FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 23, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-3072
(D.C. Nos. 5:13-CV-04022-JAR &
ALBERT LAWRENCE VAUGHAN, 5:05-CR-40157-JAR-1)
(D. Kan.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, LUCERO, and McHUGH, Circuit Judges.
_________________________________
Defendant Albert Lawrence Vaughan, currently serving a 198-month sentence
for bank robbery, filed a notice of appeal from the district court’s dismissal of his
28 U.S.C. § 2255 motion to vacate, set aside, or correct sentence. We granted a
certificate of appealability (COA) and appointed counsel to represent him on one
issue: his claim that his trial counsel was ineffective for failing to seek dismissal
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
based on his constitutional right to a speedy trial. We have jurisdiction under
28 U.S.C. § 1291 and affirm.
I. BACKGROUND
Vaughan was indicted in the federal District of Nevada in July 2005 on five
counts of bank robbery. He was suspected of robbing banks in several states, and
confessed to many of those robberies, but denied robbing any banks in Kansas. The
Government offered Vaughan a global plea deal which would cover all suspected
robberies, but Vaughan rejected it because he refused to plead guilty to any crime
related to a Kansas robbery. Vaughan remained in custody during the Nevada
prosecution and pleaded guilty in April 2007. On September 28, 2007, he was
sentenced in the District of Nevada to 78 months’ imprisonment.
On October 16, 2007, two weeks after his Nevada sentencing, Vaughan was
arrested for a Kansas bank robbery. He learned that two years earlier, on December
28, 2005, the Government had indicted him for robbing the Kansas bank on October
15, 2004. Vaughan was arraigned and appointed counsel in the District of Kansas on
October 18, 2007. It was undisputed before the district court that Vaughan was
unaware of the Kansas indictment until he was arrested on October 16, 2007, and was
unaware of any possible Kansas prosecution after he rejected the global plea deal.1
1
Prior to the grant of COA, the Government never disputed Vaughan’s
assertion that he was unaware of the indictment until his arrest. For the first time on
appeal the Government now argues that Vaughan was aware that the Government
intended to prosecute him in Kansas, even if he was unaware of the indictment. It
also filed a motion to supplement the record with new evidence not presented below,
(continued)
2
Vaughan’s counsel did not move to dismiss the indictment on speedy-trial grounds.
Vaughan was ultimately convicted for the Kansas robbery and sentenced to 198
months, 120 months to be served consecutively to his Nevada sentence. This court
affirmed Vaughan’s conviction on grounds unrelated to his § 2255 ineffective-
assistance-of-counsel claim. United States v. Vaughan, 450 F. App’x 757 (10th Cir.
2011).
The district court denied Vaughan’s § 2255 motion without an evidentiary
hearing. In relevant part, it ruled that Vaughan failed to show that the court probably
would have granted a motion to dismiss the indictment on constitutional speedy-trial
grounds, had his attorney filed such a motion. The district court concluded there was
a greater than ordinary delay, but the Government had justifiably delayed the Kansas
prosecution awaiting completion of the Nevada prosecution, Vaughan failed to assert
his speedy trial rights, and he failed to make a particularized showing that he was
prejudiced by the delay.
which appears to show it transmitted a detainer against Vaughan to the District of
Nevada on December 29, 2005, but which does not establish that the detainer was
received or that Vaughan ever knew of the detainer. The Government offers no
explanation why it did not present this evidence to the district court. Absent
extraordinary circumstances, we do not consider evidence presented for the first time
on appeal. Nulf v. Int’l Paper Co., 656 F.2d 553, 559 (10th Cir. 1981). We conclude
the government’s motion to supplement the record on appeal does not present a “rare
exception to Federal Rule of Appellate Procedure 10(e),” United States v. Toombs,
713 F.3d 1273, 1281 (10th Cir. 2013) (internal quotation marks omitted), and it
therefore is denied. See Doggett v. United States, 505 U.S. 647, 653 (1992) (stating
“[t]he Government goes against the record again in suggesting that [the defendant]
knew of his indictment years before he was arrested” where it failed to present such
evidence below, and declining the Government’s attempt “to revisit the facts”).
3
II. DISCUSSION
“We review the district court’s legal rulings on a § 2255 motion de novo and
its findings of fact for clear error. A claim for ineffective assistance of counsel
presents a mixed question of fact and law, which we review de novo.” United States
v. Orange, 447 F.3d 792, 796 (10th Cir. 2006) (citation omitted).
A. Constitutional Speedy-Trial Rights. The Sixth Amendment guarantees
defendants in all criminal prosecutions “the right to a speedy and public trial.” U.S.
Const. amend. VI. This right “attaches when he is arrested or indicted on federal
charges, whichever comes first.” United States v. Banks, 761 F.3d 1163, 1181
(10th Cir.), cert. denied, 135 S. Ct. 308 (2014). Under the Constitution, “[t]he right
of a speedy trial is necessarily relative,” and cannot “be quantified into a specified
number of days or months.” Barker v. Wingo, 407 U.S. 514, 522-23 (1972) (internal
quotation marks omitted). To determine whether this right has been violated, we
consider (i) the length of the delay, (ii) the reason for the delay, (iii) whether the
defendant asserted his right to a speedy trial, and (iv) whether the delay prejudiced
the defendant. Id. at 530. “This is a balancing test, so none of the factors is itself
necessary or sufficient to conclude that the Sixth Amendment speedy trial right has
been violated.” United States v. Hicks, 779 F.3d 1163, 1167 (10th Cir. 2015)
(bracket and internal quotation marks omitted). The factors are related and must be
considered together along with other relevant circumstances. Barker, 407 U.S.
at 533.
4
1. Length of Delay. “[T]o trigger a speedy trial analysis, an accused must
allege that the interval between accusation and trial has crossed the threshold
dividing ordinary from ‘presumptively prejudicial’ delay.” United States v. Seltzer,
595 F.3d 1170, 1176 (10th Cir. 2010) (quoting Doggett v. United States, 505 U.S.
647, 651-52 (1992)). “The general rule is that the speedy trial right attaches when
the defendant is arrested or indicted, whichever comes first.” Id. (internal quotation
marks omitted). “Delays approaching one year generally satisfy the requirement of
presumptive prejudice,” though “a court should take into consideration the nature of
the charges.” Id. (internal quotation marks omitted).
It is undisputed that there was a 22-month delay between the time Vaughan
was indicted and when he was notified of the indictment and arrested.2 “Two years is
twice the time presumed to be ordinary.” Id. at 1176. We agree with the district
court’s conclusion that this factor would have weighed in Vaughan’s favor had his
counsel raised a speedy-trial challenge. See United States v. Batie, 433 F.3d 1287,
1290 (10th Cir. 2006) (finding a 17-month delay for an armed bank robbery case
presumptively prejudicial).
2. Reason for the Delay. “The second factor, the reason for the delay, is
especially important, and the burden is on the government to provide an acceptable
rationale for the delay.” Banks, 761 F.3d at 1183 (internal quotation marks omitted);
2
There was more than a four-year delay between Vaughan’s indictment and
trial, but Vaughan did not challenge the post-arrest delay in his § 2255 motion or
COA application; thus, we consider only the pre-arrest 22-month delay.
5
see also United States v. Ingram, 446 F.3d 1332, 1337 (11th Cir. 2006) (“Because the
prosecutor and the court have an affirmative constitutional obligation to try the
defendant in a timely manner . . . the burden is on the prosecution to explain the
cause of the pre-trial delay.” (internal quotation marks omitted)). The Supreme Court
has held that “different weights should be assigned to different reasons” for the
delay. Boyer v. Louisiana, 133 S. Ct. 1702, 1706 (2013) (internal quotation marks
omitted). “A deliberate attempt to delay the trial in order to hamper the defense is
particularly serious, and should be weighted heavily against the government.” Id. at
1706 (internal quotation marks omitted). “[N]egligence is . . . to be weighed more
lightly . . . [but] still falls on the wrong side of the divide between acceptable and
unacceptable reasons” for delay. Doggett, 505 U.S. at 657.
The Government argued before the district court that “the delay in arresting
[Vaughan] . . . was due entirely to the fact that he was being prosecuted on federal
bank robbery charges in the District of Nevada.” R. Vol. 1, at 105. It relied upon a
Seventh Circuit case which held that “[i]t is generally accepted that a delay
occasioned by the prosecution of the defendant in another jurisdiction is not a basis
for a dismissal on constitutional speedy-trial grounds.” United States v. Ellis,
622 F.3d 784, 791 (7th Cir. 2010). The Government added that “no evidence in [the]
record suggests that the [G]overnment was dragging its feet, procured the delay for
tactical reasons, or was otherwise at fault,” R. Vol. 1, at 105-06, noting that Vaughan
was promptly arrested and brought to Kansas for arraignment as soon as the Nevada
6
prosecution was completed. The district court concluded that the reason for the delay
weighed in favor of the government. We disagree.
First, the Government’s argument failed to take into account Tenth Circuit
law. In Seltzer, this court declined to adopt a broad holding, such as the Seventh
Circuit’s in Ellis, that deferring arrest or arraignment pending completion of
proceedings in another jurisdiction is necessarily a justifiable reason for delay. 595
F.3d at 1178. We recognized that “awaiting the completion of another sovereign’s
prosecution may be a plausible reason for delay in some circumstances, but that does
not necessarily mean that it is a justifiable excuse in every case.” Id. Thus, we held
“it is the government’s burden to explain why such a wait was necessary in a
particular case. In other words, the government must make a particularized showing
of why the circumstances require the conclusion of [the other jurisdiction’s]
proceedings before the [instant] proceedings can continue.”3 Id.
The Government failed to make such a showing before the district court. It
presented neither evidence nor argument on that point. For the first time on appeal, it
argues a concurrent prosecution in two federal jurisdictions would have been
logistically cumbersome and might have affected Vaughan’s speedy-trial rights in the
Nevada proceedings or denied him access to his Nevada counsel during times he was
3
The district court concluded Seltzer was distinguishable because this case
involved potentially concurrent proceedings in two federal jurisdictions, whereas in
Seltzer the federal prosecution was delayed for a state proceeding. The court did not
cite any authority, and we find none, that supports its conclusion that the government
need not make any particularized showing if it delayed prosecution for a proceeding
in another federal district. We follow Seltzer as precedential authority.
7
transported to Kansas. While some of these points appear obvious, the Government
would have been well served to have made a record of its rationale for its delay of the
Kansas prosecution when the indictment was filed, or for our present purposes, to
have raised these points before the district court during the § 2255 proceeding.
Second, even accepting the Government’s newly proffered reasons why a
delay in prosecuting Vaughan in Kansas was justified by the pending Nevada case,
that does not explain why the Government failed to notify Vaughan of the indictment.
The record does not indicate whether its failure to notify Vaughan of the indictment
was intentional or a negligent oversight, but we will assume the latter.4
“‘Once federal prosecutors bring an indictment against a defendant, they have
a duty to notify the District Court that the defendant should be arraigned and
appointed counsel, and to bring the defendant to trial expeditiously.’” Seltzer,
595 F.3d at 1177 (quoting United States. v. Battis, 589 F.3d 673, 680 (3d Cir. 2009)).
“This duty persists even when [other] authorities have a strong interest in bringing
their own case against the same defendant.” Id. at 1177-78 (brackets and internal
quotation marks omitted). “The Government cannot indict a defendant and then
4
As noted, the Government moved to submit supplemental evidence not
presented below showing that a detainer was transmitted to Nevada shortly after the
indictment, see note 1, supra, but even were we to consider this evidence, it does not
establish that Vaughan was notified of any such detainer, or otherwise knew of the
indictment. See United States v. Watford, 468 F.3d 891, 906 (6th Cir. 2006)
(upholding the district court’s finding that a federal detainer had been lodged with
state officials, but concluding defendant was not to blame for not asserting his speedy
trial rights because “[i]t does not follow . . . that [defendant] necessarily had
knowledge of the detainer”).
8
delay a case indefinitely, without any notice to a federal judge, merely because it is
aware of [another] proceeding involving the same defendant.” Id. at 1178 (internal
quotation marks omitted). “[T]here exists a constitutional duty to try defendants on
pending charges regardless of whether they are in federal custody on unrelated
charges.” Jackson v. Ray, 390 F.3d 1254, 1262 (10th Cir. 2004) (citing Smith v.
Hooey, 393 U.S. 374, 377 (1969)).
The Government denies that it intentionally delayed the Kansas trial to gain
some tactical advantage over Vaughan, but courts have held that the reason-for-delay
factor weighs against the government when it cannot explain its failure to arrest or
notify the defendant of an indictment. See United States v. Schreane, 331 F.3d 548,
555 (6th Cir. 2003) (holding that government’s decision to delay a defendant’s trial
until state completed its prosecution was “a valid reason for delay,” but ruling the
reason-for-delay factor weighed against the government in part because the state
failed to notify the defendant of the federal detainer) (internal quotation marks
omitted); United States v. Erenas-Luna, 560 F.3d 772, 777-78 (8th Cir. 2009)
(second Barker factor “weigh[ed] decidedly against the government” where no
intentional delay but defendant was unaware of the indictment and the government
was “clearly seriously negligent” for failing to take appropriate actions to apprehend
him) (internal quotation marks omitted); Ingram, 446 F.3d at 1339-40 (weighing
reason-for-delay factor against government where defendant was unaware of the
Kansas indictment and government gave no reasonable explanation for its neglect in
executing the warrant for two years).
9
Because the Government failed to make any particularized showing before the
district court why awaiting completion of the Nevada prosecution was necessary, and
provided no explanation why Vaughan was not notified of the indictment, we
conclude this factor would have weighed against the Government had Vaughan’s
counsel raised a speedy-trial challenge.
3. Assertion of Right. The third Sixth Amendment speedy-trial factor is
whether Vaughan asserted his speedy-trial right. It is undisputed that he did not. On
direct appeal, the Government argued this factor weighed against Vaughan because
he failed to assert his speedy-trial right prior to his arrest. The Government did not
dispute, or address the relevancy of, Vaughan’s assertion that he had no knowledge
of the indictment prior his arrest.5
Vaughan argued that he could not have asserted his right during the 22-month
delay prior to his arrest because he did not know about the indictment. He is not
challenging any delay following his arrest, and he asserts that as soon as he was
5
As noted, the Government argues for the first time on appeal that Vaughan
was aware it intended to prosecute him in Kansas, even if he was unaware of the
indictment, and thus could have asserted his rights. See n.1, supra. Were we to
consider this new argument, it would not alter our analysis. “A defendant has no
duty to bring himself to trial; the [government] has that duty. . . . ” Barker, 407 U.S.
at 527 (footnote omitted). Further, as Vaughan had no counsel on the undisclosed
Kansas charges, and believed there was no Kansas indictment, Vaughan could
reasonably and correctly have concluded—were he conversant in speedy-trial law
without an attorney—that he lacked any speedy trial rights until he was indicted. See
United States v. Loud Hawk, 474 U.S. 302, 311 (1986) (holding the government’s
obvious desire to prosecute was insufficient to allow defendants to invoke speedy
trial rights prior to arrest or indictment).
10
arrested, he told his trial counsel he wanted to go to trial right away, thus evidencing
his desire for a speedy trial.
Noting that the burden of protecting one’s speedy-trial rights is not placed on
the defendant, see Barker, 407 U.S. at 527, the district court concluded that the third
Barker factor neither weighed for nor against Vaughan. We agree that this factor
should be deemed neutral here, given Vaughan’s assertion he had no knowledge of
the indictment during the relevant 22-month delay. See Doggett, 505 U.S. at 653-54;
(where a defendant was unaware of the indictment prior to arrest, he “is not to be
taxed for invoking his speedy trial right only after his arrest”); Erenas-Luna,
560 F.3d at 778 (holding, where defendant was unaware of his indictment until his
arrest, that “the third Barker factor had no application”); United States v. Watford,
468 F.3d 891, 906 (6th Cir. 2006) (“In the absence of a District Court finding that
[defendant] had knowledge of the federal detainer, and absent record evidence of
such knowledge, we conclude that [defendant] is not to blame for failing to assert his
speedy trial rights despite the detainer.”).
4. Prejudice to Defendant. The burden of proof is on the defendant to show
that the delay in prosecution prejudiced him. United States v. Larson, 627 F.3d 1198,
1208-09 (10th Cir. 2010). “In cases of extreme delay, the defendant may rely on the
presumption of prejudice and need not present specific evidence of prejudice . . .
[but g]enerally, the court requires a delay of six years before allowing the delay itself
to constitute prejudice.” Id. at 1209. Because this case does not present an instance
of such extreme delay, Vaughan would have had to present specific evidence of
11
prejudice in a speedy-trial motion. We require a showing of actual prejudice; the
mere “possibility of prejudice is not sufficient to support [the] position that . . .
speedy trial rights were violated.” United States v. Loud Hawk, 474 U.S. 302, 315
(1986).
Vaughan must “make a particularized showing of prejudice which addresses
the interests the speedy trial right was designed to protect.” Hicks, 779 F.3d at 1169.
The Supreme Court has identified three fundamental interests that the speedy trial
right is intended to promote: “(i) to prevent oppressive pretrial incarceration;
(ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility
that the defense will be impaired.” Barker, 407 U.S. at 532. The interest given the
most weight is the third, which implicates “the fairness of the entire system.” Id.
Here, the focus of the prejudice inquiry is only on whether the delay prejudiced
Vaughan’s defense.
Vaughan alleges that, had he been timely arrested for the Kansas robbery, he
would have been appointed counsel and would have been able to secure and
ultimately present at trial testimony and business records from his brother to show
that he was working at his brother’s landscaping business in Colorado on the day of
the robbery. He asserted that other employees of the landscaping business would
also have corroborated that fact, and other witnesses would have testified he was in
Colorado on the days prior to the Kansas robbery. But, he says, the landscaping
business dissolved, the records were lost, and the alibi witnesses found jobs
elsewhere. R. Vol. 1, at 53. The district court ruled Vaughan failed to meet his
12
burden to show specific prejudice because he failed to support his allegations with
any evidence.
We agree with the district court that Vaughan did not make a particularized
showing of prejudice. “Defendants must present specific evidence of prejudice.”
Banks, 761 F.3d at 1183-84 (emphasis added). Vaughan did not attach any
supporting evidence to any § 2255 pleading or request an evidentiary hearing to
support his allegation of prejudice.
At issue is whether witnesses or evidence were lost while the Nevada
prosecution was pending. Vaughan does not identify by name a single alibi witness,
other than his brother. Vaughan provides no explanation or evidence why his brother
was unavailable at trial to provide an alibi defense because of the 22-month delay.
Vaughan did not present any evidence establishing that his brother’s landscaping
business ever had records showing he had worked the day of the Kansas robbery, nor
evidence that such records were, in fact, lost. Indeed, Vaughan does not even
articulate when these business records were lost, so it is purely speculative that they
were lost during a time frame relevant to the 22-month delay.
He asserts only that landscape employees and neighbors could have placed him
in Colorado in the days prior to the robbery, but this proffer is both too speculative
and involves too wide a time frame to suggest a meaningful alibi. See United States
v. Margheim, 770 F.3d 1312, 1330 (10th Cir. 2014) (no showing of prejudice when
defendant failed to demonstrate that “the so-called missing witness’s testimony was
vital to [the] defense”), cert. denied, 135 S. Ct. 1514 (2015); Jackson, 390 F.3d at
13
1265 (“In arguing that the unavailability of a witness impaired the defense, a
defendant must state with particularity what exculpatory testimony would have been
offered . . . [and] present evidence that the delay caused the witness’s unavailability.”
(brackets and internal quotation marks omitted)). Vaughan does not state what effort,
if any, was made to locate these witnesses, when they became unavailable, or
specifically why these witnesses could not be located even if they no longer worked
at the landscaping business. In contrast to the evidence presented at trial,6 Vaughan’s
conclusory allegations of lost alibi evidence is insufficient to make out a showing of
prejudice.
In summary, we conclude Vaughan demonstrated that the Government’s delay
was more than ordinary, that the reason for the delay weighed in his favor, that the
third factor was neutral, but he failed to make any particularized showing that the
delay prejudiced his defense. “Failure to show prejudice caused by the delay is
nearly fatal to a speedy trial claim.” Hicks, 779 F.3d at 1168 (internal quotation
marks omitted); Margheim, 770 F.3d at 1329 (“[I]n most circumstances, failure to
specify prejudice will eviscerate the defendant’s [speedy-trial] claim.”).
B. Ineffective Assistance of Counsel. The Sixth Amendment
guarantees criminal defendants the right to effective assistance of counsel. See
6
Four employees in the Kansas bank gave descriptions of the robber that were
consistent with Vaughan’s gender, race, height, weight, and a distinctive baseball hat
Vaughan was known to wear; one employee picked Vaughan out of a lineup; and
there was evidence of many similarities between the Kansas robbery and another
robbery Vaughan had confessed to. Vaughan, 450 F. App’x at 758-62.
14
Strickland v. Washington, 466 U.S. 668, 684-85 (1984). To establish ineffective
assistance of counsel, a criminal defendant must demonstrate: (1) that his trial
counsel was deficient such that he was deprived of “reasonably effective assistance”;
and (2) that counsel’s deficient performance prejudiced his case, meaning “that there
is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Id. at 687, 694. Thus, to succeed on his
§ 2255 motion, Vaughan must show a reasonable probability that, had his counsel
filed a motion to dismiss the indictment on speedy-trial grounds, it would have been
granted.
In assessing an ineffective assistance of counsel claim, courts “must apply a
‘strong presumption’ that counsel’s representation was within a ‘wide range’ of
reasonable professional assistance.” United States v. Rushin, 642 F.3d 1299, 1306
(10th Cir. 2011) (quoting Harrington v. Richter, 562 U.S. 86, 104 (2011) and
Strickland, 466 U.S. at 689). We strongly presume “that an attorney acted in an
objectively reasonable manner and that an attorney’s challenged conduct might have
been part of a sound trial strategy.” Bullock v. Carver, 297 F.3d 1036, 1046
(10th Cir. 2002). “[N]ot every decision on the part of defense counsel to forego
filing a motion to dismiss upon an apparent [speedy trial] violation . . . is suspect
under Strickland’s first prong.” Rushin, 642 F.3d at 1307 (analyzing a claim counsel
was ineffective for not moving to dismiss under the Speedy Trial Act). “Unlike a
panel of federal appellate judges, defense counsel observes the relevant proceedings,
knows of materials outside the record, and interacts with the client, with opposing
15
counsel, and with the trial judge.” Id. (brackets omitted). Depending on the
circumstances, “a reasonable attorney in the sound exercise of his or her professional
judgment arguably might . . . decide[] to forgo the filing of a motion to dismiss the
indictment as largely ineffective, an imprudent use of limited resources, or even
unwarranted gamesmanship.” Id. at 1308. We are not persuaded that Vaughan has
overcome the strong presumption that his attorney had sound strategical reasons for
not moving to dismiss the indictment on speedy-trial grounds.
We further conclude that Vaughan did not make a particularized showing of
prejudice in conjunction with all of the Barker factors sufficient to justify dismissal
of his indictment on constitutional speedy-trial grounds. Because Vaughan failed to
show prejudice from the delay between his indictment and arrest, we conclude he
cannot show that he was he was prejudiced under Strickland by counsel’s failure to
move for dismissal on speedy-trial grounds.
Vaughan has not shown that his counsel was constitutionally ineffective for
failing to raise a constitutional speedy-trial claim. The Government’s Motion to
Supplement the Record is denied. The district court’s denial of § 2255 relief is
affirmed.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
16