United States v. Morss

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES,
v.
ROBERT MORSS, Case No. 1:21-cr-00040-5 (TNM)
Defendant.
MEMORANDUM ORDER
The Government charges Robert Morss with multiple crimes for his actions on January 6,
2021. See Fifth Supers. Indictment, ECF No. 179. After his arrest, a magistrate judge granted
the Government’s motion to detain Morss pending trial. See Min. Entry, July 20, 2021. Last
December, this Court affirmed that decision. See Dec. 17, 2021 H’rg Tr. at 13–19. Morss now
asks the Court to reconsider that order. The Court denies his motion. 1
Morss is one of nine co-defendants. The Court has already described the case’s factual
background several times. See, e.g., United States v. McCaughey, No. 21-cr-40, 2022 WL
1604655, at *1 (D.D.C. May 20, 2022). It need not do so again here. And in its prior order, the
Court also described the specific allegations against Morss. The Court incorporates by reference
that factual description for purposes of this Order. The Court also incorporates the legal analysis
from its previous order because Morss does not challenge it now.
Instead, he focuses on the progress of discovery. Morss says that the Government has
taken too long on discovery in January 6 cases, with “no reliable end date” for production of all
possible materials. See Mot. for Reconsideration of Pre-Trial Release at 1, ECF No. 283 (Mot.). 2
1
Morss’s co-defendant Geoffrey Sills also joins this motion, see ECF No. 286, but provides no
briefing specific to his own detention. The Court’s denial now thus applies equally to Sills.
2
All page citations refer to the pagination generated by the Court’s CM/ECF system.
That delay has forced him into a choice: insist on receiving all discovery before trial, even
though further “delay means even more time incarcerated,” id. at 5, or proceed to trial without all
available evidence. According to Morss, his pretrial detention is punitive—and therefore
illegal—because of this conundrum.
To be sure, the Court has at times questioned the Government’s discovery progress. See,
e.g., Hr’g Tr. at 16, ECF No. 281. But any delay here derives mainly from the prosecution of so
many Defendants, not discovery delays. The presence of so many parties has forced the Court to
juggle its own schedule with that of nine defense counsel. Any duel between that many
datebooks will naturally create delay. More, there have been—and continue to be—many
defense motions here, far more than the average case. The complexity of this case distinguishes
it from most other January 6-related cases.
And it is Morss’s own alleged conduct that places him among eight others. He allegedly
participated in a mob attack against police in the Lower West Tunnel. His decision to join a
violent crowd then has led him into such a crowded trial now. Accord McCaughey, 2022 WL
1604655, at *2 (“Defendants worked together. It is appropriate for them to be tried together.”).
Even more to the point, multiple January 6 trials have occurred since March in this
courthouse despite the Government’s progress on discovery. See, e.g., United States v. Guy
Reffit, 21-cr-32; United States v. Thomas Webster, 21-cr-208; United States v. Thomas
Robertson, 21-cr-34; United States v. Dustin Thompson, 21-cr-161, United States v. Timothy
Hale-Cusanelli, 21-cr-37. Yet none of them have dealt with an indictment against so many
Defendants. It is not discovery that delays Morss’s case, but the unique circumstance of the
entire case. And in any event, the Government has handed over all materials that will be part of
2
its case in chief against Morss. See Gov’t Opp’n to Def.’s Mot. to Reconsider at 2, ECF No. 291
(Opp’n).
The Court thus concludes that the unique features of Morss’s case, and not the progress
of discovery, caused any delay. His arguments about discovery thus do not persuade the Court
that his pretrial detention is punitive. 3
The same conclusions also rebut Morss’s argument that the Government has violated the
Speedy Trial Act. As the Government recites, the Court has consistently excluded time under
the Act to accommodate plea negotiations, pretrial scheduling for various motions, and meetings
between the Government and defense counsel. See Opp’n at 6–8. In a nine-Defendant case,
those developments required time. As for any time between now and the pretrial conference, the
Act automatically excludes it based on the submission of pretrial motions, see 18 U.S.C.
§ 3161(h)(1)(D), including ones from other Defendants that Morss has joined, see ECF No. 334.
In sum, the realities of this case have required exclusion under the Speedy Trial Act. See 18
U.S.C. § 3161(h)(7)(A) (allowing exclusion of time when “the ends of justice
served . . . outweigh the best interests of the public and the defendant in a speedy trial”). The
Government’s progress on discovery, even if deficient, had little influence on those exclusions. 4
Finally, Morss argues that the delay violates his Sixth Amendment right to a speedy trial.
See Mot. at 7–8. The Court considers four factors under the Sixth Amendment: (1) the length of
the delay; (2) the reason for the delay; (3) the defendant’s assertion of his right to a speedy trial;
3
Nor does his argument about the conditions of his confinement. Morss complains of
harassment at the Central Treatment Facility, see Mot. at 5, but the Court already considered
those conditions in its prior order, see Dec. 17, 2021 Hr’g Tr. at 19. Those past conditions thus
do not provide a basis to reconsider Morss’s detention.
4
Indeed, Morss disregards that “[o]n the present indictment, no time has elapsed on the Speedy
Trial Clock.” Opp’n at 8.
3
and (4) prejudice caused by the delay. See Barker v. Wingo, 407 U.S. 514, 530 (1972). The
Court must consider the factors together. See United States v. Bikundi, 926 F.3d 761, 779 (D.C.
Cir. 2019). But to trigger this analysis, delay between accusation and trial must “cross the
threshold dividing ordinary from presumptively prejudicial delay.” Id. (cleaned up). “Generally,
a delay of one year is presumptively prejudicial.” Id.The Government first filed a complaint against Morss a little less than a year ago, see
Compl., Jun. 10, 2021. ECF No. 1, and his trial is scheduled for August. Thus, the relevant delay
is more than one year, requiring analysis of the Barker factors.
On balance, those factors favor the Government. As to the first factor, the Constitution
tolerates a longer delay for more complex charges and cases. See Barker, 407 U.S. at 531. This
case is undeniably complex, involving “voluminous discovery and multiple defendants.”
Bikundi, 926 F.3d at 780. The delay of 14 months by the time of trial is therefore justifiable. See
id. (holding an 18-month delay justifiable in a complex case).
The second factor likewise cuts against Morss. As described already, the presence of so
many Defendants creates many logistical challenges. COVID-19 has also exacerbated those
challenges. Since the beginning of 2021, the Chief Judge has limited the number of jury trials in
the courthouse to avoid undue exposure of jurors and staff to COVID. See Opp’n at 9 (collecting
Chief Judge’s standing orders). Any delay thus stems not from the Government’s discovery
conduct, but from other extraordinary factors.
The third factor supports Morss because he has asserted his speedy trial rights well before
now. See Hr’g Tr. at 21, ECF No. 281. But the fourth factor—prejudice from delay—does little
to advance his claim. As part of this factor, the Court considers prejudice from “oppressive
4
pretrial incarceration,” the “anxiety and concern of the accused, and “the possibility that the
accused’s defense will be impaired[.]” Doggett, 505 U.S. at 654.
The Court has already considered on Morss’s detention and has found it neither punitive
nor oppressive. See supra. Nor has Morss asserted any anxiety or concern over his charges. At
most, he relies on the third type of prejudice—the impairment of his defense. He says that
detention “has vastly complicated his dialogue with counsel, particularly” during discovery
review. Mot. at 8.
That is not enough. Morss includes no “specific, articulable” incident where his
detention has hindered the preparation of his defense. United States v. Tchibassa, 452 F.3d 918,
927 (D.C. Cir. 2006). And even if he did, Morss’s situation is little different from any other
pretrial detainee—many of whom have waited much longer than he in the COVID era for their
trial. See, e.g., United States v. Robert Santana-Padron, No. 20-cr-56 (arrested in March 2020
with trial scheduled in August 2022). Finally, not all types of impairments to a defendant’s case
will implicate his speedy trial rights. The Supreme Court has instead focused on the possibility
that a delay will dim the memories of relevant witnesses or will lead to lost exculpatory
evidence. See Doggett, 505 U.S. at 654. Morss does not suggest that his delayed trial or his
detention will cause either harm.
In sum, the balance of the Barker factors favors the Government. Morss has shown no
violation of his speedy trial rights. The Court is acutely conscious of all defendants’ Sixth
Amendment and statutory speedy trial rights and the difficulties pretrial detention create. Still,
the Defendant has been indicted for his alleged role in a violent mob attack on police officers
protecting the U.S. Capitol and now faces trial along with several alleged confederates. And this
all is taking place amid COVID restrictions. Given all this, Defendant’s motion is meritless.
5
For these reasons, it is ORDERED that Defendant Morss’s [283] Motion for
Reconsideration is DENIED.
SO ORDERED.
2022.06.09
11:56:48 -04'00'
Dated: June 9, 2022 TREVOR N. McFADDEN, U.S.D.J.
6