Tenth Affirms Dismissal with Prejudice Based on Speedy Trial Right Violation
United States v. Seltzer, — F.3d —, 2010 WL 537763 (10th Cir. Feb. 17, 2010), is a welcome reminder that the defendant still has a right to some diligence on the part of the government seeking to incarcerate him. In this decision, the Tenth Circuit affirmed the district court’s dismissal with prejudice of the Superseding Indictment against Andy Seltzer because his Sixth Amendment right to a speedy trial was violated. Along the way, it sheds welcome light on when the delay has been “too long in a system where justice is supposed to be swift but deliberate.” Id. at *3 (quoting Barker v. Wingo, 407 U.S. 514, 522 (1972)).
Mr. Seltzer, along with a co-defendant, David Ortego, was indicted on November 2, 2006, in federal court on charges of counterfeiting and felon in possession of a firearm. Federal arrest warrants were issued for the two. Mr. Ortego was arrested on November 6, 2006, and released the next day. Mr. Seltzer, however, was incarcerated in the county jail for two unrelated drug charges, so the federal agents did not execute his arrest warrant.
On March 21, 2007, Mr. Ortego told the government that he knew about Mr. Seltzer’s counterfeiting and that Mr. Seltzer owned the firearms. The AUSA dismissed the indictment against Mr. Ortego because of the lack of evidence. The AUSA also decided to not proceed against Mr. Seltzer until after the unrelated state proceedings were completed.
In April 2007, Mr. Seltzer obtained bond funds so that he could care for his sick mother. The county jailer refused to release him because of the federal indictment. Mr. Seltzer filed a motion on April 26, 2007, attempting to gain release so he could attend his mother’s funeral. In his pro se motion, he asserted his speedy trial rights. The court struck his motion because the bail bonds agent, who was helping him, appeared to be practicing law without a license. Mr. Seltzer filed a motion seeking appointment of counsel and again asserted his speedy trial rights. Finally, on July 11, 2007, he was appointed counsel, Colleen Scissors.
Ms. Scissors requested at least three times that her client be arraigned before a magistrate judge. Each time, the AUSA told Ms. Scissors that arraignment would not occur until after resolution of Mr. Seltzer’s drug charges. Mr. Seltzer pled guilty to the state charges in late 2007 and was sentenced in early 2008.
Although Mr. Seltzer had pled to the state charges by the end of 2007, the government did no investigation on his federal case until June 2008. On August 6, 2008, the government issued a Superseding Indictment based on the same evidence previously seized. On August 14, 2008, Mr. Seltzer filed a motion to dismiss the indictment, which the district court granted.
The Tenth Circuit applied the Barker four-part balancing test and unequivocally concluded that the factors were all in Mr. Seltzer’s favor. The first factor, the length of the delay, was “presumptively prejudicial” because it was more than a year. In fact, it was two years. The Court noted that in some circumstances, a two-year or longer delay might not be unreasonable. However, in this case, the charges were not complex and the government had Mr. Ortego’s testimony by March 2007.
The second factor, reason for the delay, also weighed against the government. The government’s reason for delay was the desire to complete the state charges. The Court put the burden of justifying the need to defer to other sovereign’s proceedings on the government, which it could not do here. The state charges were unrelated to the federal charges. Furthermore, there would have been no trouble moving Mr. Seltzer from state to federal custody and back because the county jail was only five blocks from the federal courthouse. Finally, the charges against Mr. Seltzer were relatively simple. As it was, he was caught in a Catch-22, unable to obtain bond in the state proceedings because of the federal charges, and the federal government refusing to proceed against him.
The third factor, the defendant’s assertion of his speedy trial rights, were clearly weighed in Mr. Seltzer’s favor. He had asserted them pro se, and then repeatedly through counsel.
The fourth factor, prejudice, is often the most difficult for a defendant to prove. The Tenth Circuit concluded that Mr. Seltzer was prejudiced in at least three ways. First, Mr. Seltzer showed he was prejudiced because his pretrial incarceration was increased and he could not make bond. Second, his ability to defend and prepare his case was impaired by the delay because he was denied court-appointed counsel for more than six months. Finally, he was prevented from asserting his statutory speedy trial rights sooner.
This is a wonderful case to use when asserting that a client’s Sixth Amendment speedy trial rights have been violated. Congratulations to Virginia Grady and David Johnson of the Colorado FPD office.
Mr. Seltzer, along with a co-defendant, David Ortego, was indicted on November 2, 2006, in federal court on charges of counterfeiting and felon in possession of a firearm. Federal arrest warrants were issued for the two. Mr. Ortego was arrested on November 6, 2006, and released the next day. Mr. Seltzer, however, was incarcerated in the county jail for two unrelated drug charges, so the federal agents did not execute his arrest warrant.
On March 21, 2007, Mr. Ortego told the government that he knew about Mr. Seltzer’s counterfeiting and that Mr. Seltzer owned the firearms. The AUSA dismissed the indictment against Mr. Ortego because of the lack of evidence. The AUSA also decided to not proceed against Mr. Seltzer until after the unrelated state proceedings were completed.
In April 2007, Mr. Seltzer obtained bond funds so that he could care for his sick mother. The county jailer refused to release him because of the federal indictment. Mr. Seltzer filed a motion on April 26, 2007, attempting to gain release so he could attend his mother’s funeral. In his pro se motion, he asserted his speedy trial rights. The court struck his motion because the bail bonds agent, who was helping him, appeared to be practicing law without a license. Mr. Seltzer filed a motion seeking appointment of counsel and again asserted his speedy trial rights. Finally, on July 11, 2007, he was appointed counsel, Colleen Scissors.
Ms. Scissors requested at least three times that her client be arraigned before a magistrate judge. Each time, the AUSA told Ms. Scissors that arraignment would not occur until after resolution of Mr. Seltzer’s drug charges. Mr. Seltzer pled guilty to the state charges in late 2007 and was sentenced in early 2008.
Although Mr. Seltzer had pled to the state charges by the end of 2007, the government did no investigation on his federal case until June 2008. On August 6, 2008, the government issued a Superseding Indictment based on the same evidence previously seized. On August 14, 2008, Mr. Seltzer filed a motion to dismiss the indictment, which the district court granted.
The Tenth Circuit applied the Barker four-part balancing test and unequivocally concluded that the factors were all in Mr. Seltzer’s favor. The first factor, the length of the delay, was “presumptively prejudicial” because it was more than a year. In fact, it was two years. The Court noted that in some circumstances, a two-year or longer delay might not be unreasonable. However, in this case, the charges were not complex and the government had Mr. Ortego’s testimony by March 2007.
The second factor, reason for the delay, also weighed against the government. The government’s reason for delay was the desire to complete the state charges. The Court put the burden of justifying the need to defer to other sovereign’s proceedings on the government, which it could not do here. The state charges were unrelated to the federal charges. Furthermore, there would have been no trouble moving Mr. Seltzer from state to federal custody and back because the county jail was only five blocks from the federal courthouse. Finally, the charges against Mr. Seltzer were relatively simple. As it was, he was caught in a Catch-22, unable to obtain bond in the state proceedings because of the federal charges, and the federal government refusing to proceed against him.
The third factor, the defendant’s assertion of his speedy trial rights, were clearly weighed in Mr. Seltzer’s favor. He had asserted them pro se, and then repeatedly through counsel.
The fourth factor, prejudice, is often the most difficult for a defendant to prove. The Tenth Circuit concluded that Mr. Seltzer was prejudiced in at least three ways. First, Mr. Seltzer showed he was prejudiced because his pretrial incarceration was increased and he could not make bond. Second, his ability to defend and prepare his case was impaired by the delay because he was denied court-appointed counsel for more than six months. Finally, he was prevented from asserting his statutory speedy trial rights sooner.
This is a wonderful case to use when asserting that a client’s Sixth Amendment speedy trial rights have been violated. Congratulations to Virginia Grady and David Johnson of the Colorado FPD office.
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