Friday, July 26, 2019

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:


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