United States v. Goss ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
Criminal Action No.: 05-075-01 (RMU)
Re Document No.: 181 F 1 in E D
AUG 2 3 2009
C|erk, U.S. District and
Bankruptcy Courts
v.
LEOPOLD GOSS,
Defendant.
MEMORANDUM OPINION
DENYING THE DEFENDANT’S MoTloN To D1sMIss THE INDICTMENT WITH PREJUDICE DUE To
DELAYS CAUsED BY THE G0VERNMENT AND INEFFECTIVE AssrsTANCE oF CouNsEL
I. INTRODUCTION
This matter is before the court on the defendant’s motion to dismiss the indictment with
prejudice due to unnecessary delays caused by the government and repeated instances of
ineffective assistance of counsel. The motion, consisting largely of a prolix factual history of the
case, lacks a specific legal analysis supporting his claims of a speedy trial violation and
ineffective assistance of counsel. Defense counsel provided more specific information to support
his position at the motions hearing on August 13, 2009. Upon consideration of the defendant’s
motion, the government’s opposition’ and the arguments advanced by both parties at the motions
hearing, the court denies the defendant’s motion for the reasons explained below.
II. FACTUAL & PROCEDURAL BACKGROUND
On March 3, 2005, the defendant and his former co-defendant, Steven Parker, were
indicted on six counts of unlawful distribution of cocaine and cocaine base and possession with
l The defendant did not file a reply in support of his motion.
l
intent to distribute cocaine base. Specifically, the indictment charged the defendants with the
following counts:
Counts I-III: Unlawful Distribution of Cocaine and Aiding and Abetting, in violation of
21 U.S.C. §§ 841(a)(1) and (b)(l)(C) and 18 U.S.C. § 2;
Counts IV-V: Unlawful Distribution of 5 Grams or More of Cocaine Base and Aiding
and Abetting, in violation of 21 U.S.C. §§ 84l(a)(1) and 841(b)(1)(B)(iii)
and 18 U.S.C. § 2; and
Count VI: Unlawful Possession With Intent to Distribute 50 Grams or More of
Cocaine Base and Aiding and Abetting, in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(A)(iii) and 18 U.S.C. § 2.
See Indictment.
On February 8, 2006, the defendants pled guilty before Judge Sullivan to one count of
Unlawful Distribution of 5 Grams or More of Cocaine Base and Aiding and Abetting. See
Minute Entry (Feb. 8, 2006). Pursuant to Federa1 Rule of Criminal Procedure ll(c)(l)(C), the
defendants each agreed to serve 78 months of imprisonment. See Plea Agreement (Feb. 6, 2008).
On February 23, 2006, the defendant filed a motion to withdraw his guilty plea. See Mot. to
Withdraw Guilty Plea. The case was reassigned to this court on June 16, 2008; on October 16,
2008, this court granted the defendant’s motion to withdraw his guilty plea. See Minute Entry
(Oct. 16, 2008). Trial is to commence on August 24, 2009.
III. ANALYSIS
A. The Speedy Trial Act Has N0t Been Violated
The defendant asserts that the Speedy Trial Act and his constitutional right to a speedy
trial have been violated. See generally Def.’s Mot. As a preliminary matter, the court notes that
the defendant’s speedy trial time has not yet e1apsed. Because the court granted the defendant’s
motion to withdraw his guilty plea on October 16, 2008, pursuant to the Speedy Trial Act the
defendant’s speedy trial time started over on that date as if it were a new indictment. 18 U.S.C. §
3161(i). On November 13, 2008, the defendant waived, and the court tolled in the interest of
justice, the speedy trial time for the period from November 13, 2008 until Dccember 15, 2008.
The speedy trial clock resumed on December 15, 2008, and was tolled again automatically when
pretrial motions were filed on January 13, 2009. See ia'. § 316l(h)(1)(F) (excluding from the
speedy trial time calculation any "delay resulting from any pretrial motion, from the filing of the
motion through the conclusion of the hearing on, or other prompt disposition of, such motion").
Because the pretrial motions are still pending, the speedy trial clock remains tolled. The court
acknowledged this fact on March 9, 2009, when it directed that the speedy trial clock remain
tolled in the interest of justice pending resolution of the motions. See Order (Mar. 9, 2009).
Thus, fifty-seven days have elapsed out of the defendant’s ninety-day speedy trial clock. The
speedy trial clock will remain tolled until the resolution of the pretrial motions.z
B. The Defendant’s Constitutional Right to a Speedy Trial
The defendant asserts that his constitutional right to a speedy trial has been violated by
the delay in bringing this case to trial, which he asserts is the result of the govemment’s inaction
and mistakes. See generally Def.’s Mot. The government counters that the delay has been the
In addition, the period from April 21, 2009 until the day chambers received the mental
competency report from FCI Butner - June 17, 2009 - is also excludable. 18 U.S.C. §
3161(h)(1)(A). Because the speedy trial clock has been tolled since the pretrial motions were
filed on January 13, 2009 and will remain tolled until the pretrial motions are resolved, excluding
these periods would not change the calculation of the speedy trial time, but instead would
provide an additional rationale for tolling the speedy trial clock.
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result of the defendant’s actions.i See generally Govt’s Opp’n.
A defendant’s Sixth Amendment speedy trial rights are triggered by arrest, indictment or
other official accusation. Doggett v. Unitecl States, 505 U.S. 647, 651-52 (1992). The calculus
turns not on precisely defined time limitations, but rather on a broad balancing of considerations.
Barker v. Wingo, 407 U.S. 514, 530 (1972). This balancing, called a Barker inquiry, entails a
case-by-case consideration of four relevant factors:
(1) the length of the delay before trial,
(2) the reason for the delay,
(3) the vigor with which the defendant has asserted his speedy
trial rights, and
(4) the degree of prejudice to the defendant.
Ia’.
1. Arguments Advanced at the August 13, 2009 Motions Hearing
At the motions hearing on August 13, 2009, new theories emerged in support of the
defendant’s motion to dismiss the indictment. The defendant played a recording of a jailhouse
telephone call that took place between him and his attorney at the time, Harry Tun, following the
defendant’s entry of a guilty plea on February 6, 2006. The defendant maintains that this
recording and others prove that he was coerced into accepting the guilty plea by Mr. Balarezo,
who at the time represented the defendant’s co-defendant, Steven Parker. The defendant further
The defendant has a complicated representation history in this case, summarized as follows:
Tony Miles of the Federal Public Defender Service represented the defendant from his arrest on
February 4, 2005 until June 21, 2005, when the defendant retained Harry Tun and Daniel Dorsey
to represent him. This representation continued until May 5, 2006, when the court granted Mr.
Tun’s motion to withdraw as counsel. The defendant then retained J ames Rudasill from May 5,
2006 until February 7, 2007. On February 7, 2007, Mr. Rudasill withdrew and the court
appointed Rudolph Acree, a CJA attorney. On November 13, 2007, the court granted Mr.
Acree’s motion to withdraw, and on Dccember 15, 2008, Mark Carroll entered his appearance on
behalf of the defendant.
asserts that Mr. Tun was present when Mr. Balarezo pressured the defendant to accept the guilty
plea, proving that Mr. Balarezo acted in collusion with Mr. Tun to coerce the defendant into
accepting the guilty plea. Finally, the defendant maintains that because the government heard the
recordings of the telephone call between the defendant and Mr. Tun on February 6, 2007, the
government was on notice that the defendant’s guilty plea had been coerced. The defendant
therefore opines that the government violated his constitutional right to a speedy trial by
continuing to advance the case toward trial.
The defendant also claims that the government failed to produce all of the recordings of
the jailhouse telephone calls that took place between himself and Mr. Tun following the entry of
his guilty plea on February 6, 6006. The court will address both of these arguments in the
context of its consideration of the Barker factors below.
2. The Barker Factors
The question of whether the defendant’s Sixth Amendment rights were violated requires
"a highly fact-specific analysis of the [defendant’s] own particular case, guided by the balancing
test prescribed by the Supreme Court in Barker." United Stales v. Mills, 925 F.2d 455, 465 (D.C.
Cir. 199l), vacated on other grounds, 964 F.2d 1186 (D.C. Cir. 1992). The court addresses each
of the four Barker factors below.
a. Length of Delay
A delay of over six months in bringing a case to trial warrants inquiry and justification,
United States v. Lara, 520 F.2d 460, 464 (D.C. Cir. 1975), and a one-year delay is generally
considered "presumptively prejudicial," Doggetl v. Unitea' States, 505 U.S. 647, 651-52 (1992).
The Supreme Court noted in Doggett that "as the term is used in this threshold context,
‘presumptive prejudice’ . . . marks the point at which courts deem the delay unreasonable enough
to trigger the Barker enquiry." Id. at 652 n.1. In this case, the defendant has been held for over
four and a half years - since February 4, 2005, Therefore, the length of the delay is more than
sufficient to trigger the Barker analysis.
b. Reasons for the Delay
"The flag all litigants seek to capture is the second factor [of the Barker analysis], the
reason for delay." United States v. Loua' Hawk, 474 U.S. 302, 315 (1986). The burden is on the
government to justify the delay, and the court should take into account the peculiar circumstances
of each case. Barker, 407 U.S. at 531. F or example, "the delay that can be tolerated for an
ordinary street crime is considerably less than for a serious, complex conspiracy charge," id. at
373
530-31, and a "delay from ‘overcrowded courts’ . . . would be weighed ‘less heavily than a
"deliberate attempt to delay the trial in order to hamper the defense," Loua' Hawk, 474 U.S. at
315.
Whenever the government’s action at any stage of the proceeding "indicates bad faith,
neglect, or a purpose to secure delay itself or some other procedural advantage, the resulting
delay is not justifred," Unitea' States v. Lara, 520 F.2d 460, 464 (D.C. Cir. 1975) (citing United
States v. Bishton, 150 463 F.2d 887, 890 (1972)). If the delay is the result of the government’s
negligence, the weight to be assigned to the delay should be assessed in relation to any prejudice
that the delay has caused to the defendant. Doggett, 505 U.S. at 656-57.
The defendant argues that the government is responsible for the delay in bringing his case
to trial. Def.’s Mot. at 26-27. He seems to base this assertion on the fact that following his
motion to withdraw his guilty plea, he repeatedly requested, through multiple attorneys, that the
government provide the tapes of the telephone conversations between himself and his second
attomey, Mr. Tun. Ia'. at 26. The defendant maintains that he has still not received all of the
recordings to which he is entitled, id., but the government asserts that it subpoenaed all such
recordings, that the defendant himself could have subpoenaed the recordings, Govt’s Opp’n at 9,
and that any calls it was unable to obtain recordings of were logged not with the defendant’s own
pin number, but with other inmates’ pin numbers, making it difficult or impossible to locate all
of the calls placed by the defendant.
The government counters that although the defendant has been held for a lengthy period
of time, the delay in bringing this case to trial has been entirely a result of the defendant’s own
actions and is not due to the govemment’s conduct. Id. at 7-10. The defendant submitted, then
withdrew, a guilty plea; he changed lawyers multiple times, and each time the new lawyer had to
take time to acquaint himself with the case; and he repeatedly requested more time to prepare for
hearings and trial. Id. The government was prepared to go to trial on February 7, 2006, the day
the defendant pled guilty, and to this day, the government remains prepared to try this case. Ia'. at
1 1.
c. Defendant’s Assertion of His Speedy Trial Rights
lt is the defendant’s responsibility to assert his speedy trial right. "[F]ailure to assert the
right will make it difficult for a defendant to prove that he was denied a speedy trial." Barker,
407 U.S. at 532. Here, the defendant has offered no information concerning when and how he
asserted his speedy trial right, other than by filing the instant motion. See generally Def.’s Mot.
lt bears noting, however, that even if the defendant has asserted his right to a speedy trial, he has
also requested, and received, numerous extensions and continuances, cutting against the vigor of
his assertion of his right to a speedy trial. Cf Loua' Hawk, 474 U.S. at 314-15 (noting that "[a]t
the same time respondents were making a record of claims . . . for speedy trial, they consumed
six months by filing indisputably frivolous petitions for rehearing and for certiorari . . . [and]
repetitive and unsuccessful motions").
d. Prejudice to the Defendant
In analyzing prej udice, courts are directed to consider the following interests of the
defendant: (1) preventing oppressive pretrial incarceration, (2) minimizing anxiety and concern
of the accused, and (3) limiting the possibility that the defense will be impaired. Barker, 407
U.S. at 532.4 The defendant asserts that he has been prejudiced by the delays in this case because
one of his key witnesses is deceased and another is "virtually unavailable due to the passage of
time and drug abuse." Def.’s Mot. at 4. The defendant offers no information as to when these
witnesses became unavailable. See generally id. As for the role that they would have played in
his defense, the defendant asserts that the witnesses "could have impeached the government
informant by showing his freelancing drug dealing activities." Ia’. at 27.
3. The Defendant’s Constitutional Right to a Speedy Trial Has Not Been Violated
Although there has been an extremely lengthy - and possibly prejudicial - delay in
bringing this case to trial, upon a review of the record in this case, the court concludes that the
delay is primarily the result of the defendant (1) impeding the government’s effort to provide him
with the recordings of the jailhouse calls that he requested and (2) requesting and obtaining new
counsel in June 2005, May 2006, February 2007 and December 2008. Further, the defendant
4 A showing of actual prejudice is not required if the delay is the result of the government’s
negligence and the length of the delay is presumptively prejudicial. In such cases, the burden
shifts to the government to rebut the presumption of prejudice. Doggett, 505 U.S. at 65 8.
8
offers no factual basis for his assertion that the delay has been caused by the govemment’s
conduct or negligence, Contrary to the defendant’s suggestion, rather than asserting that the
defendant was not coerced into accepting a guilty plea, the government consistently
recommended that the court conduct an evidentiary hearing to allow the court to rule on the
defendant’s motion to withdraw his guilty plea. See Govt’s Opp’n to Def.’s Mot. to Withdraw
Guilty Plea (Apr. 28, 2006) at 1 (stating that "[b]ecause the defendant’s argument [that he was
coerced] rests on factual allegations outside the record, the Court should hold an evidentiary
hearing to determine the credibility of the defendant’s allegation and to make a determination of
the factual issues necessary for a resolution of the defendant’s motion").
Further, the court concludes that the government made a sufficient effort to produce the
jailhouse calls between the defendant and Mr. Tun. Its failure to produce all of the calls appears
to have been the result of the fact that the defendant "abus[ed] the [Correctional Treatment
Facility] phone system" by using at least eleven other inmates’ pin numbers rather than his own
to place calls from the jail. See generally Govt’s Notice of Def.’s Jail Call Activity (Aug. 14,
2009). Moreover, the defendant himself observes that his third attomey, Mr. Rudasill, "was
afforded an opportunity by the government to test and correct any problems he might have had
with the disks he received from the govemment. He never availed himself of this opportunity."
Def.’s Mot. at 26. In addition, the defendant contends that his fourth attomey, "Mr. Acree . . .
was unfamiliar with the course of action necessary to navigate the Court process in obtaining
these taped conversations." Id. at 27. Accordingly, even the defendant’s own portrayal of the
history of this case undercuts his allegation that the delays have been the result of the
government’s conduct. As a result, the court denies the defendant’s motion to dismiss the
indictment due to delays caused by the government.
C. The Defendant’s Claim of Ineffective Assistance of Counsel Lacks Merit
The defendant also makes a vague allegation of ineffective assistance of counsel,
repeating his claim that "[Mr.] Balarezo[, former co-defendant Steven Parker’s attomey,]
threatened Mr. Goss in the cellblock behind Judge Sullivan’s courtroom while his attorney Harry
Tun passively stood there." Id. at 5. As discussed in the preceding section, the defendant also
alleges that "Mr. Rudasill . . . was afforded an opportunity by the government to test and correct
any problems he might have had with the disks [of recordings of jailhouse calls between the
defendant and Mr. Tun that Mr. Rudasill] received from the govemment. [Mr. Rudasill] never
availed himself of this opportunity." Id. at 26. In addition, the defendant contends that "Mr.
Acree . . . was unfamiliar with the course of action necessary to navigate the Court process in
obtaining these taped conversations." Id. at 27.
The govemment opposes the motion, claiming that the efforts of the defendant’s previous
counsel were not constitutionally deficient. Govt’s Opp’n at 12-13. The government points out
that Mr. Tun obtained a very favorable plea offer for the defendant, and each subsequent attorney
filed numerous motions on the defendant’s behalf. Ia’. at 12. In addition, Mr. Acree successfully
persuaded the court to allow the defendant to withdraw his guilty plea. Ia'. at 13. Finally, as the
govemment has already argued, the defendant prejudiced himself and slowed the progress of his
own case by demanding that his attorneys obtain recordings of his jail calls, urging them to
request more time to prepare for hearings, and then requesting a new attorney when he became
dissatisfied with counsel’s perforrnance. Id.
The defendant can succeed on his ineffective assistance of counsel claim only if he shows
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that his previous attomeys’ efforts fell below an objective standard of reasonableness and were
prejudicial to his defense, Strickland v. Washington, 466 U.S. 668, 690-92 (1984). Although, as
the court concluded at the motions hearing on August 13, 2009, the defendant has made a prima
facie showing that Mr. Tun and Mr. Balarezo coordinated in a fashion so as to adversely affect
the defendant, the defendant has offered no information that could lead the court to believe that
any of his attorneys’ conduct fell below an objective standard of reasonableness. Equally
damaging to the defendant’s ineffective assistance claim is the fact that he has offered no
evidence from which the court could conclude that that there is a reasonable probability that, but
for his attorneys’ allegedly unprofessional errors, the result of his criminal proceeding would be
different. See ia'. at 694. He claimed that a crucial defense witness has died, Def.’s Mot. at 4, but
provided no death certificate or other evidence to substantiate that assertion; he claimed that
another defense witness is "virtually unavailable," id., but similarly offered no evidence to
buttress that bare allegation; and he noted during the motions hearing that the radio run from one
of the incidents in question is no longer available, but provided no information that would lead
the court to conclude that the contents of the radio run would have been outcome-deterrninative.
See Strickland, 466 U.S. at 693 (noting that "[i]t is not enough for the defendant to show that the
[attorney’s alleged errors] had some conceivable effect on the outcome of the proceeding"). As a
result, the court rejects the defendant’s claim of ineffective assistance of counsel.
ll
IV. CONCLUSION
For the foregoing reasons, the court denies the defendant’s motion to dismiss the
indictment with prej udice. An Order consistent with this Memorandum Opinion was issued
separately on August 18, 2009.
RICARDO M. URBINA
United States District Judge