Date: 06-20-2018

Case Style:

Case Number: 17-1961

Judge: Lynch

Court: United States Court of Appeals for the First Circuit on appeal from the District of Massachusetts (Suffolk County)

Plaintiff's Attorney: Alexia R. De Vincentis and Andrew E. Lelling

Defendant's Attorney: Martin Weinberg

Description: Boston, MA - In this case, we affirm dismissal
of the added charge in a superseding indictment on Sixth Amendment
speedy trial grounds. On the facts of this case, we hold that the
constitutional speedy trial clock starts to run from the date of
the original indictment, rejecting the government's assertion that
it runs from the date of the charge first brought in the
superseding indictment. We also reject, on the facts presented,
the government's contention that the Double Jeopardy Clause and
the Due Process Clause are the only constitutional constraints as
to when it may file a superseding indictment that adds an
additional charge, and the Sixth Amendment plays no role.
I. Background
A. Facts
We draw the facts from the district court's findings,
which we accept unless they are clearly erroneous. See United
States v. Moreno, 789 F.3d 72, 78 (2d Cir. 2015) (citing Doggett
v. United States, 505 U.S. 647, 652-53 (1992); United States v.
Ghailani, 733 F.3d 29, 43-44 (2d Cir. 2013)); United States v.
Aviles-Sierra, 531 F.3d 123, 126 (1st Cir. 2008).
Handa co-owned and operated a luxury watch and jewelry
business, Alpha Omega Jewelers ("Alpha Omega"), which ran into
financial difficulties in 2007. United States v. Handa (Handa I),
266 F. Supp. 3d 443, 445 (D. Mass. 2017). In late 2007, Handa
began to experience severe "stress, anxiety, depression, and sleep
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deprivation." Id. at 446. He was admitted to the Lahey Clinic in
December 2007 after his wife found him unresponsive at home. Id.
Handa left the United States shortly thereafter, purportedly to
seek medical treatment in India. Id.
In 2008, Alpha Omega filed for bankruptcy. Id. During
Alpha Omega's bankruptcy proceedings in the District of
Massachusetts, Handa was represented by Massachusetts attorney
Edward J. Quinlan. Id. Also in 2008, Handa retained Edward
McLaughlin, another Massachusetts attorney, to represent him in
connection with the government's execution of a search warrant on
Alpha Omega. Id. McLaughlin communicated with federal prosecutors
to seek the return of Handa's personal belongings which were seized
during the search. Id. None of Handa, Quinlan, or McLaughlin
were informed that Handa had been charged in a criminal indictment
in March 2011. Id. Nearly six years later, Handa was arrested on
February 22, 2017, when he returned to the United States. Id. at
447.
Handa openly resided in India from December 2007 to March
2008. Id. at 446. He then stayed with his brother in England
until sometime in 2010 or 2011, at which point he permanently
relocated to India. Id. Handa retained his U.S. citizenship and
passport at all times during his residence overseas. Id.
Significantly, while living in India between 2012 and 2017, Handa
had numerous interactions with U.S. government agencies: he used
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his U.S. passport to access the U.S. embassy in New Delhi; renewed
his U.S. passport using his Indian address; and applied for Social
Security and Medicare benefits, which he began receiving in 2012
and 2014, respectively. Id. at 447.
On March 3, 2011, unbeknownst to Handa, a federal grand
jury had indicted him on twelve counts of wire fraud in violation
of 18 U.S.C. § 1343. Id. at 446. The indictment alleged that
Handa and others had made fraudulent inventory entries in Alpha
Omega's computer system in order to inflate the company's borrowing
base. These entries were then allegedly incorporated into Alpha
Omega's borrowing base certificates, which were used to obtain
additional financing from the subsidiaries of two banks: Bank of
America, N.A. and LaSalle Bank Midwest N.A. Id.
In April 2011, government agents contacted Handa's
daughter and "employed a ruse in an effort to learn of Handa's
whereabouts." Id. Handa's daughter told the agents that Handa
was spending time in Europe and India, and that they should contact
Quinlan. Id. The agents did not tell Handa's daughter about her
father's indictment. Id. Nor did they follow up with Quinlan to
inquire about Handa's whereabouts or to inform Quinlan about
Handa's indictment. Id.
Instead, in August 2011, the government applied to the
International Criminal Police Organization ("INTERPOL") for a Red
Notice, which allows INTERPOL to send an alert to member countries
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notifying them that the United States has issued an arrest warrant
for an individual. Id. at 446-47. The Red Notice for Handa was
issued on November 26, 2012. Id. at 447. The government took no
further action until March 2014, when INTERPOL-Washington
requested that INTERPOL-New Delhi check its databases to locate
Handa. Id. INTERPOL-New Delhi responded that it could not locate
Handa without Handa's Indian address and passport number. Id.
INTERPOL-Washington never provided the requested information to
INTERPOL-New Delhi.1 Id.
On February 22, 2017, Handa traveled to Los Angeles,
where he was arrested upon arrival. Id.
B. District Court Proceedings
Handa asserted his Sixth Amendment right to a speedy
trial during his arraignment on March 16, 2017, id., and filed his
motion to dismiss on speedy trial grounds on April 14, 2017.
On April 26, 2017, two days before its response to
Handa's motion to dismiss was due, the government filed a
superseding indictment. The superseding indictment contained the
same twelve wire-fraud counts as the original March 2011
indictment; significantly, it added a new count for bank fraud in
violation of 18 U.S.C. § 1344. The bank-fraud count alleged that
1 It is undisputed that at least one department of the
federal government was aware of Handa and had communicated with
him at his Indian address. See Handa I, 266 F. Supp. 3d at 447.
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Handa had defrauded "a federally-insured financial
institution . . . by causing fraudulent borrowing base
certificates to be submitted to LaSalle Bank Midwest, N.A. and
Bank of America, N.A. in order to induce LaSalle and Bank of
America to continue to extend Alpha Omega credit . . . ."
The government attempted to excuse the delay by saying
that the bank-fraud charge was the product of a new investigation,
which had managed to determine that Bank of America, N.A. and
LaSalle Bank Midwest N.A. were federally insured, and thus were
"financial institutions" under the bank-fraud statute. United
States v. Handa (Handa II), 270 F. Supp. 3d 442, 443 n.2 (D. Mass.
2017). On May 8, 2017, the government filed its response to
Handa's motion to dismiss the original indictment, to which Handa
filed a reply.
The district court granted Handa's motion to dismiss the
original indictment on July 19, 2017. Handa I, 266 F. Supp. 3d at
449. Applying the four-factor test from Barker v. Wingo, 407 U.S.
514 (1972), the district court first found that "the delay . . .
of nearly six years create[d] a presumption of prejudice and
justifie[d] further inquiry." Handa I, 266 F. Supp. 3d at 447.
It then found that the delay resulted from the government's
negligence, and that Handa had invoked his speedy trial right at
the "earliest possible time"; both findings weighed in Handa's
favor. Id. at 448. Finally, the district court rejected the
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government's argument that the presumption of prejudice was
rebutted by the government's assertion that the case would not
"depend[] heavily on eyewitness memory of events that occurred in
2007," reasoning that at least some witness testimony would be
required and that the nearly six-year post-indictment delay
"surely contributed to fading memories." Id. at 449.
On July 20, 2017, Handa moved to dismiss the bank-fraud
charge first introduced by the April 26, 2017 superseding
indictment on Sixth Amendment speedy trial grounds, arguing that
the entire period of time since the original indictment was the
applicable measure for the length of delay under the first Barker
factor. Handa also sought dismissal of the added bank-fraud charge
under the Fifth Amendment, on grounds of prosecutorial
vindictiveness and excessive pre-indictment delay. The government
opposed Handa's motions to dismiss.
On September 11, 2017, the district court also dismissed
the added bank-fraud count on Sixth Amendment speedy trial grounds,
without reaching Handa's Fifth Amendment claims. Handa II, 270 F.
Supp. 3d at 444-45. In doing so, the district court held that the
speedy trial clock for the bank-fraud charge started ticking upon
the return of the initial indictment in 2011. Id. at 445. It
cited our decision in United States v. Irizarry-Colón, 848 F.3d 61
(1st Cir. 2017), and the Supreme Court's decision in United States
v. Loud Hawk, 474 U.S. 302 (1986). See Handa II, 270 F. Supp. 3d
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at 444-45. The government has timely appealed only as to the
dismissal of the bank-fraud charge.
II. Discussion
On appeal, the government contends that, with respect to
the bank-fraud charge, the district court should have measured the
period of delay under the first Barker factor from the filing of
the superseding indictment in April 2017, not from the filing of
the initial indictment in March 2011. The government does not
challenge the district court's application of the second, third,
and fourth Barker factors. The government urges us to hold that
the bringing of any additional charge in a superseding indictment
resets the speedy trial clock, as it pertains to the additional
charge, unless Double Jeopardy -- or possibly Due Process --
principles would bar the prosecution of the additional charge.
A. Standard of Review
We have generally reviewed district court rulings on
speedy trial motions for abuse of discretion. Irizarry-Colón, 848
F.3d at 68 (citations omitted). We noted in Irizarry-Colón that
this practice "is in tension with the rules of other circuits, as
well as this circuit's standard of review when considering other
similar issues." Id. But we expressly declined to adopt a
different standard because we found that the district court in
that case committed an error of law, which "must be set aside even
under an abuse of discretion test." Id. (citing United States v.
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Bater, 594 F.3d 51, 54 n.1 (1st Cir. 2010)). We need not revisit
the issue now because the parties do not dispute that abuse of
discretion review applies.
B. The Sixth Amendment Speedy Trial Right
The Sixth Amendment speedy trial right is "generically
different from any of the other rights enshrined in the
Constitution for the protection of the accused." Barker, 407 U.S.
at 519. It recognizes a "general concern that all accused persons
be treated according to decent and fair procedures," id., "a
societal interest in providing a speedy trial," id., and the risk
that pretrial delay might result in witness unavailability and
fading memories, which may prejudice both defendants and
prosecutors, id. at 521. The Sixth Amendment speedy trial right
also serves to promote the interests of rehabilitation, minimize
the amount of time potentially dangerous individuals are free on
bond, "prevent oppressive pretrial incarceration," "minimize
anxiety and concern of the accused," and "shorten the disruption
of life caused by arrest and the presence of unresolved criminal
charges." Id. at 519-531, 532; Loud Hawk, 474 U.S. at 311.
To determine whether a defendant has been deprived of
the Sixth Amendment right to a speedy trial, we look to the four
Barker factors, which include the length of delay; the reason
assigned by the government for the delay; the defendant's
responsibility to assert his right; and prejudice to the defendant,
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particularly "to limit the possibility that the defense will be
impaired," Barker, 407 U.S. at 530, 532. Irizarry-Colón, 848 F.3d
at 67.
The first Barker factor, the length of delay, is "a
double enquiry," Doggett, 505 U.S. at 651, serving both as "a
triggering mechanism for the rest of the [speedy trial] analysis,
and a factor in that analysis." United States v. Carpenter, 781
F.3d 599, 609 (1st Cir. 2015) (citing United States v. Souza, 749
F.3d 74, 81 (1st Cir. 2014)). To invoke the Sixth Amendment speedy
trial inquiry, a defendant must allege that the time between
accusation -- whether by arrest or indictment -- and trial "has
crossed the threshold dividing ordinary from 'presumptively
prejudicial' delay." Irizarry-Colón, 848 F.3d at 68 (quoting
Doggett, 505 U.S. at 651-52); see also United States v. Muñoz-
Amado, 182 F.3d 57, 61 (1st Cir. 1999). If the defendant makes
this showing, we "then consider, as one factor among several, the
extent to which the delay stretches beyond the bare minimum needed
to trigger judicial examination of the claim." Irizarry-Colón,
848 F.3d at 68 (emphasis added) (quoting Doggett, 505 U.S. at 652).
While "[t]here is no bright-line time limit dividing the lengths
that trigger further Barker inquiry from those that do not," a
"[d]elay of around one year is considered presumptively
prejudicial, and the presumption that delay prejudices the
defendant 'intensifies over time.'" Id. (first quoting United
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States v. Dowdell, 595 F.3d 50, 60 (1st Cir. 2010), then quoting
Carpenter, 781 F.3d at 610).
Here, assuming that the speedy trial clock for the bankfraud
charge started running upon the filing of the original
indictment in March 2011, the resulting six-and-a-half-year delay2
would not only trigger the speedy trial inquiry, but also create
a strong presumption of prejudice to Handa under the fourth Barker
factor. See Doggett, 505 U.S. at 652; Barker, 407 U.S. at 533
(describing delay of over five years as "extraordinary"). However,
if the April 2017 superseding indictment reset the speedy trial
clock as to the bank-fraud charge, the resulting delay would be
fewer than five months, which may be insufficient even to trigger
further Barker analysis.
For the reasons that follow, we measure the length of
delay here from the return of the original indictment in March
2011 to the district court's September 2017 dismissal of the bankfraud
charge.
2 We deem the end date for purposes of measuring the length
of delay to be the district court's dismissal of the bank-fraud
charge on September 11, 2017. See Loud Hawk, 474 U.S. at 306,
310, 314 (measuring length of delay from the filing of the initial
indictment to the district court's dismissal of the superseding
indictment); United States v. Seltzer, 595 F.3d 1170, 1176 (10th
Cir. 2010) (same); United States v. Brown, 169 F.3d 344, 349 n.3
(6th Cir. 1999) (same).
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C. The Start Date for Calculating the Length of Delay
Handa argues that our decision in Irizarry-Colón and the
Supreme Court's decision in Loud Hawk preclude the prosecution's
argument as to which is the appropriate start date. We do not
agree, and explain why.
In Irizarry-Colón, the government filed four separate
indictments against the defendant, who challenged the fourth
indictment on, inter alia, Sixth Amendment speedy trial grounds.
848 F.3d at 64. We held that "the district court should count the
entire period of time since the first indictment when calculating
the length of delay for the first Barker factor." Id. at 70. But
the fourth indictment in that case contained the same charges,
less two counts, as the first indictment. Id. at 64. As such, we
had no occasion to consider whether a subsequent indictment
bringing additional charges resets the Sixth Amendment speedy
trial clock as to those charges.
It is true that the Irizarry-Colón panel predicated its
holding on Loud Hawk, see id. at 69, in which the Supreme Court
calculated the period of delay under the first Barker factor using
the date of the initial indictment as the starting point, even
though the government had filed superseding indictments bringing
new charges, Loud Hawk, 474 U.S. at 306-10, 314. However, the
Court in Loud Hawk appeared to simply adopt the period of delay
used by the lower courts, rather than engage in an analysis of the
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impact, if any, of the new charges on the speedy trial clock.3 See
id. at 314. The holding in Loud Hawk was that (1) time periods
during which defendants remain unindicted and free of other
"substantial restrictions on their liberty" and (2) time consumed
by interlocutory appeals should be given no weight under the second
Barker factor, the reason for delay. See id. at 312, 316-17.
Consequently, we do not view Loud Hawk as dispositive of
the issue in this case. See Texas v. Cobb, 532 U.S. 162, 169
(2001) ("Constitutional rights are not defined by inferences from
opinions which did not address the question at issue."); Brecht v.
Abrahamson, 507 U.S. 619, 630-31 (1993) (holding that, although
the Court had applied the harmless-error standard set forth in
Chapman v. California, 386 U.S. 18 (1967), to "a handful of federal
habeas cases," it was not bound to the conclusion that harmless
error applied to collateral review because it had not "squarely
addressed the issue, and . . . at most assumed the applicability
of the Chapman standard on habeas"); United States v. Starks, 861
F.3d 306, 322-23 (1st Cir. 2017) (finding that the language of a
prior First Circuit opinion was nonbinding dicta because the prior
decision "did not address the precise issue before th[e] panel").
3 The government argued in its brief in Loud Hawk that the
length of the delay under the first Barker factor should not have
included any of the time during which an interlocutory appeal was
pending or while there was no indictment in place. Brief for
Petitioner at 10-14, Loud Hawk, 474 U.S. 302 (No. 84-1361), 1985
WL 669583, at *19-36.
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While neither Irizarry-Colón nor Loud Hawk controls,
both decisions are of a piece with a significant number of cases
in which courts have measured the period of delay under the first
Barker factor from the date of a defendant's initial accusation,
even where a superseding indictment introduced new charges.
Most telling is our decision in United States v. Worthy,
772 F.3d 42 (1st Cir. 2014). The defendant there was arrested
and, less than two weeks later, indicted for participating in a
conspiracy to possess cocaine with the intent to distribute. Id.
at 44. The government filed a total of four superseding
indictments, which "added new counts" and in some instances
"changed the type of substance involved." Id. We calculated the
length of delay under the first Barker factor as the period between
the date of the defendant's arrest and the scheduled start date
for trial, without extensive discussion. See id. at 48. We did,
however, acknowledge the fact that the superseding indictments
contained new charges when discussing the second Barker factor.
Id. at 49 n.10.
Sixth Amendment case law from a number of other circuits,
which is not binding on us but is informative, reflects the same
view we took in Worthy of how to calculate the start date for
counting delay. See, e.g., United States v. Black, 830 F.3d 1099,
1103 n.1, 1106 n.11, 1112 (10th Cir. 2016) (measuring delay from
original indictment where original indictment charged the
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defendant with conspiring to distribute over five kilograms of
cocaine and fourth superseding indictment replaced that charge
with one count of "conspiring to distribute a mixture and substance
containing a detectable amount of cocaine"); United States v.
Battis, 589 F.3d 673, 675-76, 679 n.5 (3d Cir. 2009) (holding that
the filing of a superseding indictment did not "restart[] the
constitutional speedy trial clock" where the superseding
indictment added an ammunition-possession charge to the firearmpossession
charge in the original indictment); United States v.
Jeanetta, 533 F.3d 651, 653-54, 656 (8th Cir. 2008) (measuring
delay from original indictment where superseding indictment added
weapons charges to initial charges of conspiracy to possess and
possession with intent to distribute methamphetamine); United
States v. Oriedo, 498 F.3d 593, 597-98 (7th Cir. 2007) (measuring
delay from original indictment where second superseding indictment
added five counts of knowingly and intentionally distributing
cocaine base to initial charge for conspiracy to distribute and to
possess with intent to distribute crack cocaine); United States v.
Milhim, 702 F.2d 522, 523, 525 (5th Cir. 1983) (measuring delay
from original indictment where superseding indictment added
conspiracy and obstruction-of-justice charges to original charge
for possession of counterfeit money).4
4 A recent case from the Sixth Circuit is to the same
effect. See United States v. Young, No. 3:98-00038, 2005 WL
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In opposition, the government makes a number of
arguments. It first cites three distinguishable cases from other
circuits. Those cases are United States v. Nixon, 634 F.2d 306
(5th Cir. Jan. 1981); United States v. DeTienne, 468 F.2d 151 (7th
Cir. 1972); and United States v. Derose, 74 F.3d 1177 (11th Cir.
1996).
In Nixon, the defendant was originally arrested for
counterfeiting, and the government voluntarily dismissed the
counterfeiting charge five months after the arrest. 634 F.2d at
308. Years later, the defendant perjured himself in front of a
grand jury when he was called to testify as part of a renewed
investigation into the alleged counterfeiting. Id. The defendant
was then indicted for perjury. Id. The Fifth Circuit held that
the speedy trial clock for the perjury claim ran from the date of
3417305 (M.D. Tenn. Dec. 13, 2005), aff'd, 657 F.3d 408 (6th Cir.
2011). The district court in Young resolved "whether the speedy
trial analysis should begin when [the defendant] was arrested by
the State of Oklahoma, initially indicted by the Federal Government
on a drug [conspiracy] charge, or [later] indicted by the
Government on federal murder charges [in a superseding
indictment]." Id. at *3. The court first held that a state arrest
does not start the speedy trial clock for a federal action. Id.
at *4; see United States v. MacDonald, 456 U.S. 1, 10 n.11 (1982).
It then held that, with respect to the federal indictments, "the
speedy trial clock is not offense specific," and as such, "the
analysis must start at the first instance of federal charges
brought against the Defendant: at the [first federal indictment]
containing the drug conspiracy charge." Young, 2005 WL 3417305,
at *4. The Sixth Circuit upheld the district court's decision in
Young, and used the same period of delay as the district court in
assessing the defendant's speedy trial claim on appeal. See Young,
657 F.3d at 414.
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the perjury indictment, not the date of the defendant's initial
arrest for counterfeiting. Id. at 308-09.
In DeTienne, the defendant was initially arrested
pursuant to a federal unlawful-flight warrant, which was issued in
relation to state charges. 468 F.2d at 154. The defendant was
later indicted on unrelated federal charges. Id. The court held
that Sixth Amendment speedy trial protection for the federal
charges was triggered by the federal indictment, not the initial
arrest. Id. at 155.
And in Derose, the defendants were initially arrested
for conspiring to possess marijuana with intent to distribute. 74
F.3d at 1180. A year later, the district court dismissed the
conspiracy charge on the government's motion. Id. Nearly another
year later, the government obtained an indictment recharging the
defendants with one count of conspiracy and adding a new count:
possession of marijuana with intent to distribute. Id. The
Eleventh Circuit held that the Sixth Amendment speedy trial clock
for the possession charge started running upon the filing of the
two-count indictment, rather than upon the initial arrest. Id. at
1184-85. In doing so, the Eleventh Circuit reasoned that
"[n]otwithstanding the fact that proof of the possession charge
relied on the same facts that supported the conspiracy charge,
possession is a distinct and separate offense." Id. at 1185.
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According to the government, these cases stand for the
proposition that we should adopt the following rule: an additional
charge resets the speedy trial clock as to that charge so long as,
under Double Jeopardy principles, the additional charge is not for
the "same offense"5 as one of the original charges. We reject that
argument.
It is worth repeating that the Sixth Amendment speedy
trial right is "generically different from any of the other rights
enshrined in the Constitution for the protection of the accused."
Barker, 407 U.S. at 519. And the Double Jeopardy bar has its own
unique "historical roots." Dixon, 509 U.S. at 704. As such, we
approach with skepticism the government's call for us to import
Double Jeopardy principles into our Sixth Amendment speedy trial
jurisprudence.
The government highlights the fact that some circuits
have adopted a version of its proposed rule in the context of
interpreting certain provisions of the Speedy Trial Act ("STA").6
See, e.g., United States v. Thomas, 726 F.3d 1086, 1091 (9th Cir.
5 To determine whether two offenses are the same for Double
Jeopardy purposes, a court looks to "whether each offense contains
an element not contained in the other." United States v. Dixon,
509 U.S. 688, 696 (1993). If not, they are the same offense, and
the Double Jeopardy bar applies. Id.
6 We reiterate that our decision is limited to the
constitutional speedy trial clock. We express no view as to
whether the same principles could be applied to the STA.
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2013) (holding that charges in a superseding indictment that are
not required to be joined with the original charges under Double
Jeopardy principles "come with a new seventy-day clock" under
section 3161(c)(1) of the STA); United States v. Alford, 142 F.3d
825, 829 (5th Cir. 1998) (same); United States v. Marshall, 935
F.2d 1298, 1301-02 (D.C. Cir. 1991) (same).
Our law is clear that the Sixth Amendment protects a
defendant's interest in a speedy trial "in a manner that does not
necessarily track that of the more mechanistic statutory rules set
forth in the [STA]." Irizarry-Colón, 848 F.3d at 67. For example,
the total elapsed time since a defendant's indictment or arrest
-- which is central to the Sixth Amendment speedy trial inquiry
-- has no bearing on the STA analysis as long as trial commences
within seventy nonexcludable days from the date the defendant
appears before the court. See 18 U.S.C. § 3161(c)(1); Irizarry-
Colón, 848 F.3d at 65. And while prejudice to the defendant is an
essential consideration in evaluating whether there has been a
deprivation of the defendant's Sixth Amendment speedy trial right,
see Barker, 407 U.S. at 530, it is wholly irrelevant to determining
whether the STA has been violated, United States v. Scalf, 760
F.2d 1057, 1060 n.2 (10th Cir. 1985).
The latter distinction is an important one. The Sixth
Amendment Speedy Trial Clause protects the accused against a number
of harms associated with a delay between accusation and trial,
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including "'oppressive pretrial incarceration,' 'anxiety and
concern of the accused,' and 'the possibility that the [accused's]
defense will be impaired' by dimming memories and loss of
exculpatory evidence." Doggett, 505 U.S. at 654 (quoting Barker,
407 U.S. at 532). Of these harms, "the most serious is the last,
because the inability of a defendant adequately to prepare his
case skews the fairness of the entire system." Id. (quoting
Barker, 407 U.S. at 532).
Under the government's proposed rule, the bringing of an
additional charge in a superseding indictment would reset the
speedy trial clock even if the additional charge is based on the
exact same conduct as that underlying a previous charge, as long
as the added charge is not for the "same offense" as the old
charge. But the prejudice to defendants associated with "dimming
memories" and the "loss of exculpatory evidence" is often caused
-- and exacerbated -- by the passage of time between the original
charges and trial. Moreover, because the government's proposed
rule implicates the threshold inquiry under the first Barker
factor, the filing of an additional charge in a new indictment
under that rule would completely foreclose judicial examination of
a defendant's Sixth Amendment speedy trial claim, including any
examination of the particular prejudice suffered by the defendant
(the fourth Barker factor), or the reasons for the government's
delay (the second Barker factor). See id. at 652. As a
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consequence, if Double Jeopardy principles were the only
constraint on the government's ability to reset the Sixth Amendment
speedy trial clock's start date, it would be too easy for the
government to circumvent the Sixth Amendment Speedy Trial Clause's
most important protective purpose by bringing additional charges.
That is especially so considering the multitude of federal crimes
that may arise out of the same conduct. Cf. Cobb, 532 U.S. at 177
(Breyer, J., dissenting) ("[C]riminal codes are lengthy and highly
detailed, often proliferating 'overlapping and related statutory
offenses' to the point where prosecutors can easily 'spin out a
startlingly numerous series of offenses from a single . . .
criminal transaction.'" (quoting Ashe v. Swenson, 397 U.S. 436,
445 n.10 (1970))).
We reject the government's assertion that defendants in
such scenarios must rely only on the protections provided by
statutes of limitations and the Fifth Amendment Due Process
Clause's prohibition of prejudicial pre-indictment delay. That
statutes of limitations and the Fifth Amendment, on the one hand,
and the Sixth Amendment Speedy Trial Clause, on the other, might
provide overlapping protection in some instances provides no
justification for nullifying the latter's unique safeguards.
It strikes us that the start-date question is not subject
to per se rules -- e.g., that the date of the original indictment
is always the start date, or that it is never the start date when
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a new indictment adds charges. In our view, the Sixth Amendment
inquiry requires careful consideration of all the factual
circumstances presented. See Barker, 407 U.S. at 522 (noting that
the Sixth Amendment speedy trial right is "necessarily relative"
and that "any inquiry into a speedy trial claim necessitates a
functional analysis of the right in the particular context of the
case" (quoting Beavers v. Haubert, 198 U.S. 77, 87 (1905))). With
that in mind, we articulate two types of circumstances, both
present here, which affect the determination of the start date of
the length-of-delay calculation for Sixth Amendment speedy trial
purposes.
We hold, on these facts, that the bringing of the
additional charge does not reset the Sixth Amendment speedy trial
clock to the date of a superseding indictment where (1) the
additional charge and the charge for which the defendant was
previously accused are based on the same act or transaction, or
are connected with or constitute parts of the common scheme or
plan previously charged, and (2) the government could have, with
diligence, brought the additional charge at the time of the prior
accusation7.8
7 Any additional delay caused by the government's further
investigation into the crimes alleged in the new indictment would,
of course, be properly considered under the second Barker factor:
the reason for the delay.
8 The outcomes of both Nixon and DeTienne are consistent
with this principle. In Nixon, the conduct underlying the perjury
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Here, the same act or transaction, or common scheme or
plan -- the fraudulent inflation of inventory to secure financing
from banks -- undergirds both the bank-fraud charge in the
superseding indictment and the wire-fraud charges in the original
indictment. The government also could have, with diligence,
brought the bank-fraud charge in March 2011, as the district court
permissibly found. Of course, in evaluating the defendant's Sixth
indictment was wholly separate from -- and postdated -- the conduct
underlying the defendant's counterfeiting arrest. 634 F.2d at
308. Moreover, the government could not have brought the perjury
charge at the time of the defendant's original arrest, because the
perjury occurred later. Id. Similarly, in DeTienne, the
defendant's federal charges were completely unrelated to his state
charges. 468 F.2d at 154.
While our holding may be inconsistent with the result in
Derose, we view that case as having limited persuasive force, given
that it appears to have turned on a misreading of the Supreme
Court's decision in Dillingham v. United States, 423 U.S. 64 (1975)
(per curiam). Compare Derose, 74 F.3d at 1184 (attempting to
distinguish Dillingham on the basis that the defendant in
Dillingham was indicted on the same charges for which he was
arrested), with United States v. Palmer, 502 F.2d 1233, 1234 (5th
Cir. 1974) (stating that the defendant in Dillingham was arrested
for a single violation of the Dyer Act, but that he was indicted
for fifteen charges including violations of both the Dyer Act and
the general federal conspiracy statute), rev'd sub nom.,
Dillingham, 423 U.S. 64. Moreover, to the extent that the Eleventh
Circuit found the district court's dismissal of the conspiracy
charge to be dispositive with respect to the first Barker factor,
see Derose, 74 F.3d at 1185, such reasoning is arguably
inconsistent with Loud Hawk. See 474 U.S. at 312, 314 (including
the time during which the charges against defendants were dismissed
and the defendants remained free from arrest in the period of delay
under the first Barker factor, but giving such time no weight under
the second Barker factor).
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Amendment speedy trial claim, the other Barker factors must be
considered as well. They have been here.
The government contended to the district court that it
"did not have the requisite evidence to charge bank fraud" at that
time because it could not establish whether Bank of America, N.A.
and LaSalle Bank Midwest N.A., the corporate parents of the
entities that provided financing to Alpha Omega, were "federally
insured." Handa II, 270 F. Supp. 3d at 443 n.2. The district
court supportably rejected this contention as being belied by the
record, given that the original indictment alleged that the two
parent corporations were "national bank[s]," and the government's
2008 application for a search warrant of Alpha Omega included an
affidavit from a government agent referring to both "LaSalle Bank"
and "Bank of America" as "federally insured financial
institution[s]," id.
Accordingly, the period of delay for the bank-fraud
charge is measured here from the filing of the initial indictment
on March 3, 2011. The resulting six-and-a-half-year delay is more
than enough to trigger further speedy trial inquiry, and because
the government does not challenge the district court's analysis of
the remaining Barker factors, we find no abuse of discretion in
the district court's conclusion that Handa was deprived of his
Sixth Amendment right to a speedy trial with respect to the bankfraud
charge.

Outcome: The district court's dismissal of Count 13 of the
superseding indictment is affirmed.

Plaintiff's Experts:

Defendant's Experts:

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