Archive | speedy trial

Thursday, November 2nd, 2017

A Promising Speedy Trial Decision

Today the Second Circuit upheld the dismissal with prejudice of two drug-related counts on constitutional speedy trial grounds. In U.S. v. Pennick, the government appealed a Western District judge’s order dismissing these counts after a six-and-a-half year delay between when the defendant was charged and when his trial began. Reviewing for abuse of discretion, the Circuit rejected the government’s challenge. The summary order, available here, is particularly valuable to practitioners seeking to raise speedy trial claims that are messy, but nonetheless meritorious.

The Circuit held that the district court appropriately balanced the four factors established in Barker v. Wingo, 407 U.S. 514 (1972), to assess whether a constitutional speedy trial violation has occurred. These factors are: (1) the length of the delay before the defendant was brought to trial, (2) the reason for the delay, (3) whether the defendant asserted his speedy trial right in advance of …

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Monday, August 31st, 2009

Delay Gratification

United States v. Ray, No. 08-2795-cr (2d Cir. August 27, 2009)(Leval, Cabranes, Livingstone, CJJ)

In this decision, the court holds that an unexplained and prejudicial fifteen-year delay in imposing sentence amounted to a Fifth-Amendment due process violation, but did not violate the Sixth Amendment right to a speedy trial.

Background

In 1991, Ray pled guilty to her role in a $200,000 bank fraud. In 1992, the district court, unmoved by her family circumstances, sentenced her to twelve months’ imprisonment, the bottom of the then-mandatory range. Ray, who was free on bail, appealed. While her appeal was pending, the court of appeals decided a different case that eased somewhat the standard for family circumstances departures. As a result, with the government in agreement, Ray moved for a remand. The circuit granted the motion on January 21, 1993, but neither the district court nor the government took any further action on the …


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Categories: due process, speedy sentencing, speedy trial, Uncategorized

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Sunday, June 21st, 2009

Unlucky Day

United States v. Lucky, No. 08-1939-cr (2d Cir. June 19, 2009) (Calabaresi, Katzmann, CJJ, Eaton, J CIT)

Damon Lucky appealed the denial of his Speedy Trial Act (STA) dismissal motion. The circuit, finding only 69 days of nonexcluded time, one short of the magic number, affirmed.

Lucky’s argument was that there was no proper STA exclusion during the 70 days from May 20, 2005, to July 28, 2005, because the district court excluded the time from the STA calculations without making an “ends of justice” finding. The government countered that the time had been properly excluded to give the parties time for plea negotiations, and that plea negotiations are automatically excluded as “other proceedings concerning the defendant” under § 3161(h)(1) of the STA, with no “ends of justice” finding required.

While two other circuits have so held, the Second Circuit is “not yet convinced” by this argument. The phrase “other …


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Sunday, October 26th, 2008

Sir Speedy

United States v. Oberoi, No. 04-4545-cr (2d Cir. October 23, 2008) (Jacobs, Kearse, Katzmann, CJJ)

Tejbir Oberoi, proceeding pro se, claimed on appeal that he was denied a speedy trial. He lost the case, but it took the circuit about fifty pages to sort things out.

Background

Oberoi was a dentist who defrauded insurance companies by making false reimbursement claims for procedures he never performed. He was first charged with mail and healthcare fraud in a complaint October of 1999. An indictment was returned against him about two months later; it charged 34 counts of mail fraud and 123 counts of making false statements in connection with health care benefits.

The case had a tortured procedural history, including competency proceedings, six or seven changes of counsel, and three interlocutory appeals. The trial was finally set for January of 2004, by which time Oberoi had made, and lost, a motion for …


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Tuesday, August 19th, 2008

Collusion Course

United States v. Guevara-Umana, No. 07-1410-cr (2d Cir. August 15, 2008) (Leval, Calabresi, Pooler, CJJ) (per curiam)

Guevara was deported in 1999. By 2004, he was back; on February 21, 2004, he was charged with grand larceny in New York State. That same day, ICE filed an immigration detainer. On March 4, 2004, ICE filed a Record of Deportable Alien and, the next day, it served Guevara with a notice of intent to reinstate the previous deportation order.

On May 6, 2004, Guevara pled guilty in state court and, four days later, ICE confirmed that he was the same person deported in 1999. On May 21, 2004, an ICE agent wrote a memorandum to Guevara’s A-file that indicated that he had begun an investigation into whether Guevara was an illegal reentrant. This memorandum indicated that a complaint had been authorized by an AUSA.

On June 3, 2004, Guevara was sentenced …


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Sunday, June 15th, 2008

Out of Hindsight

Parisi v. United States, No. 06-1148-pr (2d Cir. June 13, 2008) (Winter, Hall, CJJ, Oberdorfer, DJ)

In this 2255 appeal, the defendant unsuccessfully argued that his counsel was constitutionally ineffective for failing to move for dismissal based on a Speedy Trial Act violation.

Facts

In 2001, Parisi was charged, in a complaint, with child pornography-related offenses. Although, under the Speedy Trial Act, the government had thirty days within which to indict him, the indictment was not filed until nearly 200 days later. During that period, counsel executed three “stipulations” seeking sixty-day continuances for plea negotiations. Each stipulation agreed that the ends of justice to be served by the delay would outweigh defendant’s and the public’s right to a speedy trial. The district court “so ordered” each stipulation.

In 2003, Parisi pled guilty under a plea agreement that included an appellate waiver, and received a 150-month sentence. He later filed a …


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Thursday, January 31st, 2008

Speed Bump

United States v. Abad, No. 06-0338-cr (2d Cir. January 30, 2008) (Jacobs, Parker, Wesley, CJJ) (per curiam)

Here, the court holds that a failure to make a claim under the Speedy Trial Act in the district court results in a waiver of the issue on appeal. Thus, an unpreserved statutory speedy trial claim cannot be reviewed at all, even for plain error.

Comment: This one’s kind of a no-brainer, since the statute expressly so provides. 18 U.S.C. § 3162(a)(2). The only complication is United States v. Sorrentino, 72 F.3d 294, 297 (2d Cir. 1995), in which the court actually reviewed an unpreserved Speedy Trial Act claim for plain error, even though no motion had been made below. The Abad panel devised a double-barreled solution to the conundrum: first, it blamed the lawyers, noting that no party mentioned § 3162(a)(2) in its briefing in Sorrentino, and then, just to make sure, …


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