1. US v.
Myers, No. 17-30159 (7-22-19)(Ikuta w/Christen & Choe-Groves). Speedy
Trial dismissals are rare and beautiful things. One that enhances a circuit
split even more so. Thus, the case here.
The
defendant was prosecuted for different crimes arising from the same set of
facts. The defendant had been stopped, things happened, a gun went off, and he
faced state charges for assault and federal charges for being a felon in
possession. The state prosecution went first. The federal prosecutors delayed
the federal charges while the state proceedings were pending. Twenty-two (22)
months later, the state charges concluded with a plea, and the federal charges
began. When he caught wind of the federal proceedings, the defendant had
already requested that it proceed sooner. The federal court denied the
request, and then dismissed the speedy trial motion.
On
appeal from a conditional plea, the 9th looked at the Barker four factors test: (1) length of
delay (a year is presumptive); reason for delay; defense assertion of right;
and prejudice. Here, the issue is whether the pendency of state proceedings is
a valid reason for the government to delay prosecution. There is a circuit
split. The 4th, 6th, and 8th Circuits find
that concurrent proceedings are a valid reason. Indeed, the 6th
stated that it is “without question” a valid reason for delay. The 7th
and 10th adopt an ad hoc approach in evaluating the delay. The court
has to weigh and balance the four factors. The 9th weighs in on the
side of the 7th and 10th. “[W]e hold that where a delay
arises due to concurrent state and federal proceedings, a court must consider
the nature and circumstances of the delay in order to determine whether (and
how much) it weighs against the government.” (13). This includes the
government’s actions, safety concerns, administrative hurdles and so
forth.
The
9th vacates the dismissal and remands for reconsideration of the ad
hoc approach. Ominously, however, for the defendant, the 9th
concludes that the defendant seemingly suffered no prejudice.
Congrats
to Colin Prince, AFPD, Federal Defenders of Wa E and Idaho (Spokane).
The
decision is here:
2.
US v. Mixon, No. 18-10216
(7-22-19)(Ikuta w/Gould & Pearson). The 9th affirms a denial of
a request for attorney’s fees under the Hyde
Amendment. The defendant (a BOP guard) was acquitted of engaging in a
sexual act with an inmate she supervised. The request focused on the
investigation and acts of the agents investigating. The 9th said
this was the wrong focus: the focus has to be on prosecutorial misconduct on
the part of the government prosecutors. “For instance, a defendant would
not be eligible for attorneys’ fees under the Hyde Amendment even if a prosecutor relied on fabricated evidence
cooked up by a rogue agent, assuming no independent prosecutorial misconduct.”
(9). The 9th does say that using such evidence would be “a grievous
mistake,” but it “cannot render the government’s litigating position as a whole
vexatious, frivolous, or in bad faith.” (9). The serious misconduct must be on
the part of the prosecutors. (10).
The
decision is here:
posted by Jon Sands at 7/26/2019 12:06:00 PM
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