United States v. Bishop, 2010 U.S. App. LEXIS 26335

Background

Bishop, owner/president of Quality Trucking, was indicted on three counts of false statements in a tax return under 26 U.S.C. § 7206(1) for 2000–2002 unreported trucking income totaling $534,937.
Indictment was sealed due to ongoing investigation and Bishop’s flight risk; she was indicted March 2007 and arraigned January 2009.
Two continuances were granted at Bishop and Government’s joint request; Bishop then moved to dismiss the indictment alleging speedy-trial violations, which the district court denied.
Bishop was convicted on all counts after a trial; she later retained new counsel and moved for a new trial alleging ineffective assistance of trial counsel.
The district court denied Bishop’s Rule 33 motion without a hearing; she was sentenced to 36 months per count, with concurrent terms, and concurrent supervised release.
On appeal, Bishop challenges the speedy-trial analysis, the attempt to frame the case as a perjury/tax distinction, and the district court’s denial of a hearing on ineffective-assistance claims.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether post-indictment delay was presumptively prejudicial	Bishop argues delay weighted in favor of presumptive prejudice due to length, age, and complexity.	Government contends delay not presumptively prejudicial; delay due to flight risk and ongoing investigation was reasonable.	No presumption of prejudice; factors insufficient to require dismissal.
Whether the government’s reasons for delay show deliberate or negligent delay	Bishop claims government delayed to gain advantage and hinder defense.	Government contends delay was due to flight risk and ongoing investigation; not bad-faith.	Delay not shown to be deliberate or negligent—no presumption of prejudice.
Whether Bishop timely asserted speedy-trial rights	Bishop did not object during sealed pre-indictment period; contends delays advanced after indictment.	Government argues continuances after indictment weighed against Bishop’s assertion; delay was complex but understandable.	First three Barker factors not enough; no presumption of prejudice; actual prejudice not shown.
Whether the district court erred in denying a hearing on ineffective-assistance claims	Bishop seeks an evidentiary hearing to develop a record for ineffective assistance under Strickland.	Government maintains district court acted within discretion; holding for later §2255 proceedings is appropriate.	Affirmed denial of a new trial without a hearing; discretionary decision to permit collateral review.
Whether the district court improperly restrained Bishop’s defense by limiting questioning about perjury vs. tax case framing	Bishop argues she should be allowed to frame the case as perjury rather than tax-related under §7206(1).	Government asserts this is a tax case and trial court properly limited the line of questioning.	Plain-error review applied; no reversible error; ruling did not affect trial outcome.

Key Cases Cited

Barker v. Wingo, 407 U.S. 514 (U.S. Supreme Court 1972) (speedy-trial four-factor balancing)
Doggett v. United States, 505 U.S. 647 (U.S. Supreme Court 1992) (delays in pursuit of defendant; presumption depends on delay and purpose)
Frye, 489 F.3d 201 (5th Cir. 2007) (speedy-trial factors and prejudice standard in the Fifth Circuit)
Molina-Solorio, 577 F.3d 300 (5th Cir. 2009) (de novo review of Barker factor balancing; factual findings reviewed for clear error)
Bergfeld, 280 F.3d 486 (5th Cir. 2002) (delay substantially due to government neglect can weigh against government)
Demik, 489 F.3d 644 (5th Cir. 2007) (ineffective-assistance hearing precedents; procedural posture on evidentiary hearings)
Gordon, 346 F.3d 135 (5th Cir. 2003) (preferred method for raising ineffective assistance is §2255)
Olano, 507 U.S. 725 (U.S. Supreme Court 1993) (plain-error standard for appellate review)
Adams, 314 Fed.Appx. 633 (5th Cir. 2009) (discussion distinguishing a §7206(1) case as a perjury case; not excluding tax cases)