USA v. Sanchez-Rodriguez et al

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
KEVIN GLENN PETERSON, II,
Defendant.
Case No. 3:23-cr-00090-RRB-KFR-3
REPORT AND RECOMMENDATION TO DENY MOTION TO DISMISS FOR
VIOLATION OF THE SPEEDY TRIAL ACT
Before the Court is a Motion to Dismiss for Violation of the Speedy Trial Act
(hereinafter “Motion”) filed by Defendant Kevin Glenn Peterson, II.1 The
government opposes the Motion.2 Although Defendant requests a hearing on the
Motion,3 the Court finds that a hearing is not necessary and would not assist in
resolving the issues presented.4 Because Defendant has not shown that his speedy
trial rights have been violated,5 the Court recommends that the Motion be DENIED
without prejudice.
I. 	BACKGROUND
On October 18, 2023, a grand jury indicted Defendant, Heraclio Sanchez-
1 Doc. 79; see also Doc. 81.
2 Doc. 90.
3 Doc. 82.
4 A court need not hold a hearing on a defendant’s pretrial motion “merely because a
defendant wants one. Rather, the defendant must demonstrate that a significant disputed
factual issue exists such that a hearing is required.” United States v. Howell, 231 F.3d 615,
620 (9th Cir. 2000) (internal citation omitted). Here, Defendant did not support his request
for a hearing with any explanation for why a hearing might be appropriate. The Court
therefore exercises its discretion to deny Defendant’s request for a hearing. See United
States v. Santora, 600 F.2d 1317, 1320 (9th Cir. 1979), as amended, 609 F.2d 433 (9th Cir.
1979).
5 Despite the Motion’s title, Defendant asserts violations of both his statutory and
constitutional rights to a speedy trial.
Case 3:23-cr-00090-RRB-KFR Document 95 Filed 01/23/24 Page 1 of 11

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
`
R&R re Motion to Dismiss for Violation of the
Speedy Trial Act
United States v. Peterson
3:23-cr-00090-RRB-KFR-3
2
Rodriguez, and Tamara Denise Bren on charges of Continuing Criminal Enterprise6
(Count 1), Conspiracy to Distribute and Possess with Intent to Distribute Fentanyl7
(Count 2), Killing in Furtherance of Continuing Criminal Enterprise8 (Counts 3–4),
Kidnapping Conspiracy9 (Count 5), Kidnapping Resulting in Death10 (Counts 6–7),
Carjacking Resulting in Death11 (Counts 8–9), and Use of Firearm to Commit Murder
in Relation to Drug Trafficking Crime12 (Counts 10–11).13 Defendant is charged with
the offenses in Counts 2–11. The government alleges that Defendant coordinated
with his codefendants to kidnap two women, using “multiple vehicles to intercept
[one] victim’s vehicle near Trapper Creek, Alaska, so they could carry out the
kidnapping.”14 The government further alleges that Defendant “carried a firearm to
be used in the kidnapping[,] . . . restrained [the victims] under threat of force at the
direction of his coconspirators[,] . . . terminated a 911 call in progress made by [one
victim] during the kidnapping[,] . . . [and] drove [the victims] to a hidden location,
where he, at the direction of his coconspirator, . . . executed [the victims] with
gunshot wounds to the head.”15 Finally, the government alleges, Defendant “buried
[the victims] in a shallow grave near Trapper Creek.”16
On November 3, 2023, Defendant, then represented by appointed counsel, had
an initial appearance before the Court.17 The Court set a trial scheduling conference
before the District Court for December 27, 2023.18 On November 6, 2023,
Defendant’s counsel filed an unopposed motion to continue the trial scheduling
6 21 U.S.C. § 848(a)–(b).
7 Id. §§ 846, 841(a)(1), (b)(1)(A).
8 Id. § 848(e)(1)(A).
9 18 U.S.C. § 1201(c).
10 Id. § 1201(a)(1)–(2).
11 Id. § 2119.
12 Id. § 924(c)(1), (j).
13 Doc. 4.
14 Doc. 78 at 2.
15 Id.
16 Id.
17 Doc. 24.
18 Id.
Case 3:23-cr-00090-RRB-KFR Document 95 Filed 01/23/24 Page 2 of 11

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
`
R&R re Motion to Dismiss for Violation of the
Speedy Trial Act
United States v. Peterson
3:23-cr-00090-RRB-KFR-3
3
conference to a date on or after January 15, 2024.19 On December 5, 2023, the
District Court granted this motion and reset the trial scheduling conference for
January 17, 2024.20
On December 7, 2023, Defendant waived his right to counsel and made an oral
motion to represent himself, which the Court granted.21 Defendant then filed two
substantive motions in short order, including a Motion for Severance based on
Defendant’s assertion of his speedy trial rights.22 On January 4, 2024, the Court
recommended that the District Court deny Defendant’s Motion for Severance,
concluding that Defendant “ha[d] not demonstrated any serious risk that a joint trial
will compromise his right to a speedy trial if his trial is not severed.”23 The Court
determined that Defendant had not shown prejudice from an unreasonable denial of
the right to a speedy trial, explaining:
Defendant and his two codefendants were indicted on
October 18, 2023, less than three months ago, and the
Court arraigned Defendant on November 3, 2023.
Defendant’s speedy trial clock is currently far from having
run. Defendant offers no specific argument for how
joinder might prejudice his case beyond some potential
delay in going to trial, suggesting only that his right to a
speedy trial could be compromised if the Court does not
order severance. Furthermore, the Court notes that in
addition to the two motions Defendants recently filed,
Defendant filed a motion to declare the case complex,
which the District Court granted. These actions have had
and will likely continue to have implications on
Defendant’s speedy trial clock, and render the possibility
of unreasonable delay even more speculative at this
point.24
Defendant filed the present Motion to Dismiss for Violation of the Speedy Trial
19 Doc. 28.
20 Doc. 59.
21 Doc. 67.
22 Docs. 71, 72.
23 Doc. 80 at 5.
24 Doc. 80 at 4–5 (footnotes omitted).
Case 3:23-cr-00090-RRB-KFR Document 95 Filed 01/23/24 Page 3 of 11

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
`
R&R re Motion to Dismiss for Violation of the
Speedy Trial Act
United States v. Peterson
3:23-cr-00090-RRB-KFR-3
4
Act that same day.25
II. 	LEGAL STANDARD
In criminal cases there are two related bases for examining speedy trial
claims.26 The first is the Sixth Amendment, which guarantees that “[i]n all criminal
prosecutions, the accused shall enjoy the right to a speedy and public trial.”27 The
second is the Speedy Trial Act, which “give[s] effect to this Sixth Amendment right,”
requiring that a defendant’s trial commence within 70 days of the filing of an
indictment or the defendant's first appearance before the court in which charges are
pending, “whichever date last occurs.”28
As it relates to the Speedy Trial Act, “[i]f a defendant’s trial does not begin
within the requisite time period and the defendant moves for dismissal prior to trial,
the court must dismiss the indictment.”29 However, “[t]his rule is tempered by the
Speedy Trial Act’s exclusion of certain periods of time from the 70–day
calculation.”30 For example, the statute excludes “[a] reasonable period of delay
when the defendant is joined for trial with a codefendant as to whom the time for
trial has not run and no motion for severance has been granted.”31 The Speedy Trial
Act also excludes “delay resulting from any pretrial motion[.]”32 In evaluating the
reasonableness of delay under the Speedy Trial Act, a court must consider whether
the defendant suffered any “actual prejudice” and “whether the delay was necessary
to achieve its purpose.”33
Similarly, in evaluating whether delay has abridged a defendant’s Sixth
25 Doc. 79.
26 See United States v. Lonich, 23 F.4th 881, 891 (9th Cir. 2022) (“Criminal defendants enjoy
certain protections from post-indictment delays. Some are statutory, codified in the Speedy
Trial Act. Others are constitutional, rooted in the Sixth Amendment’s Speedy Trial Clause.”
(citations omitted)).
27 U.S. Const. amend. VI.
28 United States v. Olsen, 21 F.4th 1036, 1040 (9th Cir. 2022); 18 U.S.C. § 3161(c)(1).
29 Messer, 197 F.3 at 336 (citing 18 U.S.C. § 3162(a)(2)).
30 Id. (citing 18 U.S.C. § 3161(h)).
31 18 U.S.C. § 3161(h)(6).
32 Id. § 3161(h)(1)(D).
33 United States v. Hall, 181 F.3d 1057, 1062 (9th Cir. 1999).
Case 3:23-cr-00090-RRB-KFR Document 95 Filed 01/23/24 Page 4 of 11

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
`
R&R re Motion to Dismiss for Violation of the
Speedy Trial Act
United States v. Peterson
3:23-cr-00090-RRB-KFR-3
5
Amendment right to a speedy trial, a court should consider (1) the length of the delay,
(2) the reasons for the delay, (3) the accused’s assertion of the right to speedy trial,
and (4) the prejudice caused by the delay.34 No one of these factors is necessary or
sufficient and there is no affirmative demonstration of prejudice necessary to prove
a violation of the constitutional right to a speedy trial; instead, the four related
factors “must be considered together with such other circumstances as may be
relevant.”35
The first factor is a two-part “triggering mechanism” for the remainder of the
analysis.36 A defendant must first “show that the period between indictment and
trial passes a threshold point of ‘presumptively prejudicial’ delay.”37 If the
defendant fails to do so, the inquiry ends and the district court does not examine the
remaining three factors.38 “If, however, the threshold showing is made, the court
considers the extent to which the delay exceeds the threshold point in light of the
degree of diligence by the government and acquiescence by the defendant to
determine whether sufficient prejudice exists to warrant relief.”39
III. DISCUSSION
Defendant argues that there has been unreasonable delay in this case, in
violation of his statutory and constitutional speedy trial rights.40 Specifically,
Defendant maintains that his former counsel improperly moved to continue the
initial trial scheduling conference against his will.41 Defendant suggests that his
former counsel “used the fact that [his] case is complex in order to justify the
continuance,” and that the 21-day continuance that the District Court granted
34 Barker v. Wingo, 407 U.S. 514, 530 (1972).
35 Moore v. Arizona, 414 U.S. 25, 26 (1973) (per curiam) (citation omitted).
36 Lonich, 23 F.4th at 893.
37 United States v. Beamon, 992 F.2d 1009, 1012 (9th Cir. 1993) (quoting Doggett v. United
States, 505 U.S. 647, 652 (1992)).
38 Id.
39 Id.
40 Doc. 79 at 1–2.
41 Id. at 2; Doc. 81 at 3.
Case 3:23-cr-00090-RRB-KFR Document 95 Filed 01/23/24 Page 5 of 11

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
`
R&R re Motion to Dismiss for Violation of the
Speedy Trial Act
United States v. Peterson
3:23-cr-00090-RRB-KFR-3
6
“prejudiced [his] rights” and “caused unnecessary delay.”42 Defendant maintains
that dismissal of the Indictment is appropriate because 70 days have now elapsed
since the Indictment was filed, which constitutes excessive delay under the Speedy
Trial Act and the Sixth Amendment.43
The government opposes, arguing that Defendant’s speedy trial rights have
not been violated.44 The government notes that several events in this case have
tolled Defendant’s statutory Speedy Trial Clock, including Codefendant Sanchez-
Rodriguez’s waiver of time, Defendant’s motion to appoint a discovery coordinator,
the District Court’s designation of this case as complex, and the three substantive
motions Defendant has filed since electing to represent himself.45 The government
further argues that the time that has passed since Defendant’s indictment is not
sufficient to warrant the “extreme remedy of dismissal.”46
The Court finds that dismissal of the Indictment is not warranted for similar
reasons as those set forth in the Court’s recommendation to deny Defendant’s Motion
for Severance. As the Court explained then and as the government points out now,
there are numerous exclusions to the Speedy Trial Act’s requirement that a
defendant’s trial begin within 70 days of the later of the filing of an indictment or
the defendant’s appearance before the court in which the charges in the Indictment
are pending.47 Relevant here are the exclusions for:
 “[D]elay 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”;48
 “[D]elay reasonably attributable to any period, not to exceed thirty
42 Doc. 79 at 2; Doc. 81 at 2.
43 Doc. 79 at 3; Doc. 81 at 2.
44 Doc. 90 at 3–5.
45 Id. at 2.
46 Id. at 4–5.
47 Doc. 80 at 3–4.
48 18 U.S.C. § 3161(h)(1)(D).
Case 3:23-cr-00090-RRB-KFR Document 95 Filed 01/23/24 Page 6 of 11

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
`
R&R re Motion to Dismiss for Violation of the
Speedy Trial Act
United States v. Peterson
3:23-cr-00090-RRB-KFR-3
7
days, during which any proceeding concerning the defendant is actually
under advisement by the court”;49
 “A reasonable period of delay when the defendant is joined for trial with
a codefendant as to whom the time for trial has not run and no motion
for severance has been granted”;50 and
 “Any period of delay resulting from a continuance granted by any judge
on his own motion or at the request of the defendant or his counsel or
at the request of the attorney for the Government, if the judge granted
such continuance on the basis of his findings that the ends of justice
served by taking such action outweigh the best interest of the public
and the defendant in a speedy trial.”51
As an initial matter, Defendant is incorrect that the date of his indictment
(October 18, 2023) is the starting point for the Speedy Trial Clock calculation.52
Rather, the proper starting point is the “indictment or arraignment (whichever
comes last) of the last defendant.”53 In this case, the arraignment of the final
codefendant (Sanchez-Rodriguez) occurred on November 13, 2023, 54 days prior to
Defendant’s Motion.54 That date is therefore the controlling date for purposes of
calculating the time remaining on Defendant’s Speedy Trial Clock.55
In addition, several events in this case have triggered overlapping exclusions
to the Speedy Trial calculation, including Defendant’s own filing of motions since he
49 Id. § 3161(h)(1)(H).
50 Id. § 3161(h)(6).
51 Id. § 3161(h)(7)(A).
52 Doc. 79 at 3; Doc. 81 at 2.
53 United States v. Daychild, 357 F.3d 1082, 1090 (9th Cir. 2004); see also Henderson v.
United States, 476 U.S. 321, 323 n. 2 (1986) (holding that all defendants joined for trial
generally fall within the same speedy trial computation of the latest defendant).
54 Doc. 39.
55 Even if Defendant’s appearance on the Indictment (on November 3, 2023) had triggered
his Speedy Trial Clock, Defendant filed the Motion only 64 days later (on January 4, 2024).
Docs. 24, 79.
Case 3:23-cr-00090-RRB-KFR Document 95 Filed 01/23/24 Page 7 of 11

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
`
R&R re Motion to Dismiss for Violation of the
Speedy Trial Act
United States v. Peterson
3:23-cr-00090-RRB-KFR-3
8
began representing himself.56 While Defendant now argues that his former counsel
improperly excluded time under the Speedy Trial Act, and that those actions should
not count against Defendant, this argument fails. 	“[A]bsent egregious
circumstances,” responsibility for tactical decisions made by appointed counsel
during the period of representation “rightfully accrue to [Defendant].”57 Motions to
seek continuances in complex cases in order to review discovery and prepare are
such tactical decisions reserved to Defendant’s appointed counsel.58
Moreover, because no motion for severance has been granted, any waiver of
time made by a codefendant in this case affects not only that codefendant’s Speedy
Trial Clock, but Defendant’s as well.59 Therefore, Codefendant Sanchez-Rodriguez’s
agreement to an exclusion of time from November 13, 2023, until the date of the trial
scheduling conference, tolled Defendant’s Speedy Trial Clock during that period.60
Defendant’s Speedy Trial Clock was further tolled at the trial scheduling conference,
where the District Court granted a continuance and found excludable delay from that
date until April 9, 2024, the date of the next status hearing in the case.61
In short, 70 days have not passed since commencement of Defendant’s Speedy
Trial Clock and the filing of the Motion. This is true given both the absolute number
56 See Docs. 27 (Defendant’s motion to appoint associate counsel), 29 (Defendant’s motion
to declare case complex), 41 (Codefendant Sanchez-Rodriguez’s waiver of time), 48
(Defendant’s motion to appoint a discovery coordinator), 56 (Defendant’s motion for a
representation hearing), 59 (District Court’s order granting continuance and declaring case
complex), 71 (Defendant’s motion for severance), 72 (Defendant’s motion to dismiss for
multiplicity), 79 (Defendant’s present motion).
57 See United States v. Tanh Huu Lam, 251 F.3d 852, 857–58 (9th Cir. 2001) (rejecting
argument that the defendant should not bear responsibility for “legitimate delays” resulting
from continuances requested by his attorney, despite the defendant’s repeated assertions of
his speedy trial rights which “contradict[ed] his lawyer’s behavior”); see also id. at 858
(citing United States v. Guerra de Aguilera, 600 F.2d 752, 753 (9th Cir. 1979) (“Litigants are
generally bound by the conduct of their attorneys, absent egregious circumstances.”)).
58 Lam, 251 F.3d at 857.
59 See 18 U.S.C. § 3161(h)(6).
60 See Doc. 41; 18 U.S.C. § 3161(h)(6).
61 Doc. 94 (citing 18 U.S.C. § 3161(h)(7)(B)(i), (ii), (iv)). Defendant did not object to the
Court’s finding of excludable delay.
Case 3:23-cr-00090-RRB-KFR Document 95 Filed 01/23/24 Page 8 of 11

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
`
R&R re Motion to Dismiss for Violation of the
Speedy Trial Act
United States v. Peterson
3:23-cr-00090-RRB-KFR-3
9
of days that passed between Sanchez-Rodriguez’s arraignment and Defendant’s
Motion alleging a violation of the Speedy Trial rights, as well as the number of days
that have run as calculated pursuant to the Speedy Trial Act. Consequently, even if
the Court accepts as true Defendant’s assertions regarding his former co-counsel,
Defendant’s Speedy Trial Clock has not yet run or come close to reaching that point.
Finally, the Court finds that Defendant’s constitutional right to a speedy trial
has not been violated.62 The Sixth Amendment’s speedy trial clause aims “to prevent
undue and oppressive incarceration prior to trial, to minimize anxiety and concern
accompanying public accusation and to limit the possibilities that long delay will
impair the ability of an accused to defend himself.”63 Where, as here, the time limits
of the Speedy Trial Act have been met, there is a “strong presumption” of compliance
with the Sixth Amendment.64 To rebut this presumption, a defendant must “show
that the period between indictment and trial passes a threshold point of
‘presumptively prejudicial’ delay.”65 Defendant has not made this showing here.
Only 81 days have elapsed since Defendant’s indictment and it is currently unclear
when Defendant will proceed to trial. Although delays approaching one year are
presumptively prejudicial, the Court is not aware of any case law suggesting that a
delay of less than three months is in any way excessive or prejudicial, particularly
in a case such as this one in which Defendant is charged with serious felonies that
carry the possibility of mandatory life imprisonment.66 Because Defendant has failed
62 See Doc. 80 at 4–5.
63 United States v. Marion, 404 U.S. 307, 320 (1971) (quoting United States v. Ewell, 383 U.S.
116, 120 (1966)).
64 United States v. Baker, 63 F.3d 1478, 1497 (9th Cir. 1995); see also United States v. King,
483 F.3d 969, 976 (9th Cir. 2007) (it is “unusual” to find a Sixth Amendment violation when
there is no Speedy Trial Act violation).
65 Beamon, 992 F.2d at 1012 (quoting Doggett, 505 U.S. at 652).
66 See Barker, 407 U.S. at 530-31 (“[B]ecause of the imprecision of the right to speedy trial,
the length of delay that will provoke such an inquiry is necessarily dependent upon the
peculiar circumstances of the case. To take but one example, the delay that can be tolerated
for an ordinary street crime is considerably less than for a serious, complex conspiracy
charge.”); see also United States v. Gregory, 322 F.3d 1157, 1161–62 (9th Cir. 2003) (holding
Case 3:23-cr-00090-RRB-KFR Document 95 Filed 01/23/24 Page 9 of 11

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
`
R&R re Motion to Dismiss for Violation of the
Speedy Trial Act
United States v. Peterson
3:23-cr-00090-RRB-KFR-3
10
to demonstrate that there has been a presumptively prejudicial delay between his
indictment and his upcoming trial, the Court need not examine the remaining factors
of the constitutional speedy trial inquiry.67
IV. CONCLUSION
Because Defendant has not demonstrated that his statutory or constitutional
speedy trial rights have been violated, the Court recommends that Defendant’s
Motion to Dismiss for Violation of the Speedy Trial Act at Docket 79 be DENIED
without prejudice.
DATED this 23rd day of January, 2024 at Anchorage, Alaska.
s/ Kyle F. Reardon
KYLE F. REARDON
United States Magistrate Judge
District of Alaska
NOTICE OF RIGHT TO OBJECT
Under 28 U.S.C. § 636(b)(1), a district court may designate a magistrate judge
to hear and determine matters pending before the Court. For dispositive matters, a
magistrate judge reports findings of fact and provides recommendations to the
presiding district court judge.68 A district court judge may accept, reject, or modify,
that delays approaching one year are presumptively prejudicial); Lonich, 23 F.4th at 893
(determining that an eight-month delay was sufficient to trigger the full four-factor inquiry
for evaluating whether a defendant’s Sixth Amendment right to a speedy trial has been
violated); Beamon, 992 F.2d at 1013 (citing United States v. Vassell, 970 F.2d 1162, 1164 (2d
Cir. 1992), for the proposition that there is a general consensus in the courts of appeals that
eight months constitutes the threshold minimum).
67 Defendant cites United States v. Tigano, 580 F.3d 602 (2d Cir. 2018), for the proposition
that delay caused by appointed counsel should weigh against the government when the
appointed counsel acts against the wishes of an objecting defendant. Doc. 79 at 2. That may
be the case where the delay in the case crosses the minimum threshold to be considered
presumptively prejudicial. Because that is not the case here, the Court disagrees with
Defendant that any filing of an unwanted motion warrants dismissal of the Indictment.
68 28 U.S.C. § 636(b)(1)(B).
Case 3:23-cr-00090-RRB-KFR Document 95 Filed 01/23/24 Page 10 of 11

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
`
R&R re Motion to Dismiss for Violation of the
Speedy Trial Act
United States v. Peterson
3:23-cr-00090-RRB-KFR-3
11
in whole or in part, the magistrate judge’s findings and recommendations.69
A party may file written objections to the magistrate judge’s findings and
recommendations within fourteen (14) days.70 A response to the objections may be
filed within seven (7) days after any objection is filed.71 Objections and responses
are limited to five (5) pages in length and should not merely reargue positions
previously presented. Rather, objections and responses should specifically identify
the findings or recommendations objected to, the basis of the objection, and any legal
authority in support. Reports and recommendations are not appealable orders. Any
notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of
the district court’s judgment.72
69 Id. § 636(b)(1)(C).
70 Id.; L.M.J.R. 7(a)(1).
71 L.M.J. R. 7(a)(2).
72 See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).
Case 3:23-cr-00090-RRB-KFR Document 95 Filed 01/23/24 Page 11 of 11