Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. Criminal No. 04-cr-00088-001) District Judge: Honorable Anita B. Brody.
The opinion of the court was delivered by: Rendell, Circuit Judge.
Argued September 29, 2009
Before: RENDELL and AMBRO, Circuit Judges, and McVERRY, District Judge*fn1
The Sixth Amendment to the Constitution states that, "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." Germaine Battis urges that this right was violated when forty-five months elapsed between his indictment and trial. The District Court reasoned through the four-factor test established by the Supreme Court in Barker v. Wingo, 407 U.S. 514 (1972), and concluded that there was no constitutional violation. On appeal, weighing these four factors anew, we reach a different conclusion and hold that Battis's right to a speedy trial was violated. We will therefore reverse the order of the District Court and remand the case with instructions to dismiss the indictment and vacate his conviction.*fn2
This case arises out of an altercation between Battis and other patrons of the Trolley Stop Tavern, a Philadelphia bar, on March 22, 2003. By the end of the confrontation, which had moved from the bar to a nearby street, Battis was in possession of a handgun. According to Battis, the gun belonged to one of the individuals with whom he was fighting, and Battis took the gun from him in order to avoid being shot. Battis was subsequently pursued by police. According to the police, Battis had the gun all along and tried to shoot an officer at point-blank range. Battis testified that he did not remember attempting to shoot the officer.
Battis was arrested by the Philadelphia Police at the scene and was charged by the District Attorney with attempted homicide, aggravated assault, and several firearms violations. Battis's initial appearance was continued on three occasions, at his request, before he was arraigned in state court on January 20, 2004. The record indicates that Battis was represented by counsel in the state court case at the time of his arraignment.
On February 24, 2004, Battis was indicted in the Eastern District of Pennsylvania for possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). On the same day, the Government requested and received a bench warrant from the District Court. The Government later explained that it had informed the District Court's clerk that Battis was in state custody, and that it is standard practice to use a bench warrant as a detainer when a defendant is in state custody. It appears that this information was never formally noted by the District Court, since on February 18, 2005, it noted in a "Report of Speedy Trial Act Delay" that proceedings had been delayed because Battis "is a fugitive." App. 9-10. Battis was not brought into the District Court for an arraignment or initial appearance until November 2006.
The record suggests that the state case was also dormant during this period. According to the state court docket, fourteen continuances were requested after the arraignment. At a scheduling conference with the state court judge on July 18, 2005, Battis's counsel, Allan Sagot, requested a continuance to allow the federal trial to proceed first. Sagot reported that he had spoken to AUSA Mark Miller, that Miller had said that the Government planned to pursue the federal case "immediately," and that Sagot expected the federal trial to begin within sixty days. Appellee's Supp. App. 6. The Assistant District Attorney did not dispute these statements, and the Court adjourned the case to October 27, 2005. Id. at 7. On October 27, Sagot advised the Court that "[t]he feds are still trying [Battis]," and requested another continuance. Id. at 15-16. During this time, Battis had no counsel in federal court, and no activity was occurring in Battis's federal case.
This record conflicts with the Government's version of events. At a 2007 hearing before the District Court, AUSA Miller explained that the District Attorney's office had requested that federal authorities delay their prosecution while the state court case proceeded. According to Miller, the DA's office had also repeatedly stated that "they were ready . . . to try the case." App. 44. Miller conceded, however, that, "in several telephone conversations," Sagot had advised him that he "would prefer the federal case to go forward first." App. 46-47. Thus, although Sagot had informed the state court in 2005 that Miller was proceeding in federal court, Miller believed that he was waiting for the state court case to proceed.
On September 18, 2006, the Court of Common Pleas dismissed the indictment under Pennsylvania's speedy trial rule.*fn3 After the dismissal of the state case, federal prosecutors finally began to proceed with their prosecution, over two and a half years after Battis was indicted. On October 17, 2006, they obtained a superseding indictment, which added a charge of possession of ammunition by a convicted felon, also in violation of 18 U.S.C. § 922(g)(1). On November 2, Battis was brought before a federal Magistrate Judge for his initial appearance. The Magistrate Judge appointed counsel, scheduled an arraignment for November 7, and ordered Battis to be held without bail. At the November 7 arraignment, Battis pleaded not guilty but did not contest being held without bail. Battis had not been brought before the District Court for an arraignment or initial appearance before November 2006, and had not been represented by counsel up to that point in the federal case. Although Sagot had been representing Battis in the state case, Battis had informed Sagot that he could not afford to retain Sagot to represent him in the federal case as well. On November 9 and November 17, respectively, Assistant Federal Defenders Benjamin Cooper and Mark Wilson entered their appearances.
The District Court set a trial date of January 2, 2007. On December 4, 2006, defense counsel moved to dismiss the indictment for violation of Battis's constitutional right to a speedy trial. Shortly thereafter, Battis filed an unopposed motion to postpone the trial, which was granted. The District Court held a hearing on the motion to dismiss on January 9, 2007, at which Sagot and Miller described the history of their discussions (which is summarized above) regarding how the cases would proceed.
On February 15, the District Court denied the motion to dismiss the indictment. In a written Opinion and Order, the Court applied the factors set forth by the Supreme Court in Barker: the length of delay, reason for the delay, extent to which the defendant asserted his speedy trial right, and the prejudice suffered by the defendant. In doing so, the Court made the following determinations. First, a delay of "32 months is a serious and unusual delay," and thus "weighs in Battis's favor." App. 84. Second, the Government deferred to the state prosecution as "a matter of policy and discretion," and not "in malice, or in an attempt to hamper Battis's defense," or out of "bad faith." Thus, the delay was "justifiable and does not weigh significantly against the United States." App. 85. Third, although Battis "did make some effort through his state court attorney, Sagot, to put the AUSA on notice that he wanted the federal case [to] go forward," he "certainly did not make the utmost effort to get himself before this Court and move the federal case forward." App. 86. Specifically, he had not "contacted the Court by informal communication or formal motion" prior to the December 2006 motion to dismiss, and had not pursued the matter with the U.S. Attorney's Office "after the initial conversation." App. 86. Thus, "Battis's assertion of his right weighs only very slightly in his ...