UNITED STATES of America, Plaintiff-Appellee, v. Ronald TAYLOR, Defendant-Appellant.
No. 07-3151
United States Court of Appeals, Sixth Circuit
July 10, 2012.
Although the court did not expressly define its reasons for denying the motion pursuant to
Accordingly, the decision of the district court is AFFIRMED.
JANE B. STRANCH, Circuit Judge.
Ronald Taylor was tried and convicted by a jury of (1) conspiring to distribute more than 150 kilograms of cocaine, see
I. BACKGROUND
Taylor was the boss of a drug operation that delivered thousands of kilos of cocaine from Los Angeles and took in millions of dollars. He was responsible for having cocaine shipments sent to several cities, including Dayton and Columbus, Ohio. At least 2,000 kilograms of cocaine were distributed by the organization between the fall of 1999 and spring of 2001.
Although Taylor was the boss of the organization, Delton Harris managed the day-to-day operations of the conspiracy. Harris was responsible for recruiting couriers and ensuring shipment of and payment for the distributed cocaine. Some of the couriers used by the drug оperation were Richard Auston, Elbert Robinson, Danielle Garvin, Reggie Diggs, Charon May, Cheryl Taylor, and Veronica Sanders.
Taylor was first criminally charged for his drug-trafficking activities in 2002 in the District of Columbia. He was indicted and charged with four counts: (1) conspiring to distribute 5 kilograms or more of cocaine and 50 grams or more of cocaine base; (2) engaging in a continuing criminal enterprise; (3) possessing 5 kilograms or more of cocaine with the intent to distribute the drug; and (4) possessing cocaine with the intent to distribute the drug within 1000 feet of a school. The case was tried and the district court declared a mistrial in May 2003 because the jury deadlocked. Taylor was indicted again in D.C. in November 2003. This indictment included the four counts from the first trial and four additional counts (three for possessing 5 kilograms or more of cocaine with the intent to distribute the drug, and the last for maintaining a premises to manufacture, distribute, store, and use contrоlled substances). The case proceeded to trial in January 2003. Taylor was acquitted on three counts; the district court dismissed the eighth count; and the jury deadlocked on the remaining four, resulting in a second mistrial. The four counts the jury deadlocked on included the charges of conspiring to distribute 5 or more kilograms of cocaine and engaging in a criminal enterprise.
In September, Taylor was indicted by the grand jury for the Southern District of Ohio for conspiring to distribute more than 150 kilograms of cocaine and for engaging in a continuing criminal enterprise. The grand jury also indicted Richard Auston for similar conduct, though he was not charged with engaging in a continuing criminal enterprise. A superseding indictment filed in November 2004 added two codefendants (Elbert Robinson and Danielle Garvin) and charged Taylor with the same two counts as the original indictment.
Taylor moved to dismiss the indictment on the grounds of improper venue аnd vindictive prosecution. He argued that charging him in the Southern District of Ohio was improper because he had been tried twice in the District of Columbia for similar offenses and both juries had deadlocked. The district court denied the motion.
II. ANALYSIS
A. Venue and vindictive prosecution
Taylor argues that the government engaged in forum shopping and vindictive prosecution by prosecuting him in the Southern District of Ohio after two mistrials had been declared in the District of Columbia. He asserts that because the government did not present any basis for moving the case to or reindicting the case in Ohio, its true purpose was to seek a friendlier forum in which to seek a conviction, аnd that this purpose violates his right to due process.
Taylor‘s argument that the government did not present any basis to reindict the case in Ohio is incorrect. Although most of the documents in the D.C. case are sealed, the district court in this case indicated that the scope of the conspiracy claim presented to the jury in the present case was narrower than in the D.C. case. The superseding indictment from the grand jury in this case alleges several overt acts that occurred in Ohio, but none that occurred in the District of Columbia. These differences make sense because in each case the government must prove that venue is proper—i.e., it must prove that it could prosecute Taylor in D.C. in the first two cases, and Ohio in the third. See United States v. Crozier, 259 F.3d 503, 519 (6th Cir.2001) (holding that drug-conspiracy cases can be prosecuted “in any district where the conspiracy was formed or where an overt act in furtherance of the conspiracy was performed“).
Taylor points to no case that bars the government from prosecuting him again after a mistrial due to a deadlocked jury: Case law holds this to be permissible. United States v. Brown, 677 F.2d 26, 27-28 (6th Cir.1982). In fact, prosecuting a defendant a third time after two mistrials because of deadlocked juries is permissible. United States v. Castellanos, 478 F.2d 749, 750-53 (2d Cir.1973). A mistrial for manifest necessity is essentially a do-over, allowing the government to reprosecute if it chooses to do so. Id. Because the government may reindict and prosecute a defendant following two mistrials caused by deadlocked juries, the real challenge posed by Taylor‘s forum-shopping claim is whether the indictment in Ohio was proper. This depends on the propriety of venue in that district. Using this analytical framework draws further support from Taylor‘s failure to point to any evidence that the government‘s conduct in indicting him in Ohio was predicated on impermissible grounds, other than the simple fact that he is now being prosecuted somewhere else.1 We therefore analyze his forum-shopping claim as being a challenge to venue.
1. Venue
Taylor previously moved that his case be dismissed for improper venue, but the district court denied the motion. By challenging the venue before this Court, he essentially appeals the district court‘s denial of that motion.
“The standard of review to be applied for a motion to dismiss an indictment is somewhat unclear.” United States v. Grenier, 513 F.3d 632, 635 (6th Cir.2008).
For each count, the government must prove by a preponderance of the evidence that venue was proper. Crozier, 259 F.3d at 519. The indictment charged Taylor with conspiring to distribute more than 150 kilograms of cocaine and engaging in a continuing criminal enterprise. Drug-conspiracy cases can be prosecuted “in any district where the conspiracy was formed or where an overt act in furtherance of the conspiracy was performed.” Crozier, 259 F.3d at 519. “A conspiracy defendant need not have entered the district so long as this standard is met.” Scaife, 749 F.2d at 346. As previously mentioned, the superseding indictment listed several overt acts that occurred in the Southern District of Ohio. And the government offered evidence at trial of overt acts that occurred in Ohio. So venue was proper as to this count. For a continuing-criminal-enterprise charge, venue is proper in any district where an act that furthered the criminal enterprise took place. United States v. Kramer, 955 F.2d 479, 486 (7th Cir.1992). Because the conspiracy count was incorporated into the continuing-criminal-enterprise count in the superseding indictment, the government‘s proof that overt acts occurred in Ohio also establishes that venue is proper as to the continuing-criminal-enterprise count.
2. Prosecutorial vindictiveness
Taylor argues that prosecuting him in Ohio constitutes prosecutorial misconduct because the prosecution is vindictive. The district court denied his motion to dismiss the case based on this claim. We review a district court‘s denial of a motion to dismiss based on prosecutorial vindictiveness under the abuse-of-discretion standard. United States v. Moon, 513 F.3d 527, 534 (6th Cir.2008).
Due process prohibits a prosecutor from retaliating against an individual because that individual exercised a statutory or constitutional right. Id. at 535. To establish prosecutorial vindictiveness, a defendant “must show either aсtual vindictiveness or a realistic likelihood of vindictiveness.” United States v. Roach, 502 F.3d 425, 443 (6th Cir.2007) (internal quotation marks omitted). Actual vindictiveness requires “objective evidence that a prosecutor acted in order to punish the defendant for standing on his legal rights.” Id. (internal quotation marks omitted). “The realistic-likelihood-of-vindictiveness standard examines the prosecutor‘s stake in deterring the exercise of a protected right and the unreasonableness of his actions.” Id. (internal quotation marks omitted).
Taylor cannot satisfy either standard. He offers no objective evidence that the government reindicted him because he exercised a protected right. Rather, it appears that the government reindicted him
Taylor cannot satisfy the realistic-likelihood-of-vindictiveness standard because he cannot show that the government‘s actions in reindicting him were unreasonable. This Court concluded that a superseding indictment following a mistrial that added two additional charges did not amount to unreasonable conduct by the prosecutor because the government had not objected to the mistrial, thereby making the government‘s response to the mistrial—seeking a superseding indictment—reasonable. United States v. Poole, 407 F.3d 767, 769, 776 (6th Cir.2005). Taylor does not allege that the government objected to the mistrial in the D.C. case, and the docket sheet does not indicate that it did. And the government‘s indictment in the present case actually contains fewer counts against Taylor (two) than the indictments in the D.C. cases (four in the first, and eight in the second). See United States v. Suarez, 263 F.3d 468, 480 (6th Cir.2001) (“Generally, a potentially vindictive superseding indictment must add additional charges or substitute more severe charges based on the same conduct charged less heavily in the first indictment.“) And, just as was the case in Poole, “there exist[ed] objective information in the record to justify” the charges brought against Taylor. Poole, 407 F.3d at 776. Taylor therefore cannot show that the government acted unreasonably in reindicting him.
Because Taylor cannot show that the prosecutor was unreasonable, he cannot meet the realistic-likelihood-of-vindictiveness standard. His claim of vindictive prosecution fails.
B. Double jeopardy and the convictions for both conspiracy and continuing criminal enterprise
Taylor argues that convicting him for a conspiracy under
The government is correct that the conspiracy conviction should be vacated and that a remand is not necessary. See United States v. Avery, 128 F.3d 966, 971-72 (6th Cir.1997) (vacating the conspiracy conviction without remanding because conspiracy is a lesser-included offense of continuing criminal enterprise and because sentencing range for conspiracy in the Guidelines is less than the range for continuing criminal enterprise). Although this Court has remanded in the past so the district court can determine which conviction to vacate, that result stemmed from an anomaly in the Guidelines that provided greater punishment for conspiracy than for a continuing criminal enterprise. Id. (discussing the basis for the holding in United States v. Chambers, 944 F.2d 1253 (6th Cir.1991)). Because that anomaly has been corrected and Taylor‘s continuing-criminal-enterprise conviction results in greater punishment than his conspiracy conviction, we vacate the conspiracy conviction without remanding. Id.
The next issue is whether the district court erred in denying a motion for mistrial made by Taylor‘s attorney, Nicholas Gounaris, after the trial had started. Gounaris argued that he had a conflict of interest resulting from previous representation of Sentelle Smith (a potential witness in the present case) in a prior case that involved the theft of drugs, and that new counsel should therefore be appointed for Taylor. The district court denied the motion. On appeal, Taylor argues that Gounaris had an actual conflict of interest that deprived Taylor of the effective assistance of counsel.
We review denial of a motion for mistrial under an abuse-of-discretion standard. United States v. Ursery, 109 F.3d 1129, 1133 (6th Cir.1997). And even if the motion by Gounaris is characterized as a motion to withdraw as counsel, a district court‘s denial of such a motion is still reviewed under an abuse-of-discretion standard. United States v. Mooneyham, 473 F.3d 280, 291 (6th Cir.2007); United States v. Sullivan, 431 F.3d 976, 979-80 (6th Cir.2005).
To prove an ineffective-assistance-of-counsel claim, Taylor must show that his attorney performed deficiently and that he was prejudiced by the attorney‘s error. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Prejudice exists when a defendant demonstrates a “reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Id. at 694. But prejudice is presumed “if the defendant demonstrates that counsel ‘actively represented conflicting interests’ and that ‘an actual conflict of interest adversely affected his lawyer‘s performance.‘” Id. at 692 (quoting Cuyler v. Sullivan, 446 U.S. 335, 348, 350 (1980)).
“Conflicts may arise when an attorney simultaneously represents clients with differing interеsts (multiple [i.e., concurrent] representation), or when an attorney representing a defendant has previously represented co-defendants or trial witnesses (successive representation).” Moss v. United States, 323 F.3d 445, 459 (6th Cir. 2003) (internal quotation marks omitted). The worry in successive-representation cases is that the attorney will fail to diligently cross-examine the former client for fear of disclosing or misusing privileged information. Id. at 460. So the most common example of successive representation creating an actual conflict of interest “occurs where an attorney‘s former client serves as a government witness against the attorney‘s current client at trial.” Id.
Prevailing on an ineffective-assistance claim in cases involving successive representation is more difficult than in cases involving concurrent representation for two reasons. First, showing that counsel actively represented cоnflicting interests is more difficult in a successive-representation case. Id. at 459. Second, prejudice is not presumed in a successive-representation case unless it is an “atypical form of successive representation,” where the facts more closely resemble a concurrent-representation case.3 See Jalowiec v. Bradshaw, 657 F.3d 293, 315 (6th Cir.2011).
With these principles in mind, we briefly review the facts relevant to the conflict-of-interest issue. Some of the overt acts alleged in the Superseding Indictment involve Taylor‘s drug organization delivering 63 kilos of cocaine to Dayton, Ohio from California in March 2001. The dealer who received the cocaine, Joe Wright, stored some of it at his girlfriend‘s house in Ohio. His girlfriend betrayed him and staged a theft of the cocaine with Smith and Arvin Ridley, both of whom then stored the cocaine at another location. After things soured a few days later, Smith and Ridley assisted the FBI in obtaining the cоcaine. Gounaris represented Smith in the ensuing criminal trial.
During Taylor‘s trial, FBI agent Robert Brawner‘s testimony recounted the staged theft of the cocaine and Smith‘s participation in it. The morning after the first part of Brawner‘s testimony, during which Smith was mentioned, Gounaris told the district court his concerns that he had a conflict based on his previous representation of Smith. After speaking with all of the counsel about the issue, the district court suspended the trial from August 2 (where Taylor had been tried once already) until August 14, 2006, allowing the government to bring Smith to Dayton so that (1) defense counsel could interview him and determine whether they might want to call him as a witness, and (2) the court could appoint counsel for Smith to determine whether Smith was willing to waive his attorney-client privilege with respect to Gounaris.
Smith arrived, the court appointed counsel for him, and, after Smith discussed the issue of waiving the privilege with his appointed counsel, Smith stated that he was willing to waive the privilege. The district court then questioned Smith before Smith waived the privilege and ensured that Smith understood the consequences of agreeing to waive the privilege, which included the following: Gounaris could disclose to anyone anything that Smith had told him; Smith could be required to testify; Gounaris could ask about anything that Smith had told him in confidence if Gounaris were to examine or cross-examine Smith; the attorneys for the defendants and government would want to speak with Smith; Gounaris could use anything he was told by Smith as a basis for questions to other witnesses; and Gounaris could use the information Smith had shared with him in any way without restriction.
The district court then denied the motion for a mistrial for three reasons: this was Taylor‘s third trial, a mistrial would delay the case by 12 to 18 months, and the use of Smith was still theoretical. On September 8, 2006, after the defense attorneys had interviewed Smith and the trial resumed, they informed thе court that their clients did not wish to call Smith as a witness. The government did not call Smith as a witness either.
On appeal, Taylor argues that Gounaris had a conflict of interest because he faced the following dilemma: “call a client [Smith] who would be damaged by his testimony, but would help the current client [Taylor], or hurt the current client‘s chances of success by protecting Smith[.]” Taylor then asserts that this conflict deprived him of the effective assistance of counsel. Taylor‘s framing of the issue is inaccurate. Because Smith was a former client of Gounaris‘s, the facts implicate successive representation rather than concurrent representation. Gounaris represented Sentelle Smith several years before he represented Taylor.
Taylor also does not show the requisite prejudice. He does not even argue—let alone show—that there is a reasonable probability that the result of his trial would have been different if the asserted conflict of interest had not existed. This showing is required because prejudice is not presumed based on the garden-variety successive representation at issue here. See Jalowiec, 657 F.3d at 315-17; Stewart, 468 F.3d at 350-51. The district court therefore did not abuse its discretion in denying Taylor‘s motion for a mistrial based on Gounaris‘s past representation of Smith.
D. Right to be present at critical stages of the proceedings
The next issue is whether the district court violated Taylor‘s right to be present at critical stages of the proceedings. Taylor argues (1) that he was absеnt from “most of the pre-trial hearings, during side bars, and most importantly, during the hearing on counsel‘s conflict of interest” and (2) “that these absences were during critical stages of the proceedings.”
Taylor did not object to being excluded from these proceedings until over two months after the jury found him guilty. See
As the government notes, the right to be present at the critical stages of trial is rooted in the Due Process Clause (Fifth Amendment) and the Confrontation Clause (Sixth Amendment), and has been codified in
1. Right to confront witnesses
The Sixth Amendment‘s Confrontation Clause provides that “[i]n all criminal
Taylor‘s claim that his confrontation rights were violated is hastily sketched and lacks detail. He does not specify which pretrial hearings or sidebar conferences were critical stages nor does he explain how failing to attend these stages interfered with his cross-examining witnesses. Moreover, the sidebar conferences and the chambers conferences considering Gounaris‘s possible conflict of interest dealt with matters оf law or decisions regarding trial procedures and the progress of the trial. See United States v. Jones, 381 F.3d 114, 122-23 (2d Cir.2004) (noting that because the question whether defendant‘s counsel had a conflict of interest was one of law, the defendant‘s presence was excused by
2. Right to due process
A defendant has a due-process right to be present at a stage of the criminal proceeding “to the extent that a fair and just hearing would be thwarted by his absence. Thus a defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure.” Stincer, 482 U.S. at 745 (internal citations and quotation marks omitted). This means that Taylor‘s “right to be present at every stage of the trial is not absolute, but exists only when ‘his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.‘” United States v. Henderson, 626 F.3d 326, 343 (6th Cir. 2010) (quoting Stincer, 482 U.S. at 745).
Although Taylor baldly asserts that he “would certainly have been able to provide input on those matters,” he fails to explain how his presence at unspecified pretrial hearings, sidebar conferences, or chambers conferences relating to Gounaris‘s potential conflict would have contributed to the fairness of the рroceeding. The record neither indicates that Taylor “could have done anything had he been at the hearing nor would he have gained anything by attending.” Stincer, 482 U.S. at 747 (brackets omitted) (quoting Gagnon, 470 U.S. at 527). He has therefore failed to show that his due-process rights were violated by being excluded from these proceedings.
3. Rule 43 of the Federal Rules of Criminal Procedure
Taylor‘s absence from the challenged proceedings did not violate his right to confront witnesses, due process, or
E. Sufficiency of the evidence
The next issue is whether the evidence was sufficient to convict Taylor of engaging in a continuing criminal enterprise. Taylor argues that the record “is devoid of evidence that Taylor himself obtained substantial income from the specific drug acts in question,” and that the evidence is therefore insufficient to support his continuing-criminal-enterprise conviction.
In Jackson v. Virginia, 443 U.S. 307 (1979), the Supreme Court set forth the standard for challenges based on sufficiency of the evidence. Tucker v. Palmer, 541 F.3d 652, 656 (6th Cir.2008). “The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319 (emphasis in original). Under this standard, a reviewing court does not reweigh the evidence, redetermine witness credibility, or substitute its judgment for the factfinder‘s. Brown v. Konteh, 567 F.3d 191, 205 (6th Cir.2009).
To convict a defendant of engaging in a continuing criminal enterprise, the government must prove
(1) that the defendant committed a felony violation of federal narcotics laws; (2) that the violation was part of a continuing series of three or more drug offenses committed by the defendant; (3) that the defendant committed the series of offenses in concert with five or more persons; (4) that the defendant acted as an organizer, supervisor, or manager with regard to these five or more persons; and (5) that the defendant obtained substantial income or resources from this series of violations.
United States v. Burns, 298 F.3d 523, 535 (6th Cir.2002) (internal quotation marks
The text of the statutе makes clear that the fifth element can be satisfied by proving substantial income or resources, “a word that denotes not just monetary receipts but also things in kind.” United States v. Torres-Laranega, 476 F.3d 1148, 1158 (10th Cir.2007); accord
In the present case, the evidence was more than sufficient for the jury to find that Taylor obtained substantial income or resources from his drug enterprise, especially when the evidence is viewed in the light most favorable to the prosecution. The evidence from which the jury could draw this conclusion included the following: (1) the volume of drugs that the enterprise acquired and distributed (100 kilos a week from the summer of 2000 until the end of 2000); (2) the number of cars the organization owned and used to transport cocaine (two Expeditions, a Navigator, and a Chevy Astro Van); (3) the amount of money that changed hands during the drug deals (about 4.4 million dollars taken in just from supplying drugs to Dayton, Ohio); (4) the amount of money couriers were paid for delivering the drugs (Reginald Diggs made $5,000 to $30,000 per trip on between 18 to 25 trips and Charon May made between $1,000 to $6,000 per trip); and (5) the testimony that Taylor was the heаd of the organization.
This evidence shows that millions of dollars and thousands of kilos of cocaine passed through the organization that Taylor ran. In the face of this evidence, Taylor argues that the evidence was insufficient to conclude that he garnered substantial income or resources from this criminal enterprise because he “was not found to have large sums of cash, fancy clothes or items, or large amounts of goods.” But the jury could reasonably infer that a significant share of the drugs and revenue taken in by the organization went to Taylor because he was the head of the organization. See Torres-Laranega, 476 F.3d at 1156-57. Given the strength of the evidence, a rational trier of fact could readily conclude that Taylor obtained substantial income and resources from his drug-trafficking operation.
F. Speedy trial
The final issue is whether Taylor‘s constitutional and statutory rights to a speedy trial were violated. Taylor was indicted on September 29, 2004, and his trial started on July 31, 2006. He argues that this 22-month delay violated his speedy-trial rights. He made the same argument to
In deciding “whether a defendant‘s right to a speedy trial has been violated, this court reviews questions of law de novo and questions of fact under the clearly erroneous standard.” United States v. Ferreira, 665 F.3d 701, 705 (6th Cir.2011) (italics and internal quotation marks omitted). “We review the District Court‘s legal interpretation of the Speedy Trial Act de novo and review the factual findings supporting its ruling for clear error.” United States v. DeJohn, 368 F.3d 533, 538 (6th Cir.2004) (brackets and internal quotation marks omitted).
1. Constitutional right to a speedy trial
The Sixth Amendment provides that criminal defendants “shall enjoy the right to a speedy and public trial.” Whether a delay violates a defendant‘s speedy-trial right depends on the following four-factor balancing test: “(1) the ‘length of the delay‘; (2) ‘the reason for the delay‘; (3) ‘the defendant‘s assertion of his right‘; and (4) ‘prejudice to the defendant.‘” Ferreira, 665 F.3d at 705 (quoting Barker v. Wingo, 407 U.S. 514, 530 (1972)) (brackets omitted). No one factor is controlling; they must be considered together along with other relevant circumstances. Id.
The government concedes that the delay of 22 months is uncommonly long and is therefore presumed to be prejudicial. So the first factor weighs in favor of concluding that the delay violated Taylor‘s speedy-trial right.
The second factor addresses the reason for the delay, analyzing who is “more to blame,” the government or the criminal defendant. Doggett v. United States, 505 U.S. 647, 651 (1992). The blame associated with delays caused by the government depends on the cause of the delay. United States v. Schreane, 331 F.3d 548, 553-54 (6th Cir.2003). A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay. Barker, 407 U.S. at 531 (footnote omitted).
In the present case, the district court found that the delay was caused by the case‘s complexity and the actions of the defendants and their counsel, who filed a variety of motions—including motions for new counsel that were granted and motions to suppress evidence that were not—and requested continuances. The court‘s summary of the time line leading up to trial and the various reasons the trial date kept getting pushed back is thorough and supported by the record. All of the requests for continuances filed by the defendants or their counsel were granted by the court. The court found that virtually none of the delay was attributable to the government. The case‘s complexity resulted in delays primarily because the new counsel appointed fоr Auston and Taylor needed more time to prepare for such a complex trial. Not only is the finding that the delay was mainly caused by the defendants and their counsel not clearly erroneous, that finding is supported by the record. This factor weighs in favor of concluding that Taylor‘s speedy-trial rights were not violated.
The fourth and final factor addresses whether Taylor suffered prejudice as a result of the delay. A defendant must show that “substantial prejudice” has resulted from the delay. The Supreme Court has identified three relevant forms of prejudice in speedy trial cases: (1) “oppressive pretrial incarceration“; (2) “anxiety and concern of the accused“; and (3) “the possibility that [the accused‘s] defense will be impaired’ by dimming memories and loss of exculpatory evidence.” Doggett, 505 U.S. at 654 (quoting Barker, 407 U.S. at 532) (alteration in original). “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.” Barker, 407 U.S. at 532. Schreane, 331 F.3d at 557-58 (first internal citation omitted).
Taylor argues that the delay prejudiced him because he spent his “pre-trial time incarcerated, without access to [an] adequate law library, and without the means to further his case. Taylor was unable to identify witnesses for his defense, and was unable to present a defense, as he had conflicted counsel.” But his argument is conclusory. He doesn‘t explain how being incarcerated prеvented him from contacting witnesses. In addition, he doesn‘t explain what kinds of witnesses he would have been able to identify or how he would have identified them had he been free, and he doesn‘t explain why access to a library was significant to his case. His argument that conflicted counsel prejudiced him is also unpersuasive because the potential conflict was resolved and did not develop into an actual conflict that adversely affected his lawyer‘s performance or that prejudiced his defense. Besides, Taylor was the one who decided not to call Smith as a witness. As the government points out, Taylor knew from the previous two trials what kinds of evidence the government would present, who many of the government‘s witnesses would be, and which witnesses he could call to aid in his defense. These facts undercut his claims of prejudice, which are sketched in the barest fashion. Taylor therefore did not suffer prejudice as a result of the delay.
Because the second, third, and fourth factors weigh against Taylor, we conclude that Taylor‘s constitutional right to a speedy trial was not violated.
2. Statutory right to a speedy trial
The Speedy Trial Act (Act),
In arguing that his statutory right to а speedy trial was violated, Taylor does not even attempt to apply the complicated statutory rules to show which delays counted towards the 70 days and which are properly excluded. He instead relies on this Court‘s decision in United States v. Tinklenberg, 579 F.3d 589 (6th Cir.2009), aff‘d on other grounds, 131 S.Ct. 2007 (2011), for the proposition that delays from pretrial motions do not stop the speedy-trial clock unless those motions could possibly delay the trial. Using this rule, he simply claims that after excluding delays from pending motions which could have reasonably delayed trial, hundreds of days includable under the speedy-trial clock remain. In addition to being bare bones, this argument suffers from a false premise. The Supreme Court overturned this Court‘s decision in Tinklenberg and held that filing pretrial motions automatically stops the speedy-trial clock, irrespective of whether the motion “actually causes, or is expected to cause, delay in starting a trial.” Tinklenberg, 131 S.Ct. at 2010-12, 2016.
Applying the statutory rules demonstrates that Taylor‘s trial began within the required 70 days. The last defendant joined for trial was Elbert Robinson, who was arraigned on January 21, 2005. The clock would ordinarily have started then. See
Based on these calculations, there were no days that counted towards the 70-day limit imposed by the Act. Taylor has therefore failed to show that his rights to a speedy trial under the Act were violated.
CONCLUSION
For the reasons set forth above, we VACATE Taylor‘s conspiracy conviction and AFFIRM the judgment of the district court in all other respects.
Patrick J. HARRINGTON, Petitioner,
v.
UNITED STATES of America, Respondent.
No. 11-1862.
United States Court of Appeals, Sixth Circuit.
July 11, 2012.
Notes
Here, Appellant completed a “Bill of Costs” for $1,134, but it appears in the district court record as an attachment to an affidavit appended to Appellant‘s Motion for Attorney‘s Fees and Expenses. There is no indication—and Appellant has not asserted on appeal—that the bill of costs was filed with the Clerk of Court, as is required by the Local Rule.The prevailing party must file a Bill of Costs with the Clerk аnd serve a copy of the Bill on each adverse party within thirty (30) days of entry of judgment. If the Bill of Costs is not filed within thirty (30) days, costs, other than those of the Clerk, taxable pursuant to
28 U.S.C. § 1920 , shall be waived. The Court may, on motion filed within the time for the filing of the Bill of Costs, extend the time for filing.