Delay Gratification

United States v. Ray, No. 08-2795-cr (2d Cir. August 27, 2009)(Leval, Cabranes, Livingstone, CJJ)

In this decision, the court holds that an unexplained and prejudicial fifteen-year delay in imposing sentence amounted to a Fifth-Amendment due process violation, but did not violate the Sixth Amendment right to a speedy trial.

Background

In 1991, Ray pled guilty to her role in a $200,000 bank fraud. In 1992, the district court, unmoved by her family circumstances, sentenced her to twelve months’ imprisonment, the bottom of the then-mandatory range. Ray, who was free on bail, appealed. While her appeal was pending, the court of appeals decided a different case that eased somewhat the standard for family circumstances departures. As a result, with the government in agreement, Ray moved for a remand. The circuit granted the motion on January 21, 1993, but neither the district court nor the government took any further action on the case.

Ray herself caused the case to be reopened in 2007 when she applied for a city job, and needed documentation as to the resolution of her 1992 conviction. She contacted the court clerk, an action that prompted the district court to set a “re-sentence” date of March 5, 2008.

By this time, Ray had fully rehabilitated. Living openly in the Eastern District, she had been employed for the entire fifteen-year period and had never been rearrested. She raised three children, owned a home and a car and was in college, as were two of her children.

At the resentencing hearing, the court faulted both the defendant and her attorneys - but not itself or the government - for the delay. The government, on its part, raised the question of whether the delay violated Ms. Ray’s right to a “speedy sentencing.” After the parties had briefed the issue, the court found no violation and imposed sentence: one day in prison plus three years of supervised release. The court ordered six months in a halfway house as a condition of the supervision, even though counsel pointed out that the only available facility was far from both Ray’s job and her home.

The Appeal

On appeal, the court first held that the district court erred in finding that it had been Ray’s own responsibility to return to court and face resentencing. A “defendant does not bear the burden of seeking her own sentencing.” With this, the court went on to analyze the constitutional issues.

1. No Sixth Amendment Violation

Both the government and the defense took the position that the Sixth Amendment right to a speedy trial included the right to a speedy sentencing. This is significant, since under the Speedy Trial Clause, the remedy is “categorical: dismissal of the charges.”

The Supreme Court and several circuits - including this one - have assumed without deciding that the Speedy Trial Clause includes a right to a speedy sentencing. But this panel's own examination led it to hold otherwise. It began by noting a tension in the precedents - Speedy Trial Clause violations require a dismissal, but the Supreme Court has held that dismissal of the charges is an inappropriate remedy for a sentencing error. This tension evaporates if the Sixth Amendment does not cover delays in sentencings.

Next, the court considered the original meaning of the word “trial” in the Speedy Trial Clause, looking both to Blackstone and early American court decisions. It had little difficulty concluding that the American court system has always “distinguished between trial and sentencing.” Thus, “the word ‘trial,’ as understood at the time of the Founding, would not have encompassed sentencing proceedings.” Moreover, modern authorities, such as the Federal Rules of Criminal Procedure, and the Speedy Trial Act - which does not include sentencing proceedings in its time calculations - have preserved this “basic divide between trial and sentencing.”

Finally, the court looked at the interests protected by the Speedy Trial Clause - oppressive pretrial incarceration, the defendant’s anxiety, and the possibility that the defense will be impaired by the passage of time - and found that “these harms do not arise when there is a delay between conviction and sentencing.” While other harms can arise from a delayed sentencing, for example, the defendant and victim are left “in limbo concerning the consequences of conviction,” these concerns are “not the same as those that animate the Speedy Trial Clause.”

2. Fifth Amendment Violation

The court found a better fit in the Due Process Clause of the Fifth Amendment, which “has a limited role to play in protecting against oppressive delay.” The court considered two factors to determine whether Ray was deprived of her “due process right to a prompt sentencing”: (1) the reasons for the delay; and (2) the prejudice to the accused.

Here, the specific reasons for the delay were unknown, and the court treated the delay as the result of “ordinary negligence on the part of the government.” But the court held this against the government, and reiterated that it was not Ray’s duty to see that she was speedily sentenced.

The court next held that to prevail Ray had to show “substantial and demonstrable” prejudice. But the court weighed the extraordinary length of the delay in Ray’s favor, particularly since she underwent a “complete rehabilitation” in the interim. The court concluded that removing Ray “from her current life and compel[ling] her to reside for six months in a halfway house would undermine her successful rehabilitation,” since the restrictions imposed on the liberty of a halfway house resident are “substantial.”

After balancing all of the factors, the court held that, in light of Ray’s “successful and prolonged rehabilitation, and the upset that a custodial sentence would now entail,” she had successfully established a Due Process Clause violation. The remedy the court selected was to vacate the six-month halfway house portion of her sentence.

Unlucky Day

United States v. Lucky, No. 08-1939-cr (2d Cir. June 19, 2009) (Calabaresi, Katzmann, CJJ, Eaton, J CIT)

Damon Lucky appealed the denial of his Speedy Trial Act (STA) dismissal motion. The circuit, finding only 69 days of nonexcluded time, one short of the magic number, affirmed.

Lucky’s argument was that there was no proper STA exclusion during the 70 days from May 20, 2005, to July 28, 2005, because the district court excluded the time from the STA calculations without making an “ends of justice” finding. The government countered that the time had been properly excluded to give the parties time for plea negotiations, and that plea negotiations are automatically excluded as “other proceedings concerning the defendant” under § 3161(h)(1) of the STA, with no “ends of justice” finding required.

While two other circuits have so held, the Second Circuit is “not yet convinced” by this argument. The phrase “other proceedings” typically refers to “formal judicial processes,” and the statute itself includes as examples “formal processes over which the parties have no direct control.” Plea negotiations, by contrast, are controlled by the parties, not the court, and thus do not “fit comfortably into the ‘other proceedings’ section.”

Ultimately, however, the court ducked the question. It identified a single day during the 70-day period upon which the district court held a status conference. Since a status conference is definitely a “proceeding,” and is “very similar” to the examples listed in § 3161(h)(1), that day was automatically covered by the district court’s exclusion order, and did not require an “ends of justice” finding. This rendered Lucky’s “plea negotiations” argument moot - the court’s thoughtful analysis is thus merely dicta - since with that single day excluded, Lucky could identify only 69 nonexcluded days. Accordingly, his conviction was affirmed.

Sir Speedy

United States v. Oberoi, No. 04-4545-cr (2d Cir. October 23, 2008) (Jacobs, Kearse, Katzmann, CJJ)

Tejbir Oberoi, proceeding pro se, claimed on appeal that he was denied a speedy trial. He lost the case, but it took the circuit about fifty pages to sort things out.

Background

Oberoi was a dentist who defrauded insurance companies by making false reimbursement claims for procedures he never performed. He was first charged with mail and healthcare fraud in a complaint October of 1999. An indictment was returned against him about two months later; it charged 34 counts of mail fraud and 123 counts of making false statements in connection with health care benefits.

The case had a tortured procedural history, including competency proceedings, six or seven changes of counsel, and three interlocutory appeals. The trial was finally set for January of 2004, by which time Oberoi had made, and lost, a motion for dismissal under the Speedy Trial Act (the “STA”). Oberoi pled guilty to one count of mail fraud and one false statement count (the government agreed to dismiss the remaining 155 counts) on the day the trial was set to begin, having reserved the right to appeal the speedy trial issue. He was sentenced to 63 months’ imprisonment, which he has fully served. As the circuit noted, he filed more than a dozen motions in the court of appeals that “delayed the assignment of his appeal to a panel for nearly four years.”

Pre-Indictment Delay

Fifty-eight days passed between October 18, 1999, when Oberoi was charged in the complaint, and December 16, 1999, when he was indicted. He argued that this violated the 30-day time limit for the government to seek an indictment.

The STA provides that an indictment or information “shall be filed within thirty days from the day on which such individual was arrested ... [on] such charges.” In Oberoi’s case, 17 days after his arrest on the complaint, a magistrate judge granted the parties' joint request for an adjournment to December 1, 1999, but did not mention the STA. On December 1, 1999, the parties requested two more weeks, but this time the magistrate solicited the parties’ consent to excluding time. Fifteen days later, Oberoi was indicted.

The court found no pre-indictment STA violation. The STA requires dismissal only of “such charge” against the defendant “contained in such complaint,” language that the court reads “strictly.” Thus, an indictment is not untimely if it pleads different charges from those in the complaint, even if the indictment’s charges “arise from the same criminal episode as those specified in the original complaint or were known or reasonably should have been known at the time of the complaint.” The test is an elements test, similar to the familiar Blockburger double jeopardy test.

Here, the court held that the indictment charged something different from the complaint. The complaint charged Oberoi with healthcare and mail fraud from December 1992 to February 1999. But one of the counts in the indictment that he pled to was a false statement charge that was “fresh” to the indictment. While he also pled guilty to mail fraud, the count he pled to was quite specific: submitting a fraudulent claim to a particular employer’s dental plan on December 24, 1995. The complaint made no reference to that particular mailing, nor did the affidavit attached to it, which listed scores of mailings.

The court noted that it need not here “define what features would make two charges the same for the purposes” of the [STA]; it is enough that, here, the specific offenses to which Oberoi pled guilty did not appear in the complaint. Thus, neither count of conviction should have been dismissed under the STA as a result of pre-indictment delay.

Post-Indictment Delay

Oberoi also pointed out “28 discreet periods of post-indictment delay,” spanning “1,487 days” that he claimed were not “properly excluded under the STA. Before even getting to those periods, however, the court was called upon to resolve two questions that were open in this circuit.

1. Does the Clock Stop for Motion Preparation?

There is a “substantial question” as to the propriety of excluding time for preparing motions. Section 3161(h)(1)(F) of the STA stops the clock for “delay resulting ... from the filing of [a pretrial] motion through the conclusion of the hearing on, or other prompt disposition of, such motion.” Much of the delay here was occurred as “various defense lawyers prepared to file pretrial motions.”

The problem is that this section is not clear as to whether the time for preparing the motions is excluded, or whether the clock stops only once the motion has been filed. According to the circuit, there is “consensus among the circuits” that motion preparation time can be excluded under the general “interests of justice” provisions of the STA - § 3161(h)(8)(A), as long as the judge makes a contemporaneous prospective finding that the exclusion is warranted.

But here, the exclusions were made under the motions section - (h)(1) - not under section (h)(8), and there is a split among the circuits as to whether motion preparation is covered under section (h)(1). The First, Seventh, Ninth, Tenth, Eleventh and D.C. Circuits have held that delay attributable to motion preparation can be excluded under section (h)(1). The Fourth and Sixth, however, take the opposite view.

Here, the Second Circuit joined the majority, holding “that the time needed for the preparation of pretrial motions can be excluded under § 3161(h)(1).” Since this section automatically stops the clock for the preparation of response papers, it make sense that it would also exclude the time for the preparation of the motion itself. However, there is one “critical” caveat. The lower court “must expressly stop the speedy trial clock, either on the record or in a written order.”

2. The Effect of a Magistrate Judge’s Report and Recommendation

Other “close questions” exist with respect to the filling of a report and recommendation by a magistrate judge. Such filings in this case caused delays that Oberoi argued should be counted on the STA clock.

Section (h)(1)(F) automatically stops the clock when the motion is first filed; once it is fully briefed, subsection (h)(1)(J) automatically stops the clock for up to 30 additional days while the motion is under advisement. When a motion is fully submitted to a magistrate judge is the clock stopped under § (h)(1)(J) while the motion is “under advisement” of the magistrate judge? And what happens when magistrate judge issues a report and recommendation - does this “effectively refile[]” the motion in the district court, stopping the clock again, or does it restart the clock until a party files an objection?

Once again, these questions, open in the Second Circuit, have been answered differently by other circuits. After surveying the cases, the court went along with the Eighth Circuit, which has held that once a pretrial motion has been fully briefed and submitted to a magistrate judge, subsection (h)(1)(J) gives the magistrate a 30-day “advisement” period within which to rule. Once the report and recommendation issues, a new excludable period begins under § (h)(1)(F).

3. Oberoi’s Periods of Delay

Based on these holdings, the opinion surveys Oberoi’s claimed periods of delay in great detail, and makes for fairly dull reading. But the bottom line is that the court found only 57 days could be counted on Oberoi’s speedy trial clock, fewer than the 70 days that the Act permits.

Collusion Course

United States v. Guevara-Umana, No. 07-1410-cr (2d Cir. August 15, 2008) (Leval, Calabresi, Pooler, CJJ) (per curiam)

Guevara was deported in 1999. By 2004, he was back; on February 21, 2004, he was charged with grand larceny in New York State. That same day, ICE filed an immigration detainer. On March 4, 2004, ICE filed a Record of Deportable Alien and, the next day, it served Guevara with a notice of intent to reinstate the previous deportation order.

On May 6, 2004, Guevara pled guilty in state court and, four days later, ICE confirmed that he was the same person deported in 1999. On May 21, 2004, an ICE agent wrote a memorandum to Guevara’s A-file that indicated that he had begun an investigation into whether Guevara was an illegal reentrant. This memorandum indicated that a complaint had been authorized by an AUSA.

On June 3, 2004, Guevara was sentenced to time served on the larceny, but remained in state custody on the ICE detainer until September 24, 2004, when ICE obtained proof that he had not received permission to reenter. Six days later, he was presented on a federal complaint charging him with illegal reentry, and he was indicted on October 26, 2004. In the district court, Guevara moved to dismiss the indictment under the Speedy Trial Act (the “STA”), claiming that he had not been indicted within thirty days of his arrest. The district court denied the motion.

On appeal, the circuit affirmed. While it is true that the STA requires that a suspect be indicted within thirty days of his arrest, “ordinarily detention by the immigration authorities does not constitute an arrest in connection with a federal criminal offense,” and hence does not “normally trigger the Act’s thirty-day arrest-to-indictment time limit.”

The court recognized that other circuits have held there is an exception to this in “cases of collusion between [immigration] officials and criminal authorities, where the civil detention is merely a ruse to avoid the requirements of” the STA, and held that a “ruse exception is appropriate.” Here, however, Guevara did not satisfy the ruse exception’s requirements. The mere collaboration between ICE and the USAO for the purposes of a criminal investigation does not by itself establish collusion for the purpose of evading the STA. The court noted that the USAO “moved quickly to procure an indictment” after it confirmed that Guevara did not have permission to reenter, thus he “failed to show a sufficient connection between the subsequent prosecution and continued detention.”

Out of Hindsight

Parisi v. United States, No. 06-1148-pr (2d Cir. June 13, 2008) (Winter, Hall, CJJ, Oberdorfer, DJ)

In this 2255 appeal, the defendant unsuccessfully argued that his counsel was constitutionally ineffective for failing to move for dismissal based on a Speedy Trial Act violation.

Facts

In 2001, Parisi was charged, in a complaint, with child pornography-related offenses. Although, under the Speedy Trial Act, the government had thirty days within which to indict him, the indictment was not filed until nearly 200 days later. During that period, counsel executed three “stipulations” seeking sixty-day continuances for plea negotiations. Each stipulation agreed that the ends of justice to be served by the delay would outweigh defendant’s and the public’s right to a speedy trial. The district court “so ordered” each stipulation.

In 2003, Parisi pled guilty under a plea agreement that included an appellate waiver, and received a 150-month sentence. He later filed a 2255 motion arguing that his attorney was ineffective in failing to make a speedy trial claim based on the delay between the complaint and indictment. While the 2255 matters were pending, the Supreme Court decided Zedner v. United States, 547 U.S. 489 (2006), under which the “so ordered” ends of justice findings were almost certainly invalid.

The Court’s Resolution of the Motion

The court first had to consider whether the claim was waived by the plea agreement. While a straightforward speedy trial claim would be waived, here the ineffectiveness claim was not. The court construed it as a claim that counsel "was ineffective in advising [Parisi] to accept the plea agreement rather than advising him to move to dismiss the indictment with prejudice based on alleged Speedy Trial Act violations." This survived the guilty plea and the appeal waiver because, "by focusing on the advice Parisi received from his attorney, it connects the alleged ineffectiveness of Parisi’s attorney with the voluntary nature of his plea."

Nevertheless, the court found no Sixth Amendment violation. It agreed that Zedner “serves as a reminder that the district court has an obligation independently to determine whether a continuance serves the ends of justice,” and that there was a “strong argument” that such an independent determination did not occur here, particularly since, under Zedner, the mere agreement to the continuance by the parties does not satisfy the Act.

Nevertheless, there was no ineffectiveness. Counsel did not act unreasonably in failing to anticipate Zedner, which was decided some five years later. Even today, if the circuit were to hold that the stipulations did not have the effect of stopping the speedy trial clock, it would be “articulating law on a previously unaddressed question.”

Speed Bump

United States v. Abad, No. 06-0338-cr (2d Cir. January 30, 2008) (Jacobs, Parker, Wesley, CJJ) (per curiam)

Here, the court holds that a failure to make a claim under the Speedy Trial Act in the district court results in a waiver of the issue on appeal. Thus, an unpreserved statutory speedy trial claim cannot be reviewed at all, even for plain error.

Comment: This one’s kind of a no-brainer, since the statute expressly so provides. 18 U.S.C. § 3162(a)(2). The only complication is United States v. Sorrentino, 72 F.3d 294, 297 (2d Cir. 1995), in which the court actually reviewed an unpreserved Speedy Trial Act claim for plain error, even though no motion had been made below. The Abad panel devised a double-barreled solution to the conundrum: first, it blamed the lawyers, noting that no party mentioned § 3162(a)(2) in its briefing in Sorrentino, and then, just to make sure, it overruled Sorrentino.