Opinion
22-03151-01-CR-S-BCW
04-22-2024
UNITED STATES OF AMERICA, Plaintiff, v. SHAWN O. BELL, Defendant.
REPORT & RECOMMENDATIONS
DAVID P. RUSH, UNITED STATES MAGISTRATE JUDGE
Before the Court is Defendant's Motion and Memorandum to Dismiss the Indictment for Speedy Trial Act Violation. (Doc. 58.) This action has been referred to the undersigned for the purpose of submitting a report on all pretrial motions to dismiss. As follows, it is RECOMMENDED that the Motion be GRANTED, and that the indictment be dismissed without prejudice.
In his Motion, Defendant asks the Court to dismiss the indictment, arguing that “the 70-day limitation set by 18 U.S.C. § 3161 for trial to commence after a defendant's first appearance” has been violated. Id. at 1. In support, Defendant claims that “there has been a lack of insufficient justification or ‘ends of justice' findings and as such the dismissal of the Indictment for the 70-day time limitation violation is mandatory.” Id. Furthermore, Defendant also argues that his Sixth Amendment right to a speedy trial has also been violated. Id. at 8. The Government filed Suggestions in Opposition to the Motion to Dismiss and Defendant filed a Reply. (Docs. 63, 66.)
I. Procedural History
Defendant has been charged by indictment, on December 7, 2022, with knowingly and intentionally possessing with intent to distribute, 40 grams or more of a mixture or substance containing a detectable amount of fentanyl in violation of Title 21, United States Code, Section 841(a)(1) and (b)(1)(B). (Doc. 10.) On December 19, 2022, Defendant was arraigned on the indictment and the case was set on the February 13, 2023 trial docket. (Docs. 15-16.) On January 10, 2023, Defendant filed a motion to continue the February 13, 2023 trial. (Doc. 19.) The Court found that “the ends of justice served by granting a continuance outweigh the best interest of the public and Defendant in a speedy trial,” granted his motion to continue, and reset the case to the June 5, 2023 trial docket. (Doc. 20.) Additionally, Defendant filed two unopposed motions for extensions of time to file pretrial motions. (Docs. 19, 22.)
On March 20, 2023, Defendant filed a motion to suppress evidence. (Doc 24.) On April 21, 2023, the Government filed suggestions in opposition to the motion to suppress. (Doc. 30.) The Government's suggestions in opposition were initially due on or before April 3, 2023, however the Government filed two motions for extension of time to respond. (Docs. 26, 28.) The Court granted both motions for extension of time. (Docs. 27, 29.) Defendant's reply suggestions were due to be filed by May 5, 2023, but on May 15, 2023, Defendant filed an unopposed motion to file his reply suggestions out of time. (Doc. 31.) The Court granted the motion to file out of time and Defendant then filed his reply brief on June 14, 2023. (Docs. 32-33.) On July 31, 2023, the undersigned held a hearing on the motion to suppress. (Docs. 33-34.) Following the suppression hearing, the Court requested supplemental briefing be filed by the parties and gave each party time to do so. (Doc. 35.) Both parties requested and were granted additional time to file supplemental briefs and on September 25, 2023, both parties filed supplemental briefs in regard to Defendant's motion to suppress evidence. (Docs. 38-43, 46-47.)
On December 15, 2023, the undersigned filed the Report and Recommendations (R&R) on the motion to suppress, recommending that the motion to suppress be denied. (Doc. 54.) On February 13, 2024, District Judge Wimes filed an order adopting the undersigned's R&R. (Doc. 55.) That same day, the Court reset the trial to the March 18, 2024 trial docket. (Doc. 56.) On February 22, 2024, Defendant filed the Motion to Dismiss currently at issue. (Doc. 58.)
II. Discussion
A. Speedy Trial Act
Under the Speedy Trial Act, a federal criminal defendant must “be brought to trial within seventy days of the filing of his indictment or his arraignment, whichever is later.” United States v. Flores-Lagonas, 993 F.3d 550, 565 (8th Cir. 2021); 18 U.S.C. § 3161(c)(1). However, the Act allows a district court to exclude certain periods of delay from this time limit. 18 U.S.C. § 3161(h). If, after delay is properly excluded under the Act, more than 70 days have passed without a trial, the district court must dismiss the indictment on the defendant's motion. United States v. Herbst, 666 F.3d 504, 509 (8th Cir. 2012). “Although dismissal upon a violation of the Act is mandatory, the Act grants the trial judge the discretion to dismiss the case with or without prejudice upon consideration of all of the factors listed by Congress in section 3162(a)(2).” United States v. Blankenship, 67 F.3d 673, 675 (8th Cir. 1995) (cleaned up).
The Act sets forth periods of delay that are to be automatically excluded for purposes of calculating the seventy days, as well as period of delay that are to only be excluded if certain requirements are met. One period of delay to be automatically excluded is “delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of such motion.” 18 U.S.C. § 3161(h)(1)(D); see also Herbst, 666 F.3d at 50910 (concluding that the delay from pretrial motions remains excluded “irrespective of whether it actually causes, or is expected to cause, delay in starting a trial.” (cleaned up)). The Act also automatically excludes “delay reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement by the court.” 18 U.S.C. § 3161(h)(1)(H). Additionally, the Act conditionally excludes “[a]ny period of delay resulting from a continuance . . . if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial.” 18 U.S.C. § 3161(h)(7)(A).
18 U.S.C. § 3161(h)(7)(A) further notes that “[n]o such period of delay resulting from a continuance granted by the court in accordance with this paragraph shall be excludable under this subsection unless the court sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial.”
Defendant argues that 214 non-excludable days have passed since his arraignment, violating his Speedy Trial Act rights because the Court failed to bring him to trial within 70 days of his arraignment after counting the properly excluded time. “Reviewing this claim involves detailed examination of the time periods that should be counted or excluded from calculation of the 70 days.” United States v. Long, 900 F.2d 1270, 1274 (8th Cir. 1990).
i. Speedy Trial Clock Analysis
Defendant's arraignment took place on December 19, 2022. Although this date would typically trigger the speedy trial clock to start, the Government filed a detention motion on December 5, 2022 which stopped the clock. See 18 U.S.C. § 3161(h)(1)(D); see also United States v. De La Torre, 907 F.3d 581, 590 (8th Cir. 2018). Because the Court did not rule on the detention motion until December 20, 2022, the 70-day clock began to run on December 21, 2022. See United States v. Moses, 15 F.3d 774, 777 (8th Cir. 1994) (“The period of excludable delay resulting from the government's motion includes both the date on which the motion was filed and the date on which the motion was decided.” (cleaned up)); see also United States v. Suarez-Perez, 484 F.3d 537, 539 (8th Cir. 2007). On January 10, 2023, Defendant filed a motion to continue, which again stopped the speedy trial clock and excluded that day from the calculation. See Suarez-Perez, 484 F.3d at 539 . On January 17, 2023, the Court granted the motion to continue and reset the trial to June 5, 2023, making the requisite findings to exclude this time from the speedy trial calculation, that the ends of justice were served by granting the continuance. On March 20, 2023, Defendant filed a motion to suppress, which prohibited the clock from starting up again.
Defendant argues that the time between June 14, 2023, the date he filed his reply suggestions on the motion to suppress, and July 31, 2023, the date of the suppression hearing, counts against the speedy trial clock. However, the Eighth Circuit has held that “[f]or motions that require a hearing, subsection [(D)] excludes any period of delay caused by any pretrial motion, from the filing of the motion through the conclusion of the hearing . whether that hearing was prompt or not.” United States v. Williams, 557 F.3d 943, 952 (8th Cir. 2009) (cleaned up). As such, the time between the day Defendant filed his reply suggestions and the day of the suppression hearing is automatically excluded from the speedy trial clock calculations, under § 3161(h)(1)(D). See id. (“The “[e]xclusion of pre trial motion delay is automatic . . . and the time during which a motion is pending is excludable even if the pendency of the motion is not the cause of the delay.” (cleaned up)).
The undersigned refers to the current version of the legislation in this R&R. In 2008, the Speedy Trial Act was amended, which ultimately caused the renumbering of subsections in section (H). See Pub.L. 101-650, Title III, § 321, Dec. 1, 1990, 104 Stat. 5117. As such, subsection (D) in the most current version of the statute was previously marked as subsection (F) before the 2008 amendments.
The question in this case becomes how many non-excludable days are counted in the speedy trial calculation from the time the motion to suppress was filed to the time the District Judge filed an order denying the motion to suppress. Defendant argues that a total of 214 non-excludable days have elapsed since his arraignment, and specifically that 137 non-excludable days elapsed between the filing of the motion to suppress and the entry of the order dismissing the motion to suppress. (Doc. 58-1.) In his calculation of the 137 non-excludable days, Defendant excludes 30 days following the suppression hearing pursuant § 3161(h)(1)(H). Id. Conversely, the Government argues a total of 91 days of non-excludable days elapsed since Defendant's arraignment and calculates that 61 non-excludable days passed between Defendant filing a motion to suppress and the District Judge denying the motion. (Doc. 63 at 4-5.) The Government excludes the following in its calculation of the non-excludable days that passed between the filing of the motion to suppress and the District Judge's order on the motion: 30 days after the suppression hearing pursuant to § 3161(h)(1)(H); the period from December 15, 2023, to January 2, 2024, as the undersigned's R&R provided that any objections to the R&R should be filed by January 2, 2024; the period from January 3, 2024 to February 2, 2024, as the excludable 30 days following the filing of the R&R, pursuant to § 3161(h)(1)(H), starting from the time period after the objections to the R&R were due. Id.
The undersigned notes the Government's argument that “[t]he period from December 15, 2023, to January 2, 2024, is an excludable time period as the parties had the opportunity to submit further materials for the District Court's consideration when reviewing the submissions and the Report and Recommendation.” (Doc. 63 at 4.) Although the Government cites United States v. Blankenship in support of its argument, the undersigned does not find that Blankenship supports the theory that the time for objections to a R&R be excluded in the speedy trial calculation. Furthermore, the Eighth Circuit has declined to rule on the issue in Suarez-Perez, where there were no objections to the R&R filed. 484 F.3d at 542 n.3.
When the court takes a pretrial motion under advisement following a hearing, the excluded period cannot exceed 30 days. See Blankenship, 67 F.3d at 676 (“Subsection [(H)] and subsection [(D)] are intertwined, to an extent, because a judge does not necessarily take every motion ‘under advisement' within the meaning of subsection [(H)] at the close of the hearing.”). However, “[a]fter the hearing is over, the district court might require supplemental filings from the parties in order to properly resolve the motion” and “[t]he time during which the district court is awaiting these filings is excluded.” Williams, 557 F.3d at 952. Therefore, the Court excludes, in its calculation, the days that elapsed between July 31, 2023, the date of the suppression hearing and September 25, 2023, the date the parties filed the requested supplemental briefing.
Additionally, the Eighth Circuit has held that with respect to motions referred to magistrate judges, the 30-day exclusion period first applies to the magistrate judge's consideration of the motion and then again to the district judge's consideration of the motion. See Blankenship, 67 F.3d at 676-77 (“This 30-day period of allowable delay applies to magistrate judges as well as to district judges.”); see also Long, 900 F.2d at 1275. Therefore, in calculating speedy trial days, the Court excludes 30 days from the period between the filing of the parties' supplemental briefing and the filing of the undersigned's R&R. See Blankenship, 67 F.3d at 677 (“After the 30-day period expired, the speedy trial clock began to run again, and 36 includable days lapsed before the magistrate judge filed the report and recommendation.”). The undersigned also excludes 30 days from the period between the undersigned's filing of the R&R and District Judge's ruling on Defendant's pretrial motion. See id. Additionally, the day on which a magistrate judge files the R&R on a pretrial motion is excludable from the speedy trial calculation. Id. Therefore, the undersigned excludes, in the calculation, October 26, 2023 and December 14, 2023 as well as December 16, 2023 to January 14, 2024.
The following is a chronology of the relevant docket entries, together with an accounting of Defendant's speedy trial clock under the Speedy Trial Act:
Date
Event
Speedy Trial Days
Non- Excludable Days
December 19, 2022
Arraignment held; pretrial order entered setting motions deadline for January 18, 2023, and setting trial for February 13, 2023. Speedy trial clock would typically begin the day after arraignment, but the pretrial motion was not ruled on until December 20, 2022.
0
December 20, 2022
Order issued on pretrial motion for detention. Speedy trial clock begins on December 21, 2022, the day after the pretrial motion is ruled on.
0
January 10, 2023
Motion to continue trial filed by Defendant.
Dec. 21 - Jan. 9
20
January 17, 2023
The Court reset the trial for June 5, 2023.
0
March 20, 2023
0
July 31, 2023
Evidentiary hearing on Defendant's Motion to Suppress held. The Court asked for supplemental briefing to be filed by both parties, post hearing.
0
September 25, 2023
Both parties filed supplemental briefing on the Motion to Suppress. Speedy trial clock restarted 30 days later, on October 26, 2023.
0
December 15, 2023
Magistrate Judge filed the R&R on the Motion to Suppress. Speedy trial clock restarted 30 days later, on January 16, 2023.
Oct. 26 - Dec. 14
50
February 13, 2024
District Judge adopted R&R. Speedy trial clock restarted February 14, 2024.
Jan. 15 - Feb. 12
29
February 22, 2024
Defendant filed Motion to Dismiss.
Feb. 14 - Feb. 21
8
Days Elapsed on Speedy Trial Clock:
107
Defendant argues that the Court did not make “ends of justice” findings in granting the Government's requests for extensions of time to file suggestions in opposition, which further contributed to the violation of Defendant's speedy trial rights. (Doc. 58 at 9-12.) However, the undersigned declines to address this argument, as Defendant provides no authority in support, and it would not alter the undersigned's ultimate conclusions.
According to the undersigned's calculations, a total of 107 non-excludable days have lapsed in Defendant's speedy trial clock, at present. Thus, the undersigned finds a violation of the Speedy Trial Act has occurred as 107 non-excludable days have elapsed since Defendant's arraignment, more than the 70 days guaranteed to him under the Speedy Trial Act to be brought to trial. The Act requires dismissal of the indictment when a court determines that there has been a violation of a defendant's speedy trial rights.
ii. Dismissal With or Without Prejudice
The next question is whether the dismissal should be with or without prejudice, a question within the trial court's discretion. See Blankenship, 67 F.3d at 675; see also United States v. Bloate, 655 F.3d 750, 757 (8th Cir. 2011) (“Although the Act requires dismissal of the indictment, the district court may determine, under 18 U.S.C. § 3162(a)(1), whether the dismissal is with or without prejudice.”). “In determining whether to dismiss the case with or without prejudice, the court shall consider, among others, each of the following factors: the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of this chapter and on the administration of justice.” 18 U.S.C. § 3162(a)(2); see also United States v. Taylor, 487 U.S. 326, 333 (1988). The Court must also consider the prejudice to Defendant resulting from the Speedy Trial Act violation. United States v. Summage, 575 F.3d 864, 874 (8th Cir. 2009).
With regard to the first factor the Court must consider, Defendant is charged with conspiracy to distribute 40 grams or more of a mixture or substance containing a detectable amount of fentanyl in violation of Title 21, United States Code, Section 841(a)(1) and (b)(1)(B). (Doc. 10.) “When the crime is serious, the court should dismiss with prejudice only for a correspondingly serious or prejudicial delay.” Summage, 575 F.3d at 874 (cleaned up). Defendant concedes that the offense at hand is serious and carries a significant range of punishment. (Doc. 66 at 2.) As such, this factor weighs in favor of dismissal without prejudice.
With regard to the second factor, the Government is not solely responsible for the delay in bringing Defendant to trial. In this case, the reasons for the delay were unintentional and largely attributed to the resolution of Defendant's motion to suppress evidence. Specifically, the largest amount of non-excludable time that counted towards Defendant's speedy trial clock, 79 of 107 days, occurred while the motion to suppress was under advisement by the undersigned and the District Judge. “When the delay is not attributable to the government, but to the [c]ourt, dismissal with prejudice is not favored.” Summage, 575 F.3d at 874 (cleaned up).
Additionally, based on the undersigned's calculation, Defendant has served, at most, 37 days over the 70-day speedy trial clock. The Eighth Circuit has held that “serious delay alone does not require a dismissal with prejudice.” Id; see also United States v. Koory, 20 F.3d 844, 848 (8th Cir. 1994) (“Here, the length of resulting delay was 59 days beyond the 70-day limit. We find that a 59-day delay, while not insubstantial, is not so substantial that dismissal with prejudice is mandated regardless of the other circumstances.”). “The circumstances do not favor dismissal with prejudice, however, where there is no showing that the claimed negligence was in reality an attempt to obtain a tactical advantage for the government or that the government regularly or frequently failed to meet the time limits of the Act.” Koory, 20 F.3d at 848. Therefore, the facts and circumstances in this case that led to dismissal also weigh in favor of dismissal without prejudice.
With regard to the third factor, the impact of a reprosecution on the administration of the Speedy Trial Act and on the administration of justice, the undersigned finds it significant that this case has not yet been tried and the impact of reprosecution would be minimal. “Reprosecution always involves some element of increased burden on the administration of justice and hinders the Act's goal of swift prosecution, yet the Act does not mandate that every dismissal be with prejudice.” Id. at 849. There is no evidence in this case of purposeful conduct or a pattern of negligence on the part of the Government that would be deterred by a dismissal with prejudice. See id. (“In this case, the impact of reprosecution is minimal and there is no purposeful conduct or pattern of negligence on the part of the government to deter by a dismissal with prejudice.”). The undersigned finds the impact of reprosecution favors dismissal without prejudice.
Defendant argues that the Government is at fault as it did not advise the Court of the Speedy Trial Act deadlines. (Doc. 58 at 7-9.) However, Defendant fails to provide authority supporting the proposition that the Government had a duty to inform the Court of Speedy Trial Act deadlines. As such, the undersigned does not find the Government at fault, or negligent, for failing to advise the court of the Speedy Trial Act limitation.
In considering the prejudice to the defendant, the undersigned acknowledges Defendant may have suffered some degree of emotional stress while he has remained incarcerated pending trial. Defendant also claims that he is prejudiced because his incarceration had “a psychological effect upon his ability to participate in his defense,” limited “his ability to see his attorney on a more frequent basis than a person not in custody,” and “has hampered his ability to actively participate in his defense, gather evidence or contact potential witnesses.” (Doc. 66 at 3.) However, Defendant does not specify exactly how his defense has suffered, or why his attorney couldn't successfully accomplish what he needed for his defense with his help while incarcerated. The undersigned is not convinced by Defendant's vague references to not being able to fully participate in his defense. After considering the various factors, the undersigned finds that the indictment should be dismissed without prejudice, under the discretion given to the Court by the Speedy Trial Act.
B. Sixth Amendment
In addition to the Speedy Trial Act violation, Defendant argues that his Sixth Amendment right to a speedy trial has also been violated. The Sixth Amendment guarantees a criminal defendant the right to a speedy trial. U.S. Const. amend. VI. Violation of a defendant's Sixth Amendment right to speedy trial requires a district court to dismiss a case with prejudice. United States v. Johnson, 990 F.3d 661, 670 (8th Cir. 2021). Courts are to review “Sixth Amendment and Speedy Trial Act challenges for delay . . . independently of one another.” Id. at 666 (cleaned up). To determine whether a defendant's Sixth Amendment speedy trial right has been violated, courts balance four factors, known as the Barker factors: (1) length of delay; (2) reason for delay; (3) the defendant's assertion of his speedy trial right; and (4) the prejudice to the defendant. United States v. Cooley, 63 F.4th 1173, 1177 (8th Cir. 2023) (citing Barker v. Wingo, 407 U.S. 514, 530 (1972)).
Under the first Barker factor, courts must examine two questions: “(1) whether the length of delay was presumptively prejudicial such that it triggers the Barker analysis, and, if triggered, (2) the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim.” Johnson, 990 F.3d at 670 (cleaned up). The delay considered here, the total time from arrest to the scheduled trial, is approximately 16 months. See United States v. Sims, 847 F.3d 630, 634 (8th Cir. 2017) (“[T]he Sixth Amendment right to a speedy trial attaches at the time of arrest or indictment, whichever comes first, and continues until the trial commences.”). The delay in this case is presumptively prejudicial, as “[a] delay approaching a year may meet the threshold for presumptively prejudicial delay requiring application of the Barker factors.” See United States v. Walker, 840 F.3d 477, 485 (8th Cir. 2016) (cleaned up) (finding an eleven-and-a-half-month delay meets threshold for first factor, but barely). However, because “the delay did not stretch far beyond the bare minimum needed to trigger judicial examination,” this factor weighs only slightly in favor of Defendant. Johnson, 990 F.3d at 670 (cleaned up); see also United States v. Otero, 2023 WL 8947133 at *1 (8th Cir. 2023).
Under the second Barker factor, “the court must determine whether the government or the defendant was more to blame for the delay.” Walker, 840 F.3d at 485 (cleaned up). Courts must “weigh an intentional delay by the government heavily against it” and “weigh negligence by the government less heavily but still regard such negligence as a considerable factor in the weighing process.” Cooley, 63 F.4th at 1178 (cleaned up). Additionally, courts must “weigh delay caused by the defense against the defendant.” Id. (cleaned up). Here, the reason for the delay was primarily attributed to the resolution of Defendant's motion to suppress evidence. However, prior to the filing of his motion to suppress evidence, Defendant filed two unopposed motions for extension of time to file pretrial motions as well as a motion to continue. Defendant filed his motion to suppress evidence on March 20, 2023, more than 90 days after his arraignment on the indictment. Although the government may bear some responsibility, the blame for a majority of the pretrial delay is borne by Defendant. See United States v. Mallet, 751 F.3d 907, 914 (8th Cir. 2014) (finding that the defendant bore the majority of the responsibility for delay where he changed his plea, cancelled his plea, moved for multiple continuances, and filed a motion to dismiss).
As to the third Barker factor, Defendant asserted his right to a speedy trial in his current motion to dismiss filed in February 2024, which in itself has little bearing on the third Barker factor. See id. (“Allen's substantial contributions to the pretrial delay belie his later attempts to assert his speedy trial right.”); see also Johnson, 990 F.3d at 671. There is no evidence that Defendant acted to protect his speedy trial rights earlier. Therefore, this factor weighs against Defendant.
Lastly, as to the fourth Barker factor, “[t]he extent to which a defendant must demonstrate prejudice under this factor depends on the particular circumstances.” United States v. Erenas-Luna, 560 F.3d 772, 778 (8th Cir. 2009). “A showing of actual prejudice is required if the government exercised reasonable diligence in pursuing the defendant,” but “where the government has been negligent . . . prejudice can be presumed if there has been an excessive delay.” Id. at 778-79. Because much of the delay was due to the resolution of Defendant's motion to suppress as well as Defendant's continuance rather than negligence on the part of the Government, a showing of actual prejudice is required here. Courts assess actual prejudice to the defendant in light of the following three interests: (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.” Johnson, 990 F.3d at 671; see also Otero, 2023 WL 8947133 at *2.
As to the first prejudice subfactor, Defendant fails to demonstrate that the delay was unusually burdensome or oppressive to him. Defendant argues that incarceration “may have a psychological effect upon his ability to participate in his defense” and “limits his ability to see his attorney on a more frequent basis than a person not in custody.” (Doc. 66 at 3.) However, Defendant does not specifically describe or detail how this has impaired his defense, other than generally stating that it has hampered his ability to actively participate in his defense, gather evidence, and contact potential witnesses. The general concerns Defendant describes are going to be present to some degree in any case involving pretrial detention. See Williams, 557 F.3d at 949 (finding that that the defendant “failed to show that the delay was unusually burdensome or oppressive to him”).
As to the second subfactor, Defendant argues emotional stress from his pretrial incarceration, stating that he was not able to have daylight, lived in a 10 x 10 room, has been subjected to two detainees dying at the facility he was detained, has been subjected to jackhammer noises, and has been unable to sleep, concentrate, or eat the food. (Doc. 66 at 3.) However, his prolonged incarceration was in part due to his continuance and motions for extension of time to file pretrial motions. See Cooley, 63 F.4th at 1179 (finding that the defendant's involvement in prolonging the delay caused the defendant's anxiety to play less weight in the court's analysis). Although Defendant claims he suffered emotional stress due to the delay, he fails to show that the delay weighed particularly heavily on him in specific instances. See Williams, 557 F.3d at 949; see also United States v. McGhee, 532 F.3d 733, 740 (8th Cir. 2008) (“[A]lthough anxiety and concern are present in every case, this alone does not demonstrate prejudice.”).
As to the third subfactor, the undersigned has already stated above that the Defendant has failed to demonstrate specifically how his defense was impaired by his pretrial incarceration. Defendant argues that he had less time to meet with his attorney because he was incarcerated for almost 16 months. (Doc. 66 at 3.) However, the undersigned finds that argument counterintuitive, because 16 months should have given Defendant ample opportunity to meet with his attorney. Furthermore, although Defendant claims his Defense was impaired because he was “not allowed to take his notes or paperwork he has prepared for his case,” the undersigned does not find this argument convincing because he has an attorney that should be holding on to all pertinent documents and records for Defendant. Id. For the above reasons, the undersigned finds that there is no actual prejudice to Defendant.
Although two of the Barker factors weigh slightly in Defendant's favor, the undersigned concludes Defendant's Sixth Amendment speedy trial right was not violated. Defendant failed to assert his right to a speedy trial prior to his motion to dismiss, and, importantly, suffered little to no prejudice due to the delay.
III. Conclusion
For the foregoing reasons, as to Defendant's Motion and Memorandum to Dismiss the Indictment for Speedy Trial Act Violation, it is hereby RECOMMENDED that Defendant's motion be GRANTED, and the indictment be dismissed without prejudice.