USA v. Chantharath et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
VIENGXAY CHANTHARATH,
a/k/a “OG;”
PATRICIO GUZMAN-ORTIZ; and
ROSENDO GARCIA-NAVARRO,
a/k/a “Truck Driver,”
Defendants.
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CR. 10-40004-01, -06,
and -11-KES
ORDER
Defendants Viengxay Chantharath and Patricio Guzman-Ortiz
separately oppose codefendant Rosendo Garcia-Navarro’s and the
government’s motions for continuances. Dockets 563, 566. In the alternative,
Chantharath and Guzman-Ortiz move to sever their trial from the trials of
their codefendants to allow them to proceed to trial on October 25, 2011. The
government opposes the motions to sever. Garcia-Navarro’s motion to
continue is granted. Chantharath’s and Guzman-Ortiz’s motions to sever are
granted. The government’s motion to continue is denied in part and granted
in part.
BACKGROUND
The pertinent facts to this order are as follows: The original indictment
in this case, dated January 5, 2010, charged Chantharath and Vang
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Somsawat with conspiracy to distribute methamphetamine. Docket 1. A
second superseding indictment, dated April 7, 2010, added as defendants
Guzman-Ortiz, Jeffrey Arthur Kriz, Mario Maldonado, and Aurelio Angel
Solorio in the same conspiracy. Docket 54.
The third superseding indictment, dated May 4, 2010, added Jason
Leach, Daniel Navarrette, and Kevin Boxdorfer as codefendants in the
conspiracy. Docket 111. The fourth superseding indictment, dated August 3,
2010, added Bruce Ross as a codefendant in the conspiracy. Docket 194.
The fifth superseding indictment, dated March 2, 2011, added Garcia-
Navarro and a person not yet arrested as codefendants in the conspiracy.
Docket 366. The sixth superseding indictment, dated June 7, 2011, added
Ricardo Ayala Luis, a person not yet arrested, Felicia Ann Omara, Michelle
Cherie Feiss, and Rodney James Newcomb as codefendants in the same
conspiracy. Docket 408. The seventh superseding indictment, dated
September 7, 2011, did not charge any new defendants with conspiracy but
did contain a forfeiture allegation against Garcia-Navarro. Docket 498.
Many of the codefendants charged in this conspiracy have already
pleaded guilty and some have already been sentenced. The remaining
codefendants are Chantharath, Guzman-Ortiz, Garcia-Navarro, Ayala Luis
(who is scheduled for an initial appearance on October 25, 2011), and two
persons not yet arrested. This case is currently scheduled for a jury trial to
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begin on Tuesday, October 25, 2011, with codefendants Chantharath,
Guzman-Ortiz, and Garcia-Navarro. Docket 543.
DISCUSSION
I. Garcia-Navarro’s Motion
Garcia-Navarro moves for a continuance because his retained counsel
was appointed on a state court death penalty case. On September 16, 2011,
the state court scheduled the death penalty sentencing hearing for October
24, 2011. Docket 561. At that time, this case was scheduled for trial to begin
on October 4, 2011. Docket 481. On September 19, 2011, this court
continued the October 4, 2011, jury trial to October 25, 2011. Docket 543.
Garcia-Navarro moves to continue his trial date to allow his counsel to
adequately prepare for both the death penalty sentencing hearing and this
trial.
Preparing for a death penalty sentencing hearing consumes significant
resources for a defendant’s counsel. And Garcia-Navarro has the right to have
his counsel fully prepared to defend him at trial. Due to Garcia-Navarro’s
counsel’s other legal obligations, the interests of justice are met in continuing
Garcia-Navarro’s trial and his motion to continue is granted. But, as stated
below, because another continuance will violate Chantharath’s and Guzman-
Ortiz’s Sixth Amendment rights, the court will sever Chantharath and
Guzman-Ortiz’s trial from that of Garcia-Navarro.
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II. Government’s Motion to Continue
The government moves to continue because one of the defendants,
Ayala Luis, is scheduled to make his initial appearance in South Dakota on
October 25, 2011, and the government believes that Ayala Luis should be
tried in the same trial as the other codefendants. The government further
argues that one of its witnesses will be unavailable for the October 25 trial
because the witness is also a witness during the death penalty sentencing
hearing previously referenced. Chantharath and Guzman-Ortiz respond that
their trial should be severed from that of the remaining codefendants.
In determining whether a defendant is entitled to a separate trial from
his codefendants, the court must decide: (1) whether joinder was proper
under Federal Rule of Criminal Procedure 8, and (2) whether severance is
proper under Rule 14. See, e.g., United States v. Payton, 636 F.3d 1027,
1036-37 (8th Cir. 2011) (analyzing first whether joinder was proper under
Rule 8 and then whether severance was proper under Rule 14). This court
has previously held that the codefendants were properly joined under Rule 8.
Docket 555.
This court has also previously held that severance was improper under
Rule 14 because the codefendants’ defenses were not mutually antagonistic,
the court could protect the codefendants from any prejudice from spillover
evidence, and Chantharath’s and Guzman-Ortiz’s Speedy Trial Act and Sixth
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Amendment rights to a speedy trial were not violated. Dockets 493, 494, 555.
Chantharath and Guzman-Ortiz argue that their speedy trial rights will be
violated if the court grants the government’s current motion to continue.
Courts utilize a four-factor balancing test in analyzing whether a
pretrial delay violates the Sixth Amendment: (1) the delay’s length; (2) the
reason for the delay; (3) whether the defendant asserted his right to a speedy
trial; and (4) whether the defendant suffered any prejudice. Barker v. Wingo,
407 U.S. 514, 530 (1972); see also United States v. Titlbach, 339 F.3d 692,
699 (8th Cir. 2003) (applying the Barker test).
A. Delay’s Length
The first Barker factor is a “ ‘double inquiry.’ ” United States v. McGhee,
532 F.3d 733, 739 (8th Cir. 2008) (quoting United States v. DeGarmo, 450
F.3d 360, 364 (8th Cir. 2006)). First, the “ ‘accused must allege that the
interval between accusation and trial has crossed the threshold dividing
ordinary from presumptively prejudicial delay.’ ” Id. (quoting DeGarmo, 450
F.3d at 364-65). A delay “approaching” one year may be considered
presumptively prejudicial. Titlbach, 339 F.3d at 699 (citations omitted).
Chantharath made his initial appearance on January 22, 2010, and
Guzman-Ortiz made his initial appearance on April 14, 2010. Chantharath’s
delay is about 20 months and Guzman-Ortiz’s delay is about 18 months.
Because the delays are over a year, they are presumptively prejudicial.
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Once the defendant makes this initial showing, the court next
considers “ ‘as one factor among several, the extent to which the delay
stretches beyond the bare minimum needed to trigger judicial examination of
the claim.’ ” McGhee, 532 F.3d at 739 (quoting DeGarmo, 450 F.3d at 365).
The bare minimum for a delay to trigger judicial examination is about 12
months, and the delays here are 20 and 18 months. Delays of eight and six
months over the threshold for the presumptively prejudicial time period weigh
in favor of granting the motions to sever.
B. Reasons for the Delay
Under factor two, “in considering a claimed violation of the Sixth
Amendment . . . ‘the right of a speedy trial is necessarily relative. It is
consistent with delays and depends upon circumstances. It secures rights to
a defendant. It does not preclude the rights of public justice.’ ” Von Feldt v.
United States, 407 F.2d 95, 99 (8th Cir. 1969) (quoting Beavers v. Haubert,
198 U.S. 77, 87 (1905)); see also Barker, 407 U.S. at 522 (reiterating that a
defendant’s speedy trial rights are relative (citing Beavers, 198 U.S. at 87)).
The court examines “the reasons for the delay and evaluate[s] ‘whether the
government or the criminal defendant is more to blame.’ ” United States v.
Erenas-Luna, 560 F.3d 772, 777 (2009) (quoting Doggett v. United States, 505
U.S. 647, 651 (1992)).
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This case involves a complex drug conspiracy. The government has
continued to add defendants from January of 2010 to June of 2011. Since
January of 2010, when Chantharath was indicted, the court has granted
various continuances to meet the interests of justice. Both Chantharath and
Guzman-Ortiz have moved for continuances. See Dockets 103, 136, 351.
Beginning in August of 2011, however, Chantharath and Guzman-Ortiz
began resisting their codefendants’ motions for continuances.
The government moves to continue the October 25, 2011, trial date to
allow Ayala Luis to be tried during the same trial as the other codefendants.
Ayala Luis was indicted on June 7, 2011, in the Sixth Superseding
Indictment, and he has been in custody in Arizona since September 26, 2010,
on an unrelated immigration charge. Docket 510 at 1-2. After Ayala Luis’s
counsel withdrew from his immigration case, his sentencing in that case was
continued to October 5, 2011, and the United States Marshals Service
canceled their previous transportation plans to bring Ayala Luis to South
Dakota by the October 4, 2011, trial date. Docket 510 at 2. Ayala Luis’s initial
appearance in this case is now scheduled for October 25, 2011. The
government and Ayala Luis have only recently begun the discovery process.
Docket 567. In the past, other codefendants have moved for continuances to
review the voluminous discovery in this case and otherwise requested
continuances to prepare this case for trial. Based on the court’s past
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experience with codefendants in this case, it is doubtful that Ayala Luis will
be ready to go to trial within a short period of time.
As further grounds for its continuance, the government also argues
that the continuance is proper because one of its witnesses is involved in the
state court death penalty sentencing hearing on October 24, 2011. Docket
564. This trial will begin on October 25, the day after the October 24 state
court sentencing hearing. The government has not argued that its witness will
be unavailable on October 25. Even if the state court sentencing hearing lasts
longer than one day, the government has not shown that the witness will be
unavailable during the entire duration of this trial.
The court has examined all of the reasons for delay. Much of the delay
has occurred because the government has superseded the original indictment
seven times and has added additional defendants six times. Two defendants
still have not been arrested. When new defendants are arrested, a new trial
date is established. Because two codefendants have not been arrested, the
trial date for Chantharath and Guzman-Ortiz could be postponed again if
either of those two defendants are arrested. While no facts have been
presented to the court to suggest that the government is at fault for failing to
seek a writ of habeas corpus to secure the presence of Ayala Luis in South
Dakota shortly after he was indicted in June of 2011, the government’s
failure to do so means Ayala Luis will not be ready for the October 25, 2011,
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trial. Chantharath and Guzman-Ortiz played no role in the delay of
transporting Ayala Luis to South Dakota. There is a strong preference to try
“persons charged in a conspiracy or jointly indicted on similar evidence from
the same or related events” together. United States v. Donnell, 596 F.3d 913,
923 (8th Cir. 2010) (quoting United States v. Jones, 880 F.2d 55, 63 (8th Cir.
1989)). But the delay here surpasses this preference, especially because the
government cannot specify when Ayala Luis will be ready for trial or when the
two remaining codefendants will be arrested. After weighing all the reasons
for the delay, the court finds that the second factor weighs in favor of
severance.
C. Defendants’ Assertion of Their Speedy Trial Rights
Under the third factor, defendants maintain responsibility to assert
their speedy trial rights. Barker, 407 U.S. at 529. Guzman-Ortiz first asserted
his speedy trial rights on August 16, 2011, when he moved to vacate the
court’s August 5, 2011, order granting a continuance. Guzman-Ortiz again
asserted his speedy trial rights on September 12, 2011, when he moved to
deny further requests for continuances. On October 11, 2011, in response to
Garcia-Navarro’s and the government’s motions to continue, Guzman-Ortiz
again asserted his speedy trial rights.
Chantharath also asserted his speedy trial rights on August 16, 2011,
in opposing the court’s August 5, 2011, order granting a continuance. Docket
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487. Chantharath again asserts his speedy trial rights in the motions at issue
here. Docket 563.
Chantharath and Guzman-Ortiz have asserted their speedy trial rights
since August of 2011. Thus, the third factor, that Chantharath and Guzman-
Ortiz assert their speedy trial rights in a responsible manner, is met.
D. Prejudice
The fourth factor, prejudice, “should be assessed in the light of the
interests of the defendants which the speedy trial right was designed to
protect.” Barker, 407 U.S. at 532. The Supreme Court has identified three
such interests: (1) preventing oppressive pretrial incarceration; (2) minimizing
the accused’s anxiety and concern; and (3) limiting the possibility that the
defense will be impaired. Barker, 407 U.S. at 532.
Under the first interest, if a defendant’s speedy trial rights are in
jeopardy but he is on pretrial release, then a defendant faces a reduced risk
of prejudice and a motion to sever is inappropriate. See, e.g., United States v.
Olivares, No. 10-cr-50118, 2011 WL 2881775, at *3 (D.S.D July 15, 2011)
(denying a motion to sever because the defendants were on pretrial release
and “[t]his fact substantially lessens the prejudice to them caused by a
continuance of their trials.”). Here, Chantharath has been in custody since
January of 2010 and Guzman-Ortiz has been in custody since April of 2010.
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Both defendants have experienced extensive pretrial detention and, thus, the
first interest weighs in favor of severance.
Under the second interest, Chantharath and Guzman-Ortiz have been
incarcerated for 20 months and 18 months respectively. They have been
awaiting trial and, thus, have been uncertain of their futures for a significant
amount of time. While the court finds that the second interest weighs in favor
of severance, the Eighth Circuit has reasoned that a defendant’s anxiety does
not alone demonstrate prejudice. McGhee, 532 F.3d at 740 (citing United
States v. Shepard, 462 F.3d 847, 865 (8th Cir. 2006)).
The most serious interest is the third. Barker, 407 U.S. at 532. A
defendant must show actual or presumed prejudice from the delay before a
court grants a motion to sever. Erenas-Luna, 560 F.3d at 779. “[A] district
court should grant a severance under Rule 14 only if there is a serious risk
that a joint trial would compromise a specific trial right of one of the
defendants, or prevent the jury from making a reliable judgment about guilt
or innocence.” Zafiro v. United States, 506 U.S. 534, 539 (1993) (reasoning
that there are various ways for a district court to determine prejudice). The
right to a speedy trial “is as fundamental as any of the rights secured by the
Sixth Amendment.” Klopfer v. North Carolina, 386 U.S. 213, 226 (1967). “The
history of the right to a speedy trial and its reception in this country clearly
establish that it is one of the most basic rights preserved by our
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Constitution.” Id. Severance is warranted when a defendant’s Sixth
Amendment rights will otherwise be violated. See, e.g., United States v.
Stockman, No. 09-cr-50029, 2010 WL 959928, at *1 (D.S.D. Mar. 12, 2010)
(granting a motion to sever when the defendant had been in pretrial custody
for eight months and his codefendant was ill).
Chantharath and Guzman-Ortiz have a fundamental Sixth Amendment
right to a speedy trial. Klopfer, 386 U.S. at 226. Chantharath and Guzman-
Ortiz have been waiting for trial for 20 months and 18 months respectively.
The delay between their indictments and trial has already surpassed the
presumptively prejudicial threshold by eight months for Chantharath and six
months for Guzman-Ortiz. Another continuance to allow Ayala Luis to
proceed to trial with Chantharath and Guzman-Ortiz would violate
Chantharath’s and Guzman-Ortiz’s Sixth Amendment rights. Thus, the fourth
factor weighs in favor of granting severance.
CONCLUSION
Garcia-Navarro and the government separately move to continue the
trial currently scheduled for October 25, 2011. Garcia-Navarro’s motion to
continue is granted because a continuance in his case will serve the ends of
justice. But the government’s motion to continue the trial as to Chantharath
and Guzman-Ortiz will not serve the ends of justice, and it is denied as to
Chantharath and Guzman-Ortiz. The court will sever Chantharath and
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Guzman-Ortiz’s trial from all remaining codefendants, including Garcia-
Navarro and Ayala Luis. Chantharath and Guzman-Ortiz will proceed to trial
on October 25, 2011. The court will issue a separate scheduling order for
Garcia-Navarro and Ayala Luis. Accordingly, it is
ORDERED that defendant Garcia-Navarro’s motion to continue (Docket
561) is granted.
It is FURTHER ORDERED that the government’s motion to continue
(Docket 564) is denied as to defendants Chantharath and Guzman-Ortiz but
granted as to defendants Garcia-Navarro and Ayala Luis.
It is FURTHER ORDERED that defendant Guzman-Ortiz’s motion to
deny further requests for continuance (Docket 566) is denied.
Dated October 12, 2011.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
CHIEF JUDGE
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