April 21, 2019

Tenth Circuit: No Sixth Amendment Violation for Long Delay but Defendant’s Speedy Trial Act Rights were Violated

The Tenth Circuit Court of Appeals issued its opinion in United States v. Hicks on Friday, March 6, 2015.

Brian Hicks was arrested following a shooting in 2005, and at the time of arrest he was wearing a bulletproof vest and carrying a loaded .40 caliber Glock magazine. Because of his previous felony convictions, he was not allowed to possess these items, and was charged with one count each of possession of firearms and body armor by a convicted felon. More than a year later, Denver’s Metro Gang Task Force intercepted a call suggesting that Hicks was going to meet a drug dealer to purchase cocaine. After the meeting, police attempted a traffic stop, which turned into a chase. During the chase, Hicks threw a black bag from his car. Police later apprehended Hicks and recovered the bag, which contained several kilograms of cocaine. Hicks was indicted on multiple charges related to conspiracy to distribute cocaine in 2007. The government and Hicks engaged in a years-long period of motions and continuances, and finally on August 1, 2012, the district court ruled that all remaining issues had been resolved and the matter could be set for trial. On August 2, 2012, the government moved for the court to set a trial date. The district court ruled on this motion on September 27, 2012, when it scheduled a status conference and hearing on all pending motions for November 28, 2012. However, on November 15, Hicks filed two motions to dismiss on speedy trial grounds, one based on violation of his Sixth Amendment right to a speedy trial and one based on violations of the Speedy Trial Act. The district court denied both motions. Hicks eventually pleaded guilty in February 2014, reserving the right to appeal the denial of his speedy trial motions.

The Tenth Circuit first reviewed the denial of Hicks’ Sixth Amendment violation claims. The Tenth Circuit found the length of the delay, five and a half years, was presumptively prejudicial, and turned to the reason for the delay. Most of the delay was attributable to Hicks—he filed over forty unique motions, including several requesting deadline extensions or continuances; he changed counsel several times during the proceedings; and he requested that his federal prosecution be delayed until the conclusion of his state court proceedings. Although some of the delay was attributable to the prosecution, the majority of it was because of Hicks, and this factor weighed against him. Next, the Tenth Circuit evaluated whether Hicks asserted his right to a speedy trial, and found that although he first asserted his right in January 2008, he did not renew his assertion until August 2011. This weighed against Hicks also. Finally, the Tenth Circuit evaluated whether the delay prejudiced Hicks. Because he was already serving a life sentence on different charges, the delay did not cause pre-trial confinement concerns. Hicks also failed to make a particularized showing of increased anxiety from the delay, leaving Hicks to show that the delay “fundamentally hampered his ability to assist in his defense.” Hicks did not make this showing; although he was housed in the administrative segregation unit of the prison, he was generally able to meet with his legal counsel at any time during business hours, and he made numerous motions for continuances and extensions of time. The Tenth Circuit found no Sixth Amendment violation and affirmed the district court’s denial of Hicks’ motion.

Turning next to the Speedy Trial Act claims, the Tenth Circuit evaluated whether the delay in setting Hicks’ hearing exceeded the Speedy Trial Act’s 70-day limit, and found that it did. The district court issued its order resolving all remaining issues on August 1, 2012, and the Speedy Trial clock started ticking then. It was tolled for thirty days by the prosecution’s motion to set the trial, but the 70 days expired on November 10, 2012, and Hicks’ Speedy Trial Act rights were therefore violated. The Tenth Circuit reversed the district court’s denial of Hicks’ Speedy Trial motion and remanded with orders to vacate his convictions and determine if they should be vacated with or without prejudice.

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