Monday, April 15, 2013

Speedy-Trial Win!

Here's another big win from last week.

US v. Heshelman, Nos. 10-1049/1223 (6th Cir. April 12, 2013) (not for publication).

Panel of Judges Clay, Gibbons, and White. 

Dist ct said that an approximately three-year delay b/t indictment and trial not a speedy-trial violation.  COA reversed. 

Money laundering and fraud.

Indictment filed in 2006 (shortly before S of L expired) and was sealed, so gov could continue investigating.  But gov didn't do much---just kept a journal of the defendant's contacts with the alleged victims. 

Defendant one in Switzerland.  Issue with potential extradition.  Defendant got in touch with FBI agent b/c knew of investigation, which was hampering his business.  Agent did not inform defendant of indictment, which had been filed at that point.  Gov finally requested extradition from Switzerland in 2009.  Trial commenced about four months later.  Jury convicted on all counts.

A second defendant was told by FBI of warrant for his arrest in '08; defendant said he wanted to cooperate.  Pleaded guilty about six months later.

First defendant complained of speedy-trial violation b/c of three-year delay in arrest and trial.  Second defendant complained b/c gov knew of his whereabouts, but decided not to proceed with his trial until first defendant arrested. 

Factors:

* Length of delay and defendant's assertion of rights.  Trial delay of a year or more generally presumed prejudicial and triggers consideration of other factors.  Gov conceded this presumption and that appellant asserted speedy-trial rights in timely manner. 

* Reason for delay.  Gov conceded it followed a "wait-and-see" course and sought to arrest the first defendant when the latter returned to the US to see family.  Extradition difficult and gov wanted complete control of prosecution.  But gov obligated to act diligently, even when a defendant is in a foreign country.  Here, actively seeking extradition would not have been futile: there was an extradition treaty with Switzerland.  Gov just didn't pursue extradition b/c didn't want Switzerland to place conditions on the extradition.  But gov made only one attempt to see what conditions might be.  Switzerland had been responsive.  But gov just waited for the defendant's return to the US.  Can't wait indefinitely.  Defendant didn't flee the jurisdiction to avoid the charges; he had lived in Switzerland before the alleged scheme began. 

* Prejudice.  Presumption here, and gov didn't rebut. 

First defendant's speedy-trial rights were violated.

As to second defendant:

* Gov could have arrested him at any time.  Gov conceded presumptive prejudice.  Also conceded timely assertion of rights. 

* Once indictment unsealed and warrant for arrest issued, defendant two turned himself in. 

* Gov also admitted that it delayed b/c if defendant two were tried alone he might prevail by just blaming defendant one.  Gov interest in trying alleged co-conspirators together does not automatically justify delay.  And gov did not delay while diligently searching for defendant one, as already discussed.  Gov was just delaying extradition of defendant one. 

Second defendant's speedy-trial rights violated. 

Reversed and remanded with instructions to dismiss indictment with prejudice. 

Concurrence by Judge Clay:

Agrees that speedy-trial rights violated.  Looks more closely at reason for delay.  What is standard of review?  Considerable deference, according to SCOTUS. . . .  Like clear-error review. 

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