December 20, 2014

Tenth Circuit: Rules of Evidence Apply to Admission of First Trial’s Testimony at Second Trial; Dismissal Without Prejudice Proper for Violation for Speedy Trial Act

The Tenth Circuit published its opinion in United States v. Toombs on Friday, April 26, 2013.

In 2008, a jury found Marlo Toombs guilty on seven counts of drug and firearm felony offenses. On appeal, the Tenth Circuit reversed and remanded his case for violations of the Speedy Trial Act. After the district court dismissed Toombs’ indictment without prejudice, the government filed a new indictment and a jury subsequently found Toombs guilty of six charges.

On appeal, Toombs argued that the district court abused its discretion by admitting his entire testimony from the first trial into evidence at the second trial. The Tenth Circuit held that while the district court should have evaluated the first trial testimony under the Rules of Evidence before admitting it in the second trial, the admission was harmless error given the overwhelming evidence against Toombs and the limiting instruction given.

Toombs also argued the district court erred by dismissing the first indictment without prejudice. After considering the factors contained in 18 U.S.C. § 3162(a)(2) that govern dismissals for violation of the Speedy Trial Act, the court found no abuse of discretion in the decision to dismiss without prejudice. Toombs’ offenses were serious and he failed to establish the delay was “a result of intentional dilatory conduct or a pattern of neglect.”

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