United States v. Tigano, No. 15-3073 (2d Cir. 2018)

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Justia Opinion Summary

Defendant appealed his conviction for five counts of drug-related charges. The Second Circuit reversed the judgment of the district court and dismissed with prejudice the indictment on all related charges against defendant, holding that his Sixth Amendment right to a speedy trial was violated by his nearly seven years of pretrial detention. The court noted that the pretrial detention experienced by defendant appeared to be the longest ever experienced by a defendant in a speedy trial case in the Second Circuit.

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15-3073 United States of America v. Tigano 28 15 3073 United States of America v. Tigano UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ____________________ August Term, 2017 (Argued: October 12, 2017 Decided: January 23, 2018) Docket No. 15 3073 ____________________ UNITED STATES OF AMERICA, Appellee, v. JOSEPH TIGANO, III, Defendant Appellant.1 ____________________ Before: WINTER, WALKER, and POOLER, Circuit Judges. Joseph Tigano, III appeals from his conviction in the United States District 29 Court for the Western District of New York (Elizabeth A. Wolford, J.) on five 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 The Clerk of the Court is directed to amend the caption as above. 1 counts of drug related charges, including the manufacture of 1,000 or more 2 marijuana plants, in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(A). Tigano 3 argues that his constitutional and statutory rights to a speedy trial were violated 4 by his nearly seven years of pretrial detention. Because we agree with Tigano 5 that his Sixth Amendment right to a speedy trial was violated, we need not 6 consider his remaining arguments regarding his statutory right to a speedy trial 7 and an alleged Fourth Amendment violation by an aerial infrared scan of his 8 residence. Accordingly, on November 15, 2017, we REVERSED the judgment of 9 the district court and DISMISSED WITH PREJUDICE the indictment on all 10 related charges against Tigano. We remanded to the district court for the limited 11 purpose of releasing Tigano and indicated an opinion would follow. 12 Reversed. 13 14 15 16 17 18 19 20 21 22 ____________________ JOSEPH J. KARASZEWSKI, Assistant United States Attorney, for James P. Kennedy, Jr., Acting United States Attorney for the Western District of New York, Buffalo, N.Y., for Appellee. GARY STEIN (Andrew Gladstein, Andrew Joyce, Stephanie Kelly, on the brief), Schulte Roth & Zabel LLP, New York, N.Y., for Defendant Appellant Joseph Tigano, III. 2 1 POOLER, Circuit Judge: 2 3 arrested on charges related to a marijuana growing enterprise allegedly operated 4 by the two men. When Drug Enforcement Administration (“DEA”) task force 5 members executed a search warrant at the Tiganos’ residence on the morning of 6 the arrest, they discovered over 1,400 marijuana plants. On October 2, 2008, 7 Tigano and his father were each indicted on six counts. Four of the counts 8 charged drug offenses related to the alleged marijuana growing operation; the 9 remaining two counts charged weapons offenses stemming from firearms found On July 8, 2008, Joseph Tigano, III and his father, Joseph Tigano, Sr., were 10 at the residence. 11 12 to one count of manufacturing 50 or more marijuana plants. Tigano refused to 13 accept a plea and proceeded to trial—nearly seven years after his arrest—on May 14 4, 2015. He was convicted by a jury on May 8, 2015 on five of the six counts in the 15 indictment. Tigano was imprisoned during the entirety of the nearly seven years 16 of pretrial proceedings. On appeal, Tigano argues that his Sixth Amendment 17 right to a speedy trial was violated by an oppressive period of pretrial 18 incarceration. On November 15, 2017, this Court filed an Order that reversed the Nearly five years later, on November 25, 2013, Tigano’s father pled guilty 3 1 judgment of the district court and dismissed with prejudice the underlying 2 indictment. We remanded the case for the limited purpose of releasing Tigano 3 from detention and indicated that an opinion would follow. Tigano was released 4 pursuant to that Order on November 15, 2017. 5 6 the context of a Sixth Amendment speedy trial analysis. Accordingly, we begin 7 by detailing the circumstances that resulted in Tigano’s nearly seven years of 8 pretrial detention. We then offer some historical context for our analysis of this 9 constitutional right in order to better situate Tigano’s exceptional facts. Finally, 10 we assess Tigano’s delay under the legal framework provided by the Supreme 11 Court in Barker v. Wingo, 407 U.S. 514 (1972). Tigano’s facts are exceptional in nearly every meaningful respect within FACTUAL BACKGROUND 12 13 The pretrial detention experienced by Joseph Tigano, III appears to be the 14 longest ever experienced by a defendant in a speedy trial case in the Second 15 Circuit. Tigano’s experience is an extreme outlier even among the severe 16 examples found within Sixth Amendment case law. Yet no single, extraordinary 17 factor caused the cumulative seven years of pretrial delay. Instead, the outcome 18 was the result of countless small choices and neglects, none of which was 4 1 individually responsible for the injustice suffered by Tigano, but which together 2 created this extreme instance of a Sixth Amendment violation. A review of the 3 procedural history reveals that Tigano was the victim of poor trial management 4 and general indifference at every level toward this low priority defendant in a 5 straightforward case. I. 6 7 July 8, 2008—April 8, 2009: Arrest, Arraignment, and Hunger Strike 8 On July 8, 2008, Joseph Tigano, III and his father were arrested. On 9 October 20, 2008, Tigano was arraigned and entered a not guilty plea before 10 Magistrate Judge Hugh Scott. At his arraignment, Tigano (through his then 11 attorney Thomas Farley) conveyed to the court that he would not accept a plea 12 and wished to preserve his speedy trial rights. The next court meeting on this 13 case was initially scheduled for March 19, 2009, but was rescheduled on motion 14 of Tigano’s father, who requested a delay. Tigano’s attorney failed to ever 15 convey this change in date to Tigano. When the date of the scheduled conference 16 arrived and no one explained to Tigano why he was not being transported to 17 court, Tigano stopped eating. He later explained to the court that the hunger 5 1 strike was his response to being left in his jail cell on a scheduled court date with 2 no explanation from his attorney or the court. II. 3 April 9, 2009—August 11, 2009: First Competency Exam 4 On April 9, 2009, the parties convened for the delayed status conference. 5 This status conference would result in the first of what would eventually be three 6 court ordered competency exams, each of which would confirm that Tigano was 7 competent to stand trial. At this juncture in Tigano’s pretrial detention, Farley 8 requested a competency evaluation, which was ordered by Magistrate Judge 9 Scott. The transcript of the proceeding makes clear that the driving motivation 10 for the decision to order a competency exam was Tigano’s repeated demand for 11 his speedy trial. Tigano’s prioritization of a speedy trial appears to have been his 12 primary point of disagreement with Farley and Magistrate Judge Scott explicitly 13 cited Tigano’s repeated insistence on a speedy trial as he ordered the competency 14 evaluation. Indeed, Tigano raised his speedy trial rights no fewer than ten times 15 in this single status conference. It was no mystery to any party that Tigano’s top 16 priority was moving quickly to trial. Instead, Magistrate Judge Scott ordered a 17 competency exam and, as a result, the next two status conferences were 18 postponed while the court awaited the results of the competency exam. 6 III. 1 August 12, 2009—January 20, 2010: Unresolved Representation 2 The parties were finally able to convene for a status conference on August 3 12, 2009 after Tigano had returned from his competency evaluation. The exam 4 determined that “he did not suffer from any ‘major mental illness,’ he had a 5 ‘good understanding of his current legal circumstances’ and he was able to ‘assist 6 properly in his defense.’” Appellant’s Br. at 8. Tigano asked the court for 7 permission to proceed pro se, in large part because of conflicts with Farley 8 regarding Tigano’s desire to proceed straight to trial as quickly as possible. The 9 court then engaged Tigano in an extended colloquy, and required the 10 government to recite the possible sentence faced by Tigano if he were convicted. 11 At this first hearing after the competency exam, Magistrate Judge Scott told 12 Tigano that he was making a “huge mistake” and that his answers—specifically, 13 his pleas to represent himself so as to proceed quickly to trial—“are tending to 14 make me believe he needs to be evaluated again.” App’x at 129. Magistrate Judge 15 Scott declined to decide on the request to proceed pro se, appointed standby 16 counsel to Tigano to explain the risks to him, and scheduled another status 17 conference for two days later. The second status conference was largely a replay 18 of the first: Tigano’s standby counsel again confirmed that Tigano appeared to 7 1 understand the charges, the government recited the charges Tigano was facing, 2 and Magistrate Judge Scott expressed his skepticism and reserved decision. 3 Nearly one month later, Magistrate Judge Scott granted Tigano’s request to 4 proceed pro se. There followed a series of short status conferences, one of which 5 appears to have been scheduled only because Farley failed to appear as directed 6 to hand over files to Tigano at the previous status conference. 7 8 became increasingly desperate and plaintive as he pleaded for the case to move 9 toward resolution. He continued to repeatedly raise his right to a speedy trial It is during this phase of the proceedings that Tigano’s statements in court 10 and to plead for severance from his father. As Tigano explained to the court, 11 “What I’m saying is he’s a free man. I’m incarcerated. I’m in jail. And my father 12 and his lawyer can actually keep putting motions in to delay this further. I’d like 13 to severance…” App’x at 142. Tigano’s father repeatedly moved to delay 14 proceedings. Even so, the court told Tigano that his father had “caused no delay 15 in your case whatsoever.” App’x at 142. 16 IV. 17 When oral argument was eventually held on January 21, 2010, Tigano 18 January 21, 2010—May 16, 2010: Second Competency Exam appeared with his standby counsel, Cheryl Meyers Buth, who would remain his 8 1 attorney—either stand by or appointed—for most of the remaining five plus 2 years of pretrial detention. The scheduled trial date was postponed at the 3 requests of both the father’s attorney and the Assistant United States Attorney 4 (“AUSA”), both of whom had other cases on their calendars. When Tigano’s 5 attorney addressed the court in this hearing, she first reiterated Tigano’s desire 6 for severance and a speedy trial. She next advised the court that despite the fact that there’s been a forensic exam finding that Mr. Tigano is competent to proceed, I have serious reservations about his ability to understand the charges and the procedures and represent himself. 7 8 9 13 App’x at 225. This advisement from Tigano’s attorney prompted Magistrate Judge Scott 14 to order the second competency exam of Tigano and led Tigano to ask, “Another 15 one, sir?” App’x at 229. To be clear, there was no allegation that the first 16 competency exam was defective in any way, nor was there any allegation that 17 there had been a change in Tigano’s behavior. Instead, both this second exam 18 and the first exam 281 days earlier appear to have been prompted largely by 19 Tigano’s repeated invocation of his speedy trial rights. 20 21 had still not returned from his competency evaluation—the AUSA prosecuting 10 11 12 At a hearing on March 31, 2010—which Tigano did not attend because he 9 1 the case acknowledged that Tigano’s desire for a speedy trial was part of the 2 rationale for the second competency exam, remarking that “Mr. Tigano III had 3 been sort of demanding his speedy trial, which is part of the prompting for the 4 Court sending him out for this evaluation.” App’x at 241. The report for the second competency exam was received by the court on 5 6 April 14, 2010—83 days after the hearing at which it was ordered—and 7 acknowledged by Magistrate Judge Scott at an April 16, 2010 suppression 8 hearing. Again, the report indicated that Tigano was competent to stand trial. 9 Again, a hearing was delayed at the request of counsel, this time at the requests 10 of counsel for both Tigano and Tigano’s father. Again, Magistrate Judge Scott 11 asked the government to submit an order excluding time under the Speedy Trial 12 Act. V. 13 14 15 May 17, 2010—April 4, 2012: Confusion Regarding Multiple Magistrate Judges, Repeated Extensions of Time by Tigano’s Father Joined by Tigano’s Attorney, and Court Reporter Delays 16 Over the course of the next nearly two years, Tigano experienced multiple 17 delays stemming primarily from confusion among judges regarding overlapping 18 motions and an erroneous referral order from Judge Skretny. Most significantly, 19 two separate magistrate judges held in abeyance two separate sets of evidentiary 10 1 motions until Judge Skretny decided appeals regarding portions of the 2 suppression motion initially decided by Magistrate Judge Scott. That decision 3 was finally issued by Judge Skretny on January 19, 2011 as a three sentence text 4 order nearly six months after the motions were originally decided. 5 6 neglects. The long postponed hearing before Magistrate Judge McCarthy was 7 delayed for an additional 40 days because the government failed to produce 8 discovery in a timely manner. The court reporter submitted the transcript of the 9 one day suppression hearing 117 days after it was held, delaying the progress of Additional delays during this period resulted from a variety of small 10 the case by nearly four months. Magistrate Judge Scott issued his report and 11 recommendation on December 15, 2011, nearly seven months after the hearing 12 and more than a year and a half after Tigano had filed his motion. VI. 13 14 15 April 5, 2012—January 9, 2014: Plea Negotiations, Crowded Court Docket, Father’s Competency Issues, and Adjournments by Counsel 16 On April 5, 2012, Judge Skretny accepted the reports and 17 recommendations issued by the magistrate judges and advised attorneys that 18 they should submit motions to sever. Tigano’s attorney entered no such motion 19 and instead joined the father’s request for an adjournment to delay the scheduled 11 1 status conference. At this point, Tigano entered a new phase of delay caused 2 largely by unsuccessful plea negotiations. 3 Between the July 10, 2012 status conference—at which Tigano’s attorney 4 and the government informed the court that they were involved in plea 5 negotiations —and the father’s entry of a plea on November 25, 2013, the court 6 held six status conferences that were each adjourned for one reason or another, 7 each of which reported that Tigano was involved in plea negotiations with the 8 government. A large part of the reason for this period of delay was that the 9 government waited nearly a year to present Tigano a written plea offer. The 10 transcript from the May 28, 2013 status conference indicates that AUSA Thomas 11 S. Duszkiewicz was involved in a major criminal trial and Tigano’s case had 12 taken a definitive back seat within the U.S. Attorney’s office. Indeed, an AUSA 13 stepped in for Duszkiewicz at the May 28, 2013 status conference, and conceded 14 when questioned about the delay, “[t]his is definitely not the defense’s issue,” 15 citing Duszkiewicz’s lengthy trial and gaps in information within the U.S. 16 Attorney’s office as reasons for the delay in the presentation of a written plea. 17 App’x at 661. 12 1 2 the day before a scheduled status conference, which resulted in yet another 3 adjournment because she had not yet had an opportunity to present the plea to 4 Tigano. At this status conference, as with several prior conferences, AUSA 5 Duszkiewicz reiterated his view that the plea agreement was a “two for one” 6 offer, meaning both defendants had to plead for either of them to receive the 7 deal. App’x at 669. 8 When Tigano’s attorney finally received the written offer, it was sent to her The August 1, 2013 status conference resulted in yet another adjournment, 9 in part so that Tigano’s attorney could try to convince him to accept the plea he 10 consistently rejected and “in part . . . because of [the court’s] trial calendar right 11 now.” App’x at 680. When it came time to set trial dates at the September 20, 12 2013 conference both the government and the court raised scheduling challenges 13 due to congested calendars. On December 16, 2013, the parties met for the final 14 pretrial conference before the trial scheduled for the following day. Yet again, the 15 court delayed the trial, in part to give Tigano time to consider a plea, observing 16 “You spent some time in jail. I don’t think waiting until January is going to really 17 materially affect anything.” App’x at 720. 18 13 VII. January 10, 2014—September 2, 2014: Third Competency Exam 1 2 On January 10, 2014, Tigano’s attorney filed under seal a motion for 3 another competency evaluation of Tigano. This sealed motion included an 4 affidavit from Meyers Buth attesting to her belief that “in refusing to plead guilty 5 and insisting on his right to a trial, Tigano was acting ‘imprudent[ly]’ and ‘not in 6 his best interest.’” Appellant’s Br. at 26 (quoting affidavit). Meyers Buth also 7 attached a letter from a private psychologist she retained to evaluate Tigano who 8 also concluded that Tigano was competent to stand trial and explicitly concurred 9 with the two previous competency evaluations. 10 11 would result in Tigano’s third court ordered competency exam. The government 12 supported Meyers Buth’s motion at the status conference. The AUSA indicated 13 that he had been prepared at the last status conference “to suggest that we 14 obviate the need for a hearing and that we send Mr. Tigano out for another 15 examination.” App’x at 766. AUSA Duszkiewicz’s rationale for the need for a 16 third court ordered competency exam was 17 18 On January 15, 2014, the parties reconvened for a status conference that not necessarily the competency question, but whether there is some other psychological problem that’s going to prevent him from understanding the 14 2 difference between what he potentially looks at as far as a conviction as well as what’s being offered by way of this plea. 3 App’x at 767. In other words, the basis for the competency exam was Tigano’s 4 refusal to accept a plea. Judge Skretny referred the matter back to Magistrate 5 Judge Scott while opining that “whatever time it takes, it takes.” App’x at 769. 6 7 Skretny referred the matter to Magistrate Judge Scott—the U.S. Marshals Service 8 (“USMS”) still had not transported Tigano to his competency evaluation. 9 Magistrate Judge Scott approved a 15 day extension for the competency exam at 1 As of the March 4, 2014 scheduled status conference—48 days after Judge 10 the request of the warden of the Metropolitan Correction Center (“MCC”) in 11 New York City, where Tigano was undergoing the evaluation. The warden 12 reported that the MCC was experiencing a “high volume of cases” and would 13 not be able to complete the evaluation in time. App’x at 776, 778. The 14 competency evaluation was filed under seal on April 15, 2014. Tigano was briefly 15 under medical hold for some medical issues that arose at MCC, but was released 16 from medical hold on May 2, 2014. The USMS seems to have lost track of Tigano 17 while he was at MCC, such that two pretrial conferences were held without any 18 movement on the case and another was adjourned because Tigano was absent 15 1 and the date of his return remained uncertain. On July 30, 2014, Tigano finally 2 appeared with Meyers Buth before Magistrate Judge Scott, who accepted the 3 competency determination of this third court ordered psychological exam. The 4 third competency evaluation established nothing new. 5 6 styled as a petition for a writ of habeas corpus. That motion was received by the 7 court of the Western District of New York on May 12, 2014 and denied by Judge 8 Skretny 15 weeks later, because Judge Skretny refused to consider a pro se 9 motion filed by a represented defendant. The Niagara County jail destroyed all 10 During this period of limbo for Tigano at MCC, he filed a pro se motion of Tigano’s trial related papers while he was away at MCC. VIII. September 3, 2014—May 3, 2015: Scheduling Delays for Trial 11 12 On September 3, 2014, the parties convened for a pretrial conference and 13 prepared to go to trial with Tigano representing himself and Meyers Buth 14 appearing as standby counsel, given her discomfort with Tigano’s preferred trial 15 strategy. At the October 23, 2014 status conference, it was determined that 16 Meyers Buth would indeed represent Tigano at trial. 17 18 Tigano’s case to Judge Elizabeth Wolford on January 27, 2015. Tigano filed a In anticipation of his March 8, 2015 retirement, Judge Skretny reassigned 16 1 motion for bail on February 25, 2015, which was denied without prejudice on 2 March 5, 2015. Tigano’s jury trial began on May 4, 2015, 6 years, 9 months, and 26 3 days after his arrest. On May 8, 2015, he was convicted on five drug related 4 charges and one weapons charge. DISCUSSION 5 I. 6 History of the Speedy Trial Right 7 Recognition of the critical need for criminal defendants to proceed to trial 8 in a timely manner has a long and auspicious history in American law and 9 English common law. The Supreme Court detailed much of this history in its 10 1967 speedy trial case, Klopfer v. North Carolina, which held that the right applied 11 to the states through the Fourteenth Amendment. 386 U.S. 213, 222 23. The 12 Klopfer Court cited a twelfth century case from the Assize of Clarendon 13 instructing sheriffs to bring defendants to the traveling justices when the judges 14 “are not about to come speedily enough into the country where they have been 15 taken” in order to ensure a prompt trial for the criminal defendants. Id. at 223, n.9 16 (quoting 2 English Historical Documents 408 (David C. Douglas and G.W. 17 Greenaway eds. 1953)). The Magna Carta incorporates this requirement in its 17 1 early thirteenth century language establishing basic guarantees of justice: “We 2 will sell to no man, we will not deny or defer to any man either justice or right.” 3 Id. at 223 (emphasis added) (quoting Magna Carta, c. 29 (c. 40 of King John s 4 Charter of 1215) (1225), translated and quoted in Sir Edward Coke, The Second 5 Part of the Institutes of the Laws of England 45 (Brooke, 5th ed., 1797) (“Coke’s 6 Institutes”)). The early seventeenth century commentaries on English common 7 law by Sir Edward Coke interpreted the Magna Carta’s language as guaranteeing 8 to any defendant the right to justice “speedily without delay.” Id. at 224 (quoting 9 Coke’s Institutes 45). 10 When it came time for the nascent states to draft their own constitutions 11 and declarations of rights, the long established right to prompt justice was often 12 incorporated. In 1776, both Maryland’s Declaration of Rights and Virginia’s Bill 13 of Rights included a right to “a speedy trial by an impartial jury.” Francis H. 14 Heller, The Sixth Amendment to the Constitution of the United States: A Study in 15 Constitutional Development 22 23 (1969). Delaware, Massachusetts, and 16 Pennsylvania also included the clause in their original state constitutions. 17 Alfredo Garcia, The Sixth Amendment in Modern American Jurisprudence: A Critical 18 Perspective 159, n. 23 (1992). When Anti Federalists raised concerns regarding a 18 1 too strong national government, the remedy adopted by the Constitutional 2 Convention—the Bill of Rights—incorporated the longstanding right to a speedy 3 trial as one of the essential protections of individual rights against the risk of 4 arbitrary governmental power. U.S. Const. amend VI. 5 6 by the Sixth Amendment.” Klopfer, 386 U.S. at 223. Its origin in our legal system 7 dates back over 800 years and it was understood as part of the essential 8 safeguards against the newly formed government of the United States. Further, 9 while a defendant may waive his statutory right to a speedy trial by failing to “[T]he right to a speedy trial is as fundamental as any of the rights secured 10 raise it, he cannot waive his constitutional right. See Barker v. Wingo, 407 U.S. 514, 11 529 30 (1972). 12 13 this Court have laid out clear methods in determining whether a defendant’s 14 constitutional speedy trial right has been violated. We now turn to the 15 controlling law and apply it to the exceptional facts of this case. Though the right may appear abstract and relative, the Supreme Court and II. 16 BARKER v. WINGO 17 In 1972, the Supreme Court decided Barker v. Wingo, a Sixth Amendment 18 speedy trial case that arose out of a brutal double murder in Christian County, 19 1 Kentucky. 407 U.S. 514, 516 (1972). Barker, the defendant appellant before the 2 Supreme Court, was imprisoned for ten months before being released on bond 3 while awaiting trial. Id. at 517. The Supreme Court observed that Barker 4 appeared to be “gambling” on the acquittal of his co defendant, hoping that an 5 acquittal for the co defendant would make it harder to prosecute him. Id. at 535 6 36. Over five years passed between Barker’s arrest and eventual trial. Id. at 533. 7 8 violated—the Supreme Court believed the record strongly indicated “that the 9 defendant did not want a speedy trial,” id. at 536—the Barker Court established In coming to the conclusion that Barker’s speedy trial right had not been 10 the four part balancing test that guides our analysis today. Specifically, the 11 Supreme Court identified four key factors: “[l]ength of delay, the reason for the 12 delay, the defendant’s assertion of his right, and prejudice to the defendant.” Id. 13 at 530. In establishing this balancing test, the Barker Court emphasized that: 14 15 16 17 18 19 20 21 We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process. But, because we are dealing with a fundamental right of the accused, this process must be carried out with full recognition that the accused s interest in a speedy trial is specifically affirmed in the 20 4 Constitution. Id. at 533. Consequently, we turn now to an analysis of these four factors with an 5 understanding that no single factor is dispositive and that each serves to 6 guarantee a fundamental, enumerated right of the accused. 7 8 “The length of the delay is to some extent a triggering mechanism,” 9 because until there exists “some delay which is presumptively prejudicial, there 1 2 3 A. Length of Delay 10 is no necessity for inquiry into the other factors that go into the balance.” Id. at 11 530. Once a delay has been established, “the burden is upon the government to 12 prove that the delay was justified and that appellant[‘s] speedy trial rights were 13 not violated.” United States v. New Buffalo Amusement, Corp., 600 F.2d 368, 377 79 14 (2d Cir. 1979) (citation omitted). In Buffalo Amusement, appellants experienced a 15 “54 month delay between indictment and date of trial” during which time the 16 defendants were free on bond. Id. We found that delay to be “unquestionably 17 substantial” and a factor that “must weigh heavily in support of appellants’ 18 claim that their rights have been violated.” Id. at 377. 21 1 Tigano’s delay—nearly seven years of pretrial detention—is, to our 2 knowledge, the longest delay recorded in the Sixth Amendment case law of our 3 Circuit. Indeed, the government concedes that the length of delay cuts in favor of 4 Tigano. This Court recently affirmed a district court dismissal—also originating 5 in the Western District of New York—on Sixth Amendment speedy trial 6 grounds. United States v. Pennick, No. 16 3069 cr, 2017 WL 4994465 (2d Cir. Nov. 7 2, 2017) (summary order). The defendant in Pennick had been subjected to “fifty 8 four months in pretrial detention and twenty five months on electronically 9 monitored home incarceration,” which we deemed “extraordinary.” Id. at *1 *2. 10 Tigano’s extreme facts thus force the government to account for its delay and 11 “prove that the delay was justified and that [Tigano’s] speedy trial rights were 12 not violated.” Buffalo Amusement, 600 F.2d at 377. The extreme length of delay 13 thus weighs heavily against the government. 14 15 The Barker Court instructed that “different weights should be assigned to 16 different reasons.” Barker, 407 U.S. at 531. Barker established a spectrum of 17 weights, in which “deliberate” attempts to delay trial weighed most heavily 18 against the government, “valid” reasons for delay such as missing witnesses are B. Reasons for Delay 22 1 taken off the scale entirely, and reasons of “negligence or overcrowded dockets” 2 are weighted somewhere in the middle, because “the ultimate responsibility for 3 such circumstances must rest with the government rather than with the 4 defendant.” Id. This factor must take into account the affirmative duty of the 5 district court and the government to monitor the progress of a criminal case 6 toward disposition and to take steps to avoid unnecessary delay where possible. 7 “We have repeatedly emphasized that affirmative action by the government in 8 bringing cases to trial is mandated and that it cannot escape this duty on the 9 ground that the delay is for institutional reasons.” United States v. Vispi, 545 F.2d 10 328, 334 (2d Cir. 1976) (citation omitted). Incredibly, the government contends 11 that “none of the delay is attributable to the government.”2 Appellee’s Br. at 26. 12 13 repetitive and dilatory competency examinations, all of which found Tigano 14 competent; 2) administrative delays, including the delay in conducting the third The reasons for the delay in this case were largely due to: 1) the needlessly We observe that the same U.S. Attorney’s Office in the Western District of New York made the same extraordinary claim in Pennick, which we found unpersuasive in that case, as well. Pennick, at *2. [Brief for Appellant, 16 3069 cr (2d Cir. Feb. 24, 2017) (ECF No. 27 at 16) (“[N]one of the delay is attributable to the government.”)]. 23 2 1 court ordered competency hearing (itself unnecessary in light of the two prior 2 court ordered exams and hearings) because the USMS failed to provide timely 3 transportation; 3) the government’s failure for months to produce a written plea 4 offer, despite the age of the case, and its insistence on consolidating the case and 5 plea bargaining with Tigano’s father; 4) the district court’s congested docket and 6 failure to give this case priority; 5) the use of multiple magistrate judges resulting 7 in confusion regarding responsibility and one judge having to await rulings by 8 another; and 6) defense counsel’s desire to delay the trial in hopes of a favorable 9 plea, notwithstanding Tigano’s express desire to proceed quickly to trial. 10 1. Competency Evaluations 11 We first turn to the most complex set of facts for the delay, namely, the 12 three separate competency exams ordered by the magistrate judge. Each of these 13 exams—and an additional exam conducted by a private psychologist retained by 14 Tigano’s attorney—concluded that Tigano was fully competent to stand trial. 15 There is no evidence in the record—either in open court or in documents filed 16 under seal—that any party or officer of the court had any concerns about the 17 quality or legitimacy of any one of these exams. And while the exams suggest 18 that Tigano may have an eccentric personality, they each clearly state that he 24 1 understood the charges against him and was capable of aiding in his own 2 defense. 3 4 assessment that Tigano clearly understood what was happening and was capable 5 of assisting in his own defense. Yet all parties involved—the court, the 6 government, and Tigano’s own attorney—participated in steering him through 7 three court ordered exams. The details of each of those decisions have already 8 been recounted, but it is worth reiterating the truly remarkable fact that for both 9 the second and third court ordered exams, the government acknowledged in Indeed, the examinations are strikingly consistent with one another in their 10 open court that at least part of the motivation for the exam was Tigano’s 11 assertion of his speedy trial right and his refusal to accept a plea, respectively. 12 No party argued that there was new information or a change in circumstances to 13 justify yet another exam and attendant delay. 14 15 U.S.C. 4241(a), which permits defense or government attorneys to move for a 16 hearing on competency which “[t]he court shall grant . . . if there is reasonable 17 cause to believe that the defendant may presently be suffering from a mental 18 disease or defect rendering him mentally incompetent to the extent that he is Motions for mental competency determinations are made pursuant to 18 25 1 unable to understand the nature and consequences of the proceedings against 2 him or to assist properly in his defense.” Court ordered psychological exams for 3 the purposes of determining competency prior to the hearing are permitted 4 under 18 U.S.C. 4241(b). 5 6 third court appointed psychologist simply because he refused to accept a plea, 7 when that was the only evidence of “incompetency” before the district court and 8 three separate psychologists (two who were court ordered and one who was 9 privately retained) had already attested to his competency to stand trial and It was error for the district court to send Tigano out for evaluation by a 10 assist in his own defense, as acknowledged by the magistrate judge who issued 11 the order. We thus count these delays against the government. 12 2. Administrative Delays 13 Tigano’s trial date was also delayed by the USMS and the court reporters 14 in the Western District of New York. Tigano’s third court ordered competency 15 evaluation resulted in a seven month delay (January 2014 – July 2014)—double 16 the combined length of the first two court ordered competency evaluations. This 17 delay appears to have been due to the USMS’s failure to provide timely 18 transportation to and from the site of the examination. Both the court and the 26 1 government should have monitored the situation and prevented the delay. See 2 United States v. Carini, 562 F.2d 144, 149 50 (2d Cir. 1977) (“While it is . . . true that 3 ‘institutional’ delays are not counted as heavily against the government as are 4 delays caused or encouraged by the prosecution for tactical reasons,” delays 5 “occasioned by . . . unexplained inaction of the District Court, caused, no doubt, 6 by an overloaded docket . . . are properly chargeable against the government 7 under prevailing case law.”) (collecting cases). Specifically, when the court 8 granted the request for the third competency evaluation, it should have issued a 9 time limit and instructed the parties to be ready for trial when Tigano was found 10 competent yet again. 11 Tigano’s trial was also delayed by the court reporters of the Western 12 District of New York. At one point, both defendants were forced to wait 117 days 13 for a transcript of a one day suppression motion, because they were ordered to 14 file their submissions within 30 days of receiving that transcript. At many points 15 along the way, transcripts arrived only after long delays.3 Administrative delays We observe that many of the transcripts filed in this case were significantly and inexplicably delayed. The transcript of the September 4, 2008 preliminary exam for both defendants was filed 186 days later and the transcript of May 27, 2010 oral argument on pretrial motions took 139 days to file. Transcripts filed after 27 3 1 are counted against the government, since it is not the defendant’s responsibility 2 to monitor the speed at which court reporters produce transcripts or at which 3 USMS provides court ordered transportation. 3. Plea Negotiations 4 5 Initial plea negotiations consumed approximately one year, which we have 6 held is time that must be counted against the government. See, e.g., Buffalo 7 Amusement, 600 F.2d at 378 (“Good faith plea negotiations by a defendant should 8 not be equated to a waiver of speedy trial rights, and, under the circumstances, 9 the government must assume responsibility for the risk of institutional delays 10 where the bargain ultimately is unsuccessful.”). It is particularly appropriate to 11 construe the time against the government in this case because it took the 12 government nearly a year to actually present a written plea offer to Tigano. 13 When it finally presented the plea offer, it did so on the night before the trial were even more egregiously delayed, ranging from 205 days for the filing of the sentencing hearing to an outrageous 2,194 days—or, 6 years and 2 days—for the October 20, 2008 arraignment. Transcripts are essential tools to advocates in the course of trial preparation and trial, as well as on appeal. These delays are suggestive of substantial problems regarding the ability of criminal defendants to obtain transcripts in the Western District of New York. 28 1 scheduled conference, forcing Meyers Buth to request a 30 day continuance 2 because she had not had any opportunity to review the plea offer with Tigano. 3 4 cutoff date for plea negotiations rather than allow them to drag on for one and a 5 half years. Indeed, about ten months into the plea negotiations—and we qualify 6 the word “negotiations” because Tigano had made clear from the time of his 7 arraignment that he had no interest in a plea—the government informed the 8 court that it had yet to present a written offer to Tigano. At that point, the district 9 court should have ordered the government to present its plea offer within a We additionally observe that the district court should have set a firm 10 reasonable number of days, and scheduled a trial after a brief period for 11 negotiations. Moreover, some of the delay was caused by the government’s 12 insistence on joint negotiations with Tigano’s father. 13 We have held that the time spent in plea bargaining is a gamble taken by 14 the government regarding the defendant’s speedy trial rights and is properly 15 counted against the government. See Buffalo Amusement, 600 F.2d at 378. The 16 government obliquely asserts that the process of plea bargaining counts against 17 Tigano, but this is incorrect. The substantial delay caused by the government’s 18 failure to timely produce a written plea offer, its obstinacy in insisting on a joint 29 1 resolution, and the court’s failure to monitor the endless delays occasioned by 2 the “negotiations” are all attributed to the government. 3 4 Delays due to “overcrowded courts,” are counted against the government. 5 Barker, 407 U.S. at 531. It is clear that court congestion—and a failure of the court 6 to prioritize this long lingering criminal case—contributed to the substantial 7 delay faced by Tigano. For example, even though its calendar was congested, the 8 court could have set a trial date when Tigano’s attorney informed the court that 9 plea negotiations had failed and that she was ready to proceed to trial on October 4. District Court Congestion 10 23, 2014, over six months before the trial ultimately commenced. Considering 11 that this was a 2008 criminal case and that Tigano was incarcerated throughout 12 the entire pretrial period, the court should have given priority to this case. 13 Additional delays were caused by the court’s crowded docket, for example, at 14 the August 1, 2013 and September 20, 2013 status conferences, when the court 15 conceded that adjournments were being granted in part to accommodate the 16 court’s congested calendar. At the time of those status conferences, Tigano had 17 already been detained for over five years. It is difficult to imagine a case that 18 would have warranted scheduling priority over Tigano, yet time and again this 30 1 low priority case took a backseat to competing demands. Again, we conclude 2 that this time must be counted against the government. 3 4 On May 17, 2010, the magistrate judge who had been handling all of the 5 nearly two years of pretrial activity properly recused himself from the 6 suppression motion, because he had been the issuing magistrate of the search 7 warrant. Rather than deciding the suppression motion itself and sending it back 8 to the same magistrate, however, the district court split the motions and sent 9 them to two separate magistrates, despite the fact that they involved the same set 5. District Court Use of Magistrate Judges 10 of facts. The motions were further delayed because of confusion among the 11 magistrates about who had authority over which issues, so that the magistrates 12 sat on their respective motions until the discovery appeal was determined by the 13 district court. In the end, Tigano spent two years in jail while this confusion was 14 sorted out. 15 16 handling of these motions. Instead, the delay seems attributable to a series of 17 misunderstandings and delays, as well as some poor decisions by the district 18 court regarding court efficiency. However, Barker makes clear that “neutral” There is no evidence the government was deliberately dilatory in its 31 1 delays must be considered “since the ultimate responsibility for such 2 circumstances must rest with the government rather than with the defendant.” 3 Barker, 407 U.S. at 531. 6. Dilatory Tactics of Defense Counsel 4 5 Despite Tigano’s repeated demands for a speedy trial, his attorney 6 requested multiple extensions and failed to urge the district court to set a trial 7 date. It seems likely that she wanted Tigano to plead to the reduced charge and 8 was repeatedly frustrated by Tigano’s continued refusal to consider a plea and 9 insistence on going to trial. Indeed, Tigano’s attorney requested several delays 10 for the purpose of trying to convince Tigano to accept a plea, requested or caused 11 other delays because of her discomfort with Tigano’s trial strategy, and generally 12 acceded to the requests for delays by Tigano’s father, rather than asserting 13 Tigano’s right to a speedy trial or his desire for severance. 14 15 professional conduct that the decision to accept or reject a plea is ultimately a 16 decision made by the client. See, e.g., American Bar Association Model Rules of 17 Professional Conduct R. 1.2(a). It is also fundamental that an attorney may not Though her intentions may have been admirable, it is a bedrock rule of 32 1 coerce a client into accepting a plea. Purdy v. U.S., 208 F.3d 41, 45 (2d Cir. 2000). 2 This Court has explicitly instructed lower courts that: [T]he defendant and not the court should decide what strategy should be pursued to adequately protect the defendant s interest. To take this choice out of his hands would deprive him of the right to conduct his defense in his manner and in accordance with his own standards. 3 4 5 6 7 U.S. v. Anderson, 394 F.2d 743, 748 (2d Cir. 1968). In the same vein, we have 8 previously held that, “[i]t is the role of the lawyer to be a professional advisor 9 and advocate, not to usurp his client’s decisions concerning the objectives of 10 representation.” U.S. v. Wellington, 417 F.3d 284, 289 (2d Cir. 2005) (internal 11 citations and punctuation omitted). It would be improper to count these delays 12 against the objecting defendant, and we decline to do so in this case. 13 14 attorney counts against the government, under the Barker analysis, and not the 15 defense. Unless the record shows otherwise, we normally presume that a defense 16 attorney is carrying out his or her client’s chosen trial strategy and that any 17 delays resulting from that strategy count against the defendant. 18 It will be an exceptional case where, as here, a delay caused by a defense C. Defendant’s Assertion of the Right 33 1 We also must consider the defendant’s own assertion of his right to a 2 speedy trial. “The defendant’s assertion of his speedy trial right . . . is entitled to 3 strong evidentiary weight in determining whether the defendant is being 4 deprived of the right.” Barker, 407 U.S. at 531 32. On this factor, Tigano’s case 5 again presents exceptional facts. 6 7 at nearly every appearance he made before the court. At his October 20, 2008 8 arraignment, Tigano’s attorney at the time told the district court, “He also had 9 indicated to me that he does not wish to waive his speedy trial rights.” App’x at 10 56. At his next appearance on April 9, 2009, when the district court asked Tigano 11 about a delay for a competency evaluation in the wake of his hunger strike, 12 Tigano explained to the district court, “Sir, I mentioned it the last time I was in 13 court, I don’t want to waive my right to a speedy trial. And that—that’s my main 14 concern.” App’x at 68. During this same hearing, the district court instructed 15 Tigano’s attorney that there was no need to add a written statement to the record 16 regarding Tigano’s desire for a speedy trial because “he’s already stated that on 17 the record, and he thinks it’s necessary to do it by writing. It’s on the record, 18 leave it there.” App’x at 79. This pattern continued nearly every time Tigano Tigano adamantly, consistently, and explicitly raised his speedy trial rights 34 1 appeared before the district court, to the extent that the government observed at 2 a March 31, 2010 hearing that the repeated speedy trial demands were part of the 3 reason for the district court’s decision to have Tigano’s competency evaluated. 4 App’x at 241 (“Mr. Tigano III had been sort of demanding his speedy trial, which 5 is part of the prompting for the Court sending him out for this evaluation.”). 6 Incredibly, the government now argues that Tigano made no formal assertion of 7 his speedy trial right for purposes of the Sixth Amendment analysis. We dismiss 8 that argument as implausible based on the facts and inapposite based on the law; 9 a defendant may waive his statutory right to a speedy trial by failing to formally 10 raise it, but not his constitutional right. Barker, 407 U.S. at 529 30 (“We, therefore, 11 reject . . . the demand waiver rule because it is insensitive to a right which we 12 have deemed fundamental. The approach we accept is a balancing test, in which 13 the conduct of both the prosecution and the defendant are weighed.”) 14 15 simply inconceivable the government was not “put on notice” that this issue 16 would resurface if Tigano’s speedy trial rights were not protected. Buffalo 17 Amusement, 600 F.2d at 378. Having offered this analysis, we do not mean to 18 suggest that the words “speedy trial” ought to function as a magical incantation Tigano requested his speedy trial so frequently and vociferously that it is 35 1 that guarantee an immediate trial to any defendant who so wishes. We 2 acknowledge that there are many legitimate reasons why trials may be delayed. 3 Nor do we expect every defendant to raise the issue as frequently as Tigano in 4 order to preserve his right to a speedy trial. On this point we reiterate that the 5 right to a speedy trial is a right explicitly enumerated in the Sixth Amendment. A 6 defendant’s lack of vigor in pursuing this right—or his deliberately dilatory 7 behavior in forestalling trial—are factors to be considered in our analysis, buta 8 defendant’s failure to formally raise the right via motion does not necessarily 9 count against the defendant, as the government argues it should. The speedy 10 trial right is guaranteed to all defendants by the Sixth Amendment and its 11 precise contours are determined by courts on an “ad hoc basis” considering the 12 facts of each case, including the defendant’s invocation of that right. Barker, 407 13 U.S. at 530. Formal procedural requirements are out of place in this context. 14 15 the speedy trial cases in our Circuit. While Tigano himself made very clear that 16 he desired a speedy trial, this desire was not always echoed by or reflected in the 17 choices made by his attorney. These facts are unusual in this area of law and 18 distinguish this case from others within this Circuit’s speedy trial jurisprudence. We also observe that this case raises a new wrinkle to the fact patterns of 36 1 Accordingly, we conclude that in the context of a speedy trial action such as this 2 one, a defendant’s assertion of his own right to a speedy trial—even though 3 ignored or contravened by his counsel—is the relevant fact for purposes of Sixth 4 Amendment analysis. Quite simply, the right to a speedy trial belongs to the 5 defendant, not to defendant’s counsel.4 6 7 The last Barker factor to examine is the prejudice to the defendant 8 occasioned by the delay. Prejudice should be assessed in regard to those interests 9 the Sixth Amendment right to a speedy trial is designed to protect, namely, “(i) D. Prejudice to the Defendant 10 to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern 11 of the accused; and (iii) to limit the possibility that the defense will be impaired.” 12 Barker, 407 U.S. at 532. While the last factor is “the most serious,” it is only one of 13 three interests protected by the Sixth Amendment right to speedy trial. Id. The Seventh Circuit has observed that “the right is ill suited to rigid forfeiture rules,” and that Barker’s balancing of the defendant’s assertion of the right is the better approach. United States v. Oriedo, 498 F.3d 593, 596 (7th Cir. 2007). The Ninth Circuit has similarly rejected rigid forfeiture rules in a statutory context under the Speedy Trial Act, 18 U.S.C. 3161 et seq. See, e.g., United States v. Hall, 181 F.3d 1057, 1060 61 (9th Cir. 1999) (“[W]here defense counsel does not assert his client’s right to a speedy trial, a defendant may alert the court directly of his desire not to waive those rights.”). 37 4 1 Affirmative proof of impairment of the defense is not required in order to find a 2 Sixth Amendment violation. See, e.g., Doggett v. U.S., 505 U.S. 647, 655 (1992) 3 (“affirmative proof of particularized prejudice is not essential to every speedy 4 trial claim”) (citation omitted). 5 6 seven years of pretrial incarceration were egregiously oppressive; we reiterate 7 that this appears to be the longest period of pretrial incarceration we have seen in 8 a speedy trial context in this Circuit. In addition to the sheer passage of time, his 9 confinement in local jails makes those years particularly oppressive. The Barker Tigano was severely prejudiced in terms of the first two factors. His nearly 10 Court noted that “[m]ost jails offer little or no recreational or rehabilitative 11 programs. The time spent in jail is simply dead time.” Barker, 407 U.S. at 532 33. 12 Nearly seven years of pretrial detention in local jails—before the defendant has 13 been convicted of any crime—is precisely the type of prejudice contemplated by 14 the right to a speedy trial. Tigano amply demonstrates prejudice on this point. 15 16 trial is the interest in minimizing the “anxiety and concern” of the accused. Id., 17 407 U.S. at 532. On this point, Tigano was severely prejudiced. Tigano repeatedly The second interest protected by the Sixth Amendment right to a speedy 38 1 expressed his anxiety to the district court and explicitly cited that anxiety as the 2 primary motivation for his desire for a speedy trial: 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Basically time is going by, and more time goes on I’m just—how would you say, just moving on in the past. Longer this takes, harder it is to remember everything that’s happens. [sic] The sooner it happens, the better. App’x at 127 28. Tigano told the district court he wanted to proceed pro se because “[i]t will just resolve this matter, sir.” App’x at 150. He later expressed his anxieties by explaining [t]hat’s why I was trying to go with the speedy trial thing, knowing that, if anything, my dad, if he can’t stick around here, maybe he’d stay with my mother, in, you know, the other part of New York, eastern New York. Otherwise, I’m hoping to push things ahead. This way however— whatever gets determined, I’m more, how would you say, everything has been taken away from me. So to me, whatever you guys want me to have, or do, I’m trying to bring right to the front, and go with it. 18 App’x at 213. Tigano made clear that he preferred to have the matter decided 19 rather than living with the anxiety and uncertainty of charges hanging over his 20 head. Nearly seven years of delay in a trial the AUSA described as “very 21 simple,” App’x at 829, imposes an inexcusable amount of anxiety on the 39 1 unconvicted defendant. This anxiety is the type of prejudice the Sixth 2 Amendment right to a speedy trial was designed to prevent. 3 4 Weighing the four Barker factors leads us to the inescapable conclusion that 5 Tigano’s Sixth Amendment right to a speedy trial was violated by his nearly 6 seven years of pretrial incarceration. The reasons for delay fall largely on the 7 district court and government attorneys. Tigano’s repeated assertions of his right 8 to a speedy trial place him on the extreme end of our Circuit’s case law. His 9 repeated pleas for trial also speak to the fourth and final prong, the prejudice E. Balancing Test 10 suffered by Tigano in the form of anxiety and the oppressiveness of his lengthy 11 period of pretrial incarceration. The only remedy is to dismiss the case with 12 prejudice, Strunk v. U.S., 412 U.S. 434, 440 (1973), which we did via court order 13 on November 15, 2017. CONCLUSION 14 15 We reiterate that the nearly seven years of pretrial detention in this case, as 16 well as Tigano’s single minded focus on obtaining a speedy trial, present 17 extreme facts in the speedy trial context. In other words, these facts represent 18 what we expect will be a ceiling, rather than a floor, for Sixth Amendment 40 1 analysis. Yet the case is no less significant because of its outlier status. Years of 2 subtle neglects resulted in a flagrant violation of Tigano’s Sixth Amendment 3 right to a speedy trial. On January 21, 2010, the slow progression of the case left 4 Tigano to reflect that “[s]o much time has gone by.” App’x at 225. He would wait 5 another 1,929 days—over 5 years—before his case would eventually proceed to 6 trial. Tigano’s years of imprisonment represent a failure of our courts to comply 7 with their obligation to bring defendants to “a speedy and public trial.” U.S. 8 Const. amend. VI. 9 Because we find that Tigano’s Sixth Amendment right to a speedy trial 10 was violated, we need not consider Tigano’s remaining claims. Accordingly, the 11 judgment of the district court is REVERSED and the indictment is DISMISSED 12 WITH PREJUDICE. 41