United States v. Margheim
| Decision Date | 19 April 2012 |
| Docket Number | Criminal Case No. 10-cr-00326-PAB-17 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. 17. TERRY MARGHEIM, Defendant. |
| Court | U.S. District Court — District of Colorado |
This Order pertains to three separate matters before the court: (1) The Government's April 6, 2012, motion to continue the trial in this case by at least seven days on account of the unavailability of a key witness due to a medical condition (Doc. 2136)-a motion this Court granted on April 6 (Doc. 2137). (2) Margheim's April 10, 2012, motion to continue trial on account of the unavailability of Margheim's counsel immediately prior to trial, given the trial's new date (Doc. 2143)-a motion discussed and granted orally by the Court at the April 13, 2012, pretrial conference hearing, continuing trial by two additional weeks, such that it will now commence on May 14, 2012 (Doc. 2168). (3) Margheim's April 13, 2012, motion to dismiss based on alleged Speedy Trial Act ("STA") violations as well as alleged constitutional violations. (Doc. 2164.)
As discussed below, the Court hereby EXCLUDES seven days under the STA in relation to the first aforementioned continuance of trial; EXCLUDES fourteen additional days under the STA in relation to the second aforementioned continuance of trial; andDENIES Margheim's motion to dismiss.
The Court previously granted the Government's motion to continue the trial, set to begin on April 16, 2012. In doing so, the Court found that Special Agent Shane Abraham is an essential government witness, unavailable for one week in order to recover from necessary surgery. In light of those findings, which Margheim does not contest, the STA excludes seven days from the speedy trial clock. See 18 U.S.C. § 3161(h)(3); see United States v. Allen, 235 F.3d 482, 490-91 (10th Cir. 2000).
Additionally, the Court now excludes another fourteen days under the STA's ends-of-justice exclusion, 18 U.S.C. § 3161(h)(7), based on the request by Margheim and his counsel at the pretrial conference hearing on April 13, 2012. In doing so, the Court determines, based upon representations made to the Court during the hearing, that failure to exclude these fourteen additional days from the speedy trial clock would result in a miscarriage of justice and would not permit defense counsel sufficient time to prepare for trial, even in the exercise of due diligence, or to be available to his client immediately prior to trial, if the trial were not continued until May 14, 2012. See id. § 3161(h)(7)(B)(i), (iv).
On April 5, 2012, the Court denied Margheim's motion to dismiss this prosecution under the STA-a motion submitted on March 30, 2012, through counsel-based on the Government's delay in trying him. (Docs. 2117, 2128.) With the Court's permission atthe pretrial conference, Margheim has now filed a pro se motion to dismiss, again asserting that his trial, set for May 14, 2012, will violate the STA. (Doc. 2164.)
In light of the STA's exclusion of time attributable to co-defendants, see 18 U.S.C. § 3151(h)(6), Margheim's speedy trial clock did not begin to run until the last of his co-defendants made his initial appearance in this case, on May 24, 2011. See Henderson v. United States, 476 U.S. 321, 323 n.1 (1986); United States v. Mayes, 917 F.2d 457, 460 (10th Cir. 1990). Margheim makes two objections to starting his STA speedy trial clock on that date. First, he suggests that his joinder with the other thirty defendants charged in this case was improper. But § 3161(h)(6)'s exclusion of time attributable to co-defendants applies when "no severance has been granted." Here, Margheim has never moved to sever his trial from that of his co-defendants, and no hearing was ever granted. Thus, his objection on this ground is not persuasive.
Even if Margheim had sought a severance, however, that motion would have failed. Joinder of several defendants for trial is appropriate "if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses." Fed. R. Crim. P. 8(b). Here, the alleged December 10, 2009, drug sale underlying Count 131 charged against Margheim also forms the basis for Count 137 charged against his co-defendant, Carlos Morales-Gonzales. And the alleged January 22, 2010 drug sale underlying Count 132 charged against Margheim also forms the basis for Count 138 charged against Morales-Gonzales and Count 134 charged against their co-defendant, Skyler Valencia. Furthermore, although Margheim is not charged in the drug-trafficking conspiracy alleged in Count 1, theGovernment asserted it has evidence linking Margheim to actions taken by the conspirators charged in Count 1. Therefore, even if Margheim had timely moved to sever his trial from that of his co-defendants, that severance motion would have failed. See United States v. Caldwell, 560 F.3d 1202, 1212-13 (10th Cir. 2009).
Margheim's second objection to beginning his STA clock on May 24, 2011, is that the ten-month delay between his initial appearance, on July 14, 2010, and the time his final co-defendant made his initial appearance, on May 24, 2011, was unreasonable. Section 3161(h)(6) excludes only "reasonable" delay attributed to Margheim's co-defendants. See United States v. Vogl, 374 F.3d 976, 983-84 (10th Cir. 2004). Considering "all relevant circumstances" and, in particular, whether 1) Margheim is free on bond; 2) he zealously pursued a speedy trial; and 3) the circumstances accommodate the efficient use of prosecutorial and judicial resources in trying multiple defendants in a single trial, id. at 983, the Court concludes this delay was reasonable.
Although Margheim is not and was not free on bond since his arrest, that fact is not dispositive. See United States v. Olivo, 69 F.3d 1057, 1061 (10th Cir. 1995). Margheim filed two pro se motions seeking a speedy trial, but he did not file either of them during the ten-month time period between Margheim's initial appearance and that of his last co-defendant. Further, during this ten-month delay, Margheim successfully sought a 120-day ends-of-justice continuance and changed attorneys several times, necessitating some additional delay. See United States v. Tranakos, 911 F.2d 1422, 1426 (10th Cir. 1990) (considering similar circumstances). In considering the third Vogl factor, the Tenth Circuit advises that, "[w]here the government will recite a single factualhistory, put on a single array of evidence, and call a single group of witnesses, a single trial is preferred." Vogl, 374 F.3d at 983 (quotation omitted). That is the case here as to the related counts charged against Margheim, Morales-Gonzales, and Valencia.
Although Margheim's STA clock thus began to run on May 24, 2011, at that time his motion to suppress was pending. The STA excludes from the speedy trial calculation the time between when a motion is filed and the time the court conducts a hearing on that motion, without regard to the reasonableness of that period of delay. See 18 U.S.C. § 3161(h)(1)(D); see also Henderson, 476 U.S. at 326-30. Margheim's suppression motion was one on which the Court would ordinarily conduct a hearing, and Margheim indeed requested a hearing. But on November 21, 2011, defense counsel withdrew Margheim's suppression motion before the Court scheduled and conducted a hearing. That delay between May 24 and November 21, 2011, is excluded from the STA's speedy trial calculations.1 See United States v. Maxwell, 351 F.3d 35, 39-40 (1st Cir. 2003).
From November 21, 2011, to the start of trial, on May 14, 2012, 175 days will have elapsed.2 But the Government has 190 days to try Margheim based on theseventy days allotted by the STA, 18 U.S.C. § 3161(c)(1), and 120 days the Court previously excluded under the STA's ends-of-justice provision, id. § 3161(h)(7).3 And that 190-day time limit does not even take into account the additional twenty-one days excluded by the Court in this order.
For these reasons, Margheim's trial, now set to begin May 14, 2012, will not violate the STA.
(1) Sixth Amendment speedy trial claim
Criminal defendants have a constitutional right to a speedy trial under the Sixth Amendment. See Barker v. Wingo, 407 U.S. 514 (1972). Constitutional speedy trial claims are evaluated more holistically than their statutory counterparts under the STA, and involve a four-factor balancing test. See id. at 530-33. Barker's test is summarized as follows:
In determining whether a defendant's Sixth Amendment right to a speedy trial has been violated, a court must balance four factors: (1) the length of delay; (2) thereason for the delay; (3) the defendant's assertion of his right; and (4) any prejudice to the defendant. No one of the factors is necessary or sufficient to conclude a violation has occurred. Instead, the factors are related and must be considered together along with other relevant circumstances. The first factor, length of delay, functions as a triggering mechanism and the remaining factors are examined only if the delay is long enough to be presumptively prejudicial.
United States v. Toombs, 574 F.3d 1262, 1274 (10th Cir. 2009) (citation omitted).
With respect to the first factor, delay is measured from the date of a defendant's arrest or his indictment, whichever comes first. See United States v. Marion, 404 U.S. 307, 320 (1971). To trigger Barker analysis, the length of a delay must be both "presumptively prejudicial," and "unreasonable" in light of the specific charges in the case. United States v. Seltzer, 595 F.3d 1170, 1176 (10th Cir. 2010); see also Barker, 407 U.S. at 531. A delay of a year or more is "presumptively prejudicial." Seltzer, 595 F.3d at 1176. In this case, Margheim's indictment occurred roughly twenty-three months before his...
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