USA v. Chantharath et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
PATRICIO GUZMAN-ORTIZ,
Defendant.
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CR. 10-40004-06-KES
ORDER DENYING
DEFENDANT’S MOTION TO
VACATE COURT’S ORDER
GRANTING CONTINUANCE
Defendant, Patricio Guzman-Ortiz, moves to vacate the court’s
August 10, 2011, order granting codefendant Rodney James Newcomb’s
motion to continue trial and deadline dates and, alternatively, to sever his
trial from that of his codefendants. The government resists. The motion to
vacate is denied.
BACKGROUND
The pertinent facts to this order are as follows: The original indictment
in this case dated January 5, 2010, charged Viengxay Chantharath and
Vang Somsawat with conspiracy to distribute methamphetamine. Docket 1.
In a second superseding indictment dated April 7, 2010, Guzman-Ortiz was
added as a codefendant in the conspiracy to distribute methamphetamine
charge, along with Jeffrey Arthur Kriz, Mario Maldonado, and Aurelio Angel
Solorio. Docket 54.
The third superseding indictment, dated May 4, 2010, added Jason
Leach, Daniel Navarrette, and Kevin Boxdorfer as codefendants in the
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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
Rosendo Garcia-Navarro and one person not yet arrested as codefendants in
the conspiracy. Docket 366. The sixth superseding indictment, dated June 7,
2011, added Felicia Ann Omara, Michelle Cherie Feiss, Rodney James
Newcomb, and two persons not yet arrested as codefendants in the
conspiracy. Docket 408.
Many of the codefendants charged in this conspiracy have already
pleaded guilty and some have already been sentenced. The remaining
codefendants are Chantharath, Maldonado, Guzman-Ortiz, Garcia-Navarro,
Omara, Feiss, Newcomb, and the three persons not yet arrested. On
August 9, 2011, Newcomb moved to continue the trial and motion deadline
dates because his counsel needed additional time to adequately review the
voluminous discovery produced in this case. The court granted the motion
and continued the trial date that was set for September 13, 2011, to
October 4, 2011. Docket 481.
DISCUSSION
I. Speedy Trial Act
Guzman-Ortiz contends that the court’s August 10, 2011, continuance
order violated his Speedy Trial Act and Sixth Amendment rights. The Speedy
Trial Act provides that dismissal of an indictment is appropriate if a
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defendant is not brought to trial within the statutory time period. 18 U.S.C.
§ 3162(a)(2). The Eighth Circuit has held that “[t]he Speedy Trial Act requires
that a federal criminal defendant be brought to trial within 70 days of his
indictment or arraignment, whichever is later, . . . subject to excludable
periods of time catalogued in the statute,” namely in § 3161(c)(1) and
§ 3161(h). United States v. Elmardoudi, 501 F.3d 935, 941 (8th Cir. 2007). A
defendant bears the burden to show that his Speedy Trial Act rights have
been violated. United States v. Williams, 557 F.3d 943, 950 (8th Cir. 2009)
(citing United States v. Cordova, 157 F.3d 587, 599 (8th Cir. 1998)).
Section 3161(h)(6) provides that time is excluded from the speedy trial
clock for “[a] reasonable period of delay when the defendant is joined for trial
with a codefendant as to whom the time for trial has not run and no motion
for severance has been granted.” The last arraignments for the newly-added
codefendants from the sixth superseding indictment, Omara and Newcomb,
occurred on July 5, 2011, Docket 452, which “reset” Guzman-Ortiz’s speedy
trial clock.
Even though Guzman-Ortiz’s speedy trial clock was reset on July 5,
2011, the court had earlier granted a motion for a continuance setting the
trial date to July 19, 2011. Docket 391. Continuances may be excluded from
the speedy trial clock calculation:
Any period of delay resulting from a continuance granted by any
judge on his own motion or at the request of the defendant or his
counsel or at the request of the attorney for the Government, if
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the judge granted such continuance on the basis of his findings
that the ends of justice served by taking such action outweigh the
best interest of the public and the defendant in a speedy trial. No
such period of delay resulting from a continuance granted by the
court in accordance with this paragraph shall be excludable
under this subsection unless the court sets forth, in the record of
the case, either orally or in writing, its reasons for finding that
the ends of justice served by the granting of such continuance
outweigh the best interests of the public and the defendant in a
speedy trial.
18 U.S.C. § 3161(h)(7)(A). Because the court found that the interests of
justice were served by the continuance and no defendant, including Guzman-
Ortiz, objected, the period from April 5, 2011, until July 19, 2011, is
excludable from the speedy trial clock calculation.
On June 27, 2011, the court continued trial until August 30, 2011, and
reasoned that the ends of justice per § 3161(h)(7)(A) were met in this
continuance. Docket 439. Thus, the time from June 27, 2011, to August 30,
2011, is excludable from the speedy trial clock. On August 10, 2011, the
court granted Newcomb’s motion for a continuance, which continued the jury
trial to October 4, 2011. Docket 481. Because the court found that the
interests of justice were served by the continuance, this time is also
excludable from the speedy trial clock under § 3161(h)(7)(A).1
Even if the August 16 order for continuance was not in the interests of1
justice because Guzman-Ortiz objected to the continuance, the time period up
until August 30, 2011, is excludable. Further, Guzman-Ortiz filed this motion
to vacate the court’s August 10 scheduling order and to sever his trial from his
codefendants on August 16, 2011. The time period from August 16 until the
date of this order is also excludable. See § 3161(h)(1)(H) (reasoning that “delay
reasonably attributable to any period, not to exceed thirty days, during which
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Since the last codefendants’ arraignments on July 5, 2011, which reset
Guzman-Ortiz’s speedy trial clock, the court has continued the trial date
under a series of orders that fulfill the requirements of § 3161(h)(7)(A). As a
result, not more than 70 days of time countable under the Speedy Trial Act
will have passed from July 5, 2011, until October 4, 2011. Consequently,
Guzman-Ortiz’s speedy trial rights have not been violated.
II. Sixth Amendment
Guzman-Ortiz further argues that the delay in his trial violates the
Sixth Amendment. While the court separately analyzes Sixth Amendment and
Speedy Trial Act claims, “[i]t would be unusual to find the Sixth Amendment
has been violated when the Speedy Trial Act has not.” United States v.
Titlbach, 339 F.3d 692, 699 (8th Cir. 2003) (citing United States v. Sprouts,
282 F.3d 1037, 1042 (8th Cir. 2002)). The court utilizes 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. Titlbach, 339 F.3d at 699 (citing Barker v.
Wingo, 407 U.S. 514, 530 (1972)).
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
any proceeding concerning the defendant is actually under advisement by the
court” is excluded from the speedy trial clock).
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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).
Guzman-Ortiz was indicted on April 7, 2010, and, therefore, it will be about2
an 18-month delay if Guzman-Ortiz goes to trial on October 4, 2011. Thus,
Guzman-Ortiz has met the threshold showing that the delay is presumptively
prejudicial.
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 be trigger judicial examination is about 12
months, and the delay here is almost 18 months. A delay of six months over
the threshold for the presumptively prejudicial time period weighs in favor of
granting Guzman-Ortiz’s motion.
On March 1, 2010, Guzman-Ortiz was arrested on state charges, but2
these charges are inapplicable to when the federal speedy trial clock begins.
See United States v. MacDonald, 456 U.S. 1, 10 n.11 (1982) (“Of course, an
arrest or indictment by one sovereign would not cause the speedy trial
guarantees to become engaged as to possible subsequent indictments by
another sovereign.”).
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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 to determine whether the delay
is valid. Barker, 407 U.S. at 532 (differentiating between delays caused by a
party’s negligence, overcrowded courts, and deliberate efforts by one party to
delay the action). A delay does not automatically lead to a finding that the
Sixth Amendment has been violated. See, e.g., id. at 536 (reasoning that a
defendant’s Sixth Amendment right to a speedy trial was not violated when
the delay was five years); McGhee, 532 F.3d at 739-40 (finding no Sixth
Amendment violation occurred when there was a 915-day delay from arrest to
trial); United States v. Shepard, 462 F.3d 847, 864-65 (8th Cir. 2006) (holding
that a 17-month delay did not violate the Sixth Amendment).
This case involves a complex drug conspiracy. The government has
continued to add defendants from April of 2010 to June of 2011. Since April
of 2010, when Guzman-Ortiz was indicted, the court has granted various
continuances to meet the interests of justice. Guzman-Ortiz has moved for
two continuances, which the court granted. See Dockets 104 and 136.
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Guzman-Ortiz did not oppose any motion to continue until he filed this
motion. Additionally, one of the codefendants, Chantharath, moved for a
competency exam on January 6, 2011. Docket 351. Chantharath’s
competency report, which found him competent, was not filed until April 15,
2011.
“ ‘In general, persons charged in a conspiracy or jointly indicted on
similar evidence from the same or related events should be tried 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)); see also United States v.
Andrade, 788 F.2d 521, 529 (8th Cir. 1986) (reasoning that “persons charged
with having been involved in a single conspiracy should ordinarily be tried
together.” (citing United States v. Rochon, 575 F.2d 191, 197 (8th Cir. 1978))).
The continuances in this case, including the continuance during
Chantharath’s competency exam, have facilitated the preference for
codefendants charged in a single-count drug conspiracy indictment to be
tried together. Moreover, until the August 9, 2011, motion to continue by
defendant Newcomb, Guzman-Ortiz had no objection to the continuances
ordered by the court. After considering all of the circumstances surrounding
the delays, the court finds that the second factor weighs in favor of denying
Guzman-Ortiz’s motion.
Under the third factor, defendants maintain responsibility to assert
their speedy trial rights. Barker, 407 U.S. at 529. Guzman-Ortiz did not
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assert his speedy trial rights until he filed this motion on August 16, 2011.
This case is currently scheduled for trial beginning on October 4, 2011, but
Guzman-Ortiz argues that his case should be tried on September 13, 2011.
While a significant amount of time has passed between Guzman-Ortiz’s
indictment and his trial date, there is only about a three-week delay between
the September 13, 2011, trial date, and the October 4, 2011, trial date. The
third factor weighs neither in favor of granting nor in favor of denying
Guzman-Ortiz’s motion.
The fourth factor, prejudice, analyzes three 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. Guzman-Ortiz has been incarcerated during the
delay. “And although anxiety and concern are present in every case, this
alone does not demonstrate prejudice.” McGhee, 532 F.3d at 740 (citing
Shepard, 462 F.3d at 865).
The most serious factor is the third factor, which examines, among
other facts, whether the defendant’s witnesses have become unavailable due
to the delay. Barker, 407 U.S. at 532. A defendant must show actual or
presumed prejudice from the delay. United States v. Erenas-Luna, 560 F.3d
772, 779 (8th Cir. 2009). District courts can presume prejudice if the
government acts negligently in prosecuting the case. Id.
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Guzman-Ortiz argues that “one or more witnesses have either gone into
hiding or have been deported since the Government has repetitively added
new defendants . . . these witnesses would have testified that he was not
involved in the conspiracy case or involved with guns.” Docket 486 at 3-4.
But Guzman-Ortiz does not provide the identity of any of these witnesses and
this is the first time that Guzman-Ortiz has claimed that witnesses
necessary for his case are no longer available.
Furthermore, Guzman-Ortiz asked for and received two of the
continuances. He did not object until now to any of the continuance requests
by his codefendants and the United States. See Barker, 407 U.S. at 534
(“More important than the absence of serious prejudice,” however, “is the fact
that [the defendant] did not want a speedy trial.” ). Guzman-Ortiz has not
argued that witnesses will become unavailable between his original trial date
of September 13 and the current trial date of October 4.
Guzman-Ortiz has not demonstrated any actual prejudice from the
three-week delay. And because there is no allegation that the government
acted negligently in prosecuting this case, there is also no presumed
prejudice. Therefore, the fourth factor weighs against granting Guzman-
Ortiz’s motion. After balancing all of the Barker factors, the court finds that
there is no violation of Guzman-Ortiz’s Sixth Amendment right to a speedy
trial.
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CONCLUSION
Guzman-Ortiz moves to vacate the court’s August 10, 2011,
continuance order on the grounds that the order violates his Speedy Trial Act
and Sixth Amendment rights. There is no violation of the Speedy Trial Act
because all the delays in this case are excludable from the speedy trial clock
calculation. There is also no violation of Guzman-Ortiz’s Sixth Amendment
rights because even though the delay is almost 18 months, the reasons for
the delay were continuances and motions made in good faith by both sides,
and Guzman-Ortiz has not demonstrated prejudice from the delay. The court
reserves ruling on Guzman-Ortiz’s motion to sever. Accordingly, it is
ORDERED that defendant’s motion to vacate the court’s scheduling
order (Docket 485) is denied. The court reserves ruling on defendant’s motion
to sever (Docket 485).
Dated September 2, 2011.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
CHIEF JUDGE
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