465 F.3d 458 (10th Cir. 2006), 05-3147, United States v. Abdush-Shakur

Docket Nº:05-3147.
Citation:465 F.3d 458
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Shakir ABDUSH-SHAKUR, formerly known as Leonard Scott Cunningham, Defendant-Appellant.
Case Date:October 04, 2006
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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465 F.3d 458 (10th Cir. 2006)

UNITED STATES of America, Plaintiff-Appellee,


Shakir ABDUSH-SHAKUR, formerly known as Leonard Scott Cunningham, Defendant-Appellant.

No. 05-3147.

United States Court of Appeals, Tenth Circuit.

October 4, 2006

Appeal from the United States District Court for the District of Kansas, D.C. No. 04-CR-20132-JWL.

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[Copyrighted Material Omitted]

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Kim I. Martin, Assistant United States Attorney (Eric F. Melgren, United States Attorney, on the brief), Kansas City, Kansas, for Plaintiff - Appellee.

Melissa Harrison, Assistant Federal Public Defender (David J. Phillips, Federal Public Defender, on the briefs), Kansas City, Kansas, for Defendant - Appellant.

Before HENRY, ANDERSON and O'BRIEN, Circuit Judges.

O'BRIEN, Circuit Judge.

On December 2, 2004, Shakir Abdush-Shakur, an inmate at the United States Prison at Leavenworth, was convicted of attempted murder, and possession of a handmade knife by a prison inmate, arising out of the May 18, 2003 stabbing of prison Senior Officer Specialist, Timothy McDonald. On March 9, 2005, he was sentenced to a total of 240 months imprisonment. He appeals from his conviction alleging various trial errors. We affirm.


On May 29, 2003, Abdush-Shakur was charged in a two-count indictment with attempted murder and possession of a prohibited object in violation of 18 U.S.C. §§ 1113 and 1791(a)(2), respectively. After several successful motions for continuance lodged by defense counsel, trial was set for December 9, 2003. On December 3, 2003, the government filed a motion for a continuance of the trial date, followed the next day by the government's motion to dismiss the indictment due to the illness of government counsel. On December 8, 2003, the indictment was dismissed without prejudice over the objection of Abdush-Shakur.

On April 1, 2004, a second indictment charging the same offenses was filed under the same case number. On May 17, 2004, Abdush-Shakur filed a motion to dismiss the indictment for violation of his right to speedy trial. The court granted his motion on June 28, 2004, and dismissed the indictment without prejudice. On September 16, 2004, the government filed a third indictment. Although filed under a new case number the substance remained unchanged. Abdush-Shakur moved to dismiss the third indictment on October 18, 2004. On October 27, 2004, the district court denied the motion. On November 10, 2004, a superseding third indictment was filed adding Abdush-Shakur's former name of Leonard Cunningham, but making no other changes.

Prior to trial, Abdush-Shakur filed a Federal Rule of Criminal Procedure 17(c) request for records including those relating to prior altercations between Abdush-Shakur and Officer McDonald. The district court denied the motion. Abdush-

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Shakur also designated Steve Martin as an expert witness to testify about the prison environment, which defense counsel argued should play a role in the jury's determination of intent. The government filed a motion in limine to exclude the proffered testimony; it was granted.

Finally, during voir dire, the government used two of its six peremptory challenges to exclude two of the three African-American jurors from the jury. Defense counsel's objection based on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), was overruled by the district court. On December 2, 2004, the jury convicted Abdush-Shakur of attempted murder and possession of a prohibited object.


Abdush-Shakur asserts the district court erred in four respects: 1) by denying his motion to dismiss the indictment as a violation of the Speedy Trial Act and his Sixth Amendment and Due Process rights; 2) by excluding the testimony of his expert witness, Steve Martin; 3) by denying his request for the production of documents under Federal Rule of Criminal Procedure 17(c); and 4) by permitting the prosecutor to exclude potential jurors based on race in violation of Batson.

I. Motion to Dismiss

Abdush-Shakur argued to the district court that the third indictment should be dismissed as a violation of the Speedy Trial Act and his Sixth Amendment and Due Process rights. The district court denied the motions to dismiss. Abdush-Shakur reasserts his arguments on appeal.

A. Speedy Trial Act

Abdush-Shakur argues the district court erred when dismissing the second indictment without prejudice for violating the Speedy Trial Act, thus requiring the third indictment to be dismissed as well. We "review the district court's denial of a motion to dismiss for violation of the [Speedy Trial] Act for an abuse of discretion, and review the district court's compliance with the legal requirements of the Act de novo." United States v. Lampley, 127 F.3d 1231, 1244 (10th Cir. 1997). "We accept the district court's factual findings in a Speedy Trial Act order unless they are clearly erroneous." United States v. Vogl, 374 F.3d 976, 982 (10th Cir. 2004). "[W]hen the statutory factors are properly considered, and supporting factual findings are not clearly in error, the district court's judgment of how opposing considerations balance should not lightly be disturbed." United States v. Cano-Silva, 402 F.3d 1031, 1035 (10th Cir. 2005) (quotation omitted).

The Speedy Trial Act is "designed to protect a criminal defendant's constitutional right to a speedy trial and to serve the public interest in bringing prompt criminal proceedings ...." United States v. Apperson, 441 F.3d 1162, 1177-78 (10th Cir. 2006). Congress enacted the Speedy Trial Act in part because "the Supreme Court had been reluctant to define specific time periods under the speedy trial guarantee of the Sixth Amendment ...." Vogl, 374 F.3d at 982. While the Speedy Trial Act certainly adds protection to a defendant's already existing Fifth and Sixth Amendment rights, statutes of limitations remain "the primary guarantee against bringing overly stale criminal charges." United States v. Marion, 404 U.S. 307, 322, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971) (discussing Sixth Amendment right to a speedy trial).

The Speedy Trial Act "requires that the trial of a criminal defendant commence within seventy days of the filing of the indictment, or from the date that the defendant

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first appears before a judicial officer, whichever is later." United States v. Gomez, 67 F.3d 1515, 1519 (10th Cir. 1995); 18 U.S.C. § 3161(c)(1).1 Subject to statutory exclusions, "[i]f a defendant is not brought to trial within the seventy-day deadline, dismissal of the indictment is mandatory." United States v. Doran, 882 F.2d 1511, 1517 (10th Cir. 1989).2 The "indictment shall be dismissed on motion of the defendant." United States v. Vaughn, 370 F.3d 1049, 1055 (10th Cir. 2004).

Nevertheless, the district court retains broad discretion whether to dismiss the indictment with or without prejudice. Doran, 882 F.2d at 1518. 18 U.S.C. § 3162(a) provides:

In determining whether to dismiss . . . with or without prejudice, the court shall consider, among others, each of the following factors: the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of this chapter and on the administration of justice.

Prejudice to the defendant is among the "other" factors the text of § 3162 directs the district court to consider. United States v. Taylor, 487 U.S. 326, 334, 108 S.Ct. 2413, 101 L.Ed.2d 297 (1988); see also id. at 344-46, 108 S.Ct. 2413 (Scalia, J. concurring). "[T]he application of the more severe sanction of dismissal with prejudice . . . should be reserved for more egregious violations." Cano-Silva, 402 F.3d at 1035.3 A violation of the speedy trial requirement, by itself, is not a sufficient basis for dismissal with prejudice. Id.

Based on the record before us, the district court did not err by dismissing the second indictment without prejudice.4

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First, as Abdush-Shakur concedes, attempted murder is a serious offense. Second, contrary to Abdush-Shakur's assertion, the delay between his initial appearance and his trial was not "completely due to the Government." (Appellant's Br. at 36.) It is true that the illness of government counsel contributed to the delay. See Cano-Silva, 402 F.3d at 1036 ("Whenever a Speedy Trial Act violation takes place, it is very likely that the government has made a mistake of some sort; in order to secure a dismissal with prejudice a defendant must do more than point to that mistake with rising indignation."). However, the government's behavior in this case was not egregious. There is no indication the government was dilatory or neglectful in its prosecution of Abdush-Shakur, or that it otherwise acted in bad faith. See Taylor, 487 U.S. at 338-39, 108 S.Ct. 2413. Indeed, at the hearing on Abdush-Shakur's motion to dismiss the Second Indictment, defense counsel agreed "all parties acted professionally." (R. Vol. IV at 51.) Moreover, as the district court pointed out, another important source of delay was three continuances requested by Abdush-Shakur and allowed by the court, but without the appropriate finding under § 3161(h) which would have excluded that time from inclusion in the computation of Abdush-Shakur's speedy trial calculation. The district judge took much of the blame for the delay;5 nevertheless, Abdush-Shakur must also shoulder his share of the responsibility for the delay.

Reprosecution of this case did not negatively affect the administration of justice. Abdush-Shakur concedes his incarceration throughout the proceedings was based on his sentence for the commission of another crime. Nor, as the district court pointed out, would penalizing the...

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