James Roy Sylvester v. United StatesJames Roy Sylvester v. United States
Lead Opinion
DONALD, J., delivered the opinion of the court in which GILMAN, J., joined. MERRITT, J. (pg. 513), delivered a separate dissenting opinion.
OPINION
Petitioner James Roy Sylvester, Jr. was convicted by a federal jury of possession with intent to distribute five kilograms or more of cocaine, possession with intent to distribute five grams or more of cocaine base, possession of a firearm in furtherance of a drug-trafficking offense, felon in possession of a firearm, possession of marijuana, possession with intent to distribute oxycodone, diazepam, hydrocodone, and codeine, using interstate travel to acquire and transport five kilograms of cocaine, personally traveling in interstate commerce to acquire five kilograms of cocaine, and conspiracy to distribute and possess with the intent to distribute five kilograms or more of cocaine. He was sentenced to 35 years of imprisonment. A panel of this Court affirmed Sylvester’s conviction and sentence on direct appeal. Sylvester then filed this present motion to vacate his sentence under 28 U.S.C. § 2255 on the grounds that his trial and appellate counsel rendered ineffective assistance in failing to pursue his claims of Speedy Trial Act violations. The district.court dismissed Sylvester’s motion, finding that Sylvester failed to show that he was prejudiced by his counsels’ allegedly deficient performances. Because the district court correctly determined that Sylvester failed to show prejudice, we AFFIRM the order dismissing Defendant’s § 2255 motion.
I.
A.
Sylvester was arrested in February 2003 in connection with a drug conspiracy intending to transport large quantities of cocaine and other illegal substances from California to Michigan. On February 26, 2003, a federal grand jury returned an indictment against Sylvester charging two counts of possession with intent to distribute various amounts of cocaine and crack cocaine. Later that same day, the government filed a first superseding indictment, changing the wording in counts one and two to reflect that Sylvester “knowingly” possessed the drugs referenced in the indictment (the “First Superseding Indictment”). On April 9, 2003, the government filed a second superseding indictment adding a charge for knowing possession of a firearm in furtherance of a federal drug-trafficking crime (the “Second Superseding Indictment”). On May 28, a third superseding indictment was filed adding eight new charges against Sylvester. Over the next year and a half, the government filed five additional superseding indictments, three of which added either new charges or co-defendants, while the other two modified or revised existing charges. Sylvester went to trial on September 13, 2005, and on September 21, 2005 he was found guilty on twelve of the thirteen counts brought against him. He was sentenced to a total of thirty-five years in prison.
B.
In the underlying petition, Sylvester claims two violations of the Speedy Trial Act (the “Act”), relating to the First and Second Superseding Indictments. Regarding the First Superseding Indictment, the Speedy Trial Clock (the “Clock”) started
The Second Superseding Indictment was filed on April 9, 2003. The Clock for the charge brought under that indictment should have started running on April 16, 2003, when Sylvester was rp-arraigned, but the court had already tolled the Clock until May 4 in order for Sylvester’s new counsel to become familiar with the case. Thus, the Clock for the charge brought under the Second Superseding Indictment started running on May 4 when the Clock resumed for the charges brought under First Superseding Indictment. The Clock ran until July 9, when Sylvester’s counsel requested to withdraw from the case. At that point,'65 days had run on the Speedy Trial Clock for the Second Superseding Indictment. As described above the Clock resumed on July 16, 2003, and was tolled again on July 23. By that point, 71 days had run on the Speedy Trial Clock for the charge brought under the Second Superseding Indictment, exceeding the 70-day limit set by the Act. Sylvester makes no allegation of speedy trial violations after July 23, 2003, and the record shows that the remaining delay was largely the result of motions filed by the defense.
On November 19, 2004, Sylvester filed a motion to dismiss based on the pretrial delays. However, counsel never specified an exact violation. Rather Sylvester’s counsel vaguely referred to an “unreasonable long delay of 348 days between Defendant’s Arraignment and the Trial.” Id. at ID # 464-65. After supplemental briefing, the district court denied the motion to dismiss. The district court stated that the defendant bears the burden of “producing a calendar and showing that more than seventy days have passed since the indictment (or first appearance) and trial has yet to begin.” R. 145, ID # 679 (quoting United States v. Jenkins,
Sylvester then filed a motion to vacate his sentence under 28 U.S.C. § 2255 on the grounds that his trial and appellate counsel rendered ineffective assistance in failing to adequately pursue his Speedy Trial Act claims. Although it held that the trial court erred in determining that the Speedy Trial Clock had not run and that Sylvester’s counsel rendered deficient performance by not bringing specific violations to the attention of the court either at trial or on appeal, the district court denied Sylvester’s motion on the ground that the deficient performance notwithstanding, Sylvester had not made a sufficient showing- of ineffective assistance because he failed to show that he was prejudiced by his counsels’ actions. The district court granted a .certificate of appealability, on this issue, and Sylvester filed a timely appeal.-
II.
The Speedy Trial Act was enacted to “g[i]ve effect to a Federal defendant’s right to a speedy trial under'the Sixth Amendment.” United States v. Rojas-Contreras,
Notably, the Act doés not provide for a resetting of the Speedy Trial Clock for existing charges where the government has filed a superseding indictment adding new charges to existing ones. Sylvester’s claims center around the First and Second Superseding Indictments, neither of which added new defendants. In fact, only the Second Superseding Indictment added any charges. The First Superseding Indictment, filed the same day as the initial indictment, merely makes a minor change to the original charges. Although this Circuit has not addressed this issue directly, the majority of our sister circuits have held that “[tjhe filing of a superseding indictment does not affect the speedy trial clock for offenses charged in the original indictment.” United States v. Bermea,
In light of this persuasive precedent, the district court determined that the Speedy Trial Clock exceeded seventy days for both the First and Second Superseding indictments, the First Superseding Indictment by fifteen days and the Second Superseding Indictment by one day. Had the trial court been made aware of these viola-' tions, it would have been compelled by the Act to dismiss the charges in both indictments. 18 U.S.C. §§ 3161(c)(1), 3162(a)(2); see also Zedner v. United States,
A federal prisoner may successfully challenge his sentence under 28 U.S.C. § 2255 by showing that his sentence “was imposed in violation of the Constitution or laws of the United States.” An ineffective assistance of counsel claim may be used to prove such a constitutional violation, even where the underlying claim “cannot otherwise be reviewed for the first time on a § 2255 motion.” Weinberger v. United States,
1. Deficient Performance
A counsel provides deficient performance where the “counsel’s representation f[alls] below an objective standard of reasonableness.” Strickland,
Sylvester’s claims of deficient performance are based in his counsels’ failure to fully pursue the argument for a dismissal based on a violation of the Speedy Trial Act, even, in the case of appellate counsel, where counsel was directed by this Court to clarify the Speedy Trial Act argument. Indeed, Judge Ryan, writing for this Court in response to Sylvester’s direct appeal, stated that “[b]y any conventional measure of forfeiture, Sylvester has forfeited this [Speedy Trial] argument.” United States v. Sylvester,
The government also argues that the Speedy Trial Act does not expressly address a situation as the present one, where the government filed a superseding indictment while a prior indictment is still pending. The government is correct that the Act addresses only scenarios in which a subsequent indictment has been filed after the defendant successfully moves for dismissal or after the government moves to dismiss the prior indictment. However, as the Eleventh Circuit correctly noted, “the exclusion of the period of time between the dismissal of an indictment and the filing of a new indictment under § 3161(h)(6), as well as the Speedy Trial Act more generally, would make little sense if the government could reset the speedy-trial clock at will and effectively ‘circumvent[ ] the speedy trial guarantee through the simple expedient of obtaining superseding indict
The government then argues that the facts in this case can be distinguished from the precedent of our sister circuits on this point because the Second Superseding Indictment did not just make minor changes, but rather added new charges. The government continues that where a superseding indictment adds new substantive charges, it should be considered as one of the “other proceedings” excluded from the 70-day clock by the Act. Under this argument, the 70-day period for the original indictment would begin to toll as soon as a subsequent indictment bringing more charges against the defendant was filed. It is unclear when, or if, the Clock would start running again on the original indictment. In spite of the government’s contention that, like enumerated examples provided in the Act, a superseding indictment bringing new charges would toll the Clock only on the original charges, the effect of accepting this argument would be to restart the seventy-day clock with each superseding indictment that adds substantive charges. The- government cites no precedent in which a court has adopted this argument, but rather points to this Court’s obligation to grant “a broad interpretation as to what is a ‘proceeding’” under the Act. United States v. Robinson,
Because the Speedy Trial Act was violated and those violations would have led to a dismissal of the charges brought under the First and Second Superseding- Indictments, Sylvester’s counsel rendered deficient performance by not bringing those violations to the attention of the court either at trial or on appeal. Although we find that Sylvester’s counsel rendered deficient performance in not pursuing the Speedy Trial Act argument, we nevertheless deny Sylvester’s § 2255 motion because Sylvester was not prejudiced by his counsels’ inaction.
2. Prejudice
In order to prove that he has been prejudiced by his counsels’ deficient performances, Sylvester must show by “a reasonable probability that, but for counsels’ errors, the result of the proceeding would have been different.” Strickland,
In accordance with the Act, trial courts must take into account three factors “when deciding whether to dismiss an action with or without prejudice: 1) the seriousness of the offense; 2) the facts and circumstances that led tó the dismissal; and 3) the impact of reprosecution on the administration of the Speedy Trial Act and on the administration of justice.” United States v. Moss,
Regarding the second factor, this Circuit considers whether the delay resulted from “prosecutorial bad faith,” whether there was “any attempt to take advantage of the delay,” and whether “defendant can show a pattern of negligence on the part of the United States Attorney’s Office.” United States v. Howard,
Regarding the third and final factor, “[t]he main considerations that courts have taken into account ... are whether the defendant suffered actual prejudice as a result of the delay, and whether the government engaged in prosecutorial misconduct that must be deterred to ensure, compliance with the Act.” Howard,
Sylvester instead argues that, due to the violative delay, two potential witnesses who would have supported his defense at trial passed away before the trial' and were thus unavailable. One, his grandfather, could have offered testimony regarding the cash found in Sylvester’s .possession at the time of his .arrest, while the other, Marvel Wooden, could have offered testimony regarding the weapon found at the time of arrest, which was allegedly given to Sylvester as .collateral for money that Mr. Wooden owed him. The trial court has already found the absence of these witnesses non-prejudicial, and Sylvester has
III.
The district court correctly assessed that, even though Sylvester’s trial and appellate counsel rendered deficient performance, Sylvester has not shown that he was prejudiced by that performance. Accordingly, we AFFIRM the district court’s denial of Sylvester’s § 2255 motion.
Notes
. The District Court opinion notes that the Speedy Trial Clock paused on July 9 and resumed on July 16. It then incorrectly counts the days that elapsed against the Speedy Trial Clock. However, the district court's error appears to be only typographical.
Dissenting Opinion
dissenting.
DISSENT
I am not as convinced as my colleagues that there was no “prejudice” as a result of the death of two of Sylvester’s potential witnesses during the inordinate delay caused by the eight superseding indictments. Apparently, one of the witnesses, Sylvester’s grandfather, would have testified that there was art innocent explanation for Sylvester’s possession of cash at the time of his arrest. The other witness would have testified that the weapon was given to Sylvester as collateral for money the witness owed him. The prosecutor during final argument called this claim simply a “cockamamie story.” The prosecutor used the absent witnesses as a further basis for conviction instead of a basis for acquittal if the jury believed the witnesses’ testimony.
The Supreme Court has said that we should be more open to claims of “prejudice,” warning that “[i]f witnesses die or disappear during a delay, the prejudice is obvious.” This statement appears in a Supreme Court opinion in Barker v. Wingo,
Prejudice, of course, should be assessed in light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such 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. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious.
Id. (emphasis added).
Hence, instead of dismissing the case, I would remand this ease to the district court with instructions to consider that the element of “prejudice” has been established and the court should, reconsider the remedy in the case.