UNITED STATES of America, Plaintiff-Appellee, v. Travis Hunter BLANK, Defendant-Appellant.
No. 11-41211.
United States Court of Appeals, Fifth Circuit.
Dec. 4, 2012.
1084
III.
Quesada next claims that his counsel‘s defective representation violated his Fifth Amendment due process right to effective assistance of counsel. We have never held that the Fifth Amendment‘s due process guarantee is implicated by defective representation in Title VII proceedings and decline to do so in this case. We ought not in fairness leave the innuendo: Quesada has introduced no evidence to suggest that his attorney‘s representation was anything less than competent.
IV.
We AFFIRM the judgment of the district court.
Robert Gerard Arrambide, Asst. Fed. Pub. Def. (argued), Frisco, TX, Amy R. Blalock, Tyler, TX, for Defendant-Appellant.
Before WIENER, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM:
Travis Hunter Blank (“Blank“) appeals his convictions for transporting child pornography in violation of
I.
A video clip depicting child pornography sent from Blank‘s e-mail account triggered an investigation leading to the issuance of a warrant to search his home. At the time the officers executed the search warrant, Blank voluntarily spoke with Detective Jeff Rich. During this conversation, Blank admitted that he downloaded child pornography to his computer and that he sent the video clip depicting child pornography from his e-mail account. He further admitted that he had viewed child pornography for the past ten years. Blank then completed a written statement containing the following admission: “I have looked at child pornography for over the past 10 years through speaking to people on AOL in chatrooms. I don‘t keep any images. I look and delete. Youngest I‘ve seen might be 10. Over 10 years, maybe I‘ve seen 1,000 pictures.”
Blank‘s computers were seized, and a forensic examination revealed a total of twenty-four images of child pornography,
Approximately one month into his pretrial detention, Blank told one of his sisters that he had learned that an attorney had successfully defended a client in a child pornography case by having the defendant blame another individual who resided in the defendant‘s home. Shortly after this conversation, Blank told his other sister that an English teenager (“the teenager“) who had lived with Blank for approximately seven years1 was responsible for the child pornography. Blank‘s theory at trial was that the teenager was responsible for the child pornography and that Blank‘s confessions to officers and family members were merely attempts to protect the teenager from deportation.2
On July 8, 2009, approximately one month after he had confessed to the crimes, Blank was charged in a two-count indictment with transporting and possessing child pornography. His trial was initially set for January 2010. In November and December 2009, Blank‘s counsel filed motions to withdraw, to continue the trial date, and to obtain a psychiatric examination for Blank. These motions were granted and, pursuant to Blank‘s request, his initial trial setting was vacated and a final pretrial conference was scheduled for May 10, 2010. After the district court found Blank competent to stand trial in March 2010, he filed a motion for release from custody because of health problems. On April 14, 2010, the day after Blank filed that motion, a magistrate judge ordered him released on condition of home detention.
On May 5, 2010, Blank filed a motion to dismiss for violation of the Speedy Trial Act. The government responded within two days, agreeing that there was a violation, but urging that the dismissal be without prejudice. On May 10, 2010, the court held a second pretrial conference and took Blank‘s motion to dismiss under advisement. Almost ten months later, on March 3, 2011, the district court dismissed the indictment without prejudice, explaining in part:
Given the seriousness of the charged offenses; the facts and circumstances which led to this dismissal; the fact that a dismissal with prejudice would neither serve as a deterrent to the Government or the court nor serve the public interest in bringing the accused to trial; and the fact that there has been no prejudice to the Defendant for which the Government is responsible in connection with this Speedy Trial Act violation, the court declines to dismiss this case with prejudice.
A week later, on March 10, 2011, Blank was charged in a two-count indictment based on the same underlying conduct as in the first indictment. Blank filed a motion to dismiss this indictment, alleging a violation of the Speedy Trial Act and arguing that the “clock” continued to tick and was not reset by the filing of the second indictment. The district court denied the motion. On June 20, 2011, Blank‘s jury trial commenced, at the end of which the jury returned a guilty verdict on both counts. Blank was sentenced to 121 months’ imprisonment on count one and 120 months’ imprisonment on count two, to be served concurrently. This appeal followed.
II.
Blank first challenges the district court‘s decision to dismiss the first indictment without prejudice.3 Both parties agree that the district court correctly dismissed the first indictment, but dispute whether the court erred in dismissing without prejudice, which ultimately allowed for a successful reprosecution.
“[T]he decision whether to dismiss a complaint under the Speedy Trial Act with or without prejudice is entrusted to the sound discretion of the district judge and ... no preference is accorded to either kind of dismissal.” United States v. Melguizo, 824 F.2d 370, 371 (5th Cir.1987) (internal quotations omitted). Accordingly, we review a district court‘s decision to dismiss an indictment without prejudice for noncompliance with the Speedy Trial Act for an abuse of discretion. United States v. Blevins, 142 F.3d 223, 225 (5th Cir.1998) (citing United States v. Taylor, 487 U.S. 326, 342-43 (1988)).
A district court considering whether to dismiss with or without prejudice must address each of the following factors: (1) the seriousness of the offense; (2) the facts and circumstances which led to the dismissal; and (3) the impact of a reprosecution on the administration of the Speedy Trial Act and on the administration of justice. See
A.
Blank does not challenge the district court‘s conclusion that possessing and transmitting child pornography are serious offenses. He argues, however, that even though the charged crimes are serious, the “low” number of images of child pornography discovered on his computer demonstrates that “he does not fit the general profile of a child pornographer and his alleged violations are not as serious as other alleged child pornography offenders.” We disagree. Twenty-four images of child pornography is not such a low number as to mitigate the seriousness of the offense. Moreover, Blank‘s voluntary admission that he had viewed more than 1000 images over the previous decade highlights the seriousness of his conduct.
The second factor requires consideration of the facts and circumstances leading to dismissal. Normally, this factor concerns the government‘s reason for violating the Speedy Trial Act, and, accordingly, the burden is on the government to explain the violation. See, e.g., United States v. Mancia-Perez, 331 F.3d 464, 468 (5th Cir. 2003); Blevins, 142 F.3d at 226 (“Regarding the facts and circumstances leading to the dismissal, we look to whether the Government sought the resultant delays for ulterior purposes as well as whether the Government‘s failure to meet deadlines was repetitive, regular, and frequent with respect to this defendant.“). In this case, Blank concedes that the government did not contribute to the violation of the Speedy Trial Act and that the significant delay did not allow the government to gain a strategic or tactical advantage in the prosecution of his case. Rather, the parties agree that the sole cause for the delay was the district court‘s overcrowded docket. This conclusion, however, does not end the inquiry.
Delay attributable to the trial court, just as delay attributable to the government, weighs in favor of dismissal with prejudice. See United States v. Peeples, 811 F.2d 849, 851 (5th Cir.1987) (explaining that “[i]f the prosecutor or the district court were entirely at fault for the delay[,]” the defendant‘s arguments for dismissal with prejudice would be viewed more favorably); see also United States v. Ramirez, 973 F.2d 36, 39 (1st Cir.1992) (“When a [Speedy Trial Act] violation is caused by the court or the prosecutor, it weighs in favor of granting a dismissal with prejudice.“); United States v. Stayton, 791 F.2d 17, 19-20 (2d Cir.1986) (“The Speedy Trial Act was designed to effectuate the interests of society in general and of the defendant in particular by ensuring that our courts mete out speedy justice. The prosecutor, defense counsel, and the court each plays a role in insuring that the interests of the public and the defendant in a speedy trial are protected.” (internal citation omitted)). As the Supreme Court has explained, delay attributable to a “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.” Barker v. Wingo, 407 U.S. 514, 531 (1972); see id. (contrasting these “neutral reasons” with (1) deliberate attempts to delay a trial in order to disadvantage the defendant, which should be weighed heavily against the government, and (2) “valid reasons,” such as a missing witness, that justify delay).
Here, the parties, as well as the district court, agree that the sole cause for the violation of the Speedy Trial Act was that court‘s overcrowded docket.4 Although this is a “neutral reason,” it weighs in favor of dismissal with prejudice.
The final factor that must be considered--the impact of a reprosecution on the administration of the Speedy Trial Act and on the administration of justice--encompasses three concerns: (1) the defendant‘s right to a timely trial; (2) the potential deterrent effect of a prejudicial dismissal on repeated violations of the Speedy Trial Act; and (3) the public‘s interest in bringing the defendant to trial. See Mancia-Perez, 331 F.3d at 469. Courts must also consider the presence or absence of prejudice to the defendant caused by the violation. Id. (citing Taylor, 487 U.S. at 334).
As to the first concern, there is no question that Blank did not receive a timely trial. As to the second concern, the government argues that there would be no deterrent effect of a prejudicial dismissal in this case because the district court acknowledged that the delay was solely attributable to its caseload. We disagree. As the parties acknowledged at oral argument, criminal trials in the Sherman Division are routinely scheduled beyond the time limits of the Speedy Trial Act. Accordingly, our requiring a prejudicial dismissal in this case would send a stronger message to the district court that it must comply with the requirements of the Speedy Trial Act.5 See United States v. Johnson, 29 F.3d 940, 946 (5th Cir.1994) (“Weighing in favor of dismissal with prejudice, we note that the [Speedy Trial] Act was designed to protect a defendant‘s right to a timely trial, and dismissal with prejudice is more likely to cause the government and the courts diligently to comply with the Act‘s requirements.“);6 see also United States v. Caparella, 716 F.2d 976, 981 (2d Cir.1983). The third concern, as noted above, weighs in favor of dismissal without prejudice because the public has a great interest in bringing to trial defendants who have been accused of committing serious crimes. See Johnson, 29 F.3d at 946.
Finally, we consider whether the violation prejudiced Blank. The Supreme Court has explained:
Prejudice, of course, should be assessed in the 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.
We consider the most serious type of prejudice, i.e., the possibility that Blank‘s defense was impaired by the substantial delay experienced in this case. Al-
D.
After conducting this substantive review of the district court‘s decision to permit reprosecution, we are satisfied that the court did not err in dismissing the indictment without prejudice. Although this might have been a close case in the district court, we cannot say that the district court abused its discretion in dismissing the indictment without prejudice, particularly given the seriousness of the offenses at issue, the absence of any prosecutorial gamesmanship or governmental cause of the delay, or any material evidence of prejudice to Blank‘s defense.
III.
Blank next challenges the sufficiency of the evidence to uphold his convictions. Because Blank properly preserved this argument, our review is de novo. United States v. Shum, 496 F.3d 390, 391 (5th Cir.2007). “In deciding whether the evidence was sufficient, we review all evidence in the light most favorable to the verdict to determine whether a rational trier of fact could have found that the evidence established the essential elements of the offense beyond a reasonable doubt.” Id.
Blank does not contend that the evidence was insufficient to establish any essential element of the offenses charged--rather, he claims only that the evidence presented “gives equal circumstantial support to the possibility” that the teenager was responsible for the child pornography, and that the jury could not reasonably exclude this alternative theory without speculation. Blank relies on this court‘s decision in United States v. Moreland, 665 F.3d 137 (5th Cir.2011). In Moreland, this court explained that “[w]hen the government seeks to prove constructive possession of contraband found in a jointly occupied location, it must present additional evidence of the defendant‘s knowing dominion or control of the contraband, besides the mere joint occupancy of the premises, in order to prove the defendant‘s constructive possession.” Id. at 150.
At trial, Blank‘s theory of the case was that the teenager, who also used the computer on which images of child pornography were found, was responsible for the images. This ignores the overwhelming contrary evidence offered by the government at trial. Specifically, in oral and written statements to Detective Rich,
IV.
Blank‘s final contention is that the district court abused its discretion by admitting two exhibits10 of child pornography after Blank offered to stipulate that the material was child pornography. That claim is foreclosed by this court‘s decision in United States v. Caldwell, 586 F.3d 338 (5th Cir.2009).11 In Caldwell, we explained that “child pornography is graphic evidence that has force beyond simple linear schemes of reasoning. It comes together with the remaining evidence to form a narrative to gain momentum to support jurors’ inferences regarding the defendant‘s guilt.” Id. at 343. Accordingly, we found that this type of evidence falls under the general rule described by the Supreme Court in Old Chief v. United States, 519 U.S. 172 (1997), i.e., that “the prosecution is entitled to prove its case free from any defendant‘s option to stipulate the evidence away ....”12 Id. at 189. We conclude that the district court did not abuse its discretion by admitting the images of child pornography discovered on Blank‘s computer, which he was charged with possessing and transporting.
AFFIRMED.