Unpublished Disposition, 936 F.2d 580 (9th Cir. 1991)

MEMORANDUM^* 

The United States appeals the dismissal of its indictment against defendants Robert Boynton, Richard Fritz, and Leonard Levy. The grounds for the dismissal include: violation of defendants' right to a speedy trial under both the Speedy Trial Act, 18 U.S.C. § 3161 et seq, and the sixth amendment, as well as violation of Fed. R. Crim. P. 48(b), which prohibits unnecessary delay in bringing a defendant to trial.

With regard to the Speedy Trial Act, the government argues that the district court's statement that the complexity finding had precluded application of the 70-day rule proves that the court did not find a violation of the Act. The district court explicitly stated, however, that " [t]he delay involved here is violative of the due process principles espoused in the Sixth Amendment, the Speedy Trial Act, and Rule 48 of the Federal Rules of Criminal Procedure." At any rate, the government effectively concedes a violation of the Speedy Trial Act on appeal and, accordingly, we so hold.

We reach the constitutional issue only because violation of the Sixth Amendment would require dismissal with prejudice. See Strunk v. United States, 412 U.S. 434, 439 (1972).

Four factors determine whether the sixth amendment's guarantee of a speedy trial has been violated: the length of the delay, the reason for the delay, whether the defendant asserted the right, and whether he was prejudiced by the government's denial of it. United States v. Sears, Roebuck and Co. Inc., 877 F.2d 734, 739 (9th Cir. 1989). Unless the length of delay is presumptively prejudicial, we need not examine the other three factors. Id.

The parties, except Fritz, and the district court assume an incorrect measure of delay: the interval between the issuance of the mandate in the interlocutory appeal and the government's request for rescheduling. "The delay is measured from the time of the indictment to the time of trial," id., or time of dismissal of the indictment, see United States v. Loud Hawk, 474 U.S. 302, 314 (1986), or time of arrest, see United States v. Williams, 782 F.2d 1462, 1465 (9th Cir. 1985). Defendants in this case were indicated in August, 1986; the indictments were not dismissed until January, 1990. The total delay was therefore approximately 42 months. Under Sears, that length is sufficient to raise the presumption of prejudice. See Sears, 877 F.2d at 739; see also Williams, 782 F.2d at 1465 (holding that a 39-month delay between indictment and arrest is presumptively prejudicial).

Although defendants suffered a total delay of almost four years, the government "can at most be charged with responsibility for the delay following the ... interlocutory appeal." Sears, 877 F.2d at 739-40. That period, in this case one year, is the maximum appropriate time frame against which the reason for the delay should be assessed.

The government contends that the relevant period of delay is even shorter, eight months, the interval between the filing of the cert. petition and the government's request for a new trial date. There is reason to accept the government's contention. As the district court stated, the finding of complexity removed the case from the 70-day rule. The Speedy Trial Act did not, therefore, impose a duty on the government to request a trial as soon as the mandate in the interlocutory appeal was issued. See 18 U.S.C. § 3161(h) (1) (E). Nor does the sixth amendment impose a specific time limit for bringing such a request.

Whether the relevant period is one year or eight months, " [t]he reason for delay is the focal inquiry." Sears, 877 F.2d at 739. In contrast to the way we consider delay deliberately caused, we do not weigh delay caused by negligence heavily against the government. See id. at 740. Here, the delay was caused by the government's mistaken belief that Levy's petition for certiorari tolled the speedy trial clock under the sixth amendment.

The district court rejected the government's contention with regard to the tolling. In support of the rejection, the court cited Sec. 3161(h) of the Speedy Trial Act which lists acceptable reasons for tolling the act, none of which is filing of a cert. petition. Because the government's argument is based on the sixth amendment, however, that section does not conclusively disprove the government's position. At any rate, the finding of complexity meant that defendants were not subject to the restrictions of the Act.

The district court did not, however, err in rejecting the government's argument on the basis of Fed. R. App. P. 41. That rule states that " [a] stay of the mandate pending application to the Supreme Court for a writ of certiorari may be granted upon motion...." The government did not file such a motion, the mandate issued, and accordingly the government's duty to act was no longer suspended. The trial court considered the government's misunderstanding of the law "critical," apparently amounting to gross negligence. Because ignorance of the law rarely justifies noncompliance, the trial court's conclusion did not amount to an abuse of discretion.

Without offering any explanation for not knowing the law, the government contends that it made an "innocent" error that, in light of its numerous attempts to track the status of the cert. petition, the sixth amendment forgives. The government provides no support for creating under these circumstances what would amount to a good faith exception to its duty to know and follow the law.

Although it accepts some degree of culpability, the government views itself no more responsible for the delay than defendant Levy whom it accuses of concealing the fact that the petition for cert. had been denied thereby delaying prosecution for at least two months. The government has not alleged, however, that Levy misinformed it about the status of the petition, that it attempted to obtain that information from Levy, or more basically that Levy had a duty to provide it with the information. The government's claim of shared responsibility is therefore weak. See Barker v. Wingo, 407 U.S. 514, 531 (1972) (commenting that "the ultimate responsibility for [the government's negligence] must rest with the government rather than with the defendant). We hold that heavily weighing the reason for the delay against the government was not an abuse of discretion.

We reject, however, the district court's conclusion that the defendants asserted their right to a speedy trial in a timely fashion. " [T]he failure of a defendant to press for trial on the merits 'is entitled to strong evidentiary weight....' " Sears, 877 F.2d at 740 (quoting Barker, 407 U.S. at 531). A defendant should give some indication, prior to his assertion of a speedy trial violation, that he wishes to proceed to trial. Id.

With the possible exception of Levy's single opposition in 1987 to codefendants' motion for a continuance, defendants in this case showed no interest in proceeding to trial. First, because the government delayed rescheduling the trial until it received final word on the cert. petition, defendants' failure to inform the government that the cert. petition had been denied belies their claim that they wanted to go to trial. Second, although Levy objected to further continuances in July, 1989, we dismiss that objection as untimely because it came after the government had moved to reschedule the trial.

Defendants' failure to assert their right to a speedy trial militates strongly against them. In Barker v. Wingo, the Supreme Court stated that "barring extraordinary circumstances, we would be reluctant indeed to rule that a defendant was denied this constitutional right on a record that strongly indicates, as does this one, that the defendant did not want a speedy trial." 407 U.S. at 536. An "extraordinary circumstance" is not indicated by the government's mistaken belief that suspension of its duty to reschedule the trial did not depend on a motion to stay the mandate. Naming examples of an extraordinary circumstance, the Barker Court included representation by incompetent counsel, severe prejudice, and ex parte grants of continuances. See id. Under Barker, the analysis in this case hinges on a finding of severe prejudice.

The government's failure to offer a legitimate reason for the delay does not temper the requirement of severe prejudice. The government must not be penalized too harshly for its failure because the delay was negligently, not deliberately, caused. See id. at 531. Even if the error amounted to gross negligence, defendants are required to prove extreme prejudice. " [P]rejudice to the defense is not the primary concern of the speedy trial clause...." Williams, 782 F.2d at 1466 (emphasis added). Furthermore, in Barker, the Court rejected defendant's claim absent an extraordinary circumstance such as severe prejudice, see 407 U.S. at 536, even though the government's reason for delay was arguably weaker than that offered here, see id. at 533-34 (offering a strong excuse for only seven months of a delay of over five years).

"The three interests which should be considered to determine prejudice are: (1) prevention of oppressive pretrial incarceration; (2) minimizing anxiety and concern of the accused; and (3) limiting the possibility that the defense will be impaired." Williams, 782 F.2d at 1466. Although on appeal defendants claim an infringement of the second interest, we confine our analysis as did the district court to the last of these.

The district court based its finding of severe impairment of Levy's defense on the loss of four potential witnesses, two from death and two from disappearance. The district court based its finding of severe impairment of Boynton and Fritz's defense on the death of Holden. We reject both conclusions.

First, the death of Robert Talbott in 1986, before the relevant period of delay, should have had no bearing on the analysis with respect to Levy. Second, a finding that the testimony of Holden and the other witnesses would have provided some exculpatory evidence is an inadequate basis for holding that defendants met their heavy burden of showing severe prejudice, i.e., that the testimony of any of the witnesses was crucial to their defense. Finally, the alleged help that the witnesses would have provided amounts to speculation and, as such, is of no import in this case requiring a strict showing of severe prejudice. Cf. United States v. MacDonald, 435 U.S. 850, 860 (1978) ("The essence of a defendant's Sixth Amendment claim in the usual case is that the passage of time has frustrated his ability to establish his innocence of the crime charged. Normally, it is only after trial that that claim may fairly be assessed.").

In conclusion, defendants' sixth amendment right to a speedy trial was not violated.

In properly dismissing the indictment under the Speedy Trial Act, the district court erred in not deciding whether to dismiss the indictments either with or without prejudice. The court noted that the statute of limitations had run on reindictment and held that application of the savings clause of 18 U.S.C. § 3288, which would have permitted reindictment within six months of the date of the dismissal despite expiration of the statute of limitations, is barred by the ex post facto clause of Article I, Section 10 of the Constitution. By forecasting the effect of a reindictment if the dismissal is without prejudice, the court rendered an advisory opinion.

The dismissal is AFFIRMED, and the case is REMANDED to the district court to determine whether the dismissal should be with or without prejudice.