Ninth Circuit Blog: Case o' The Week: Ain't So Great to Wait for State

The Federal Government of the United States has a compelling interest in the speedy resolution of its criminal cases.

(Unless our client is also in state proceedings -- then really, what's the rush?)

United States v. Myers, 2019 WL 3281380 (9thCir. July 22, 2019), decision available here.

The Hon. Judge Sandra Ikuta

Players: Decision by Judge Ikuta, joined by Judge Christen and visiting Judge Jennifer Choe-Groves.

Big win for AFPD Colin Prince, Federal Defenders of Eastern Washington & Idaho.

Facts: Myers scuffled with cops. A pistol in his pocket went off, and a deputy sheriff shot Myers in the stomach. Id. at *1. He was charged in Washington with assault and unlawful possession of a gun.

A few days later, the Feds indicted him on a Sec. 922(g)(1) [felon in possession] charge for the same offense. Id. at *2.

After twelve continuances and four different attorneys, Myers finally plead guilty to the assault charge, stateside, two years after being charged. Id. Early in that state process he tried to get to federal court: the USAO told the district court it intended to wait until the state charges were resolved. Id.

When he finally got to federal court, he renewed an earlier Speedy Trial motion. It was denied after an evidentiary hearing. Myers plead to the federal gun charge but preserved his right to appeal his constitutional speedy trial claims. Id.

Issue(s): “In this case, the government’s sole reason for the pretrial delay (the second factor in the Barker balancing test) is that state and federal charges were pending concurrently, and the government delayed commencing proceedings in order to allow the state to pursue their charges. We have not yet considered how the Barker balancing test applies to delays caused by concurrent state and federal prosecutions. There is a circuit split on this issue.” Id. at *4.

Held: “We agree with the Tenth and Seventh Circuits. [T]he Supreme Court has directed us to consider the reasons for a delay in context. . . . Moreover, the Court has declined to adopt a clear rule for any category of delay. . . . If the government had a “bad faith or dilatory purpose” in bringing an interlocutory appeal, the delay caused by the appeal would weigh against the government. . . . But if the government’s position in the interlocutory appeal was strong and supported by reasonable evidence, the delay would not weigh against the government. . . . Similarly, rather than hold that delays caused by the government’s negligence always weigh against the government, the Court directed courts to consider the nature and circumstances of the negligence. . . .

In light of this guidance, we 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. For instance, when the state’s charges factually overlap with the federal charges, such that trying the defendant concurrently would present administrative hurdles and safety concerns, a delay may be justified and not weigh against the government. . . . On the other hand, when state charges are unrelated to the federal charges, and the government adduces no evidence that concurrent proceedings would present administrative difficulties or safety concerns, a court may weigh the delay against the government. In sum, there is no bright-line rule for this category of delay.” Id. at *5.

Of Note: The Sixth had held that waiting for another sovereign to finish prosecution was “without question a valid reason for delay.” Id. at *4. In Myers, Judge Ikuta rejects that per se rule.

Note, however, that Mr. Myers is not quite out of the woods: the case is remanded for a new Barker analysis on the reasons for the delay.

How to Use: New surges in federal filings are mostly glorified state cases: local cops + federal grand juries = more indictments. When your client has been fighting a county case for months (or years), bear Myers in mind and consider a Speedy Trial claim.

For state-clients who get wind of a federal indictment, an Interstate Agreement on Detainers claim is a nice addition to the record, when federal Barker balancing begins. See id. at *2.

For Further Reading: As noted above, Myers was shot in the stomach by Spokane Deputy Sheriffs during this arrest.