United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT June 4, 2004
Charles R. Fulbruge III
Clerk
No. 02-60524
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
JAMES EDWARD FRYE,
also known as Sealed Defendant 2,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Mississippi
Before DUHÉ, BARKSDALE, and DENNIS, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
The Government’s interlocutory appeal presents two points:
our jurisdiction; and the district court’s ruling that the
Government may not seek the death penalty against James Frye,
pursuant to finding that, by misrepresenting it would not seek the
penalty, the Government violated Frye’s Sixth Amendment right to a
speedy trial.
We have jurisdiction. And, because there has not been a
speedy trial violation, we need not address the proper remedy.
VACATED and REMANDED.*
*
The Government’s 10 February 2003 motion to supplement the
record on appeal is GRANTED for the 21 September 2001 status
conference minute entry and the 1 October 2001 continuance order;
I.
Indicted in February 2001, Frye and Cooper were charged, inter
alia, with the death-eligible offense of carjacking resulting in
death, in violation of 18 U.S.C. § 2119(3). Trial was set for that
May. Because of an April 2001 superseding indictment, it was re-
set for August.
By an unopposed motion in early August, the Government was
granted a continuance until October because Cooper was undergoing
a competency examination that would not be completed until after
the August setting. The order stated: “to deny the Motion would
deny both defendants and the United States adequate time to prepare
for trial and attend to pretrial matters necessitated by [Cooper’s
competency] examination”; “the ends of justice outweigh the right
of defendants and the public to a speedy trial”; and “the
defendants, by agreeing, have waived their rights to a speedy
trial”.
On 26 October 2001, the district court set a 15 January 2002
deadline for the Government to file its notice of intent to seek
the death penalty against Frye, Cooper, or both. Four days later,
on the joint motion of Frye and the Government, trial was re-set
for 25 February 2002; the order stated that the continuance had
been requested “on grounds all counsel need additional time to
it is DENIED for the remainder (three letters and an evaluation
form that are not part of the record in district court).
2
adequately prepare for trial” and referenced Frye’s waiver of his
rights under the Speedy Trial Act, 18 U.S.C. § 3161 et seq.
Two weeks later (15 November), the United States Attorney for
the Southern District of Mississippi requested permission from the
Attorney General to seek the death penalty for Frye and Cooper; a
meeting for that purpose was held at the Department of Justice
(DOJ) on 10 December 2001. Cooper’s counsel attended; Frye’s
participated by telephone (following video conference equipment
malfunction).
That same day (10 December), Frye’s counsel, by motion
unrelated to the death penalty, stated that, if the Government
elected to seek that penalty for Frye, it would be contrary to
prior representations by the Assistant United States Attorney
(AUSA) prosecuting the case; that, as Frye’s counsel had
“previously announced to this Court in a Status Conference, the
expectation of the Government [and] counsel with regard to this
case is that it would not be tried as a death penalty case”.
A week later, this claim was repeated in more detail by
motion, addressed the next day at a hearing. Frye’s counsel
stated: although they had originally begun planning to defend
against the death penalty, the AUSA had assured them the Government
would not seek that penalty; accordingly, Frye’s counsel had not
prepared for that defense. Concerning the AUSA’s advising that
seeking the penalty had been recommended to the Attorney General at
3
the 10 December meeting, the court’s position was that it had
“understood at [a] status conference that ... [the AUSA was] trying
to negotiate with Frye for a plea in exchange for his testimony as
to Cooper and on that basis that you were not going to seek the
death penalty against Mr. Frye”.
On 15 January 2002, consistent with the deadline set by the 26
October order, the Government filed its notice of intent to seek
the death penalty for Cooper and Frye. The next day, the district
court severed their trials. (Not long thereafter, Cooper was tried
and found guilty, but the death penalty was not imposed; his
conviction was affirmed. United States v. Cooper, 71 Fed. Appx.
298 (5th Cir. 2003) (unpublished), cert. petition filed, No. 03-
8805 (8 October 2003).)
On 7 February 2002, Frye filed two motions: to dismiss due to
speedy trial violations; and to preclude the death penalty due to
prosecutorial misconduct. Ultimately, Frye’s trial was continued
to late July 2002.
By a comprehensive 20 May 2002 opinion and order, the motion
to dismiss was granted in part. That motion requested the court to
“dismiss the charges” against Frye. The district court understood
the motion as incorporating two requests: “that [for speedy trial
violations] the death penalty and/or the indictment should be
dismissed”.
4
The court found: post-superseding indictment in April 2001,
trial had been set for 7 August 2001; because the AUSA represented
to the court and Frye’s counsel that the Government did not intend
to seek the death penalty for Frye, the court had not required the
Government to respond to Frye’s numerous motions filed between 30
May and 12 July 2001; and, based on Frye’s understanding that the
Government was not seeking that penalty, Frye had joined motions to
continue and waived his right to a speedy trial.
Based on these findings, the court found that, under the four-
factor analysis of Barker v. Wingo, 407 U.S. 514 (1972), Frye’s
Sixth Amendment speedy trial right had been violated. It
recognized Frye’s waivers of the right, but found them only partly
valid. Because Frye’s counsel represented that the waivers had
been made on the basis of the Government’s death penalty
representations, the court found the waivers valid “with regard to
the substantive statutory violations as charged” but not valid
“with regard to the death penalty phase”. The court, considering
the death penalty sentencing hearing prescribed by 18 U.S.C. §
3593, found “allowing such a hearing to proceed would violate
[Frye’s] right to a [speedy] trial under the Sixth Amendment”.
Accordingly, it granted the motion to dismiss “insofar as the
Government may not seek the death penalty in this case”.
(Hereinafter, “dismiss the death penalty” and “the dismissal” refer
to this relief.) Concerning the other requested relief, the court
5
denied the motion, based on claimed prosecutorial misconduct, to
preclude the death penalty; denied, as moot, an unrelated motion to
dismiss the death penalty; and denied or declined to reach all
other requested relief. Among the claims not considered were:
violation of the Speedy Trial Act; preclusion of the death penalty
because of prosecutorial misconduct; and ineffective assistance of
counsel because they relied on the AUSA’s representations (this
claim was ruled premature).
In mid-June 2002, the United States filed a notice of appeal
from the dismissal; Frye cross-appealed shortly thereafter.
(Although the record does not reveal the issues Frye wanted to
raise by his appeal, he later claimed in his motion in our court
seeking to dismiss the Government’s appeal that one issue was the
entire indictment’s not being dismissed on Sixth Amendment speedy
trial grounds.) On 29 July, the district court stayed proceedings
pending appeal. At the hearing on the Government’s stay-motion:
Frye’s counsel opposed a stay and requested a speedy trial; the
court announced that, if the dismissal were reversed, on remand it
would grant a continuance that might be requested by Frye; and his
counsel stated that, during the pendency of this appeal, they would
continue to prepare for a death penalty trial.
In April 2003 (after the Government’s opening brief had been
filed here), pursuant to Frye’s motion and in order to develop the
record on the facts underlying the dismissal, our court remanded
this case to district court “to reconstruct status conferences and
6
for transmission of that reconstruction to this court to be
included on appeal”. That June, the district court held a hearing
for that purpose.
II.
Before we can address the dismissal, we must address our
jurisdiction.
A.
In October 2002, on motion by the Government, a motions panel
for our court dismissed Frye’s cross-appeal for lack of
jurisdiction and denied Frye’s motion to dismiss this appeal for
that same reason. That December, however, the Government filed a
notice with our court, presenting the question of our jurisdiction.
Although maintaining we have jurisdiction, the Government requested
that, if it is lacking, we remand to enable the Government to
remedy the jurisdictional defect. (The motions panel carried that
matter with the case for disposition by this panel in ruling on the
merits. Obviously, the alternative request to remand is rendered
moot by our holding that we have jurisdiction.)
Government appeals in criminal cases are addressed in 18
U.S.C. § 3731; it enumerates categories of actions from which the
Government may appeal. One category includes any “decision,
judgment, or order of a district court dismissing an indictment ...
or granting a new trial after verdict or judgment, as to any one or
more counts, or any part thereof, except that no appeal shall lie
where the double jeopardy clause of the United States Constitution
7
prohibits further prosecution”. (The “or any part thereof” phrase
was added on 2 November 2002, subsequent to both the Government’s
notice of appeal and denial of Frye’s motion to dismiss but prior
to the Government’s jurisdictional notice. 21st Century Department
of Justice Appropriations Authorization Act, Pub. L. No. 107-273,
§ 3004, 116 Stat. 1758, 1805 (2002). Neither side has briefed this
addition. In any event, it does not alter our having jurisdiction,
discussed infra. If anything, it is further support for it.)
Section 3731 does not specifically provide for appeals from
orders, as in this case, that there would be no death penalty
sentencing hearing. On the other hand, it concludes: “The
provisions of this section shall be liberally construed to
effectuate its purposes”.
Before turning to quite recent precedent, it is helpful to
review the development of Government appeals in death penalty
cases. United States v. Woolard, 981 F.2d 756 (5th Cir. 1993),
considering our jurisdiction to review an order striking the death
penalty, held: the order “effectively removed a discrete basis of
liability”, id. at 757; and, because this had the practical effect
of a dismissal of an indictment (an order enumerated in § 3731),
our court had jurisdiction, id. The Government’s December 2002
notice, however, raises a question of Woolard’s application here.
In that notice, the Government notes — but does not adopt —
the position that Ring v. Arizona, 536 U.S. 584 (2002), and United
8
States v. Cotton, 535 U.S. 625 (2002), require an indictment
authorizing the death penalty to allege mental state and
aggravating factors. According to the Government, Frye’s
indictment did not allege the aggravating factors. See 18 U.S.C.
§ 3592(c) (listing aggravating factors for homicide, including
death during commission of another crime, as charged in Frye’s
indictment for the carjacking count). Therefore, according to this
position, if aggravating factors must be alleged in order for the
death penalty to be authorized, then dismissing that penalty here
would not effectively dismiss a portion of Frye’s indictment. (In
its notice, the Government urges several bases for jurisdiction in
addition to § 3731.)
Some courts have accepted this position, see United States v.
Allen, 357 F.3d 745 (8th Cir. 2004), vacated and reh’g granted, 11
May 2004. On the other hand, both sides recognize that our court
earlier stated: “Ring did not hold that indictments in capital
cases must allege aggravating and mental state factors”. United
States v. Bernard, 299 F.3d 467, 488 (5th Cir. 2002), cert. denied,
539 U.S. 928 (2003). In Bernard, however, the claim that an
indictment must allege such factors was reviewed only for plain
error; arguably, the above quotation is dictum.
In any event, our very recent decision in United States v.
Robinson, No. 02-10717, 2004 WL 790307 (5th Cir. 14 Apr. 2004),
makes reliance on Woolard inapposite. In Robinson (in which the
9
Government conceded that the factors must be alleged in a death
penalty indictment, id. at *2), we held: “[T]he government is
required to charge, by indictment, the statutory aggravating
factors it intends to prove to render a defendant eligible for the
death penalty”. Id. at *3. Because Frye’s indictment did not
allege the factors, the order of the district court may not have
had the practical effect of dismissing a portion of an indictment.
Therefore, we do not decide appealability on the basis of Woolard’s
reading of orders enumerated in § 3731.
Instead, we have jurisdiction because § 3731 has been
construed to be broader than the list it enumerates. In reviewing
the history of government appeals in criminal cases, United States
v. Wilson, 420 U.S. 332 (1975), held: in enacting § 3731,
“Congress intended to remove all statutory barriers to Government
appeals and to allow appeals whenever the Constitution would
permit”. Id. at 337; see 18 U.S.C. § 3731 (as quoted earlier,
authorizes appeals from a “decision ... dismissing an indictment
... except that no appeal shall lie where the double jeopardy
clause of the United States Constitution prohibits further
prosecution”); United States v. Duncan, 164 F.3d 239, 241-42 (5th
Cir. 1999). Therefore, our jurisdiction does not depend upon
fitting the dismissal into one of § 3731’s categories.
Again, the relevant constitutional limitation is the double
jeopardy clause. See Wilson, 420 U.S. at 338-39; 18 U.S.C. § 3731
10
(barring appeals where prohibited by the double jeopardy clause).
A jury has not been empaneled and sworn; therefore, jeopardy has
not attached. See United States v. Mann, 61 F.3d 326, 330 (5th
Cir. 1995), cert. denied, 516 U.S. 971, 1094, 1118 (1996). There
can be no double jeopardy concern. Id. As a result, the
Constitution is not violated by this appeal from the order
dismissing the death penalty; we have jurisdiction. See United
States v. Quinones, 313 F.3d 49, 57 (2d Cir. 2002) (citing cases),
cert. denied, 124 S. Ct. 807 (2003).
B.
The Sixth Amendment affords Frye “the right to a speedy ...
trial”. U.S. CONST. amend. VI. At issue is that Sixth Amendment
right, not the Speedy Trial Act, 18 U.S.C. § 3161. “[A] claim
under the Speedy Trial Act differs in some significant ways from a
claim under the sixth amendment speedy trial clause”. United
States v. Mehrmanesh, 652 F.2d 766, 769 (9th Cir. 1981). Barker
did not prescribe specific speedy trial rules for federal
prosecutions; Congress did so with the subsequent Speedy Trial Act,
which was meant to guarantee a trial at least as timely as that
guaranteed by the Sixth Amendment. See 18 U.S.C. § 3173 (“No
provision of this chapter shall be interpreted as a bar to any
claim of denial of speedy trial as required by amendment VI of the
Constitution.”).
11
In dismissing the death penalty, the district court found:
the AUSA misrepresented that the Government was not going to seek
it for Frye; and this invalidated Frye’s speedy-trial-right waiver.
The misrepresentation found by the district court must be
considered in determining whether there was a Sixth Amendment
speedy trial violation. (Needless to say, our holding that there
was none does not alter the district court’s findings and concerns
about the not-seeking-death-penalty representations.)
Determining whether the Sixth Amendment speedy trial right has
been violated involves evaluating and balancing the earlier
referenced four factors identified in Barker; they are: “(1) the
length of the delay, (2) the reason for [it], (3) the defendant’s
diligence in asserting his Sixth Amendment right, and (4) prejudice
to the defendant resulting from the delay”. United States v.
Cardona, 302 F.3d 494, 496 (5th Cir. 2002) (citing Barker).
1.
Findings of fact made for Sixth Amendment speedy trial
analysis are, of course, reviewed only for clear error. United
States v. Serna-Villarreal, 352 F.3d 225, 230 (5th Cir. 2003),
cert. denied, 124 S. Ct. 1896 (2004). Under that well-known
standard, “we defer to the findings of the district court unless we
are left with a definite and firm conviction that a mistake has
been committed”. Payne v. United States, 289 F.3d 377, 381 (5th
Cir. 2002).
12
The parties dispute our standard of review, however, for the
four-factors balancing. The Government maintains we review de
novo; but, it acknowledges our precedent can be read otherwise.
E.g., Davis v. Puckett, 857 F.2d 1035, 1040-41 (5th Cir. 1988) (“In
evaluating the factors, the district court was not clearly
erroneous in deciding that Davis’s constitutional right to a speedy
trial had not been violated.” (emphasis added); “Having run the
Barker balancing test, we conclude that the district court did not
clearly err in determining that Davis failed to show that his Sixth
Amendment rights were violated.” (emphasis added)); United States
v. Bergfeld, 280 F.3d 486, 492 n.* (5th Cir. 2002) (Garwood, J.,
dissenting in part) (“We review the district court’s application of
the relevant [speedy trial] factors for clear error.” (emphasis
added; citing United States v. Lucien, 61 F.3d 366, 371 (5th Cir.
1995)). The Government asserts that these statements are best read
as referring only to the fact finding used for the ultimate
balancing decision; Frye, that we utilize the more deferential
clearly erroneous standard for that decision.
The earlier cases stated, without providing reasons, that they
were reviewing for clear error the district court’s decision on
whether the Sixth Amendment speedy trial right had been violated.
Davis, quoted above, cited no authority in support of this standard
of review. Davis was cited in Robinson v. Whitley, 2 F.3d 562, 568
13
(5th Cir. 1993), cert. denied, 510 U.S. 1167 (1994), in support of
the conclusion that the district court’s “overall evaluation” of
the speedy trial issue was not “clearly erroneous”. Robinson was
cited by the Bergfeld majority in support of the clear error
standard of review for a district court’s “findings in applying the
elements of this balancing test”. 280 F.3d at 488. And, Bergfeld
was cited recently in Serna-Villarreal, 352 F.3d at 230, to support
reviewing only for clear error “a district court’s findings in
applying the elements of this [Barker] balancing test”. None of
the more recent cases which state that the district court’s fact
findings are reviewed for clear error state the standard of review
for the balancing itself.
Against this background, we note that, generally, a district
court’s balancing of factors, resulting in a decision, are akin to,
if not, conclusions of law, or at least rulings on mixed questions
of fact and law, reviewed de novo. E.g., United States v. Soape,
169 F.3d 257, 267 (5th Cir.) (claim that denial of subpoena
requests violated Sixth Amendment right to compulsory process
reviewed de novo), cert. denied, 527 U.S. 1011 (1999).
Accordingly, it is arguable that plenary review should be given a
Sixth Amendment speedy trial decision. On the other hand, because
that decision is so fact specific, the clear error standard may
well fit the bill. We need not now resolve this question. Even
14
assuming we review only for clear error, we reach the same result:
Frye’s Sixth Amendment speedy trial right was not violated.
2.
Barker explained that this Sixth Amendment right protected
three interests: “prevent oppressive pretrial incarceration”;
“minimize [accused’s] anxiety”; and “limit the possibility [of his]
defense [being] impaired”. 407 U.S. at 532. Prejudice vel non,
the last of the four factors used for balancing and deciding
whether that right has been violated, is to be evaluated in the
light of these interests. Id. Again, those four factors are:
delay-length; reason for it; diligence in asserting right; and
prejudice from delay.
The Barker-analysis is undertaken only if delay-length is
sufficient to make it presumptively prejudicial. Doggett v. United
States, 505 U.S. 647 (1992), explained that this delay-length
factor serves initially to determine whether a full Barker-
analysis is required. “Simply to 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....” Id. at 651-52. Once that
threshold has been crossed, delay-length is balanced with the other
Barker factors. Delay-length plays an important role in the
balancing because, obviously, “the presumption that pretrial delay
has prejudiced the accused intensifies over time”. Id. at 652.
15
If a court undertakes a full Barker-analysis, it evaluates the
first three factors (delay-length; reason for it; diligence in
asserting right) in order to determine whether prejudice will be
presumed or whether actual prejudice must be shown. Serna-
Villarreal, 352 F.3d at 231; Bergfeld, 280 F.3d at 488. (If
prejudice is presumed, the Government can overcome that by
“show[ing] that the presumption is extenuated ... or rebut[ting]
the presumption with evidence”. Serna-Villarreal, 352 F.3d at
231.) Courts “weigh the first three Barker factors ... against any
prejudice suffered by the defendant due to the delay in
prosecution”. Id. at 230. In all of this, courts do not engage in
a rigid analysis, but engage in the “functional analysis of the
right in the particular context of the case”. Barker, 407 U.S. at
522.
a.
In its 20 May 2002 dismissal order, the district court found:
for speedy trial purposes, events would be measured from the date
of the indictment (23 February 2001) by which Frye was first
charged with the death-eligible offense; ultimately, trial was set
for 22 July 2002; and, therefore, there was a 17-month delay from
indictment to anticipated trial. The court found this long enough
to be considered presumptively prejudicial, requiring a full
Barker-analysis.
16
The Government challenges this conclusion because the court
included the five and one-half month period between Frye’s two
February 2002 motions (to dismiss and to preclude) and the setting
that July. Absent that period, according to the Government, the
delay-length is only 11½ months, negating the need for a full
Barker-analysis. See Knox v. Johnson, 224 F.3d 470, 477 (5th Cir.
2000) (“delay of less than one year will rarely qualify as
‘presumptively prejudicial’”) (quoting Cowart v. Hargett, 16 F.3d
642, 646 (5th Cir. 1994)), cert. denied, 532 U.S. 975 (2001). The
Government claims the district court could have set trial at any
point after receiving the February 2002 motions.
In considering this position, we note that, as for other
speedy trial claims, it would be easier post-trial to evaluate the
merits of the claim. “As is reflected in the decisions of [the
Supreme] Court, most speedy trial claims, therefore, are best
considered only after the relevant facts have been developed at
trial.” United States v. MacDonald, 435 U.S. 850, 858 (1978).
Again, the July 2002 trial date was only anticipated.
In any event, there is no basis to use an end-point other than
that setting. Apart from the practical difficulty the district
court would have had in promptly setting trial after the February
2002 motions, there was no such request by the Government. “A
defendant has no duty to bring himself to trial; the [Government]
has that duty ....” Barker, 407 U.S. at 527 (footnote omitted).
17
On these facts, the period of time between the February motions and
July setting will not be excluded from the delay-length
consideration.
The delay was longer than our one-year guideline. Therefore,
the district court properly undertook a full Barker-analysis.
b.
For the following reasons, prejudice will not be presumed.
Accordingly, Frye must show actual prejudice.
(1)
The first of the factors is delay-length. The delay resulting
from this appeal is not included in this analysis. See United
States v. Loud Hawk, 474 U.S. 302, 315 (1986) (“an interlocutory
appeal by the Government ordinarily is a valid reason that
justifies delay”). Some of that time was consumed by our remand,
at Frye’s request, to the district court for the supplement-the-
record hearing he requested. Moreover, he cross-appealed; but for
its dismissal, he would have had us consider his appeal.
Obviously, when evaluating delay-length, courts must consider
the complexity of, and facts for, each case. Barker, 407 U.S. at
530-31. The period between indictment and the Government’s notice
of appeal (late February 2001 to late June 2002) is approximately
16 months. Although long enough to prompt a full Barker-analysis,
it is not long enough to weigh heavily in favor of presuming
prejudice. “Indeed, [our] Court and others generally have found
18
presumed prejudice only in cases in which the post-indictment delay
lasted at least five years.” Serna-Villarreal, 352 F.3d at 232
(citing cases). The facts at hand provide no reason to depart from
that guideline. For example, for a significant part of the period
(until mid-January 2002), Frye’s trial was joined with Cooper’s,
who faced the death penalty.
(2)
The reason for the delay is the second of the factors
evaluated in determining whether prejudice is presumed. “A
deliberate attempt to delay the trial in order to hamper the
defense should be weighted heavily against the government.”
Barker, 407 U.S. at 531 (emphasis added). In this regard, the
district court found: the primary “reasons for the delay were the
Orders granting continuances”; they were granted because of Frye’s
agreement and waiver of rights; and “Frye and the Court were misled
into granting the continuances based on the repeated
representations by the Government that it was not recommending the
death penalty”.
The district court found that the misrepresentations were the
kind of “deliberate attempt to delay the trial in order to hamper
the defense”, including intentionally to delay to gain a tactical
advantage or harass, that concerned the Barker Court. It based
this in part on three additional findings: the misrepresentations
had helped the Government and hurt Frye because the Government
19
continued to gather evidence to be used both at the DOJ meeting (to
determine whether death penalty would be sought) and at trial; it
did not provide Frye with required discovery materials; and Frye
claimed he had refrained from appealing discovery rulings by the
magistrate judge.
The Government contends that these findings are clearly
erroneous. But, they were based, in part, on the court’s
recollection of events and of its reasons for granting the
continuances; pursuant to our review of the record, they are not
clearly erroneous. The Government is correct, however, that these
findings do not equate with the kind of willful hampering of the
defense condemned in Barker.
The first fact from which the district court concluded that
this factor weighed against the Government was that the Government
used the time further to investigate. While a delay to permit the
Government further to investigate the case is likely to harm a
defendant (and, in that sense, likely to hamper the defense),
reasonable investigative delay is not the kind of delay with which
the Barker Court was concerned. See Doggett, 505 U.S. at 656. The
Barker Court was concerned with the Government’s delaying in order
to obtain an “impermissible advantage at trial”. Id. (emphasis
added). Under these facts, the two continuances obtained within
one year of the indictment were a permissible delay.
20
The second fact from which the district court concluded this
factor weighed against the Government (not turning over evidence)
is discussed, infra, as a claim that Frye was actually prejudiced.
As will be discussed, taken as true, it is inadequate to conclude,
pre-trial, that there has been a speedy trial violation.
The third fact from which the district court concluded that
this factor weighed against the Government was that Frye claimed he
had not appealed rulings by the magistrate judge because of the
death penalty representations. The district court’s findings are
inadequate to support its conclusion for three reasons. First,
there is no finding that Frye actually refrained from such appeals.
Second, there is no finding that such appeals would have altered
the outcome. Third, there was no finding of a nexus between the
alleged misrepresentations, the alleged decision not to appeal, and
the speediness of trial. In the absence of such findings, it was
clearly erroneous for the district judge to conclude that these
facts weighed against the Government.
There is inadequate reason to presume, on the basis of the
improperly induced continuances, that Frye will be prejudiced at
trial (following this interlocutory appeal). Restated, the
continuances caused delay; but, it cannot be presumed that the
delay prejudiced (or will prejudice) Frye.
(3)
21
The third of the factors to be evaluated for possible presumed
prejudice is the diligence with which Frye asserted his speedy
trial right. The district court found that, although there was no
speedy trial motion until February 2002, “it [was the court’s]
recollection ... that the issue was [earlier] raised informally in
at least one of the status conferences”; acknowledged the prior
waivers by Frye, but declined to enforce them because, in making
them, Frye had been “misled by the Government”; and found that the
right had been timely asserted.
The Government maintains: the court clearly erred in finding
Frye had been misled; therefore, his waivers are valid; and Frye
only asserted his right when it could be used to dismiss “the
charges”. Based on our review of the record, the district court
did not clearly err in finding either that Frye’s counsel had been
misled or that Frye’s waiver had, in part, been invalid; but, the
Government is correct that the court clearly erred when it found
that this factor weighed in Frye’s favor for presuming prejudice.
Under Frye’s theory, but for the misrepresentations, his counsel
would have opposed the two continuances and demanded an earlier
trial. But, when his counsel determined that Frye had not been
given the benefit of his bargain (by the Government’s deciding to
seek the death penalty), counsel did not claim the speedy trial
right in order to obtain a speedy trial, but in order to have the
indictment dismissed.
22
Barker discussed the ways in which the Sixth Amendment right
protects societal interests in general, as well as the defendant in
particular. “[T]here is a societal interest in providing a speedy
trial which exists separate from, and at times in opposition to,
the interests of the accused”. Barker, 407 U.S. at 519. For this
reason, the amount of time that lapsed before Frye made a formal
request based on his speedy trial right cuts against presuming
prejudice. More importantly, the form in which Frye raised that
right weighs against him in two respects.
First, although the district court found that the “issue was
raised informally” before February 2002, it clearly erred in
finding, based on this, that Frye had then made the request
required of him. The discussion and awareness of the right is not
the relevant factor; the relevant factor is when and how a trial
request is made to the court.
Second, as noted, Frye did not seek a speedy trial in his
February 2002 motions. Rather, he raised the Sixth Amendment right
only when he sought a remedy for its claimed violation. “[A]n
assertion that charges be dismissed for a speedy trial violation is
not a value protected under Barker”. Cowart, 16 F.3d at 647.
c.
Again, because prejudice is not presumed, Frye must show
actual prejudice. In that regard, the district court found Frye
was prejudiced in three ways: without the continuances, he would
23
have been tried on 7 August 2001, before the Government could
obtain permission to seek the death penalty; because of the
misrepresentations, Frye had not conducted a mitigation
investigation; and during the period of delay, the Government
continued its preparation for the DOJ meeting to request permission
to seek the penalty while withholding documents from Frye,
instructing witnesses not to talk to his counsel, and misleading
counsel into not preparing a mitigation case.
As noted, Barker identified three interests protected by the
speedy trial right: “to prevent oppressive pretrial
incarceration”; “to minimize anxiety and concern of the accused”;
and “to limit the possibility that the defense will be impaired”.
407 U.S. at 532. The district court found prejudice only with
respect to the third interest — impairment of Frye’s defense.
Frye, however, now urges prejudice based on the other two interests
as well. We decline to address them; the district court did not
make findings with respect to them because they were not raised
there. (Acknowledging this, Frye claims the prejudice is “self-
evident” and “obvious”.)
Again, it is easier for a defendant to show post-trial that he
was prejudiced to the extent necessary for a speedy trial violation
than to do so pre-trial. See Loud Hawk, 474 U.S. at 315
(“possibility of prejudice is not sufficient to support
[defendants’] position that their speedy trial rights were
24
violated” (emphasis added)); MacDonald, 435 U.S. at 858 (“Before
trial, of course, an estimate of the degree to which delay has
impaired an adequate defense tends to be speculative.”). Based in
part on MacDonald (concerning Sixth Amendment), we stated the
following in United States v. Crouch, 84 F.3d 1497, 1516 (5th Cir.
1996) (en banc) (concerning Fifth Amendment pre-indictment delay),
cert. denied, 519 U.S. 1076 (1997): “Necessarily, then, a far
stronger showing is required to establish the requisite actual,
substantial prejudice pretrial than would be required after trial
and conviction”.
(1)
The Government contends that the first prejudice finding by
the district court (trial would have taken place in August 2001
before Government could obtain permission to seek death penalty) is
speculative and against the procedures provided in the United
States Attorneys’ Manual (Manual). We agree that the court clearly
erred in this finding. (Accordingly, we need not review the fact
finding that Frye could have reached trial on 7 August 2001,
although we note, inter alia, numerous then-pending motions.
Moreover, earlier in its opinion, the district court stated that it
“[could not] say whether it would have denied the [pre-7 August]
motion[] for continuance[] had Frye objected to, or not joined in,
[it]”.) It is premature, at best, to find Frye has been prejudiced
by the fact that trial did not commence on 7 August 2001.
25
(2)
The Government contends correctly that the second finding of
prejudice (no mitigation investigation because of
misrepresentations) is irrelevant to this speedy trial analysis.
An earlier trial date would not have given Frye any more of an
opportunity for a mitigation investigation than he has had in this
case.
In that regard, the district court did not find Frye was
prejudiced because the Government is seeking the death penalty.
Instead, it found Frye was prejudiced because his attorneys had not
undertaken the mitigation investigation. The resulting prejudice
found was primarily because they were, therefore, unable to present
mitigation material in December 2001 to the DOJ Committee advising
the Attorney General on his death penalty decision. (It was the
opportunity to present the material, not the outcome of the
presentation.) That Committee functions under procedures provided
in the Manual.
Each of the documents provided in support of a
recommendation to seek the death penalty and
any submissions by defense counsel, shall be
reviewed by a Committee appointed by the
Attorney General. Counsel for the defendant
shall be provided an opportunity to present to
the Committee reasons why the death penalty
should not be sought.
UNITED STATES ATTORNEYS’ MANUAL § 9-10.050. For purposes of the issue
at hand, a latter part of that section provides:
26
Subsequent to the initial Department of
Justice review, the United States Attorney and
the Attorney General’s Committee shall review
any submission defense counsel chooses to
make. After considering the information
submitted, the Committee will make a
recommendation to the Attorney General
concerning the application of the death
penalty to the case.
Id. (emphasis added).
Neither side addresses this latter part of § 9-10.050,
concerning submittals post-initial review. Arguably, this part
permits the Committee to consider any material Frye chooses to
present, including subsequent to remand of this case to district
court. It is true another court has held that, consistent with the
disclaimer in the Manual, the protocol found in it does not create
enforceable rights. United States v. Lee, 274 F.3d 485, 493 (8th
Cir. 2001), cert. denied, 537 U.S. 1000 (2002). But, because we
are attempting, pre-trial, to evaluate prejudice vel non to Frye,
this latter part may provide him an opportunity to present
mitigation material he was not prepared to present in December
2001. Therefore, at this point in time, we cannot conclude he has
been prejudiced by his being unable to present it then.
The court also found prejudice because of the delay caused
Frye in preparing to defend against the death penalty at trial. As
discussed, that opportunity remains, following this appeal. Frye
has not shown otherwise.
(3)
27
For the third basis on which the district court found
prejudice (discovery abuses during the delay), the Government
correctly contends that this does not amount to prejudice relevant
to a Sixth Amendment speedy trial analysis. As noted, the
Government’s continuing preparation during the delay does not
constitute prejudice. The district court’s finding, therefore, is
that the Government’s discovery abuses caused it. Even assuming
those abuses were prejudicial in some sense, they were not in the
sense of timeliness — of delaying trial.
In other words, if a criminal defendant did not obtain or
discover certain evidence in time for trial on one date, it is
generally most unlikely that the Government would delay trial in
order to attempt to prevent him from obtaining it in time for trial
at a later date. Again, Frye has not shown otherwise.
In sum, the district court clearly erred in finding the
requisite actual prejudice. Frye has not made the strong showing
required to find, pre-trial, that there has been a Sixth Amendment
speedy trial violation.
III.
For the foregoing reasons, the order prohibiting seeking the
death penalty is VACATED; and this matter is REMANDED for further
proceedings consistent with this opinion.
VACATED and REMANDED
28
United States v. Frye
Court: Court of Appeals for the Fifth Circuit
Date filed: 2004-06-04
Citations: 372 F.3d 729
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