U.S. v. Graham

• Decision Date: 21 October 1997
• Docket Number: 96-3071,Nos. 96-3056,s. 96-3056
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Daniel GRAHAM (96-3056) and Paul Lee Duncan (96-3071), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 372

128 F.3d 372

UNITED STATES of America, Plaintiff-Appellee, v. Daniel GRAHAM (96-3056) and Paul Lee Duncan (96-3071),

Defendants-Appellants.

Nos. 96-3056, 96-3071.

United States Court of Appeals, Sixth Circuit.

Argued Aug. 8, 1997.

Decided Oct. 21, 1997.

James A. Wilson, Asst. U.S. Attorney (argued and briefed), U.S. Attorney Office, Dayton, OH, for United States of America.

Gordon Hobson (argued and briefed), Pamela Prude-Smithers (briefed), Federal Public Defender's Office, Columbus, OH, for Daniel C. Graham.

Suzanne N. Philbrick (argued and briefed), Portage, IN, for Paul Lee Duncan.

Before: KEITH, SILER, and MOORE, Circuit Judges.

KEITH, Circuit Judge.

On August 13, 1987, Paul Lee Duncan was indicted for commission of a RICO offense. The same day, Duncan and Daniel Graham were indicted for conspiracy to commit a RICO violation. Trial on the charges commenced on May 15, 1995. The jury found both men to be guilty as charged. Duncan was sentenced to two consecutive twenty-year terms of imprisonment. Graham was sentenced to fifteen years of imprisonment. Both men filed timely Notices of Appeal raising multiple issues. For the reasons discussed below, we REVERSE.

I.

The defendants were indicted as part of a burglary ring, which regularly broke into homes in several states and sold stolen merchandise taken from the homes. During the course of the burglaries, the group committed several assaults. One young woman was murdered. Testimony indicated that the members of the group all carried guns during the burglaries. Testimony also indicated that the group functioned according to a pattern: each member had a specialty, or job, during the burglaries, but all voted on which areas and houses to rob. They also jointly decided how to divide the stolen property, which was split equally among the members of the group. The investigation indicated that the group was responsible for approximately 300 burglaries over the course of a couple of years.

The first predicate act charged was burglary at the Merkle home. During this burglary, Roberta Peters was shot and killed. Her body was dumped down a slope behind the home. The home was ransacked, and various pieces of silver were stolen. Some of the stolen items were engraved with the family name. They were later recovered from a river nearby. Testimony indicated that the group disposed of the silver after the killing. Blood was found in the kitchen of the home, and a cartridge was found on the rear steps of the porch. This was matched to the bullet removed from Ms. Peters's head. The testimony at trial connected Duncan and Graham to the burglary, and Duncan to the shooting.

The second predicate act charged was a break-in at the Van Eck home. The group stole an extensive coin collection. The coins were identifiable by handwritten markings on the coin holders and on inventory lists. Search warrants for the defendants' residences were executed, and coins traceable to the burglary were recovered from both homes.

The third predicate act was a burglary at the home of James Williams, who ran a gold, silver, and coin business from his residence. His wife was at home during the burglary and was struck on the head three times with a heavy metal object. The testimony at trial connected the defendants to this burglary and established that Duncan was the individual who was responsible for beating Lynnea Williams.

The fourth predicate act charged involved Duncan and another co-defendant, James Stelts. Testimony at trial established that Stelts held a gun on the elderly woman who resided at the home. The resident was later tied up. The group stole jewelry and a coin collection. On the way out of the home, robbers took some fudgesicles from the refrigerator and threw the wrappers on the ground.

The indictments in this case issued in August of 1987. Trial on the indictment did not commence until May of 1995. Thus, the time between the indictment and the trial was almost eight years. The record illustrates that this incredible delay resulted from a number of things including numerous continuances, motions, delays in briefing, requests for extensions, discovery disputes, scheduling problems, attorney changes, and a significant delay caused by the state murder trial of co-defendant Stelts. The district court acknowledged the inordinately slow progress of the case, and the fact that the defense continued to raise the speedy trial issue. However, the record demonstrates that the district court failed to assert itself in an attempt to move the process along.

II.

The Constitution guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial...." U.S. Const., amend. VI. The right to a speedy trial is "one of the most basic rights preserved by our Constitution." Klopfer v. North Carolina, 386 U.S. 213, 226, 87 S.Ct. 988, 995, 18 L.Ed.2d 1 (1967). "The speedy-trial safeguard is premised upon the reality that fundamental unfairness is likely in overlong prosecutions." Dickey v. Florida, 398 U.S. 30, 54, 90 S.Ct. 1564, 1577, 26 L.Ed.2d 26 (1970).

However, the right to a speedy trial is also one of the more difficult Constitutional rights to address because it is, by nature, inexact. As the Supreme Court has noted, "[t]he right of a speedy trial is necessarily relative." Beavers v. Haubert, 198 U.S. 77, 87, 25 S.Ct. 573, 576, 49 L.Ed. 950 (1905). "Whether delay in completing a prosecution ... amounts to an unconstitutional deprivation of rights depends upon the circumstances." Pollard v. United States, 352 U.S. 354, 361, 77 S.Ct. 481, 485, 1 L.Ed.2d 393 (1957). This conception of the rights as a relative one flows from our recognition of the fact that "the ordinary procedures for criminal prosecution are designed to move at a deliberate pace." United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 776, 15 L.Ed.2d 627 (1966). Thus, each prosecution requires careful balancing of the desire to avoid undue speed and the need to prevent inordinate delay.

Careful consideration of the individual circumstances of a case necessitates an ad hoc approach to speedy trial cases. To assist courts in performing this balancing test, the Supreme Court has isolated four factors which courts must weigh in considering whether a defendant's right to a speedy trial has been violated: 1) the length of the delay; 2) the reason for the delay; 3) the defendant's assertion of right; and 4) prejudice suffered by the defendant as a result of the delay. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2191, 33 L.Ed.2d 101 (1972).

The first factor acts as a triggering mechanism. If the length of the delay is not so long as to give rise to a presumption of prejudice, the other factors need not be considered. Id. In this case, almost eight years passed between the indictment and trial. This delay is so extraordinary that it cannot be seriously contended that it was not presumptively prejudicial. Id. at 533, 92 S.Ct. at 2193 (five years between arrest and trial was "extraordinary"); see also United States v. Mundt, 29 F.3d 233, 235 (6th Cir.1994) (delay of three and a half years enough to satisfy the initial burden).

The second factor, the reason for the delay, requires the court to include in its analysis the fact that certain types of delays are not only acceptable, but vital to a fundamentally fair trial. Thus, the court must consider whether the reasons for the extraordinary delay are of a sort that work for the good of the accused, or against him. However, "the prosecutor and the court have an 'affirmative constitutional obligation' to try the defendant in a timely manner", and thus, the burden is on the prosecution to explain the cause of the pre-trial delay. Redd v. Sowders, 809 F.2d 1266, 1269 (6th Cir.1987) (quoting Atkins v. Michigan, 644 F.2d 543, 547 (6th Cir.1981)).

In the present case, every party bears some responsibility for elements of the delay. The government contends that the entire period of delay is attributable to the defendants because a motion filed by the defense was pending throughout most of the pre-trial period. However, this assertion overlooks the fact that progress on the motion was stymied by the government's refusal to turn over requested discovery materials. Because the government is entitled to withhold materials which it legitimately believes are not discoverable, the fault for this delay must fall on the district court. Ultimately, the court bears the responsibility of resolving discovery disputes of this sort. If the court had stepped in at any point in the eight year delay, the motion would not have been pending for such an extended amount of time. Further, the district court waited over one year to appoint new counsel...