United States v. ArtezUnited States v. Artez
Bretta Pirie, Scott Keith Wilson, Office of the Federal Public Defender, Salt Lake City, UT, for Defendant-Appellant.
Before KELLY, McCONNELL, and TYMKOVICH, Circuit Judges.
ORDER AND JUDGMENT*
PAUL KELLY, Jr., Circuit Judge.
Defendant-Aрpellant Friederich Artez appeals from the district court’s dismissal without prejudice of two cases against him for violations of the Speedy Trial Act,
Background
On March 28, 2001, Mr. Artez was indicted in the first case (No. 01-180) on one count of possession of an unregistered sawed-off shotgun in violation of
On January 14, 2002, the government filed a motion to continue the trial because essential witnesses were unavailable to testify due to cоmpulsory security training for the 2002 Winter Olympics. The district court granted the motion, and the trial was rescheduled for March 26, 2002. That spring, Mr. Artez’s retained counsel became unable to continue representation, he retained Jeanne Lund as new counsel, and the trial was rescheduled for June 24, 2002. On June 14, 2002, Mr. Artеz filed a motion to continue to allow his new counsel time to familiarize herself with his case. The district court granted the motion and continued the trial until after the resolution of Mr. Artez’s motions, excluding the time under the Speedy Trial Act. On July 9, 2002, Mr. Artez filed a motion to suppress which the district court granted on Mаy 7, 2003. The government appealed, and we reversed and remanded the case on November 17, 2004. United States v. Artez, 389 F.3d 1106 (10th Cir.2004).
Meanwhile, on January 15, 2003, in the second case (No. 03-024) the government
After remand, the trials in both cases were set for June 2005. On June 15, 2005, the district court held a hearing to discuss a conflict of interest involving Mr. Artez’s second counsel. The district court directed that a motion to continue be filed, Mr. Artеz’s counsel should withdraw, and substitute counsel be obtained. The trials were rescheduled for September 2005. On August 17, 2005, Mr. Artez’s second counsel sent a letter to the court informing it of Mr. Artez’s “adamant refusal to accept [her] resignation.” III R. Doc. 114, attach. C. On December 21, 2005, Mr. Artez’s second counsel sent anоther letter to the court apologizing for her delay in attending to the case and recounting a number of personal tragedies including her mother’s diagnosis of congestive heart failure, her father-in-law’s diagnosis of aggressive liver cancer, and the sudden death of her 19-year-old stepson. III R. Doc. 114, attach. I. While trying to resolve these issues, the parties agreed to two more continuances, and the trial was set for April 25, 2006. On March 22, 2006, the government filed a superceding indictment charging Mr. Artez with additional drug and firearm charges, but these counts were later dismissed on the government’s motion. On March 29, 2006, Mr. Artez’s second counsel withdrew from both cases, and new counsel was appointed. Mr. Artez requested a continuance to allow his new counsel to familiarize himself with the case, and the trial was reset for September 2006. On June 21, 2006, Mr. Artez moved to dismiss both cases for violations of the Spеedy Trial Act. On October 25, 2006, the district court dismissed both cases without prejudice.
Six months later on April 25, 2007, the government re-indicted Mr. Artez on one count of possession of an unregistered sawed-off shotgun,
Discussion
On appeal, Mr. Artez contends the district court (1) abused its discretion in dismissing the two indictments without prejudice; (2) violated his Sixth Amendment right to speedy trial; and (3) erred in concluding that his possession of guns is not protected by the Second Amendment.
A. Speedy Trial Act
We rеview the district court’s decision to dismiss an indictment for violation
In determining whether to dismiss the case with or without prejudice, the court shall consider, among others, each of the following factors: the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of this chapter and on the administration of justice.
The Supreme Court has determined that prejudice to the defendant is another factor the district court must take into consideration in exercising its discretion. United States v. Taylor, 487 U.S. 326, 333-34, 108 S.Ct. 2413, 101 L.Ed.2d 297 (1988). Our function is to insure that the statute is effectuated, recognizing that “when the statutory factors are properly considered, and supporting factual findings are not clearly in error, the district court’s judgment of how opposing considerations balance should not lightly be disturbed.” Id. at 337, 108 S.Ct. 2413.
First, Mr. Artez has conceded that his firearms offense is a serious offense. Aplt. Br. at 12; III R. Doc. 106, at 11. Second, in examining the facts and circumstances of the case, we focus “on the culpability оf the delay-producing conduct.” United States v. Saltzman, 984 F.2d 1087, 1093 (10th Cir.1993) (quotations omitted). “Where the delay is the result of intentional dilatory conduct, or a pattern of neglect on the part of the Government, dismissal with prejudice is the appropriate remedy.” Id. at 1093-94. Mr. Artez concedes that there is no evidence of bad faith by the government, but argues that three events are evidence of the government’s pattern of neglect. Mr. Artez points to the government’s motion to continue on the eve of trial due to an officer’s unavailability to testify due to security training for the 2002 Winter Olympics; the government’s filing of a supеrceding indictment adding two additional counts; and the six-month delay in refiling after dismissal of the original two cases. Aplt. Br. at 13-15. At oral argument, Mr. Artez suggested that the government had been aware of a conflict concerning his second counsel six months prior to raising it before the district court in June 2005. See also Aplt. Reply Br. at 9-10.
Mr. Artez also argues that the district court’s findings were inadequate in granting the ends-of-justice continuances and that this demonstrates a dismissal with prejudice is appropriate. We acknowledge that district courts must make explicit findings why a continuance meets the ends of justicе. United States v. Williams, 511 F.3d 1044, 1057 (10th Cir.2007). But this is beside the point—the district court dismissed the indictments for violating the Speedy Trial Act making the findings supporting those continuances irrelevant to the arguments now on appeal.
Our review of the record reveals that while the government is not without fault, it is not responsible for much of the delay. Much of the delay stemmed from the suspension from practice of Mr. Artez’s first counsel, Mr. Artez’s illness, the conflict of
Third, Mr. Artez argues that the lengthy delay would negatively impact the administration of the Speedy Trial Aсt and the administration of justice. However, as Mr. Artez concedes, violation of the Speedy Trial Act alone is insufficient to warrant dismissal with prejudice. See United States v. Abdush-Shakur, 465 F.3d 458, 462 (10th Cir.2006). In the absence of bad faith or a pattern of neglect by the prosecution, we fail to see how the delays, the majority of which were not caused by the government, substantially impact the administration of justice.
Fourth, Mr. Artez argues that the lengthy delays prejudiced him because the pawn shop where he purchased the machine gun changed hands during the pendency of the case which impeded his ability to potentially prove that the modifications that made the firearm qualify as a machine gun were unknown to the seller and to himself at the time of sale. In addition, Mr. Artez argues that the delay prejudiced him by draining his financial resources. We are sympathetic to the hardships defendants face from prоlonged prosecutions, see Taylor, 487 U.S. at 340-41, 108 S.Ct. 2413 and although Mr. Artez has demonstrated that he suffered some prejudice from the delay, this showing was not sufficient to compel dismissal with prejudice in the absence of a favorable showing on the other factors. Mr. Artez concedes that the government dismissed thе count regarding possession of the machine gun, and merely speculates that he might have been able to achieve a better outcome on the sawed-off shotgun charge with such evidence. See Abdush-Shakur, 465 F.3d at 464. We do not doubt that the long prosecution was expensive to defend, but the wеight of this factor is lessened by the government’s lack of responsibility for many of the delays. In addition, Mr. Artez was only incarcerated for three days during the pendency of the cases. After reviewing the record we agree with the district court that “much of the delay was to resolve a conflict issuе for the benefit of the defendant and the government should not now be penalized for delays in which the defendant was complicit.” III R. Doc. 120, at 2. We conclude that the district court did not abuse its discretion in dismissing the two indictments without prejudice.
The Sixth Amendment guarantees “the right to a speedy ... trial” in criminal prosecutions.
There appears to be some confusion whether the dismissal of an indictment prior to refiling for the same сonduct pauses or resets the clock for purposes of the Sixth Amendment Speedy Trial Clause. Compare United States ex rel. Mitchell v. Fairman, 750 F.2d 806, 808 (7th Cir.1984) (clock pauses), with Metoyer v. Scott, 70 Fed.Appx. 524, 530 (10th Cir.2003) (unpublished) (clock resets). Either way, the five years between indictment and dismissal here is presumptively prejudicial. However, this lengthy delay is outweighed by the other three factors. Regarding the reason for the delay, the district court noted, “[t]he defendant is substantially responsible for many, if not most of the delays and is not without fault.” III R. Doc. 120, at 2; see United States v. Dirden, 38 F.3d 1131, 1138 (10th Cir.1994) (noting delays attributable to the defendant should not weigh against the government). Next, Mr. Artez delayed asserting his right to a speedy trial until June 21, 2006, many years after the filing of the first indictment in March 2001. Finally, as noted above, Mr. Artez showed little actual prejudice. Thus, Mr. Artez has failed to establish a violation of the Speedy Trial Clause of the Sixth Amendment.
C. Second Amendment Challenge
Mr. Artez filed a motion to quash in the first case arguing, in part, that his possession of a sawed-off shotgun is proteсted by the Second Amendment. Mr. Artez renews this argument on appeal contending that the case District of Columbia v. Heller, — U.S. —, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), then pending before the Supreme Court, may call into question existing law on the right to bear arms. Mr. Artez entered a conditional guilty plea, reserving his right to appeal the denial of his motions to dismiss for violations of the Speedy Trial Act and the Sixth Amendment right to a speedy trial. I R. Doc. 51, at 4. A defendant may enter a conditional plea to preserve appellate review of a “specified pretrial motion.”
AFFIRMED.
* This order and judgment is not binding prеcedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with