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United States v. Burks

United States District Court, M.D. Tennessee, Nashville Division

June 26, 2018




         On May 14, 2018, the Court entered an Order that, in relevant part, reads:

Defendant Maurice Burk's Motion to Dismiss Indictment Due to Pre-Indictment Delay (Doc. No. 373) is hereby set for an EVIDENTIARY HEARING at 9:00 a.m. on July 3, 2018, with an expected duration of two hours. The Court finds an evidentiary hearing to be appropriate because, while the Government offers generalized and vague explanations for the delay in the return of the Indictment (such as the need for further investigation and a change in personnel in the prosecutor's office), it offers nothing concrete to explain the delay. See United States v. Valona, 834 F.2d 1334, 1340 (7th Cir. 1987) (“The district court has wide discretion in determining how it receives evidence on a motion to dismiss based upon pre-indictment delay. It may hold a hearing, rely on pleadings and affidavits alone, or combine the two.”); United States v. Glynn, No. 3:13-00059, 2015 WL 2125082, at *4 (M.D. Tenn. May 6, 2015) (declining to hold an evidentiary hearing, but recognizing that it is a matter of “wide discretion”); United States v. Farr, No. CR-06-0191-F, 2007 WL 141893, at *2 (W.D. Okla. Jan. 16, 2007) (observing that “[e]xceptionally long periods of delay become increasingly difficult to explain away as inoffensive ‘investigative delay, '” and noting that, “[a]though an evidentiary hearing is not required in every case where pre-indictment delay is in issue . . . th[e] failure to hold an evidentiary hearing regarding these issues may constitute a handicap to the reviewing court”).

         (Doc. No. 446 at 1-2). This single paragraph prompted the Government to file a 22-page Motion for Reconsideration (Doc. No. 453).


         The Motion for Reconsideration is a rebuke of Burks's arguments and this Court's decision to hold an evidentiary hearing. It argues that “[t]o permit the defense to collect discovery on what is presently a factually-bankrupt, legally-frivolous motion, would reward the defense for misstating the law, and would potentially endanger the lives and safety of witnesses the government intends to call at trial in this case.” (Doc. No. 453 at 6).

         In his Motion, Burks cited the Supreme Court's decision in United States v. Lovasco, 431 U.S. 783 (1977), which the Government claims is “the seminal case on pre-indictment delay, ” (Doc No. at 3); characterized United States v. Marion, 404 U.S. 307 (1972) (on which Lovasco was based) as “imposing a substantial burden on a defendant to obtain the relief sought in the instant pleading”; and quoted both Marion, 404 U.S. at 324 and United States v. Copley, 774 F.2d 728, 730 n.2 (6th Cir. 1985) for the proposition that dismissal of an indictment is appropriate only if (1) it is shown that the pre-indictment delay caused substantial prejudice to a fair trial and (2) the Government's delay was an attempt to obtain a tactical advantage over the accused. Apparently, Burks “misstated the law” because he did not discuss the same Sixth Circuit law that the Government utilized in formulating its response.

         Regardless, the Court is (and was) fully aware of the requirements for establishing unlawful delay and understands that “[t]he standard . . . is nearly insurmountable.” United States v. Rogers, 118 F.3d 466, 477 (6th Cir. 1997). The Court did not shift the burden from Burks to establish either actual prejudice or intentional governmental misconduct. The Court simply set the matter for a hearing to explore the reason(s) for the delay.

         In responding to Burks's Motion to Dismiss, the Government relied heavily on Lovasco wherein the Supreme Court set forth “good reasons for placing a substantial burden on defendants” who seek dismissal on due process grounds. (Doc. No. 400 at 3). True enough, but Lovasco, in conjunction with Marion, 404 U.S. at 325 “make[] clear that proof of prejudice is generally a necessary but not sufficient element of a due process claim, and that the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused.” Lovasco, 431 U.S. at 789 (emphasis added). Who, other than the Government, better knows the actual reasons for the delay? See United States v. Grier, 121 F.3d 710 (6th Cir. 1997) (stating that “Fifth Amendment due process rights are generally not implicated where, as here, the government offers a plausible reason for the delay”); United States v. Engstrom, 965 F.2d 836, 839 (10th Cir. 1992) (“The government . . . attributes the delay to its belief that plea negotiations would bear fruit, and to a heavy and active criminal docket in its office with a consequent number of shifts of the case from one Assistant U.S. Attorney to another.”); United States v. Walker, 710 F.2d 1062, 1069 (5th Cir. 1983) (observing that “the government has shown adequate non-oppressive reason for the nine-month delay between state arrest and federal trial”); United States v. King, 593 F.2d 269, 272 (7th Cir. 1979) (holding that Lovasco requires “the defendant to prove actual prejudice, after which showing it is up to the court to balance the reasons asserted by the Government against the prejudice asserted by the defendant”). It is one thing to add the actual reason for the delay into the mix, quite another to require the Government to shoulder the burden of proving that the delay did not result in a tactical advantage. The Court suggested no such requirement in its Order.

         The Government also argues that it was a “clear error of law” for the Court to rely on Valona, Farr, and (to a lesser extent) Glynn in setting the matter for a hearing. It then spends four pages explaining how the facts in each of those cases was different. The short answer to this is twofold. First, virtually every case is distinguishable either procedurally or factually, but this does not mean that their general holdings or observations cannot be applied in other circumstances. Second, the Government has not negated the propositions that (1) a district court has “wide discretion” in determining what to consider in deciding a motion to dismiss based on pre-indictment delay, Glynn, 2015 WL 2125082, at *3, including “hold[ing] a hearing, ” Valona, 834 F.2d at 1340, or (2) that the failure to hold a hearing can hamper review, especially when the delay is long, Farr, 2007 WL 141893, at *2. The Government effectively concedes as much when it argues:

A district court considering a motion to dismiss due to pre-indictment delay may, of course, receive evidence in support of or against the motion in a variety of ways. In addition to holding an evidentiary hearing, the court may consider the representations of counsel in court, . . . the representations in parties' filings with the court, . . . stipulations entered into by the parties, or the court's impressions and understandings gleaned in the course of litigation . . . . There is no requirement, however, that district courts must hold evidentiary hearings on such motions. To the contrary: hearings only become necessary, if at all, after a defendant has met the heavy burden of establishing that an evidentiary hearing is warranted in the first place, by satisfying the two-prong test above.

(Doc. 453 at 11) (internal citations omitted).

         The Government's apparent position that a hearing cannot be granted unless or until a defendant establishes the two-prong test appears to be grounded on the Sixth Circuit's decision in Rogers, 118 F.3d at 475 (emphasis added) which held that “[t]o prove unconstitutional pre-indictment delay, the defendant must first prove ‘substantial prejudice' to his right to a fair trial.” The Court does not read Rogers or its progeny as requiring definitive proof of prejudice before considering the improper motive prong, or setting a hearing on pre-indictment delay.

         In Rogers, the Sixth Circuit did not stop at the prejudice prong, even though that was not established. Rather, the court stated that “[e]ven if [defendant] had established actual substantial prejudice, he failed to satisfy the second part of the test for unconstitutional pre-indictment delay: ‘that the delay was an intentional device by the government to gain a tactical advantage.'” Id. at 476. Likewise in United States v. Montgomery, 491 Fed.Appx. 683, 691 (6th Cir. 2012) the Sixth Circuit considered whether “delay was an intentional device used by the government to gain a tactical advantage, ” even though defendant could not show prejudice. Similarly, in United States v. Toaz, 59 Fed.Appx. 94, 99 (6th Cir. 2003) the Sixth Circuit stated that “even if [defendant] had established substantial prejudice, he failed to establish that the delay was an intentional device by the government to gain a tactical advantage” because “[t]he government presented evidence “ to the contrary. In fact, “[b]ecause a defendant must meet both parts of the test to warrant dismissal of the indictment, [a court] need only address one part if the defendant's showing on that part is not sufficient, ” and that includes focusing solely on the second part of the test. United States v. Baltimore, 482 Fed.Appx. 977, 981 (6th Cir. 2012) (“Baltimore has offered nothing to rebut the government's assertion-and the district court's finding-that the government continued to investigate and build its case until indictment.”); see ...

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