pennick changed counsel several times and sought various extensions and

adjournments, as well as severance from codefendants scheduled for trial in June 2012.

On January 21, 2014, Pennick moved to dismiss Counts One and Two on

speedy trial grounds. On June 27, 2014, fifty‐four months after he was arrested, Pennick

was released from custody on conditions that included electronically monitored home

incarceration because of the length of his pretrial detention. The government moved

several times to adjudicate pending motions and set a trial date. Pennick has since been

re‐incarcerated for violating pretrial supervision.

The district court did not decide the speedy trial motion until August 2,

2016, two‐and‐a‐half years after the motion was filed. In its decision and order, the

1 The two counts are denominated Counts One and Two in the Second Superseding Indictment, but are materially Counts Two and Three in the original and Superseding Indictment. For ease of reference, we refer to them as Counts One and Two.

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district court balanced the four factors identified in Barker v. Wingo,

(1972),2

and found that (1) six and one‐half years had elapsed since Pennick was first charged by

criminal complaint, an ʺextraordinaryʺ delay that was ʺpresumptively prejudicial,ʺ App.

78; (2) there were ʺmixedʺ reasons for the delay, including the ʺvery substantial neutral

delay attributable to both parties,ʺ but the court itself bore ʺthe most significant

responsibility for the delays,ʺ App. 79, 84; (3) Pennickʹs submissions to the court ʺwere

somewhat inconsistent with a serious and urgent desire for a speedy trial,ʺ App. 83; and

(4) although there was no evidence that the delay impaired Pennickʹs ability to defend

against the charges, the ʺobvious psychological and social impactʺ that Pennick suffered

from his fifty‐four months in pretrial detention and twenty‐five months on

electronically‐monitored home incarceration was ʺcontrollingʺ on the prejudice issue,

App. 84. The court concluded that the delays in the case were excessive and dismissed

with prejudice Counts One and Two of the Second Superseding Indictment.

We review the district courtʹs dismissal of an indictment on constitutional

speedy trial grounds for abuse of discretion. United States v. Moreno,

(2d

Cir. 2015). We rely on the factual findings of the district court, unless clearly erroneous.

United States v. Ghailani,

(2d Cir. 2013). None of the four Barker factors

has any ʺtalismanic qualities,ʺ and none is ʺnecessary or sufficientʺ to finding a

2 The four factors are (1) the length of delay, (2) the reason for the delay, (3) the defendantʹs assertion of his right, and (4) prejudice to the defendant. Barker v. Wingo,

(1972).

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deprivation ‐‐ instead, courts must ʺengage in a difficult and sensitive balancing

process.ʺ Barker,

. When the right is violated, the only remedy is

dismissal of the charges with prejudice. Moreno,

.

We conclude that the district court did not abuse its discretion in light of

the extraordinary length of time that has elapsed since Pennick was charged and

arrested in December 2009 ‐‐ six and one‐half years at the time of the decision below,

and now, at the time of this appeal, nearly eight years.

Although some delay can be attributed to Pennick, such as delays arising

from retaining four different attorneys, some delay can also be attributed to the

government, such as for twice superseding the indictment, and much of the delay can

be attributed to the court, as it candidly acknowledged, such as the delay in deciding

motions. ʺWhile the government may have had little control over the ʹinstitutional

delaysʹ more appropriately attributable to the court, ʹthe ultimate responsibility for such

circumstances must rest with the government rather than the defendant.ʹʺ United States

v. New Buffalo Amusement Corp.,

(2d Cir. 1979) (quoting Barker,

); see also United States v. Carini,

, 149‐50 (2d Cir. 1977) (holding the

courtʹs delays against the government); cf. United States v. Bert,

(2d Cir.

2016) (commending the district courtʹs ʺhonest and unequivocal acceptance of

responsibilityʺ for a Speedy Trial Act violation, but noting that ʺthe mere fact that a

speedy trial violation is attributable to the court and not the government does not

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expunge that violation, nor does it automatically render the violation any less serious.ʺ).

The government insists that Pennick did not want a speedy trial, and argues that it

reminded the court to adjudicate pending motions and set a trial date. But a defendant

ultimately ʺhas no duty to bring himself to trial,ʺ Barker,

, and the

governmentʹs first motion to adjudicate did not come until January 8, 2014, four years

after Pennick was first charged.

Nor did the district court abuse its discretion in affording heavy weight to

the psychological and social anxiety resulting from fifty‐four months of pretrial

detention and twenty‐five months of home incarceration. The government avers that

we have found comparably long pretrial delays constitutional. But in none of the cases

cited by the government was the defendant detained the entire time. See, e.g., Barker,

407 U.S. at 517‐18 (five years, but defendant spent only ten months in jail); Rayborn v.

Scully,

, 89‐90 (2d Cir. 1988) (seven years, but defendant continually evaded

arrest and failed to appear in court); United States v. Lane,

(2d Cir.

1977) (fifty‐eight months, but no suggestion that defendant was detained); United States

v. Saglimbene,

(2d Cir. 1972) (six years, but defendant was released on

bail the day after arrest).

We conclude that the district court did not abuse its discretion when it

dismissed Counts One and Two with prejudice pursuant to Pennickʹs Sixth Amendment

right to a speedy trial. At oral argument, the parties discussed the possibility that

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Pennick would move to dismiss the remaining eleven counts on speedy trial grounds.

We express no view as to the merits of any such motion.

We have considered the governmentʹs remaining arguments and find

them to be without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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