U.S. v. Black

Decision Date18 March 2019
Docket NumberAugust Term, 2018,18-574-cr(XAP),18-548-cr(XAP),Docket Nos. 18-496-cr(L)
Citation918 F.3d 243
Parties UNITED STATES of America, Appellant–Cross-Appellee, v. Rodshaun BLACK, aka Rashaun Black, aka Shaun, Defendant-Appellee, Daniel Rodriguez, aka Danny, Ernest Green, aka Ern, Defendants-Appellees–Cross-Appellants.
CourtU.S. Court of Appeals — Second Circuit

MICHAEL P. FELICETTA, Assistant United States Attorney (Tiffany H. Lee, Assistant United States Attorney, on the brief), for James P. Kennedy, Jr., United States Attorney for the Western District of New York, Rochester, NY, for AppellantCross-Appellee.

DONALD M. THOMPSON, Easton Thompson Kasperek Shiffrin, LLP, Rochester, NY, for Defendant-Appellee Rodshaun Black.

BARRY N. COVERT, Lipsitz Green Scime Cambria LLP (Erin E. McCampbell, on the brief), Buffalo, NY, for Defendant-AppelleeCross-Appellant Daniel Rodriguez.

JESSE C. PYLE, Harrington & Mahoney (James P. Harrington, on the brief), Buffalo, NY, for Defendant-AppelleeCross-Appellant Ernest Green.

Before: NEWMAN and POOLER, Circuit Judges, and COTE, District Judge.

Judge Cote concurs in the judgment in part and dissents in part in a separate opinion.

POOLER, Circuit Judge:

The case before us treads on familiar ground—the fundamental protections for criminal defendants that are enshrined in the Sixth Amendment to the Constitution. Defendants-Appellees Rodshaun Black, Daniel Rodriguez, and Ernest Green (collectively, "Defendants-Appellees") were indicted on March 6, 2012, and charged with one count of Hobbs Act conspiracy. On March 7, 2012, prosecutors informed the district court that the case against Defendants-Appellees might become eligible for capital prosecution. Two years and nine months later, having not yet reached a decision on whether to seek the death penalty, the prosecution filed a superseding indictment that added new charges and accused Green and Black of an entirely new crime. On January 13, 2015—two years and ten months after the government informed Defendants-Appellees that they could face capital prosecution—the government decided that it would not seek the death penalty. With the nature of the case finally settled, it took another two years and ten months to bring Defendants-Appellees to trial. In all, Defendants-Appellees waited sixty-eight months for a trial.

Today we hold for the third time in two years that criminal defendants’ rights to a speedy trial have been violated in the Western District of New York. United States v. Tigano , 880 F.3d 602 (2d Cir. 2018) ; United States v. Pennick , 713 F. App'x 33 (2d Cir. 2017) (summary order). Defendants-Appellees endured an extraordinary sixty-eight-month delay, suffered anxiety occasioned by the government’s nearly three-year deliberation over whether to argue that they should be sentenced to death, and repeatedly requested a speedy trial. Accordingly, we AFFIRM the district court’s dismissal of the remaining charges against Defendants-Appellees because Defendants-Appellees’ rights to a speedy trial were violated.

BACKGROUND
I. Proceedings on the Original Indictment

On March 6, 2012, a grand jury indicted Rodshaun Black, Daniel Rodriguez, and Ernest Green on one count of Hobbs Act conspiracy. Rodriguez was arraigned on the charge on March 7, Green on March 9, and Black on March 13.

Although Black, Green, and Rodriguez were all confined in federal custody during the pendency of this case, each was detained under different circumstances. Black was serving a state sentence when he was arraigned on the federal charges; Green was arrested and detained on February 24, 2012, to answer to the charges in this case; and Rodriguez was at large at the time of the indictment and was subsequently arrested and detained on March 7, 2012.

A. The Government’s Death-Penalty Decision

During Rodriguez’s arraignment hearing on March 7, the government alerted the court that the case might become a capital case. Specifically, the prosecution informed the district court:

[T]here is the possibility if not [the] likelihood of additional charges down the road. ... [I]n terms of appointment of counsel, it could be a death penalty eligible case, Judge. So, no decisions have been made in that regard obviously, no charges have brought in that regard yet. But I would just urge the Court to appoint[ ] experienced counsel.

Gov’t App’x at 102. Thereafter, Black, Green, and Rodriguez were each appointed learned counsel.

Mindful of the government’s statements regarding death-eligible charges, the magistrate judge (to whom all pre-trial matters were referred) gave the parties until April 9, 2012, to complete discovery. But on the day discovery was scheduled to close, the government sought an extension to facilitate obtaining additional discovery from law-enforcement agencies and to accommodate the prosecutor’s vacation. The court granted a three-week extension until April 30, 2012, with pre-trial motions due on May 29, 2012.

With discovery in progress, Defendants-Appellees expressed concern that the pre-trial motion deadline would force them to submit motions before the government had issued its decision on whether to seek the death penalty, which would necessarily change the posture of the defense and impact Defendants-Appellees’ arguments in their motions. Therefore, on April 19, Black, Rodriguez, and Green requested adjournment of the pre-trial motion deadline until the government had issued its death-penalty decision. The court granted the motion and vacated the pre-trial motion deadlines, with the intention of setting new deadlines when it could assess the government’s progress on the death-penalty decision at a May 11, 2012, status conference. That status conference was subsequently postponed until May 17, 2012, because the government failed to produce the defendants.

At the May 17 conference, speedy trial concerns permeated the hearing. The government admitted that it had "not requested authorization from Washington" to seek the death penalty. Gov’t App’x at 126.

Nonetheless, the government simultaneously objected to Defendants-Appellees’ request to defer pre-trial motion practice until the government issued a notice of intent. "[T]he government should not be in a position to have to justify speedy trial exclusions when the government is more than ready and satisfied to proceed in this case with the schedule," the prosecutor informed the court. Gov’t App’x at 127. Defendants-Appellees indicated that they would be amenable to a limited exclusion of time from the speedy trial clock, but they remained hesitant to proceed with motions without a decision because if the government sought the death penalty, the defense would need to scrap existing motions and begin anew. Counsel for Green then noted, "My client has indicated to me that he will agree to a definite extension of the motion schedule, but he is anxious to have this case move along." Gov’t App’x at 132. Counsel for Rodriguez and Black echoed this concern. Striking a middle ground, the court extended the deadline for filing motions to July 28, 2012.

But by July 24, 2012—just four days before the deadline—the government still had not determined whether it would seek the death penalty. Defendants-Appellees therefore moved for an extension of time to file pre-trial motions pending the government’s decision, noting that the government had informed them that it expected to have a decision within sixty days. At a status conference on August 2, 2012, the government told the court that the decision might come in October. Nonetheless, Defendants-Appellees expressed a desire to press forward on the assumption that the government would not bring a superseding indictment. Heeding this request, the court made pre-trial motions due on September 28, 2012. Defendants-Appellees timely filed their motions, and after receiving a 10-day extension, the government responded to Defendants-Appellees’ motions.

At a December 4, 2012, hearing on the motions, the court again addressed Defendants-Appellees’ concerns about obtaining a speedy trial in the face of the government’s ever-pending death-penalty decision. The government refused to provide a timeline for its decision—noting, "Obviously my prediction games have been inaccurate so far, so I’m sort of hesitant to keep predicting." Gov’t App’x at 179. The government at first indicated that the Department of Justice was proceeding with the death-penalty process, but after further prodding from the court, it disclosed that, in fact, the prosecution had not met with the Department of Justice to discuss whether to seek the death penalty.

B. Delay Due to Missing Evidence

While the government contemplated its death-penalty decision, the parties engaged in extensive litigation regarding the unexplained disappearance of several of the photo arrays that law enforcement had shown to witnesses to identify Defendants-Appellees. Defendants-Appellees requested additional discovery and to suppress identification evidence on December 28, 2012. On February 5, 2013, with some of the arrays still missing, the court ordered the government to produce all photo arrays used to identify Defendants-Appellees. The government failed to produce one of the photo arrays that Rodriguez sought, and on March 11, 2013, the court directed the government to consult with the Buffalo Police Department again, which had previously claimed that the photo array used to identify Rodriguez was not in its possession.

On June 7, 2013, with little headway being made on locating the photo arrays, the court issued a scheduling order giving the government until June 21, 2013, to make supplemental disclosures related to the photo arrays. Then, on the day of the deadline, the government sought and obtained a two-week extension to make supplemental disclosures to accommodate the prosecutor’s military commitments.

On August 14, the court decided that an evidentiary hearing was necessary to resolve the pending pre-trial motions and...

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