18‐496‐cr (L) United States v. Black UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ____________________

August Term, 2018

(Argued: August 14, 2018 Decided: March 18, 2019)

Docket Nos. 18‐496‐cr(L), 18‐548‐cr(XAP), 18‐574‐cr(XAP)

____________________

UNITED STATES OF AMERICA,

Appellant–Cross‐Appellee, v.

RODSHAUN BLACK, AKA Rashaun Black, AKA Shaun,

Defendant‐Appellee,

DANIEL RODRIGUEZ, AKA Danny, ERNEST GREEN, AKA Ern,

Defendants‐Appellees–Cross‐Appellants.*

____________________

Before: NEWMAN and POOLER, Circuit Judges, and COTE, District Judge.†

The Clerk of the Court is directed to amend the caption as above. *

† Judge Denise Cote, of the United States District Court for the Southern District of New York, sitting by designation. The United States appeals from the judgment of the United States District

Court for the Western District of New York (William M. Skretny, J.) granting

Rodshaun Black, Daniel Rodriguez, and Ernest Green’s motion to dismiss the

remaining criminal charges against them on Sixth Amendment speedy trial

grounds. Due to a panoply of delays, Black, Rodriguez, and Green were not tried

until approximately sixty‐eight months after they were first indicted. For two

years of that time, the government failed to render a decision on whether

Defendants‐Appellees would face the death penalty.

On appeal, the government principally argues that the district court

should not have attributed two years’ delay to the government for its prolonged

death‐penalty decision and that the district court should have held Black,

Rodriguez, and Green responsible for more of the delay than it did. Applying the

factors outlined in Barker v. Wingo,

(1972), we hold that the delay

was an unconstitutional deprivation of Black’s, Rodriguez’s, and Green’s Sixth

Amendment rights to a speedy trial. Accordingly, we AFFIRM the judgment of

the district court.

2 Judge Cote concurs in the judgment in part and dissents in part in a

separate opinion.

Affirmed.

____________________

MICHAEL P. FELICETTA, Assistant United States Attorney (Tiffany H. Lee, Assistant United States Attorney, on the brief), for James P. Kennedy, Jr., United States Attorney for the Western District of New York, Rochester, NY, for Appellant–Cross‐Appellee.

DONALD M. THOMPSON, Easton Thompson Kasperek Shiffrin, LLP, Rochester, NY, for Defendant‐ Appellee Rodshaun Black.

BARRY N. COVERT, Lipsitz Green Scime Cambria LLP (Erin E. McCampbell, on the brief), Buffalo, NY, for Defendant‐Appellee–Cross‐Appellant Daniel Rodriguez.

JESSE C. PYLE, Harrington & Mahoney (James P. Harrington, on the brief), Buffalo, NY, for Defendant‐ Appellee–Cross‐Appellant Ernest Green.

POOLER, Circuit Judge:

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,

3 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,

(2d Cir. 2018); United States v. Pennick,

(2d Cir. 2017) (summary order). Defendants‐Appellees endured an

extraordinary sixty‐eight‐month delay, suffered anxiety occasioned by the

4 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.

5 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.

6 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

7 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

8 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.

9 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

10 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.

11 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

12 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

13 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. 14 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 post‐

hearing brief on January 20, 2016.

15 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. 16 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,

17 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),

, 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,

, 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,

18 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.,

(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,

(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,

(1972); United States

v. Ewell,

(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

19 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,

(2d Cir. 2015), though we have indicated that the abuse‐

20 of‐discretion standard authorizes broad review of a district court’s balancing of

the Barker factors, United States v. Ghailani,

(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,

.

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,

. 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,

(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.,

.

21 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,

, 652 n.1 (1992), and that a delay of “well over five years

[] was extraordinary,” Barker,

. This Court has held that a delay of

“four and one‐half years is unquestionably substantial,” New Buffalo Amusement

Corp.,

, and has stated that a delay of nearly seven years is

“extreme,” Tigano,

.

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,

; New Buffalo Amusement Corp.,

. 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

22 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,

(1932), the

dissent would hold that each charge brought on a superseding indictment that

23 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

24 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,

, 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,

; Pennick,

. 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

25 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‐to‐

counsel 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

26 him whether by way of formal charge, preliminary hearing, indictment,

information, or arraignment.” Brewer v. Williams,

(1977)

(internal quotation marks omitted); see also Rothgery v. Gillespie County,

(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,

(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,

(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.

at 64‐65. The Supreme Court concluded that

accounting was contrary to its precedent, which counseled, “Invocation of the

27 speedy trial provision . . . need not await indictment, information, or other

formal charge.”

(internal quotation marks omitted) (quoting Marion,

). 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,

(1971), the 22‐month “pre‐ indictment delay . . . is not to be counted for the purposes of a Sixth Amendment motion absent a showing of actual prejudice.”

(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.”

. In contrast, the Government constituted petitioner an “accused” when it arrested him and thereby commenced its prosecution of him. Marion made this clear,

at 320‐21, where the Court stated: “To legally arrest and detain, the Government must assert probable cause to believe the arrestee has 28 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.

(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 [

(1967)]; see also Smith v. Hooey,

, 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,

, 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.

(1982). The Court held that it did not.

at 9‐10. 29 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.

(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.”

. 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.”

.

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

30 recognized.”

(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 . . . .”

, 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,

(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,

.

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

31 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,

, 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

32 “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.”

. 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,

(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,

(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,

, the practical application of this principle would require

us to turn a blind eye to years of pre‐trial incarceration that ultimately became

oppressive.

33 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,

,

34 106‐07 (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,

, 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,

(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,

, 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,

, 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,

, 653‐54, 656 (8th Cir. 2008)

(counting, without discussion, delay from original indictment until trial despite

superseding indictment nine months after original indictment).

35 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,

. 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,

(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,

; see also Vispi,

(“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

36 once it has begun.” Doggett,

. “[O]ur toleration of such negligence

varies inversely with its protractedness and its consequent threat to the fairness

of the accused’s trial.”

(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.

37 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

38 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

39 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

40 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,

(noting that a “neutral reason” for delay “should be weighted less heavily but nevertheless should be considered”).

41 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,

. 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. 42 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

43 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

44 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.

45 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.,

; 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

46 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.

47 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,

. 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,

. While prejudice to the defense is “the most serious” of

48 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.”

at 532‐33. “Affirmative proof of impairment of

the defense is not required in order to find a Sixth Amendment violation.”

Tigano,

; see also Doggett,

(“[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,

.

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

49 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,

. The sheer length of time at issue here makes this pre‐trial

detention “egregiously oppressive.” Tigano,

.

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,

(2012), we need not hazard a guess as to whether the

50 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

51 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. 52 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,

. 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

53 Amusement Corp.,

. 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 pre‐ trial 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. 54 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

1

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

2

whether or not the new charges arise out of the “same conduct” as the earlier‐

filed 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 five‐

year 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

3

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.

4

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

, 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.

5

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.

6

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

7

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

8

death in violation of

(a) (the “Kidnapping count”), and two

firearms charges for violations of

(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

(j)(1);

(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,

9

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,

(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.

10

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,

, 619 (2d Cir. 2018) (citation omitted).

11

“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.

12

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 eight‐

and‐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,

(1972), the district court concluded that the defendants each suffered over sixty‐

eight 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

13

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

14

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,

(2d Cir. 2018); United States v. Pennick,

(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,

. A second superseding indictment filed in May 2014 charged Pennick with eleven additional counts.

The district court dismissed the two original charges for a violation of the Speedy Trial Clause and we affirmed.

We “express[ed] no 15

summarized here. See Tigano,

(citing Klopfer v. North Carolina,

(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,

(1982).

The rights guaranteed by the Speedy Trial Clause cannot be waived through

mere failure to promptly assert them. Barker v. Wingo,

, 529‐30

(1972); Tigano,

. 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.

; see also United States v. Abad,

, 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.

16

Sixth Amendment jurisprudence recognizes that “different weights should

be assigned to different reasons” for delay. Tigano,

(citing

Barker,

). 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.

at 612‐13 (citation omitted). The third category of delay ‐‐ such as

“misunderstandings” or a court’s inefficiencies ‐‐ is referred to as “neutral”

delay.

(citation omitted).

The presumption that pretrial delay has prejudiced the accused

“intensifies over time.” Doggett v. United States,

(1992).

Accordingly, the “toleration” of negligence in bringing a defendant to trial

“varies inversely” with the degree to which delay is protracted.

. 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

17

both upon the rights of the accused and upon the ability of society to protect itself. United States v. Ewell,

(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.”

18

‘accused’ in the course of that prosecution.” United States v. Marion,

(1971); see also Rothgery v. Gillespie Cty.,

(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,

. 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,

(2d Cir. 1997) (quoting United States v. Bloom,

(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,

; see also United States v. Sorrentino,

(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,

(5th Cir. 1994) (“A defendant’s

speedy trial rights attach only when he is formally charged with a crime or

19

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,

(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,

.

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,

. 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.

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

20

accusation against him and restrictions are imposed on his liberty.” Rothgery,

. 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,

(1984) (relying on these Sixth Amendment

terms in determining the point at which Sixth Amendment rights attach). The

21

majority’s approach would give the same words in the Constitution two different

meanings. Cf. United States v. Dixon,

(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,

(1975), MacDonald, and Betterman v. Montana,

(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

22

answer a criminal charge” following an arrest that triggers the attachment of the

Sixth Amendment’s speedy trial rights. Marion,

; see also

MacDonald,

; Dillingham,

. 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,

.

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,

(quoting Gouveia,

). 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.”

(citation

omitted).

23

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,

(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.

24

In Texas v. Cobb,

(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.

. 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.

. 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.”

(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.”

. 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.’”

at 173 n.3 (emphasis in Cobb). Applying this

analysis, the Court held that the Sixth Amendment right to counsel did not bar

25

police from interrogating the defendant regarding the murders and that his

confession to those murders was admissible at trial.

.

Under Blockburger, two charges are considered separate offenses if “[e]ach

of the offenses created requires proof of a different element.” Blockburger,

. “[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.”

If the charges fail this test, they are considered to be the “same

offense” for purposes of the Fifth Amendment’s Double Jeopardy Clause,

and the Sixth Amendment. Cobb,

. “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,

(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,

(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

26

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.”

.

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.

27

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,

, 304 n.1 (1986)

(remarking that Speedy Trial Act is generally “more stringent” than Speedy Trial

Clause); United States v. Rice,

(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

28

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

29

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.

30

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,

, 106‐07

31

(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.

.

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.

32

charges, and the government appealed only the dismissal of the bank fraud

charge.

.

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.

. 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.”

(citation omitted). Instead, the First Circuit constructed a diligence and

relatedness test for determining when the speedy trial right attaches to a later‐

filed 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.

at 106‐07.

33

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.”

(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,

(1992). And, as a matter of due process, it

has rejected a requirement of prosecutorial expedition. United States v. Lovasco,

, 790‐91 (1977). The First Circuit also appears to have overlooked

34

that the Blockburger test has already been “import[ed]” into the Sixth

Amendment in the right to counsel context. Compare Handa,

,

with Cobb,

.

Sixth Amendment jurisprudence is clear that the protections offered by

that Amendment are offense specific. See Cobb,

; McNeil v.

Wisconsin,

(1991); MacDonald,

; United States v.

Moore,

(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.

35

Only one of the five cases, United States v. Battis,

(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,

, and in a superseding

indictment in 2006 for possession of ammunition by a convicted felon. Both

counts charged a violation of

(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,

(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.

at

36

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.

at 1103 n.1, 1104 n.4, 1106 n.11, 1107 n.15.

In United States v. Jeanetta,

(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.

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.

at 653‐54.

In United States v. Oriedo,

(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.

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.

. 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

37

such delay should be charged to the government, Mr. Oriedo remains

responsible for multiple additional and significant delays.”

.

Finally, in United States v. Milhim,

(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.

. 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,

. 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.”

. 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

38

establish the suspect’s guilt beyond a reasonable doubt.” Lovasco,

.

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,

. 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,

(2d Cir. 1999) (quoting Marion,

); see

also United States v. Ray,

, 199‐200 (2d Cir. 2009); Sorrentino,

. Prejudice from an impairment of the right to a fair trial “is commonly

39

demonstrated by the loss of documentary evidence or the unavailability of a key

witness.” Cornielle,

.

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,

; United States v. Sessa,

40

(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

(a)(b)(1), (b)(2) with

(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

(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.”

(j).

41

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

This court recently held that Hobbs Act Conspiracy categorically constitutes a 12

“a crime of violence” for the purposes of § 924(c). United States v. Barrett,

(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,

(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,

(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,

(1977).

42

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.

(b). “Any undue delay after charges are dismissed . . . must be scrutinized under the Due Process Clause, not the Speedy Trial Clause.” MacDonald,

.

43

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.

Green timely filed his post‐hearing brief on October 9, 2015, but Rodriguez did 15

not file until January 7, 2016, and Black did not file until January 20, 2016.

44

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.

45

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.

46

The omission of any such argument is easily explained. When the

superseding indictment was filed, it added two defendants, four more Harper‐

related 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

47

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,

. 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 pre‐

indictment delay, the present record does not provide a basis to dismiss those

As noted above, the defendants moved to dismiss the Singer Counts based on a 18

violation of the Due Process Clause; they did not move to dismiss Counts 2 to 5 of the superseding indictment on such a theory.

48

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.,

(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

49

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

50

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.

51

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,

(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

52

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

53

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.

54

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

The record does not include information about either the investigative work 22

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. 56

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.

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