Opinion
Case No. 2:03-CR-351 TS.
June 25, 2004
ORDER DENYING DEFENDANT'S MOTIONS TO DISMISS
This matter is before the Court on Defendant's Motion to Dismiss for violation of Defendant's right to a speedy trial (under the Speedy Trial Act and the Sixth Amendment), as well as Defendant's Motion to Dismiss for violation of Defendant's right to protection against double jeopardy, both filed May 17, 2004. Defendant's supporting memorandum was filed on June 7, 2004. The government responded to the instant Motions on June 24, 2004.
BACKGROUND
On May 15, 2003, Defendant was charged in a two-count Indictment for Bank Robbery and Brandishing a Firearm During a Crime of Violence. The Court has commenced trial in this case on two separate occasions, both ending in mistrials.
On December 11, 2003, the Court declared a mistrial during the third day of the first trial in this matter due to an inadvertent statement made by a government witness. In its December 11, 2003, Order, the Court noted the circumstantial nature of the government's case against Defendant, and the heightened prejudice that therefore attached to the mistake. The Court also noted that there was no misconduct on the part of the government which caused the mistrial. On March 4, 2004, Defendant made a Motion to Dismiss for a violation of his right to protection against double jeopardy, arising out of the Court's granting of a mistrial in December 2003. On April 21, 2004, the Court held a hearing thereon and denied Defendant's Motion. On May 12, 2004, on the second day of the second trial, the Court declared the mistrial due to an inadvertent incident which unfairly prejudiced Defendant's right to a fair trial and an untainted jury. The trial was subsequently rescheduled for July 6-9, 2004. The instant Motions to Dismiss followed.
DISCUSSION
I. Motion to Dismiss for Speedy Trial Violation
Defendant claims that his right to a speedy trial — under both the Speedy Trial Act and the Sixth Amendment — has been violated by the various delays in this case. As noted above, Defendant was indicted on the above-referenced charges just over one year ago. The Court will address each basis, in turn.
A. Speedy Trial Act
The Speedy Trial Act, found at 18 U.S.C. § 3161, et. seq., (hereinafter, "the Act") provides that "[i]n any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer in which such charge is pending, whichever date last occurs." § 3161(c)(1). The Act later outlines a number of exceptions where "periods of delay shall be excluded in computing the time . . . within which the trial of any such offense must commence." § 3161(h).
At the arraignment of Defendant, a three-day jury trial was set for July 30, 2003. On July 8, 2003, Defendant made an Amended Motion to Continue Trial, which the Court granted on July 14, 2003. Trial was re-set for December 9, 2003. In the interim, Defendant filed numerous and substantial motions, which were all disposed of prior to trial. Trial did commence on December 9, 2003, but ended in a mistrial — based upon Defendant's Motion — on December 11, 2003. Trial was re-scheduled for March 1, 2004. On February 19, 2004, the parties made a joint motion to continue the trial again, and trial was continued to May 11, 2004. Trial again commenced on that date, but again ended in mistrial the following day, May 12, 2004. Trial has been finally set for July 6, 2004.
Defendant concedes that the Act was not violated during the period of time from the filing of the Indictment on May 15, 2003, to the date of the commencement of the second trial on May 11, 2004. Defendant contends, however, that the delay after the second trial, beginning on May 12, 2004, is in violation of the Act.
Defendant's memo states that "Defendant concedes that the severity of this case, and the need for continuity of defense counsel tolled the Speedy Trial Act" during the dates specified above.
The Court notes that two of the four continuances in this case came as a result of motions made or joined by Defendant. Further, both of the mistrials (constituting the other two continuances) came upon motion of the Defendant. Further, at each continuance, the Court entered a written order specifically excluding time under the Act, citing the applicable reasons. Specifically at issue here — because Defendant contends that the Act has been violated beginning with the end of the second trial — is the time excluded by the Court from May 12, 2004, to July 6, 2004. On May 18, 2004, the Court entered an Order Setting Trial Date and Excluding Time Under Speedy Trial Act, specifically finding that "the interests of justice have been served by granting defendant's motion for mistrial and that these interests outweigh the interests of the public and the defendant in a speedy trial; the Court further finds that the failure to grant the motion would have resulted in a miscarriage of justice, and thus the delay, which is the shortest possible delay in the circumstances, is necessary and appropriate in this case."
Trial could not be set sooner partially because Defendant's counsel had a previously scheduled trip out of the country immediately following the second trial.
The Court finds that the time excluded in this case has been so excluded appropriately, — chiefly by motion of Defendant — and that no violation of the Act has occurred in this case.
B. Sixth Amendment
The Sixth Amendment to the U.S. Constitution provides, in relevant part, that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . ." The Supreme Court, in Barker v. Wingo, 407 U.S. 514 (1972), set forth a four-part test for the Court to consider in determining speedy trial claims under the Sixth Amendment: 1) the length of the delay, 2) the reason for the delay, 3) the defendant's assertion of his right to a speedy trial, and 4) prejudice to the defendant.
The Court's efforts to ensure an impartial jury was the reason underlying both mistrials in this case.
The Court hereby incorporates the facts just cited as they relate to the delay in this case for purposes of its Sixth Amendment analysis. Having weighed the above factors, the Court finds that Defendant's Sixth Amendment right to a speedy trial has not been violated in this case. As discussed above, the length of the delay — now over one year — while unfortunate, is not presumptively unreasonable due to the circumstances of this case, and particularly the Court's multiple attempts to commence trial. The delay has been brought about because of legitimate legal issues that needed to be addressed, and in large part by motion of Defendant and the need for continuity of counsel. Defendant has never raised his rights to speedy trial before this point and, indeed, has not had cause to. Defendant has failed to demonstrate prejudice in this case, because the delay has been for his benefit and mostly at his request.
Based upon the above, the Court finds that Defendant's right to a speedy trial has not been violated, either based upon the Speedy Trial Act, or the Sixth Amendment. Therefore, Defendant's Motion to Dismiss is DENIED on these grounds.
II. Motion to Dismiss for Double Jeopardy Violation
The Fifth Amendment to the United States Constitution provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb . . ." However, the Tenth Circuit has held that "[t]he general rule is that the Double Jeopardy Clause does not bar retrial where a defendant moves successfully for a mistrial. A narrow exception exists where `the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial.'" United States v. Gonzalez, 248 F.3d 1201, 1203 (10th Cir. 2001) (emphasis in original) (citingOregon v. Kennedy, 456 U.S. 667, 679 (1982)).
In this case, Defendant moved, successfully, for a mistrial on May 12, 2004 — the second day of trial — after an event occurred through inadvertence which was unfairly prejudicial to Defendant's right to a fair trial and an untainted jury. The error occurred as a result of inadvertent action by an officer with the U.S. Marshall's Office, and was not the fault of either party in this case. Given the circumstantial nature of this case, and the degree of potential and irreparable taint to the jury, the Court granted Defendant's oral Motion and declared a mistrial.
The mistrial granted in the second trial was far less attributable to any party than was the first (for an inadvertent comment by a government witness on the stand). Even in the first trial, however, the Court found that the government had acted in good faith and without purpose to prompt a mistrial. Therefore, there is no ground whatsoever for the Court in this instance to find the requisite "goading" on the part of the government.
In its Order Granting Defendant's Second Motion for Mistrial, the Court made "the express finding that this mistrial is not the result of any error or neglect on the part of the government, or any party for that matter. The error occurred through inadvertence alone. For purposes of double jeopardy, the Court now finds that the government did nothing to encourage or goad the mistrial, and could have done nothing to prevent it." Court's May 12, 2004, Order at 4. Therefore, the "narrow exception" to the general rule does not apply here. The Court here reaffirms its finding that Defendant's double jeopardy rights have not been implicated by the Court's granting of the Defendant's Second Motion for Mistrial.
Given the totality of the circumstances surrounding the mistrial in this case, the Court finds that Defendant's right to protection against double jeopardy under the Fifth Amendment was not violated by the declaration of a mistrial. The Court will therefore deny Defendant's Motion on this ground.
CONCLUSION
Based upon the above, it is therefore
ORDERED that Defendant's Motion to Dismiss for violation of his Sixth Amendment right to a speedy trial is DENIED; it is further
ORDERED that Defendant's Motion to Dismiss for violation of Defendant's right to protection against double jeopardy is DENIED; it is further
ORDERED that trial in that matter shall commence as scheduled on July 6-9, 2004.
SO ORDERED.