No Speedy Trial Violation; Indictment Reinstated

U.S. v. Batie, --- F.3d ----, 2006 WL 14569 (10th Cir. January 04, 2006)

10th reverses district court’s dismissal of the indictment with prejudice for violations of D’s constitutional rights to a speedy trial and due process. No Speedy Trial violation: 10th goes through 4 part test, unremarkably so in the “length” and “reasons”prongs (attributing delays from 2 screw-up mistrials to government, though unintentional screw-ups. I cannot find the facts that describe the 3d mistrial); “assertion” weighs against D (10th designates this prong as perhaps most important) because he asked for and got a number of continuances (joint continuance NOT held against US under “reasons”) even over US objection (and note the word-to-the-wise fn. 2–if you anticipate a speedy trial challenge, and you ask for a continuance to secure the expert you want for trial, get any old expert because otherwise you may be diminishing your ST claim, hints the 10th ) ; “prejudice” weighs against D. D released after 3d mistrial granted; D cannot prove up his claim that government witness testimony shifted to his detriment. 10th signals that theoretically this is a decent claim, but again hints at how D should make a record on it with the district court. No Due Process violation: 10th says, contrary to district court, that some government misconduct required to dismiss indictment on DP grounds since standard is “shocks the conscience”. Besides, district court focused not on government misconduct but the weakness of the government’s case to dismiss. Prosecution is the government’s prerogative, even if a weak case. 10th points out that the trial court has a mechanism under Crim. P. R. 29 to dump a poor case (third hint of the day). SO, bad result for this D, but actually a well and honestly reasoned case (op. by McConnell).