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noting that the trial date "complies with the Speedy Trial Act" and that the length of the delay was only "slightly longer than the one-year threshold," and concluding first Barker factor weighed against defendant
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Case No. 16-CR-00211-LHK-2
08-29-2017
UNITED STATES, Plaintiff, v. GREGORY BELCHER, Defendant.
ORDER DENYING MOTION TO DISMISS THE SUPERSEDING INDICTMENT
Re: Dkt. No. 59
Defendant Gregory Belcher objects to the government's delay in filing a superseding indictment 14 months after filing the original indictment. See ECF No. 59 ("Mot."). Defendant claims that he cannot adequately prepare for the October 23, 2017 trial date on the superseding indictment, Mot. at 14-15, but he simultaneously claims that he cannot request a continuance of the trial date because of the decrease in his income and harm to his professional reputation caused by the pending criminal case, id. at 16-17. Defendant moves for dismissal of the superseding indictment on the grounds that the superseding indictment: violates his Sixth Amendment right to a speedy trial, constitutes vindictive prosecution, and is void for vagueness. Each of these claims lacks merit. For the reasons below, the Court denies the Motion to Dismiss the Superseding Indictment.
First, Defendant tries to shoehorn his objection to the superseding indictment into a traditional Sixth Amendment speedy trial claim. In assessing this claim, the Court has analyzed the four factors from Barker v. Wingo, 407 U.S. 514, 530 (1972): (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his speedy trial right; and (4) the prejudice to the defendant. The Ninth Circuit has held that "[t]he first Barker factor, the length of the delay, is a threshold issue" and that "delays approaching one year are presumptively prejudicial." United States v. Gregory, 322 F.3d 1157, 1161-62 (9th Cir. 2003).
As an initial matter, Defendant and the government both measure the time of the delay from the indictment to the superseding indictment. However, the Ninth Circuit has instructed that "[f]or speedy trial claims, the length of the delay is measured from the time of the indictment to the time of trial." United States v. Mendoza, 530 F.3d 758, 762 (9th Cir. 2008) (internal quotation marks omitted). The original indictment charging Defendant was filed on May 19, 2016. ECF No. 1. The superseding indictment was filed on July 13, 2017. ECF No. 52. Trial is set to begin October 23, 2017. ECF No. 30. The delay between the original indictment and the trial as currently set is 17 months. The Court finds that this delay is sufficient to trigger the rest of the Barker inquiry. See Gregory, 322 F.3d 1161-62.
Regarding the first Barker factor, the length of the delay, Defendant does not challenge the Court's exclusion of time under the Speedy Trial Act through the October 23, 2017 trial date, nor does he claim that there has been a Speedy Trial Act violation. The Ninth Circuit has held that compliance with the Speedy Trial Act "raises a strong presumption of compliance with the Constitution." United States v. Baker, 63 F.3d 1478, 1497 (9th Cir. 1995). Moreover, the Ninth Circuit has held that delays of up to 22 months because of the government's negligence were "not excessively long" and did "not weigh heavily in [the Defendant]'s favor." Gregory, 322 F.3d at 1162; see also United States v. Beamon, 992 F.2d 1009, 1014 (9th Cir. 1993) (delays of 17 and 20 months because of the government's negligence "[we]re not great" when compared with the 8-year delay in United States v. Doggett, 505 U.S. 647 (1992), or the 5-year delay in United States v. Shell, 974 F.2d 1035 (9th Cir. 1992)). Indeed, the delay in cases where courts have found constitutional speedy trial violations is typically much longer than the 17-month delay at issue here. See, e.g., Doggett, 505 U.S. at 650-51 (8-year delay); Mendoza, 530 F.3d at 762 (10-year delay); Shell, 974 F.2d at 1036 (5-year delay). Here, because the current trial date complies with the Speedy Trial Act and because the length of the delay is only slightly longer than the one-year threshold, the Court concludes that the first factor weighs against dismissing the superseding indictment.
On the second Barker factor, the reason for the delay, the Court finds that this factor also weighs against dismissing the superseding indictment. Between Defendant's initial appearance on the original indictment on May 24, 2016, and the trial-setting conference in January 2017, Defendant stipulated to a number of continuances and exclusions of time under the Speedy Trial Act for effective defense preparation. ECF Nos. 9, 11, 18, 21, 27-29. Defendant then requested a one-week continuance of the trial-setting conference, moving it from January 11, 2017 to January 18, 2017. ECF No. 59-1 ¶ 8. At the January 18 trial setting conference, Defendant asked to delay setting a trial date. ECF 79-2 at 5:23-6:2. The Court denied this request. Id. at 6:3-6:10. Defendant requested a trial date in October or November 2017. Id. at 6:20-21. The parties agreed to an October 23, 2017 trial date, and no party has requested a continuance of that trial date. Id. at 9:2-7. On these facts, the Defendant stipulated to continuances and the October 23, 2017 trial date, which caused the 17-month delay between the original indictment and the current trial date. None of that delay is attributable to the superseding indictment. The second factor thus weighs against dismissing the superseding indictment.
The Court finds that the third Barker factor, the assertion of the right to a speedy trial, is neutral. Defendant asserted his right to a speedy trial only after stipulating to continuances and exclusions of time and stipulating to the October 23, 2017, trial date. See ECF Nos. 9, 11, 18, 21, 27-29. The Ninth Circuit has held that similar circumstances weigh "neither in favor of dismissal nor in favor of the government." United States v. Corona-Verbera, 509 F.3d 1105, 1116 (9th Cir. 2007); see also United States v. Mendoza, 530 F.3d 758, 764 (9th Cir. 2008); United States v. King, 483 F.3d 969, 976 (9th Cir. 2007); Gregory, 322 F.3d at 1162. As a result, the third factor is neutral.
As to the fourth Barker factor, prejudice, Defendant must prove actual prejudice. Gregory, 322 F.3d at 1162-63. The Ninth Circuit has held that "[t]he amount of prejudice a defendant must show is inversely proportional to the length and reason for the delay." United States v. Alexander, 817 F.3d 1178, 1183 (9th Cir. 2016). The alleged strain on Defendant's business and income and his related anxiety are unfortunate effects of this case, but such effects are likely common to any defendant facing similar charges. See United States v. Neusom, No. CR 03-0194, 2008 WL 4217861, at *6 (C.D. Cal. Sept. 12, 2008). In United States v. Ly, No. CR-00-0118, 2001 WL 1456751, at *9 (N.D. Cal. Nov. 14, 2001), this Court held that similar harms "do not indicate a constitutional violation" where the other factors did not weigh heavily in favor of dismissal.
The Court finds that Defendant's attempt to show prejudice by claiming that his two counsel will not be ready to defend him against the new charges in the superseding indictment by October 23, 2017, is unavailing. If Defendant's defense counsel are unable to prepare by the trial date, the Court will grant a continuance. Second, Defendant's claim that he is prejudiced by fading witness memories and lost evidence, see Mot. at 16, also fails because Defendant has not identified "any non-speculative proof as to how his defense was prejudiced by the delay." Alexander, 817 F.3d at 1183; see also United States v. Lam, 251 F.3d 852, 860 (9th Cir. 2001) (speculation about defects in witness testimony or lost evidence do not demonstrate actual prejudice). His counsel's declaration that the counsel has spoken to an unidentified witness who said it was difficult to recall what happened at Defendant's office because it was so long ago, ECF No. 59-1 ¶ 12, does not meet Defendant's burden because Defendant has not shown that this faded memory was attributable to the delay, as opposed to the fact that the conspiracy dates back to 2009. Thus, the fourth Barker factor weighs only slightly in favor of Defendant.
Thus, in balancing the four Barker factors, the Court finds that the factors on the whole weigh against dismissing the superseding indictment.
Next, the Court finds that Defendant's vindictive prosecution claim fails. Defendant admits that there is no direct evidence of vindictiveness. See Mot. at 18. Nor does the Court find any appearance of vindictiveness. The fact that Defendant raised the possibility of requesting a severance, when he has not yet actually done so, is not enough to create an appearance of vindictiveness. See United States v. Goodwin, 457 U.S. 368, 382-83 (1982); United States v. Gallegos-Curiel, 681 F.2d 1164, 1168-69 (9th Cir. 1982).
Finally, the Court finds that the superseding indictment is not void for vagueness because the superseding indictment informs Defendant of the elements of the charged offense and identifies the dates and patients associated with the bills alleged to be fraudulent. See ECF No. 52 ¶ 31(j)-(l); Hamling v. United States, 418 U.S. 87, 117-18 (1974) ("an indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense"); United States v. Matthews, 572 F.2d 208, 209 (9th Cir. 1977).
For all of these reasons, Defendant's Motion to Dismiss the Superseding Indictment is denied. If Defendant needs a continuance to adequately prepare for trial on the superseding indictment, the Court will grant a continuance.
IT IS SO ORDERED.
Dated: August 29, 2017
/s/_________
LUCY H. KOH
United States District Judge