USA v. Flying Horse et al

OCR transcription for search; preserved printed pages are authoritative

Case 5:20-cr-50035-KES Document 264 Filed 07/21/21 Page 1 of 20 PagelD #: <pagelD>

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA

WESTERN DIVISION

UNITED STATES OF AMERICA, 5:20-CR-S50035-JLV-01

Plaintiff,
REPORT AND RECOMMENDATION
vs.

JOSEPH FLYING HORSE,

Defendant.

Pending are Defendant’s First, Second, Third, Fourth, Fifth, Sixth,
Seventh, Eighth, and Ninth Motions to Dismiss (Docs. 51, 97, 147, 148, 179,
187, 201, 218, 250). Based on a careful consideration of all the evidence, and
counsel’s written arguments, the Court respectfully makes the following:

RECOMMENDATION

It is respectfully recommended that Defendant’s Motions to Dismiss be

denied.

JURISDICTION

Defendant is charged in an Indictment with Possession of a Stolen
Firearm in violation of 18 U.S.C. §§ 922(j) and 924(a)(2) and Possession of a
Firearm While Under Indictment in violation of 18 U.S.C. §§ 922(n) and
924(a)(1)(D). The pending Motions were referred to the Magistrate Judge
pursuant to 28 U.S.C. § 636(b)(1)(B) and United States District Judge Jeffrey L.

Viken’s Standing Order dated April 1, 2018.

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

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FACTUAL BACKGROUND

The defendant has filed nine different motions to dismiss. The facts of
each individual motion will be addressed in its respective section below.

DISCUSSION

1. First Motion to Dismiss (Doc. 51)

The defendant’s First Motion to Dismiss was filed July 2, 2020. The
defendant argues the United States, as Plaintiff in this action, does not have
personal jurisdiction over him because “the United States has acquiesced to its
lack of personal-matter jurisdiction” by failing to respond to the defendant’s
letter of June 22, 2020.! (Doc. 51, 51-1). In this letter, which the defendant
attached to this motion, the defendant argues both the prosecution and this
Court lack personal jurisdiction because he is not a U.S. citizen and is instead
a sovereign citizen. (Doc. 51-1).

The Government argues the defendant is a U.S. citizen under 8 U.S.C. §
1401(b) and subject to the jurisdiction thereof. The government also argues
any contention by the defendant that he is a sovereign citizen and not subject
to the laws of the United States is without merit and “patently frivolous.” (Doc.

62).

1 As a preliminary matter, it is important to note the jurisdictional
requirement pertains only to the Court. A case cannot be dismissed due to
lack of jurisdiction by the prosecution. Thus, the defendant’s argument the
charges against him should be dismissed because the Government has
acquiesced to their own lack of jurisdiction is without merit.

2

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The issue is whether the defendant should be considered a sovereign
citizen and, if so, whether that would deprive this Court of personal
jurisdiction. Sovereign citizen arguments have routinely been rejected in the

Eighth Circuit. See, e.g., Meyer v. Schroeder, 2018 WL 3651354 (D.S.D. 2018)

(rejecting Defendant’s claim of sovereign citizenship as frivolous), United States

v. Hart, 701 F.2d 749, 750 (8th Cir. 1983) (rejecting sovereign citizen as a

constitutionally relevant status), United States v. Jagim, 978 F.2d 1032, 1036

(8th Cir. 1992) (calling sovereign citizen claim “completely without merit,
patently frivolous, and...rejected without expending any more of this Court’s
resourees,,.”)

Additionally, even if the Court were to accept the fact that the defendant
were a sovereign citizen or a non-U.S. citizen, that fact would still not deprive
this Court of personal jurisdiction over the defendant. “[T]here is no question
that every person present in the United States is generally subject to the laws

of the United States." United States v. Workman, 2009 WL 1649197 (D. Neb.

2009) (quoting United States v. Szilagyi, 1989 WL 68592 (6th Cir. 1989)). “The

district courts of the United States shall have original jurisdiction, exclusive of
the courts of the State, of all offenses against the laws of the United States." 18
U.S.C. § 3231. “[T]he government must prosecute an offense in a district where
the offense was committed.” FED. R. CRIM. P. 18.

Here, the defendant is charged with committing crimes in violation of the
laws of the United States, to wit, Possession of a Stolen Firearm in violation of

18 U.S.C. §§ 922(j) and 924(a)(2) and Possession of a Firearm While Under

3

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Indictment in violation of 18 U.S.C. §§ 922(n) and 924(a)(1)(D). Additionally, the
offenses occurred within the state of South Dakota. This Court clearly has
personal jurisdiction over the Defendant.

Therefore, the Court recommends the Defendant’s First Motion to
Dismiss (Doc. 51) be denied.

2. Second Motion to Dismiss (Doc. 97)

The defendant’s Second Motion to Dismiss was filed August 21, 2020.
The defendant argues Counts I and V should be dismissed because the
Government has failed to prosecute the case because they have not “resisted,
responded to, nor opposed any of the defendant's filings since July 27, 2020.”
(Doc. 97).

The Government filed a response to this Motion on August 25, 2020. The
Government argues the Defendant relies solely on cases applying the FED. R.
Civ. P. and that both the cases and FED. R. Civ. P. are inapplicable in a criminal
case. (Doc. 113).

The issue is whether Defendant’s Motion to Dismiss for Failure to
Prosecute is appropriate in this case. “The Federal Rules of Civil Procedure
apply to civil cases in federal district courts, FED. R. Civ. P. 1, but have no

applicability in a criminal case such as this one.” United States v. Fay, 2014

WL 129555, *3 (D.S.D. Jan. 13, 2014) (citing United States v. McCalister, 601

F.3d 1086, 1087-88 (10th Cir. 2010) (noting that the Federal Rules of Civil

Procedure are not available in criminal proceedings)).

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Here, the Defendant provides no support for his Motion to Dismiss for

Failure to Prosecute other than vague citations to Jumping Eagle v. Yantis,

2020 U.S. Dist. LEXIS 25324 *7 (D.S.D. 2020) and Roofing v. Travelers Cas.

Co. of Am., 2020 U.S. Dist. LEXIS 27657 *2 (D. Neb. 2020). Both cases rely
solely on Fed. R. Civ. P. 41(b), which allows a court to dismiss a civil action

with prejudice “only in the face of a clear record of delay or contumacious

conduct by the plaintiff.” Navarro v. Chief of Police, Des Moines, Iowa, 523
F.2d 214, 217 (1975). This mechanism does not apply in criminal cases.

The Defendant argues his motion should not be rejected on “mere
technical grounds” and that his filings should be construed liberally. While it
is true pro se motions are to be construed more liberally than those filed

through an attorney (See, Haines v. Kerner, 404 U.S. 519, 520 (1972)), that

does not entitle a pro se litigant to forms of relief unavailable to defendants
represented by counsel. Since a Dismissal for Failure to Prosecute is
unavailable in a criminal case, the Court will not consider the merits of such a
motion.

Therefore, the Court recommends the Defendant’s Second Motion to
Dismiss (Doc. 97) be denied.

3. Third Motion to Dismiss (Doc. 147)

The defendant’s Third Motion to Dismiss was filed October 13, 2020.
The defendant argues Count V should be dismissed because he was not “under
indictment” between the dates of April 19 and April 21, as alleged by the

Indictment in this case.

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Specifically, the Indictment alleges that the defendant was charged in
Pennington County, South Dakota, case no. CRI 20-001236, with Possession of
a Controlled Substance, Schedule I or II, which carries a potential prison
sentence exceeding one year. (Doc. 26). The defendant was initially charged by
complaint on March 10, 2020, and appeared for his initial appearance on
March 13, 2020. Doc. 147-1. The defendant was not charged by indictment
until May 7, 2020. Id.

The issue is whether a complaint is considered an “indictment” for
purposes of 18 U.S.C. 922(n). The term “indictment” is defined as “an
indictment or information in any court under which a crime punishable by
imprisonment for a term exceeding one year may be prosecuted.” 18 U.S.C. §
921(a)(14). To determine whether the defendant was under indictment for
purposes of § 922(n), the court is to look at South Dakota law. U.S. v. Hill, 210
F.3d 881 (8th Cir. 2000) (applying Missouri law because the defendant was
charged in state court in Missouri).

The Court is unable to find, and neither party points to, any controlling

case law on this point. However, the Eighth Circuit case of U.S. v. Brede is

quite instructive. 477 F.3d 642 (8 Cir. 2007). In this case, the court held

Under Minnesota law, a ‘complaint is a written signed statement of
the essential facts constituting the offense charged.’ Minn. R. Crim.
P. 2.01. Consequently, Brede became subject to the prohibitions of
§ 922(n) when the state of Minnesota filed the felony complaints
against Brede. The district court did not err in determining an
indictment, and information, and a Minnesota complaint are
functionally equivalent....

Brede, 477 F.3d at 643-44.

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The Brede court goes on to interpret the Congressional intent of 18
U.S.C. § 922(n) as being “to protect the public by proscribing [acts involving
firearms by] ... those charged with felonies without attaching any significance
to the procedural vehicle forming the basis of the charge. Id at 643-44

(quoting Schook v. United States, 337 F.2d 563, 567 (8th Cir.1964)).

The definition of a “complaint” under South Dakota is nearly identical to
the Minnesota definition in Brede. “A complaint is a written statement of the
essential facts constituting an offense charged. It must be signed under oath
before a person authorized to administer oaths in the State of South Dakota.”
SDCL § 23A-2-1 (2019). This Court, like the court in Brede, finds no
meaningful difference between an information, which is contained in the
definition of “indictment,” and a complaint.

Therefore, the court finds that a complaint under South Dakota law falls
under the definition of “indictment” for purposes of 18 U.S.C. § 922(n), The
issue of whether the defendant was “under indictment” therefore remains to be
determined and is a factual question to be decided by a jury.

Therefore, the Court recommends the Defendant’s Third Motion to
Dismiss (Doc. 147) be denied.

4. Fourth Motion to Dismiss (Doc. 148)

The defendant’s Fourth Motion to Dismiss was filed October 13, 2020.

The defendant argues Count I-of the Indictment should be dismissed because

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there is insufficient evidence to prove that he had knowledge, or reasonable
cause to believe, the gun he is alleged to have possessed was stolen.?

Federal Rule of Criminal Procedure 12(b)(3)(B)(iii) and 12(b)(3)(B)(v)
provides that a defect in the indictment, such as lack of specificity or failure to
state an offense, must be raised by pretrial motion if the basis for the motion is
then readily available and the motion can be determined without a trial on the
merits. FED. R. CRIM. P. 12(b)(3)(B). When ruling on a motion to dismiss, a

court must accept all factual allegations in the indictment as true. See United

States v. Sampson, 371 U.S. 75 (1962). A valid indictment must allege that
“the defendant performed acts which, if proven, constitute the violation of law

for which he is charged.” United States v. Polychron, 841 F.2d 833, 834 (8th

Cir.1988). If an indictment fails to allege acts that constitute a violation of law,
then it may be dismissed. Id.

An indictment adequately states an offense if it “contains all of the
essential elements of the offense charged, fairly informs the defendant of the
charges against which he must defend, and alleges sufficient information to

allow a defendant to plead a conviction or acquittal as a bar to a subsequent

prosecution.” United States v. Sewell, 513 F.3d 820, 821 (8th Cir.2008)

2 It is somewhat unclear what the defendant is arguing in this motion. The
court will treat the motion as a motion for dismiss for lack of specificity under
Fed. R. Crim. P. 12(b)(3)(B)(iii). To the extent the defendant is arguing for
summary judgment, there exists no such mechanism in federal criminal cases
and the argument is denied as meritless. “Federal criminal procedure does not
‘provide for a pre-trial determination of the sufficiency of the evidence.” U.S. v.
Ferro, 252 F.3d 964 (8% Cir. 2001) (citing United States v. Critzer, 951 F.2d
306, 307-08 (11th Cir.1992).

8

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(quoting United States v. Hernandez, 299 F.3d 984, 992 (8th Cir.2002)). This

is a low bar, and an indictment will normally be found valid unless it is so
defective that no reasonable construction of it properly charges the offense for
which the defendant is being tried. See id. at 821. Normally, an indictment
that tracks the statutory language is sufficient. Id.

The essential elements of possession of a stolen firearm under 18 U.S.C.
§ 922(j) and 924 (a)(2) are 1) the defendant knowingly possessed a firearm; 2)
the firearm was stolen; 3) the defendant knew or had reasonable cause to
believe the firearm was stolen; and 4) the firearm was shipped or transported in

interstate commerce. U.S. v. White, 816 F.3d 976, 985 (8 Cir. 2016).

Here, the superseding indictment is sufficient. It alleges each of the
essential elements of possession of a stolen firearm and provides enough detail
to put the defendant on notice of the charge against him. The Indictment is
not vague or indefinite. Contrary to the defendant’s argument, the indictment
itself need not actually prove he knew or had reason to believe the firearm was
stolen. The allegation that he had knowledge, or reasonable cause to believe,
the firearm was stolen satisfies the Government’s requirement to allege the
mens rea element in the instant case.

It is not the job of the indictment to prove each element of the offense,
but to inform the defendant of the offense for which he is charged. Whether
the Government has evidence to prove the “knowledge” element is an issue to

be resolved at trial.

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Therefore, the Court recommends the Defendant’s Fourth Motion to
Dismiss (Doc. 148) be denied.

5. Fifth Motion to Dismiss (Doc. 179)

The defendant’s Fifth Motion to Dismiss was filed November 13, 2020.
The defendant argues both counts against him should be dismissed because
they are “multiplicitous” and violate the Double Jeopardy Clause of the U.S.
Constitution.

The Double Jeopardy Clause of the Fifth Amendment provides that “no
person shall be subject for the same offence to be twice put in jeopardy of life
or limb.” U.S. CONST. amend. V. “An indictment is multiplicitous if it charges

the same crime in two counts.” United States v. Chipps, 410 F.3d 438, 447

(8th Cir. 2005). “A multiplicitous indictment is impermissible because ‘the jury
can convict the defendant on both counts, subjecting the defendant to two
punishments for the same crime in violation of the double-jeopardy clause of

the Fifth Amendment.” United States v. Sandstrom, 594 F.3d 634, 651-52

(8th Cir. 2010) (quoting Chipps, 410 F.3d at 447)). “Demonstrating that an

indictment violates the double jeopardy clause requires the defendant to show
that the two offenses charged are in law and fact the same offense.” United

States v. Two Elk, 536 F.3d 890, 898 (8th Cir. 2008) (internal quotation

omitted).
The Blockburger test sets out the applicable rule that “where the same
act or transaction constitutes a violation of two distinct statutory provisions,

the test to be applied to determine whether there are two offenses or only one,

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is whether each provision requires proof of a fact which the other does not.”

Blockburger v. United States, 284 U.S. 299, 304 (1932). “A single act may be

an offense against two statutes; and if each statute requires proof of an
additional fact which the other does not, an acquittal or conviction under either
statute does not exempt the defendant from prosecution and punishment
under the other.” Id. (internal quotation omitted). However, the “double
jeopardy clause does not prevent multiple punishments for the same offense

where Congress has specifically authorized cumulative punishment under two’

statutes.” United States v. Mills, 835 F.2d 1262, 1264 (8th Cir. 1987).

Here, by the defendant’s own admission, each charge requires proof of an
element that the other does not. “Accordingly, the element — “knowingly
possessed a stolen firearm”- at Count I of the Indictment (Doc. 26), and the
element — “under indictment”- at count V of the indictment (Doc. 26), are
therefore, not found in the other; thus, being the same offense barred by double
jeopardy.” (Doc. 179, fn. 1). Because each offense contains an element that
the other does not, the offenses are not multiplicitous and do not violate the
Double Jeopardy Clause.

Therefore, the Court recommends the Defendant’s Fifth Motion to
Dismiss (Doc. 179) be denied.

6. Sixth Motion to Dismiss (Doc. 187)

The defendant’s Sixth Motion to Dismiss was filed December 12, 2020.
The defendant argues Count I of the Indictment should be dismissed because it

violates the Cruel and Unusual Punishments Clause of the Eighth Amendment

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of the U.S. Constitution. Specifically, Mr. Flying Horse argues that because
another unnamed defendant, also charged with possession of a stolen firearm
in a separate case, had his charge dismissed for lack of knowledge that the gun
was stolen, Mr. Flying Horse’s case should also be dismissed. He claims he also
did not have knowledge that the firearm he possessed was stolen’, and to treat
the two cases differently would be “unusual” punishment for purposes of the
Eighth Amendment.

The Cruel and Unusual Punishments Clause provides that “Excessive
bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.” U.S. CONST. amend. VIII. However, the defendant has
failed to point to, and the Court has failed to find, any caselaw suggesting that
because the Government chooses to dismiss one defendant’s case, they must
dismiss all other defendant’s cases charged with similar crimes who make the
same argument.

The defendant incorrectly relies on Solem v. Helm, 463 U.S. 277 (1983),

misquoting it as reading “The final clause [unusual punishments]
prohibits...sentences that are disproportionate[.].” The full quote from Solem
reads “The final clause prohibits not only barbaric punishments, but also
sentences that are disproportionate to the crime committed.” Id. at 284. Itis

clear this case contemplates the proportionality between the crime and

3 As discussed in section 4, infra, the issue of whether the defendant knew the
firearm was stolen is a factual question to be resolved at trial. To the extent
the defendant argues this issue has been conclusively established by the
Government’s failure to respond, that argument also fails for the reasons stated
in the Reports and Recommendations on the Motions for Default Judgment.

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punishment of one person’s actions, and not the punishments of two different
individuals.

Therefore, the Court recommends the Defendant’s Sixth Motion to
Dismiss (Doc. 187) be denied.

7. Seventh Motion to Dismiss (Doc. 201)

The defendant’s Seventh Motion to Dismiss was filed January 4, 2021.
The defendant argues Counts I and V should be dismissed because the
Government failed to respond to his Thirteenth Request for Judicial Notice
(Doc. 177). He also states this request challenges this Court’s jurisdiction over
the defendant, and the Government’s failure to respond “provies] plaintiffs
acquiescence to its lack of such jurisdiction over defendant in this matter.”
(Doc. 201).

D.S.D. Crim. LR 47.1(C) requires any opposing party to file a response
within 7 days of service of a motion and accompanying brief. The defendant’s
Thirteenth Request for Judicial Notice is not a motion which would require a
responsive filing under Rule 47.1. Therefore, the Government had no obligation
to respond and their failure to respond does not “prove” this Court’s lack of
jurisdiction.

Alternatively, as stated in this Courts Report and Recommendation
regarding Mr. Flying Horse’s Motion for Entry of Default “plaintiff's failure to
respond to defendants’ motions to dismiss “does not automatically compel

resolution of [the motions] in favor of [defendants].”” Meyer v. JP Morgan Chase

Bank, 2016 WL 11609168 (D.S.D. 2016) (citing United States v. One Parcel of

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Real Prop., 27 F.3d 327, 329 n.1 (8th Cir. 1994), (see also Canada v. Union

Elec. Co., 135 F.3d 1211, 1213 (8th Cir. 1997) (“When a motion would be
dispositive of the merits of the cause if granted, courts should normally not
treat a failure to respond to the motion as conclusive.”))

If granted, the defendant’s request for judicial notice would be dispositive
of this case, as it would leave this court without jurisdiction. As such, the court
will not treat the Government’s failure to respond as conclusively establishing
the facts set forth in the defendant’s request for judicial notice.

Therefore, the Court recommends the Defendant’s Seventh Motion to
Dismiss (Doc. 201) be denied.

8. Eighth Motion to Dismiss (Doc. 218)

The defendant’s Eighth Motion to Dismiss was filed February 5, 2021.
The defendant argues Counts I and V should be dismissed because the
Government “failed to serve defendant due process of its Response.” (Doc.
196). In support of his motion, the defendant cites several civil cases, all of
which contemplate a either a plaintiff's failure to serve a complaint and
summons under Fed. R. Civ. P. Rule 4(m) or the respective state’s local rules of
civil procedure; or failure to prosecute under Fed. R. Civ. P. Rule 41(b).

As stated in Section 2, infra, the Federal Rules of Civil Procedure have no
application in criminal cases. However, the Federal Rules of Criminal
Procedure do have a somewhat closely analogous statute, so the Court will

evaluate the defendant’s claim under the corresponding criminal rule.

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Fed. R. Crim. P. 49(a)(1) requires the following documents to be served
on an opposing party: “any written motion (other than one to be heard ex
parte), written notice, designation of the record on appeal, or similar paper.” In
this case, the document referenced by the defendant is a half-page response to
one of the defendant’s letters (Doc. 196), in which the Government states they
do not agree to the defendant’s requested stipulations. This filing is not the
type of filing required by Rule 49 to be served on the defendant.

Additionally, the Court is unaware of, and the defendant fails to point to,
any caselaw or statute stating that the remedy for failure to serve a filing such
as this is dismissal.

Therefore, the Court recommends the Defendant’s Eighth Motion to
Dismiss (Doc. 218) be denied.

9. Ninth Motion to Dismiss (Doc. 250)

The defendant’s Ninth Motion to Dismiss was filed June 3, 2021. The
defendant argues Counts I and V should be dismissed on the grounds that his
right to a speedy trial under the Sixth Amendment and the Speedy Trial Act
has been violated.

A defendant’s right to a speedy trial is implicated in both the Speedy Trial
Act of 1974 and the Sixth Amendment to the U.S. Constitution. The Speedy
Trial Act states, in relevant part, that a trial shall commence no later than 70
days after a defendant has been indicted or arraigned, whichever occurs later.

18 U.S.C. § 3161(c)(1).

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There are, however, several instances where the 70-day period may be
tolled. These include, among other items, “all time between the filing of a
motion and the conclusion of a hearing on that motion, whether or not a delay

in holding the hearing is ‘reasonably necessary,’ Henderson v. United States,

476 U.S. 321, 330 (1986) (interpreting 18 U.S.C. § 3161(h)(1)(F); up to an
additional 30 days under which the motion is “under advisement” by the court,
18 U.S.C. § 3161(h)(1)(J); and any period of delay resulting from a continuance
granted by any judge on his own motion or at the request of the defendant if
the judge finds that the ends of justice served by taking such action outweigh
the best interest of the public and the defendant in a speedy trial, 18 U.S.C. §
3161(h)(7)(A). The defendant bears the burden of showing that the Speedy

Trial Act has been violated. United States v. Williams, 557 F.3d 943, 950 (8th

Cir. 2009).

Here, Mr. Flying Horse has filed, on last count, nearly 50 motions and
requests. Each of these filings has tolled the speedy trial clock and
considerably slowed down the resolution of the defendant’s case. Additionally,
the speedy trial clock was tolled for a considerable portion of the last year due
to the ongoing COVID-19 pandemic. As such, the defendant has not met his
burden of showing the Speedy Trail Act has been violated.

| The right to a speedy trial is also guaranteed by the Sixth Amendment.
The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused
shall enjoy the right to a speedy ... trial." U.S. Const, amend. VI. This right to

a speedy trial "attaches at the time of arrest or indictment, whichever comes

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first, and continues until the trial commences." United States v. Erenas-Luna,

560 F.3d 772, 776 (8th Cir. 2009) (citation omitted). In determining whether a
defendant's Sixth Amendment right to a speedy trial has been violated, courts

are to consider four factors set out by the Supreme Court: (1) the length of the
delay, (2) the reason for the delay, (3) the defendant's assertion of his right to a

speedy trial, and (4) the prejudice to the defendant. Barker v. Wingo, 407 U.S.

514, 530 (1972).

The first factor weighs in favor of the defendant. “To trigger speedy trial
analysis, the defendant must allege the interval between accusation and trial
has crossed a line dividing ordinary from presumptively prejudicial

delay.” United States v. Aldaco, 477 F.3d 1008, 1019 (8th Cir. 2007)

(quotations omitted). The Eighth Circuit has held that a delay of one year is

presumptively prejudicial. United States v. Jeanetta, 533 F.3d 651, 656 (8th

Cir. 2008), See also United States v. Titlbach, 339 F.3d 692, 699 (8th Cir.

2003). ("A delay approaching a year may meet the threshold for presumptively
prejudicial delay requiring application of the Barker factors."). Here,
approximately 13 months have passed since the defendant was indicted on the
current charges. The Court finds this delay to be presumptively prejudicial.
The second factor, the reason for the delay, weighs heavily against the
defendant. As stated above, the defendant has filed nearly 50 motions and
requests. "There typically will be no Sixth Amendment violation when the
defendant was responsible for most of the delay, which was occasioned by his

motions to suppress evidence, for a competency evaluation, and to dismiss.”

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United States v. Flores-Lagonas, 993 F.3d 550, 563 (8th Cir. 2021)

(quoting United States v. Walker, 840 F.3d 477, 485 (8th Cir. 2016)).

Although the trial has also been delayed by motions and a continuance, these
were filed by co-defendant’s and are attributable to the defendant, and not the
Government. The Government filed one motion for an extension of time (Doc.
67), which delayed the trial by 7 days. As such, the reason for the delay has
overwhelmingly been attributable to the defendant.

The third factor favors the defendant, as he is the one asserting his right
to a speedy trial.

The fourth factor, prejudice to the defendant, weighs in favor of the
government. The defendant has not alleged any particularized prejudice,
instead solely stating his right to a speedy trial and vaguely citing the Speedy
Trial Act and the Sixth Amendment. (Doc. 250). However, the delay in this
case has created a presumptive prejudice to the defendant.

[W]e generally have to recognize that excessive delay presumptively

compromises the reliability of a trial in ways that neither party can

prove or, for that matter, identify. While such presumptive prejudice
cannot alone carry a Sixth Amendment claim without regard to the

other Barker criteria, it is part of the mix of relevant facts, and its
importance increases with the length of delay.

Doggett v. United States, 505 U.S. 647, 655-56, 112 S.Ct. 2686, (1992)

(citation omitted).

Here, the other Barker factors do not support a finding of a Sixth
Amendment violation. Most notably, the Government has caused next to none

of the delay. “In cases without government negligence, however, we have

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required the defendant to show actual or specific prejudice.” Flores-Lagonas at

565. As stated above, the defendant has not made a showing of actual
prejudice.

Although the defendant has been awaiting trial for over a year, an
analysis under Barker supports the conclusion that the defendant’s Sixth
Amendment right to a speedy trial has not been violated. The vast majority of
the delay has been caused by the defendant himself. Furthermore, because
there was no negligence by the Government, the defendant cannot rely on his
presumptive prejudice, and has failed to show any actual or specific prejudice.
Therefore, the Court recommends the Defendant’s Ninth Motion to Dismiss
(Doc. 250) be denied.

CONCLUSION

For the aforementioned reasons, it is respectfully
RECOMMENDED that the defendant’s First, Second, Third, Fourth,

Fifth, Sixth, Seventh, Eighth, and Ninth motions to dismiss be denied.

NOTICE TO PARTIES

The parties have fourteen (14) days after service of this Report and
Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1),
unless an extension of time for good cause is obtained. Failure to file timely
objections will result in the waiver of the right to appeal questions of fact.
Objections must be timely and specific in order to require de novo review by the

District Court. Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990); Nash v. Black,

781 F.2d 665 (8th Cir. 1986).

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Case 5:20-cr-50035-KES Document 264 Filed 07/21/21 Page 20 of 20 PagelD #: <pagelb>

DATED this £@# day of July, 2021.
BY THE COURT:

DANETA WOLLMANN
United States Magistrate Judge

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