Opinion
22-03071-01-CR-S-MDH
07-11-2024
UNITED STATES OF AMERICA, Plaintiff, v. MICHAEL E. HUNT, JR., Defendant Event Speedy Trial Days Non Excludable Days
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. 123.) This action has been referred to the undersigned for the purpose of submitting a report on all pretrial motions to dismiss. In the Motion to Dismiss, 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. Defendant also argues that his Sixth Amendment right to a speedy trial has been violated. Id. at 7. The Government filed Suggestions in Opposition (doc. 126) to the Motion to Dismiss and Defendant waived any reply. As follows, it is RECOMMENDED that the Motion to Dismiss be DENIED.
I. Procedural History
On June 13, 2022, Defendant was charged by Complaint with possession, with the intent to distribute, 40 grams or more of a mixture or substance containing fentanyl in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). (Doc. 1.) On the same date, Defendant was arrested and made his initial appearance before the undersigned. (Docs. 2, 7.)
On July 11, 2022, Defendant filed a Motion for Pretrial Psychiatric or Psychological Examination under 18 U.S.C. § 4242. (Doc. 29.)
On July 12, 2022, Defendant was charged by Indictment 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 21 U.S.C. § 841(a)(1) and (b)(1)(B). (Doc. 30.)
On July 28, 2022, the undersigned granted the Motion for Pretrial Psychiatric or Psychological Examination and committed Defendant to the custody of the Attorney General to conduct a psychiatric or psychological examination pursuant to 18 U.S.C. §§ 4242 and 4247(b). (Doc. 37.) On the same date, Defendant was arraigned, and the case was set for trial on September 26, 2022. (Docs. 35, 36.)
On September 14, 2022, Defendant filed his first motion to continue the trial, from September 26, 2022. (Doc. 40.) On September 15, 2022, the undersigned 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, and continued the trial to January 9, 2023. (Doc. 41.)
On October 19, 2022, the Psychological Report of the previously ordered examination under Section 4242 was filed. (Doc. 44.)
On December 14, 2022, Defendant filed his second motion to continue the trial, from January 9, 2023. (Doc. 56.) On the same date, the undersigned 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, and continued the trial to June 5, 2023. (Doc. 57.)
On May 12, 2023, Defendant filed his third motion to continue the trial, from June 5, 2023. (Doc. 63.) On the same date, the undersigned 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, and continued the trial to August 21, 2023. (Doc. 64.)
On July 20, 2023, Defendant filed his fourth motion to continue the trial, from August 21, 2023, to October. (Doc. 70.) On the same date, the undersigned 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, and continued the trial to February 12, 2024. (Doc. 71.)
Also on July 20, 2023, Defendant filed a Motion to Suppress Evidence. (Doc 69.) Thereafter, on August 2, 2023, the Government filed a Motion for Extension of Time to respond to the Motion to Suppress Evidence, which was granted as unopposed. (Docs. 72, 73.) On August 24, 2023, the Government filed its Response in Opposition to the Motion to Suppress Evidence. (Doc. 74.) The Motion to Suppress Evidence was set for hearing on October 19, 2023, but the Government moved for a continuance of the hearing, which was granted as unopposed. (Docs. 75-78.) On October 31, 2023, the undersigned held a hearing on the Motion to Suppress Evidence and at the conclusion of the hearing took the matter under advisement. (Doc. 80.) On November 3, 2023, the transcript of the suppression hearing was ready for review. (Doc. 82.)
Following the suppression hearing, on January 8, 2024, the Court requested supplemental briefing from the parties and gave each party time to do so. (Doc. 91.) Both parties requested and were granted additional time to file supplemental briefs and on January 29-30, 2024, the parties filed supplemental briefs as directed by the Court. (Docs. 94, 96.) Then, on February 6, 2024, the Government moved for leave to file to file a second supplemental brief. (Doc. 98.) Over Defendant's opposition, the undersigned granted leave to the Government, which then filed a second supplemental brief on February 20, 2024. (Doc. 102.)
Notably, on February 12, 2024, the date to which the trial was previously continued, Defendant filed a Motion for Furlough for Mental Health Treatment and Counseling Services. (Doc. 99.) On February 26, 2024, the Government filed a Response in Opposition to the Motion for Furlough. (Doc. 103.) Any reply in support of the Motion for Furlough was due on or before March 11, 2024, but Defendant chose to not file a reply brief. Then, on April 9, 2024, the undersigned entered an Order denying the Motion for Furlough. (Doc. 106.)
On March 8, 2024, the undersigned issued a Report and Recommendations (R&R) on the Motion to Suppress Evidence, recommending that the motion be denied and allowing the parties 14 days to file objections, if any. (Doc. 104.) On March 22, 2024, Defendant filed objections to the R&R. (Doc. 105.) On May 14, 2024, District Judge Harpool entered an Order adopting the R&R and denying the Motion to Suppress Evidence. (Doc. 107.) On June 21, 2024, this case was specially set for trial on July 15, 2024, before District Judge Wimes. (Doc. 113.)
Lastly, on July 1, 2024, Defendant filed the Motion to Dismiss at issue. (Doc. 123.)
II. Discussion
A. Speedy Trial Act
Under the Speedy Trial Act (“STA”), 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 STA 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 STA, 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 [STA] is mandatory, the [STA] 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 STA 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 proceeding, including any examinations, to determine the mental competency or physical capacity of the defendant.” 18 U.S.C. § 3161(h)(1)(A). The STA also automatically excludes “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 509-10 (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)). Also excludable is “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 STA 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 states 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 128 non-excludable days have passed since his initial appearance on June 13, 2022, violating his STA rights because the Court failed to bring him to trial within 70 days 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).
First, contrary to Defendant's argument, his STA clock did not start running on June 13, 2022, the date of his initial appearance. Rather, Section 3161(c)(1) provides that the STA clock starts upon either the filing date of the indictment or the date of the arraignment, whichever is later. In this case, the later date was July 28, 2022, when Defendant was arraigned. This event would normally start the STA clock, but on the same date, on Defendant's motion, the undersigned ordered a psychiatric or psychological examination for up to 45 days to determine whether he was insane at the time of the offense under 18 U.S.C. § 4242, which delayed the start of the STA clock. See 18 U.S.C. § 3161(h)(1)(A); see also United States v. Stone, 813 F.2d 1536, 1539 (9th Cir. 1987) (“Section 3161(h)(1)(A) excludes delay resulting from examinations to determine a defendant's sanity at the time of an alleged offense.”), cert. denied, 484 U.S. 839 (1987); United States v. Stockwell, 743 F.2d 123, 128 (2nd Cir. 1984); United States v. Crosby, 713 F.2d 1066, 1078 (5th Cir. 1983) cert. denied, 464 U.S. 1001 (1983). The Psychological Report of the examination under Section 4242 was filed on October 19, 2022, and as a result, the period from July 28 to October 19, 2022, is automatically excluded pursuant to Section 3161(h)(1)(A). Notably, Defendant agrees this period should be excluded from the calculation and does not allege there was any unnecessary delay in conducting the examination proceedings. (Doc. 123-1.)
Next, on September 14, 2022, Defendant filed the first of his four motions to continue the trial, which ultimately delayed the trial date to February 12, 2024. The undersigned granted Defendant's first motion for continuance, finding that “the ends of justice served by granting a continuance outweigh the best interest of the public and Defendant in a speedy trial,” and continuing the trial to January 9, 2023. On December 14, 2022, Defendant moved for his second continuance of the trial, which the undersigned granted, finding that “the ends of justice served by granting a continuance outweigh the best interest of the public and Defendant in a speedy trial,” and continuing the trial to June 5, 2023. On May 12, 2023, Defendant moved for his third continuance of the trial, which the undersigned granted, finding that “the ends of justice served by granting a continuance outweigh the best interest of the public and Defendant in a speedy trial,” and continuing the trial to August 21, 2023. Finally, on July 20, 2023, Defendant moved for his fourth continuance of the trial, which the undersigned granted, finding that “the ends of justice served by granting a continuance outweigh the best interest of the public and Defendant in a speedy trial,” and continuing the trial to February 12, 2024. As a result, in accordance with Section 3161(h)(7)(A), the entire period from September 14, 2022, to February 12, 2024, should be excluded from the STA clock. Furthermore, Defendant agrees that this entire period should be excluded. (Docs. 123 at 5, 123-1.)
Then, on February 12, 2024, Defendant filed a Motion for Furlough for Mental Health Treatment and Counseling Services, which again tolled the STA clock from starting pursuant to Section 3161(h)(1)(D). After allowing the parties time to brief the matter, on April 9, 2024, 29 days after the matter was fully briefed, the undersigned promptly entered an Order denying the Motion for Furlough. Thus, per Section 3161(h)(1)(D), the period from the filing of the Motion for Furlough on February 12, 2024, through its prompt disposition on April 9, 2024, should be excluded from the STA clock calculation. See United States v. Moses, 15 F.3d 774, 777 (8th Cir. 1994); cert. denied, 512 U.S. 1212 (1994) (“The period of excludable delay resulting from the [] 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). And once again, Defendant agrees that this entire period should be excluded. (Docs. 123 at 6, 1231.)
At this point, according to the undersigned's calculations, from Defendant's arraignment on July 28, 2022, to the disposition of Defendant's Motion for Furlough on April 9, 2024, zero days are includable under the Speedy Trial Act. In his motion, Defendant agrees that this entire period of delay is properly excluded from the 70-day limit. (Docs. 123 at 5-6, 123-1.)
Defendant posits that the STA clock started after the April 9, 2024 disposition of the Motion for Furlough. However, Defendant fails to properly calculate the effect of his then-pending Motion to Suppress on the STA clock. Per Section 3161(h)(1)(H), with respect to motions referred to magistrate judges, a 30-day exclusion period applies first 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. Further, “once the district court receives the magistrate's report, the STA clock will not restart until the district court holds a hearing or until all briefing upon any objections is complete. Then, of course, a new 30-day period begins during which the district court can take the motion under advisement.” United States v. DeGarmo, 450 F.3d 360, 364 (8th Cir. 2006). Of importance, Local Rule 74.1(b)(2) provides that objections to magistrate judge R&Rs are due within 14 days and “[a] party may respond to another party's objection within 14 days after being served with a copy.”
Per Local Rule 99.0, “[u]nless the context clearly indicates otherwise, all Local Civil Rules apply to criminal proceedings in this District.
As a result, in calculating STA days, per Section 3161(h)(1)(H), following the date of the filing of any objections and responses through the district judge's ruling on a pretrial motion, 30 days during which the pretrial motion was under advisement by the district judge are excluded. Therefore, the undersigned excludes the 30-day period after April 5, 2024, which is the date the Government's response, if any, to Defendant's March 22, 2024 objections to the R&R was due, through May 5, 2024.
Thus, the STA clock started on May 6, 2024, and ran until May 14, 2024, which is the date on which District Judge Harpool entered the Order adopting the R&R and denying the Motion to Suppress. This delay results in a total of 8 days, from May 6 through May 13, 2024, being included in the STA clock calculation. See Moses, 15 F.3d at 777 (8th Cir.) (stating the date on which the motion is disposed is excludable).
Lastly, on July 1, 2024, Defendant filed the Motion to Dismiss at issue, which tolled the STA clock. See Moses, 15 F.3d at 777 (8th Cir.) (stating the date on which the motion is filed is excludable). Therefore, an additional 47 days, from May 15 to June 30, 2024, are included in the STA clock calculation.
The following is a chronology of the relevant docket entries, together with an accounting of Defendant's STA clock:
Date
Event
Speedy Trial Days
Non Excludable Days
June 13, 2022
Complaint filed, Defendant arrested, Defendant makes initial appearance.
0
July 11, 2022
Motion for Pretrial Psychiatric or Psychological Examination under 18 U.S.C. § 4242 filed by Defendant. Motion disposed by Order entered on July 28, 2022.
0
July 12, 2022
Indictment filed.
0
July 28, 2022
Defendant arraigned. Case set for trial on September 26, 2022. Order entered granting Motion for Pretrial Psychiatric or Psychological Examination under 18 U.S.C. § 4242. STA clock does not start because of pending mental
0
September 14, 2022
Motion for continuance of trial filed by Defendant.
0
September 15, 2022
Order entered continuing trial to January 9, 2023.
0
October 19, 2022
Psychological Report of examination under Section 4242 filed.
0
December 14, 2022
Motion for continuance of trial filed by Defendant. Order entered continuing trial to June 5, 2023.
0
May 12, 2023
Motion for continuance of trial filed by Defendant. Order entered continuing trial to August 21, 2023.
0
July 20, 2023
Motion for continuance of trial filed by Defendant. Motion to Suppress filed by Defendant.
0
July 24, 2023
Order entered continuing trial to February 12, 2024.
0
October 31, 2023
Evidentiary hearing on Defendant's Motion to Suppress held. Magistrate Judge takes matter under advisement.
0
February 12, 2024
Motion for Furlough for Mental Health Treatment and Counseling Services filed by Defendant
0
February 26, 2024
Response in Opposition to Motion for Furlough filed by the Government. Reply suggestions, if any, due March 11, 2024.
0
March 8, 2024
R&R on Motion to Suppress issued by Magistrate Judge.
0
March 22, 2024
Objections to R&R filed by Defendant.
0
April 5, 2024
Response, if any, to Defendant's objections to R&R due. No response filed, so District Judge takes matter under advisement as of April 6, 2024, and STA clock starts 30 days later, on May 6, 2024.
0
April 9, 2024
Order entered denying Motion for Furlough.
0
May 14, 2024
Order adopting R&R and denying Motion to Suppress entered by District Judge. Speedy trial clock restarted May 15, 2024.
May 6-May 13
8
July 1, 2024
Motion to Dismiss filed by Defendant.
May 15- 47 June 30
47
Days Elapsed on Speedy Trial Act Clock:
55
Defendant argues that the Court did not make “ends of justice” findings in granting the Government's requests for extensions of time to file briefing on the Motion to Suppress and to continue the suppression hearing, which further contributed to the violation of Defendant's speedy trial rights. (Doc. 123 at 3-4.) 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, as of the date of this Report, a total of 55 nonexcludable days have passed on Defendant's STA clock. As a result, there is no violation of the Speedy Trial Act, as the Act's 70-day limit has not been exceeded.
B. Sixth Amendment
Defendant also argues that his Sixth Amendment right to a speedy trial has been violated. The Sixth Amendment guarantees the right to a speedy trial to a criminal defendant. 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) the length of delay; (2) the 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 consider 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). “[T]he length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case.” Barker, 407 U.S. at 530-31. Here, the length of delay from Defendant's arrest on June 13, 2022, 11 to the scheduled trial on July 15, 2024, is approximately 25 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.”). This delay 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). Accordingly, a Barker analysis is warranted.
The court must then consider “whether delay before trial was uncommonly long.” United States v. Aldaco, 477 F.3d 1008, 1019 (8th Cir. 2007). Here, the delay of 25 months - from arrest to trial - “is a lengthy but not extraordinary delay.” Cooley, 63 F.4th at 1178 (finding a delay of 29 months did not violate the Sixth Amendment). Accordingly, the first factor weighs in Defendant's favor, but not heavily.
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 first 13 months of the delay, from June 13, 2022, to July 20, 2023, was caused by Defendant, specifically by his Motion and subsequent examination to determine his insanity defense under 18 U.S.C. § 4242 and his first three motions to continue the trial. Defendant's third motion for continuance was requested to allow him additional time to file his Motion to Suppress, which was eventually filed on July 20, 2023, over 13 months after his arrest.
Thereafter, the Court took nearly ten months, until May 14, 2024, to dispose of the Motion to Suppress. During the pendency of the Motion to Suppress, the Government was granted an additional three weeks to respond to the Motion, which Defendant did not oppose, as well as a two-week continuance of the suppression hearing due to an unavailable witness, which Defendant also did not oppose. Following the hearing, the undersigned requested additional briefing from the parties, and both parties sought and were granted extensions of time to provide said briefing. After the Motion to Suppress was disposed on May 14, 2024, the Court set the action for trial on its July 8, 2024 joint criminal jury trial docket, and the matter was eventually set for trial before District Judge Wimes commencing July 15, 2024. Defendant has made no allegations that the Government intentionally caused any delay in these proceedings.
Under these circumstances, although the Government may bear some responsibility for the delay, the majority of blame for 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). Thus, the second factor does not support a finding of a Sixth Amendment violation.
As for the third Barker factor, Defendant first asserted his right to a speedy trial in the instant Motion to Dismiss on July 1, 2024, which has little bearing on the third Barker factor. See id. (the defendant'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, considering 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 most of the delay was caused by the resolution of Defendant's motion to suppress along with Defendant's psychological examination and continuances rather than negligence on the part of the Government, a showing of actual prejudice is required here. Courts assess actual prejudice to a defendant considering 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 states that he has “languished” in detention for 25 months and claims “this isolation has separated him from family, friends and loved ones.” (Doc. 123 at 10.) However, Defendant does not specifically describe or detail how this has been unusually burdensome or oppressive, 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 makes no specific allegations as to how the delay has caused him anxiety or concern. 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 show specifically how his defense was impaired by his pretrial incarceration. Defendant generally alleges that the delay “has hampered his ability to actively participate in his defense, gather evidence or contact potential witnesses” but offers no specific instances of this. (Doc. 123 at 10.) And counter to Defendant's assertion, 25 months provided ample opportunity for him to meet with his attorney to address his defense, evidence, and potential witnesses. For the above reasons, the undersigned finds that there is no actual prejudice to Defendant.
To summarize, although the length of the delay weighs in Defendant's favor, the undersigned concludes that Defendant's Sixth Amendment speedy trial right has not been violated. This is because Defendant bears the responsibility for the majority of the delays in this action, failed to assert his right to a speedy trial prior to the filing of the Motion to Dismiss, and, significantly, suffered little to no prejudice due to the delay.
III. Conclusion
Based on the foregoing, it is RECOMMENDED that Defendant's Motion to Dismiss the Indictment for Speedy Trial Act Violation be DENIED.