Opinion
CR 19-01678 TUC-JGZ (JR)
02-04-2021
United States of America, Plaintiff, v. Richard Eli Norris, III, Defendant.
REPORT AND RECOMMENDATION
This matter was referred to Magistrate Judge Rateau for pretrial matters. On August 21, 2019, Defendant Richard Eli Norris, III ("Norris") filed a Motion to Dismiss 6th Amendment/Speedy Trial (Doc. 29). The Government filed a Response on September 6, 2019 (Doc. 33). Norris did not reply. Following Norris's Motion for Psychiatric Exam on October 8, 2020 (Doc. 40), the hearing on the pending motion was vacated. (Doc. 43).
An evidentiary hearing regarding Norris's competency was held on January 28, 2021. (Doc. 161). After hearing from witnesses, the Court found that Norris had recovered and was competent; the Court ordered that Norris be transported from Springfield, Missouri back to the District of Arizona. (Doc. 162). At the hearing on January 28, 2021, defense counsel and counsel for the Government, submitted on Norris's previously filed Motion to Dismiss 6th Amendment/Speedy Trial. (Docs. 29, 161). Having considered the matter, the Magistrate Judge recommends that the Motion be denied.
As the parties submitted without presenting any testimony, the Court recites the undisputed facts from the Motion and Response (Docs. 29, 33) as well as information from the docket.
A status conference is scheduled for February 25, 2021; a trial date will be scheduled at that hearing. (Doc. 162).
I. Undisputed Facts
On May 12, 2018, Tohono O'odham Police Officers ("TOPD") responded to the Village of San Xavier and found a man with a stab wound to his back. TOPD began an investigation and enlisted the assistance of the Federal Bureau of Investigations ("FBI"). A joint federal investigation into the stabbing was conducted and on May 14, 2018, a federal search warrant was obtained for Norris's residence. That day, Norris was arrested by TOPD and on May 16, 2018, he was charged in Tribal Court. On September 24, 2018, Norris pled guilty in Tribal Court to Aggravated Assault and was sentenced to 360 days in jail with 180 days suspended and one-year probation.
On June 26, 2019, thirteen months after Norris was arrested by TOPD, a Federal Grand Jury indicted him, charging Assault with a Dangerous Weapon with Intent to do Bodily Harm and Assault Resulting in Serious Bodily Injury. (Doc. 3). The current charges in Federal Court stem from the same events that resulted in Norris's conviction in Tribal Court.
In the present Motion, Norris argues that the Government denied him his right to a speedy trial by delaying federal prosecution until the proceedings in Tribal Court had concluded. He contends that there is no reasonable good faith justification for the nine-month delay. (Doc. 29). The Government counters that Norris's arrest by TOPD and the subsequent prosecution in Tribal Court did not trigger Norris's right to a federal speedy trial. (Doc. 33).
The issue of excludable delay under 18 U.S.C. §3161(h) is not relevant to a determination of the pending motion. Nonetheless, the Court notes that the following periods of time were found by the Court to be excluded: August 21, 2019 through October 22, 2019 (Doc. 25); October 23, 2019 through November 26, 2019 (Doc. 37); and October 8, 2020 (Doc. 40) through February 25, 2021 (Doc. 162). --------
II. Legal Conclusions
A. Speedy Trial Act
Under the Speedy Trial Act, 18 U.S.C. § 3161, the trial of a defendant shall begin within seventy days of the indictment or from the date the defendant appeared before a judicial officer of the court, whichever is later. 18 U.S.C. § 3161(c)(1). Although he does not specifically address the application of the Act in his motion, Norris is apparently contending that the Government violated the Act by delaying his indictment and, therefore, that the time between his arrest by tribal authorities, on May 16, 2018, and his federal indictment, on June 26, 2019, should be counted under the Act.
The general rule is that only a "federal" arrest triggers the running of the Speedy Trial Act, regardless of the degree of federal involvement in the state, or in this case tribal, law enforcement activities. See United States v. Redmond, 803 F.2d 438, 440 (9th Cir. 1986). The Ninth Circuit "has repeatedly declined to apply the Speedy Trial Act in situations where the defendant's detention is not pursuant to federal criminal charges, even though federal criminal authorities may be aware of and even involved with that detention." United States v. Cepeda-Luna, 989 F.2d 353, 356 (9th Cir. 1993); see also United States v. Johnson, 953 F.2d 1167, 1172 (9th Cir. 1992) (although F.B.I, actively participated in criminal investigation, Speedy Trial Act commenced only upon federal indictment and not defendant's arrest and incarceration by state authorities); United States v. Manuel, 706 F.2d 908, 914-15 (9th Cir. 1983) (neither F.B.I. involvement in investigation nor tribal arrest triggers Speedy Trial Act);
Norris was arrested by tribal authorities on May 16, 2018. His detention was not "federal" until his indictment by the federal grand jury on June 26, 2019. Norris does not contend that any post-indictment delay should properly be counted in calculating delay. Thus, the Speedy Trial Act has not been violated. /// /// /// ///
B. Sixth Amendment Rights
The Sixth Amendment of the Untied States Constitution guarantees the accused in all criminal prosecutions the right to a speedy and public trial. U.S. Const. Amend. VI. Dismissal is the "only possible remedy" for a deprivation of the right to a speedy trial. Barker v. Wingo, 407 U.S. 514, 522 (1972). The Supreme Court has identified four factors in determining when the government has violated a defendant's Sixth Amendment right to a speedy trial: (1) whether the delay was uncommonly long; (2) whether the government or the defendant is more to blame for the delay; (3) whether the defendant asserted his right to a speedy trial; and (4) whether he suffered prejudice as a result of the delay. Doggett v. United States, 505 U.S. 647, 651 (1992) (citing Barker, 407 U.S. at 530). No single factor, however, is regarded "as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial." 407 U.S. at 533. Instead, they are related factors and must be considered with other relevant circumstances as part of a "sensitive balancing process." Id.
The length of delay is a "threshold" factor. United States v. Nance, 666 F.2d 353, 360 (9th Cir. 1982); see also Barker, 407 U.S. at 530 ("The length of the delay is to some extent a triggering mechanism"). "Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance." Barker, 407 U.S. at 530. Here, Norris posits that the length of delay must be measured from the time of his arrest by TOPD, May 16, 2018. However, as with the Speedy Trial Act, "[t]he delay is measured from the time of the indictment to the time of trial . . .." United States v. Sears, Roebuck & Co., 877 F.2d 734, 739 (9th Cir. 1989); see also United States v. Gonzalez-Avina, 234 F.App'x 758, 759 (9th Cir. 2007) ("We assume without deciding that the pre-trial delay in this case should be measured from the time a federal complaint was filed against Gonzalez."). Again, Norris does not contend that any post-indictment delay resulted in a violation of his Sixth Amendment right to a speedy trial. His right to speedy trial has not been violated.
III. Recommendation
Based on the foregoing and pursuant to 28 U.S.C. § 636(b) and Local Rule Civil 72.1, Rules of Practice of the United States District Court, District of Arizona, the Magistrate Judge recommends that the District Court, after an independent review of the record, DENY Norris's Motion. (Doc. 29).
This Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment. However, the parties shall have 14 days from the date of service of a copy of this recommendation within which to file specific written objections with the District Court. See 28 U.S.C. § 636(b)(1) and Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure. Thereafter, the parties have ten (10) days within which to file a response to the objections. No replies are permitted without leave of court. If any objections are filed, this action should be designated case number: CR 19-1678-TUC-JGZ. Failure to timely file objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
Dated this 4th day of February, 2021.
/s/_________
Honorable Jacqueline M. Rateau
United States Magistrate Judge