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Date: 02-01-2018

Case Style:

United States of America v. Joseph Tigano, III

Western District of New York Federal Courthouse - Buffalo, New York

Case Number: 15-3073

Judge: Pooler

Court: United States Court of Appeals for the Second Circuit on appeal from the Western District of New York (Erie County)

Plaintiff's Attorney: Joseph J. Karaszewski

Defendant's Attorney: Gary Stein, Andrew Gladstein, Andrew Joyce, Stephanie Kelly, Cheryl Buth, Tom Farley, Dan Henry

Description: 2 On July 8, 2008, Joseph Tigano, III and his father, Joseph Tigano, Sr., were
3 arrested on charges related to a marijuana growing enterprise allegedly operated
4 by the two men. When Drug Enforcement Administration (“DEA”) task force
5 members executed a search warrant at the Tiganos’ residence on the morning of
6 the arrest, they discovered over 1,400 marijuana plants. On October 2, 2008,
7 Tigano and his father were each indicted on six counts. Four of the counts
8 charged drug offenses related to the alleged marijuana growing operation; the
9 remaining two counts charged weapons offenses stemming from firearms found
10 at the residence.
11 Nearly five years later, on November 25, 2013, Tigano’s father pled guilty
12 to one count of manufacturing 50 or more marijuana plants. Tigano refused to
13 accept a plea and proceeded to trial—nearly seven years after his arrest—on May
14 4, 2015. He was convicted by a jury on May 8, 2015 on five of the six counts in the
15 indictment. Tigano was imprisoned during the entirety of the nearly seven years
16 of pretrial proceedings. On appeal, Tigano argues that his Sixth Amendment
17 right to a speedy trial was violated by an oppressive period of pretrial
18 incarceration. On November 15, 2017, this Court filed an Order that reversed the
4
judgment of the district 1 court and dismissed with prejudice the underlying
2 indictment. We remanded the case for the limited purpose of releasing Tigano
3 from detention and indicated that an opinion would follow. Tigano was released
4 pursuant to that Order on November 15, 2017.
5 Tigano’s facts are exceptional in nearly every meaningful respect within
6 the context of a Sixth Amendment speedy trial analysis. Accordingly, we begin
7 by detailing the circumstances that resulted in Tigano’s nearly seven years of
8 pretrial detention. We then offer some historical context for our analysis of this
9 constitutional right in order to better situate Tigano’s exceptional facts. Finally,
10 we assess Tigano’s delay under the legal framework provided by the Supreme
11 Court in Barker v. Wingo, 407 U.S. 514 (1972).
12 FACTUAL BACKGROUND
13 The pretrial detention experienced by Joseph Tigano, III appears to be the
14 longest ever experienced by a defendant in a speedy trial case in the Second
15 Circuit. Tigano’s experience is an extreme outlier even among the severe
16 examples found within Sixth Amendment case law. Yet no single, extraordinary
17 factor caused the cumulative seven years of pretrial delay. Instead, the outcome
18 was the result of countless small choices and neglects, none of which was
5
individually responsible 1 for the injustice suffered by Tigano, but which together
2 created this extreme instance of a Sixth Amendment violation. A review of the
3 procedural history reveals that Tigano was the victim of poor trial management
4 and general indifference at every level toward this low‐priority defendant in a
5 straightforward case.
6 I. July 8, 2008—April 8, 2009: Arrest, Arraignment, and Hunger
7 Strike
8 On July 8, 2008, Joseph Tigano, III and his father were arrested. On
9 October 20, 2008, Tigano was arraigned and entered a not guilty plea before
10 Magistrate Judge Hugh Scott. At his arraignment, Tigano (through his then11
attorney Thomas Farley) conveyed to the court that he would not accept a plea
12 and wished to preserve his speedy trial rights. The next court meeting on this
13 case was initially scheduled for March 19, 2009, but was rescheduled on motion
14 of Tigano’s father, who requested a delay. Tigano’s attorney failed to ever
15 convey this change in date to Tigano. When the date of the scheduled conference
16 arrived and no one explained to Tigano why he was not being transported to
17 court, Tigano stopped eating. He later explained to the court that the hunger
6
strike was his response to being left in 1 his jail cell on a scheduled court date with
2 no explanation from his attorney or the court.
3 II. April 9, 2009—August 11, 2009: First Competency Exam
4 On April 9, 2009, the parties convened for the delayed status conference.
5 This status conference would result in the first of what would eventually be three
6 court‐ordered competency exams, each of which would confirm that Tigano was
7 competent to stand trial. At this juncture in Tigano’s pretrial detention, Farley
8 requested a competency evaluation, which was ordered by Magistrate Judge
9 Scott. The transcript of the proceeding makes clear that the driving motivation
10 for the decision to order a competency exam was Tigano’s repeated demand for
11 his speedy trial. Tigano’s prioritization of a speedy trial appears to have been his
12 primary point of disagreement with Farley and Magistrate Judge Scott explicitly
13 cited Tigano’s repeated insistence on a speedy trial as he ordered the competency
14 evaluation. Indeed, Tigano raised his speedy trial rights no fewer than ten times
15 in this single status conference. It was no mystery to any party that Tigano’s top
16 priority was moving quickly to trial. Instead, Magistrate Judge Scott ordered a
17 competency exam and, as a result, the next two status conferences were
18 postponed while the court awaited the results of the competency exam.
7
III. August 12, 2009—January 1 20, 2010: Unresolved Representation
2 The parties were finally able to convene for a status conference on August
3 12, 2009 after Tigano had returned from his competency evaluation. The exam
4 determined that “he did not suffer from any ‘major mental illness,’ he had a
5 ‘good understanding of his current legal circumstances’ and he was able to ‘assist
6 properly in his defense.’” Appellant’s Br. at 8. Tigano asked the court for
7 permission to proceed pro se, in large part because of conflicts with Farley
8 regarding Tigano’s desire to proceed straight to trial as quickly as possible. The
9 court then engaged Tigano in an extended colloquy, and required the
10 government to recite the possible sentence faced by Tigano if he were convicted.
11 At this first hearing after the competency exam, Magistrate Judge Scott told
12 Tigano that he was making a “huge mistake” and that his answers—specifically,
13 his pleas to represent himself so as to proceed quickly to trial—“are tending to
14 make me believe he needs to be evaluated again.” App’x at 129. Magistrate Judge
15 Scott declined to decide on the request to proceed pro se, appointed standby
16 counsel to Tigano to explain the risks to him, and scheduled another status
17 conference for two days later. The second status conference was largely a replay
18 of the first: Tigano’s standby counsel again confirmed that Tigano appeared to
8
understand the charges, the government 1 recited the charges Tigano was facing,
2 and Magistrate Judge Scott expressed his skepticism and reserved decision.
3 Nearly one month later, Magistrate Judge Scott granted Tigano’s request to
4 proceed pro se. There followed a series of short status conferences, one of which
5 appears to have been scheduled only because Farley failed to appear as directed
6 to hand over files to Tigano at the previous status conference.
7 It is during this phase of the proceedings that Tigano’s statements in court
8 became increasingly desperate and plaintive as he pleaded for the case to move
9 toward resolution. He continued to repeatedly raise his right to a speedy trial
10 and to plead for severance from his father. As Tigano explained to the court,
11 “What I’m saying is he’s a free man. I’m incarcerated. I’m in jail. And my father
12 and his lawyer can actually keep putting motions in to delay this further. I’d like
13 to severance…” App’x at 142. Tigano’s father repeatedly moved to delay
14 proceedings. Even so, the court told Tigano that his father had “caused no delay
15 in your case whatsoever.” App’x at 142.
16 IV. January 21, 2010—May 16, 2010: Second Competency Exam
17 When oral argument was eventually held on January 21, 2010, Tigano
18 appeared with his standby counsel, Cheryl Meyers Buth, who would remain his
9
attorney—either stand‐1 by or appointed—for most of the remaining five‐plus
2 years of pretrial detention. The scheduled trial date was postponed at the
3 requests of both the father’s attorney and the Assistant United States Attorney
4 (“AUSA”), both of whom had other cases on their calendars. When Tigano’s
5 attorney addressed the court in this hearing, she first reiterated Tigano’s desire
6 for severance and a speedy trial. She next advised the court that
7 despite the fact that there’s been a forensic exam finding that Mr. Tigano is
8 competent to proceed, I have serious reservations about his ability to
9 understand the charges and the procedures and represent himself.
10
11 App’x at 225.
12
13 This advisement from Tigano’s attorney prompted Magistrate Judge Scott
14 to order the second competency exam of Tigano and led Tigano to ask, “Another
15 one, sir?” App’x at 229. To be clear, there was no allegation that the first
16 competency exam was defective in any way, nor was there any allegation that
17 there had been a change in Tigano’s behavior. Instead, both this second exam
18 and the first exam 281 days earlier appear to have been prompted largely by
19 Tigano’s repeated invocation of his speedy trial rights.
20 At a hearing on March 31, 2010—which Tigano did not attend because he
21 had still not returned from his competency evaluation—the AUSA prosecuting
10
the case acknowledged that Tigano’s desire 1 for a speedy trial was part of the
2 rationale for the second competency exam, remarking that “Mr. Tigano III had
3 been sort of demanding his speedy trial, which is part of the prompting for the
4 Court sending him out for this evaluation.” App’x at 241.
5 The report for the second competency exam was received by the court on
6 April 14, 2010—83 days after the hearing at which it was ordered—and
7 acknowledged by Magistrate Judge Scott at an April 16, 2010 suppression
8 hearing. Again, the report indicated that Tigano was competent to stand trial.
9 Again, a hearing was delayed at the request of counsel, this time at the requests
10 of counsel for both Tigano and Tigano’s father. Again, Magistrate Judge Scott
11 asked the government to submit an order excluding time under the Speedy Trial
12 Act.
13 V. May 17, 2010—April 4, 2012: Confusion Regarding Multiple
14 Magistrate Judges, Repeated Extensions of Time by Tigano’s
15 Father Joined by Tigano’s Attorney, and Court Reporter Delays
16 Over the course of the next nearly two years, Tigano experienced multiple
17 delays stemming primarily from confusion among judges regarding overlapping
18 motions and an erroneous referral order from Judge Skretny. Most significantly,
19 two separate magistrate judges held in abeyance two separate sets of evidentiary
11
motions until 1 Judge Skretny decided appeals regarding portions of the
2 suppression motion initially decided by Magistrate Judge Scott. That decision
3 was finally issued by Judge Skretny on January 19, 2011 as a three‐sentence text
4 order nearly six months after the motions were originally decided.
5 Additional delays during this period resulted from a variety of small
6 neglects. The long‐postponed hearing before Magistrate Judge McCarthy was
7 delayed for an additional 40 days because the government failed to produce
8 discovery in a timely manner. The court reporter submitted the transcript of the
9 one‐day suppression hearing 117 days after it was held, delaying the progress of
10 the case by nearly four months. Magistrate Judge Scott issued his report and
11 recommendation on December 15, 2011, nearly seven months after the hearing
12 and more than a year and a half after Tigano had filed his motion.
13 VI. April 5, 2012—January 9, 2014: Plea Negotiations, Crowded Court
14 Docket, Father’s Competency Issues, and Adjournments by
15 Counsel
16 On April 5, 2012, Judge Skretny accepted the reports and
17 recommendations issued by the magistrate judges and advised attorneys that
18 they should submit motions to sever. Tigano’s attorney entered no such motion
19 and instead joined the father’s request for an adjournment to delay the scheduled
12
status conference. At this point, Tigano entered 1 a new phase of delay caused
2 largely by unsuccessful plea negotiations.
3 Between the July 10, 2012 status conference—at which Tigano’s attorney
4 and the government informed the court that they were involved in plea
5 negotiations —and the father’s entry of a plea on November 25, 2013, the court
6 held six status conferences that were each adjourned for one reason or another,
7 each of which reported that Tigano was involved in plea negotiations with the
8 government. A large part of the reason for this period of delay was that the
9 government waited nearly a year to present Tigano a written plea offer. The
10 transcript from the May 28, 2013 status conference indicates that AUSA Thomas
11 S. Duszkiewicz was involved in a major criminal trial and Tigano’s case had
12 taken a definitive back seat within the U.S. Attorney’s office. Indeed, an AUSA
13 stepped in for Duszkiewicz at the May 28, 2013 status conference, and conceded
14 when questioned about the delay, “[t]his is definitely not the defense’s issue,”
15 citing Duszkiewicz’s lengthy trial and gaps in information within the U.S.
16 Attorney’s office as reasons for the delay in the presentation of a written plea.
17 App’x at 661.
13
When Tigano’s attorney finally 1 received the written offer, it was sent to her
2 the day before a scheduled status conference, which resulted in yet another
3 adjournment because she had not yet had an opportunity to present the plea to
4 Tigano. At this status conference, as with several prior conferences, AUSA
5 Duszkiewicz reiterated his view that the plea agreement was a “two‐for‐one”
6 offer, meaning both defendants had to plead for either of them to receive the
7 deal. App’x at 669.
8 The August 1, 2013 status conference resulted in yet another adjournment,
9 in part so that Tigano’s attorney could try to convince him to accept the plea he
10 consistently rejected and “in part . . . because of [the court’s] trial calendar right
11 now.” App’x at 680. When it came time to set trial dates at the September 20,
12 2013 conference both the government and the court raised scheduling challenges
13 due to congested calendars. On December 16, 2013, the parties met for the final
14 pretrial conference before the trial scheduled for the following day. Yet again, the
15 court delayed the trial, in part to give Tigano time to consider a plea, observing
16 “You spent some time in jail. I don’t think waiting until January is going to really
17 materially affect anything.” App’x at 720.
18
14
VII. January 1 10, 2014—September 2, 2014: Third Competency Exam
2 On January 10, 2014, Tigano’s attorney filed under seal a motion for
3 another competency evaluation of Tigano. This sealed motion included an
4 affidavit from Meyers Buth attesting to her belief that “in refusing to plead guilty
5 and insisting on his right to a trial, Tigano was acting ‘imprudent[ly]’ and ‘not in
6 his best interest.’” Appellant’s Br. at 26 (quoting affidavit). Meyers Buth also
7 attached a letter from a private psychologist she retained to evaluate Tigano who
8 also concluded that Tigano was competent to stand trial and explicitly concurred
9 with the two previous competency evaluations.
10 On January 15, 2014, the parties reconvened for a status conference that
11 would result in Tigano’s third court‐ordered competency exam. The government
12 supported Meyers Buth’s motion at the status conference. The AUSA indicated
13 that he had been prepared at the last status conference “to suggest that we
14 obviate the need for a hearing and that we send Mr. Tigano out for another
15 examination.” App’x at 766. AUSA Duszkiewicz’s rationale for the need for a
16 third court‐ordered competency exam was
17 not necessarily the competency question, but whether there is some other
18 psychological problem that’s going to prevent him from understanding the
15
difference between what he potentially 1 looks at as far as a conviction as
2 well as what’s being offered by way of this plea.
3 App’x at 767. In other words, the basis for the competency exam was Tigano’s
4 refusal to accept a plea. Judge Skretny referred the matter back to Magistrate
5 Judge Scott while opining that “whatever time it takes, it takes.” App’x at 769.
6 As of the March 4, 2014 scheduled status conference—48 days after Judge
7 Skretny referred the matter to Magistrate Judge Scott—the U.S. Marshals Service
8 (“USMS”) still had not transported Tigano to his competency evaluation.
9 Magistrate Judge Scott approved a 15‐day extension for the competency exam at
10 the request of the warden of the Metropolitan Correction Center (“MCC”) in
11 New York City, where Tigano was undergoing the evaluation. The warden
12 reported that the MCC was experiencing a “high volume of cases” and would
13 not be able to complete the evaluation in time. App’x at 776, 778. The
14 competency evaluation was filed under seal on April 15, 2014. Tigano was briefly
15 under medical hold for some medical issues that arose at MCC, but was released
16 from medical hold on May 2, 2014. The USMS seems to have lost track of Tigano
17 while he was at MCC, such that two pretrial conferences were held without any
18 movement on the case and another was adjourned because Tigano was absent
16
and the date of his return remained 1 uncertain. On July 30, 2014, Tigano finally
2 appeared with Meyers Buth before Magistrate Judge Scott, who accepted the
3 competency determination of this third court‐ordered psychological exam. The
4 third competency evaluation established nothing new.
5 During this period of limbo for Tigano at MCC, he filed a pro se motion
6 styled as a petition for a writ of habeas corpus. That motion was received by the
7 court of the Western District of New York on May 12, 2014 and denied by Judge
8 Skretny 15 weeks later, because Judge Skretny refused to consider a pro se
9 motion filed by a represented defendant. The Niagara County jail destroyed all
10 of Tigano’s trial‐related papers while he was away at MCC.
11 VIII. September 3, 2014—May 3, 2015: Scheduling Delays for Trial
12 On September 3, 2014, the parties convened for a pretrial conference and
13 prepared to go to trial with Tigano representing himself and Meyers Buth
14 appearing as standby counsel, given her discomfort with Tigano’s preferred trial
15 strategy. At the October 23, 2014 status conference, it was determined that
16 Meyers Buth would indeed represent Tigano at trial.
17 In anticipation of his March 8, 2015 retirement, Judge Skretny reassigned
18 Tigano’s case to Judge Elizabeth Wolford on January 27, 2015. Tigano filed a
17
motion for bail on February 1 25, 2015, which was denied without prejudice on
2 March 5, 2015. Tigano’s jury trial began on May 4, 2015, 6 years, 9 months, and 26
3 days after his arrest. On May 8, 2015, he was convicted on five drug‐related
4 charges and one weapons charge.
5 DISCUSSION
6 I. History of the Speedy Trial Right
7 Recognition of the critical need for criminal defendants to proceed to trial
8 in a timely manner has a long and auspicious history in American law and
9 English common law. The Supreme Court detailed much of this history in its
10 1967 speedy trial case, Klopfer v. North Carolina, which held that the right applied
11 to the states through the Fourteenth Amendment. 386 U.S. 213, 222‐23. The
12 Klopfer Court cited a twelfth‐century case from the Assize of Clarendon
13 instructing sheriffs to bring defendants to the traveling justices when the judges
14 “are not about to come speedily enough into the country where they have been
15 taken” in order to ensure a prompt trial for the criminal defendants. Id. at 223, n.9
16 (quoting 2 English Historical Documents 408 (David C. Douglas and G.W.
17 Greenaway eds. 1953)). The Magna Carta incorporates this requirement in its
18
early thirteenth century language 1 establishing basic guarantees of justice: “We
2 will sell to no man, we will not deny or defer to any man either justice or right.”
3 Id. at 223 (emphasis added) (quoting Magna Carta, c. 29 (c. 40 of King Johnʹs
4 Charter of 1215) (1225), translated and quoted in Sir Edward Coke, The Second
5 Part of the Institutes of the Laws of England 45 (Brooke, 5th ed., 1797) (“Coke’s
6 Institutes”)). The early seventeenth century commentaries on English common
7 law by Sir Edward Coke interpreted the Magna Carta’s language as guaranteeing
8 to any defendant the right to justice “speedily without delay.” Id. at 224 (quoting
9 Coke’s Institutes 45).
10 When it came time for the nascent states to draft their own constitutions
11 and declarations of rights, the long‐established right to prompt justice was often
12 incorporated. In 1776, both Maryland’s Declaration of Rights and Virginia’s Bill
13 of Rights included a right to “a speedy trial by an impartial jury.” Francis H.
14 Heller, The Sixth Amendment to the Constitution of the United States: A Study in
15 Constitutional Development 22‐23 (1969). Delaware, Massachusetts, and
16 Pennsylvania also included the clause in their original state constitutions.
17 Alfredo Garcia, The Sixth Amendment in Modern American Jurisprudence: A Critical
18 Perspective 159, n. 23 (1992). When Anti‐Federalists raised concerns regarding a
19
too‐strong national government, 1 the remedy adopted by the Constitutional
2 Convention—the Bill of Rights—incorporated the longstanding right to a speedy
3 trial as one of the essential protections of individual rights against the risk of
4 arbitrary governmental power. U.S. Const. amend VI.
5 “[T]he right to a speedy trial is as fundamental as any of the rights secured
6 by the Sixth Amendment.” Klopfer, 386 U.S. at 223. Its origin in our legal system
7 dates back over 800 years and it was understood as part of the essential
8 safeguards against the newly formed government of the United States. Further,
9 while a defendant may waive his statutory right to a speedy trial by failing to
10 raise it, he cannot waive his constitutional right. See Barker v. Wingo, 407 U.S. 514,
11 529‐30 (1972).
12 Though the right may appear abstract and relative, the Supreme Court and
13 this Court have laid out clear methods in determining whether a defendant’s
14 constitutional speedy trial right has been violated. We now turn to the
15 controlling law and apply it to the exceptional facts of this case.
16 II. BARKER v. WINGO
17 In 1972, the Supreme Court decided Barker v. Wingo, a Sixth Amendment
18 speedy trial case that arose out of a brutal double murder in Christian County,
20
Kentucky. 407 U.S. 514, 516 (1972). 1 Barker, the defendant‐appellant before the
2 Supreme Court, was imprisoned for ten months before being released on bond
3 while awaiting trial. Id. at 517. The Supreme Court observed that Barker
4 appeared to be “gambling” on the acquittal of his co‐defendant, hoping that an
5 acquittal for the co‐defendant would make it harder to prosecute him. Id. at 535‐
6 36. Over five years passed between Barker’s arrest and eventual trial. Id. at 533.
7 In coming to the conclusion that Barker’s speedy trial right had not been
8 violated—the Supreme Court believed the record strongly indicated “that the
9 defendant did not want a speedy trial,” id. at 536—the Barker Court established
10 the four‐part balancing test that guides our analysis today. Specifically, the
11 Supreme Court identified four key factors: “[l]ength of delay, the reason for the
12 delay, the defendant’s assertion of his right, and prejudice to the defendant.” Id.
13 at 530. In establishing this balancing test, the Barker Court emphasized that:
14 We regard none of the four factors identified above as either a necessary or
15 sufficient condition to the finding of a deprivation of the right of speedy
16 trial. Rather, they are related factors and must be considered together with
17 such other circumstances as may be relevant. In sum, these factors have no
18 talismanic qualities; courts must still engage in a difficult and sensitive
19 balancing process. But, because we are dealing with a fundamental right
20 of the accused, this process must be carried out with full recognition that
21 the accusedʹs interest in a speedy trial is specifically affirmed in the
21
1 Constitution.
2
3 Id. at 533.
4 Consequently, we turn now to an analysis of these four factors with an
5 understanding that no single factor is dispositive and that each serves to
6 guarantee a fundamental, enumerated right of the accused.
7 A. Length of Delay
8 “The length of the delay is to some extent a triggering mechanism,”
9 because until there exists “some delay which is presumptively prejudicial, there
10 is no necessity for inquiry into the other factors that go into the balance.” Id. at
11 530. Once a delay has been established, “the burden is upon the government to
12 prove that the delay was justified and that appellant[‘s] speedy trial rights were
13 not violated.” United States v. New Buffalo Amusement, Corp., 600 F.2d 368, 377‐79
14 (2d Cir. 1979) (citation omitted). In Buffalo Amusement, appellants experienced a
15 “54‐month delay between indictment and date of trial” during which time the
16 defendants were free on bond. Id. We found that delay to be “unquestionably
17 substantial” and a factor that “must weigh heavily in support of appellants’
18 claim that their rights have been violated.” Id. at 377.
22
1 Tigano’s delay—nearly seven years of pretrial detention—is, to our
2 knowledge, the longest delay recorded in the Sixth Amendment case law of our
3 Circuit. Indeed, the government concedes that the length of delay cuts in favor of
4 Tigano. This Court recently affirmed a district court dismissal—also originating
5 in the Western District of New York—on Sixth Amendment speedy trial
6 grounds. United States v. Pennick, No. 16‐3069‐cr, 2017 WL 4994465 (2d Cir. Nov.
7 2, 2017) (summary order). The defendant in Pennick had been subjected to “fifty8
four months in pretrial detention and twenty‐five months on electronically9
monitored home incarceration,” which we deemed “extraordinary.” Id. at *1‐*2.
10 Tigano’s extreme facts thus force the government to account for its delay and
11 “prove that the delay was justified and that [Tigano’s] speedy trial rights were
12 not violated.” Buffalo Amusement, 600 F.2d at 377. The extreme length of delay
13 thus weighs heavily against the government.
14 B. Reasons for Delay
15 The Barker Court instructed that “different weights should be assigned to
16 different reasons.” Barker, 407 U.S. at 531. Barker established a spectrum of
17 weights, in which “deliberate” attempts to delay trial weighed most heavily
18 against the government, “valid” reasons for delay such as missing witnesses are
23
taken off the scale entirely, 1 and reasons of “negligence or overcrowded dockets”
2 are weighted somewhere in the middle, because “the ultimate responsibility for
3 such circumstances must rest with the government rather than with the
4 defendant.” Id. This factor must take into account the affirmative duty of the
5 district court and the government to monitor the progress of a criminal case
6 toward disposition and to take steps to avoid unnecessary delay where possible.
7 “We have repeatedly emphasized that affirmative action by the government in
8 bringing cases to trial is mandated and that it cannot escape this duty on the
9 ground that the delay is for institutional reasons.” United States v. Vispi, 545 F.2d
10 328, 334 (2d Cir. 1976) (citation omitted). Incredibly, the government contends
11 that “none of the delay is attributable to the government.”2 Appellee’s Br. at 26.
12 The reasons for the delay in this case were largely due to: 1) the needlessly
13 repetitive and dilatory competency examinations, all of which found Tigano
14 competent; 2) administrative delays, including the delay in conducting the third
2 We observe that the same U.S. Attorney’s Office in the Western District of New
York made the same extraordinary claim in Pennick, which we found
unpersuasive in that case, as well. Pennick, at *2. [Brief for Appellant, 16‐3069‐cr
(2d Cir. Feb. 24, 2017) (ECF No. 27 at 16) (“[N]one of the delay is attributable to
the government.”)].
24
court‐ordered competency 1 hearing (itself unnecessary in light of the two prior
2 court‐ordered exams and hearings) because the USMS failed to provide timely
3 transportation; 3) the government’s failure for months to produce a written plea
4 offer, despite the age of the case, and its insistence on consolidating the case and
5 plea bargaining with Tigano’s father; 4) the district court’s congested docket and
6 failure to give this case priority; 5) the use of multiple magistrate judges resulting
7 in confusion regarding responsibility and one judge having to await rulings by
8 another; and 6) defense counsel’s desire to delay the trial in hopes of a favorable
9 plea, notwithstanding Tigano’s express desire to proceed quickly to trial.
10 1. Competency Evaluations
11 We first turn to the most complex set of facts for the delay, namely, the
12 three separate competency exams ordered by the magistrate judge. Each of these
13 exams—and an additional exam conducted by a private psychologist retained by
14 Tigano’s attorney—concluded that Tigano was fully competent to stand trial.
15 There is no evidence in the record—either in open court or in documents filed
16 under seal—that any party or officer of the court had any concerns about the
17 quality or legitimacy of any one of these exams. And while the exams suggest
18 that Tigano may have an eccentric personality, they each clearly state that he
25
understood the charges against him and 1 was capable of aiding in his own
2 defense.
3 Indeed, the examinations are strikingly consistent with one another in their
4 assessment that Tigano clearly understood what was happening and was capable
5 of assisting in his own defense. Yet all parties involved—the court, the
6 government, and Tigano’s own attorney—participated in steering him through
7 three court‐ordered exams. The details of each of those decisions have already
8 been recounted, but it is worth reiterating the truly remarkable fact that for both
9 the second and third court‐ordered exams, the government acknowledged in
10 open court that at least part of the motivation for the exam was Tigano’s
11 assertion of his speedy trial right and his refusal to accept a plea, respectively.
12 No party argued that there was new information or a change in circumstances to
13 justify yet another exam and attendant delay.
14 Motions for mental competency determinations are made pursuant to 18
15 U.S.C. 4241(a), which permits defense or government attorneys to move for a
16 hearing on competency which “[t]he court shall grant . . . if there is reasonable
17 cause to believe that the defendant may presently be suffering from a mental
18 disease or defect rendering him mentally incompetent to the extent that he is
26
unable to understand 1 the nature and consequences of the proceedings against
2 him or to assist properly in his defense.” Court‐ordered psychological exams for
3 the purposes of determining competency prior to the hearing are permitted
4 under 18 U.S.C. 4241(b).
5 It was error for the district court to send Tigano out for evaluation by a
6 third court‐appointed psychologist simply because he refused to accept a plea,
7 when that was the only evidence of “incompetency” before the district court and
8 three separate psychologists (two who were court‐ordered and one who was
9 privately retained) had already attested to his competency to stand trial and
10 assist in his own defense, as acknowledged by the magistrate judge who issued
11 the order. We thus count these delays against the government.
12 2. Administrative Delays
13 Tigano’s trial date was also delayed by the USMS and the court reporters
14 in the Western District of New York. Tigano’s third court‐ordered competency
15 evaluation resulted in a seven‐month delay (January 2014 – July 2014)—double
16 the combined length of the first two court‐ordered competency evaluations. This
17 delay appears to have been due to the USMS’s failure to provide timely
18 transportation to and from the site of the examination. Both the court and the
27
government should have monitored the 1 situation and prevented the delay. See
2 United States v. Carini, 562 F.2d 144, 149‐50 (2d Cir. 1977) (“While it is . . . true that
3 ‘institutional’ delays are not counted as heavily against the government as are
4 delays caused or encouraged by the prosecution for tactical reasons,” delays
5 “occasioned by . . . unexplained inaction of the District Court, caused, no doubt,
6 by an overloaded docket . . . are properly chargeable against the government
7 under prevailing case law.”) (collecting cases). Specifically, when the court
8 granted the request for the third competency evaluation, it should have issued a
9 time limit and instructed the parties to be ready for trial when Tigano was found
10 competent yet again.
11 Tigano’s trial was also delayed by the court reporters of the Western
12 District of New York. At one point, both defendants were forced to wait 117 days
13 for a transcript of a one‐day suppression motion, because they were ordered to
14 file their submissions within 30 days of receiving that transcript. At many points
15 along the way, transcripts arrived only after long delays.3 Administrative delays
3 We observe that many of the transcripts filed in this case were significantly and
inexplicably delayed. The transcript of the September 4, 2008 preliminary exam
for both defendants was filed 186 days later and the transcript of May 27, 2010
oral argument on pretrial motions took 139 days to file. Transcripts filed after
28
are counted against the 1 government, since it is not the defendant’s responsibility
2 to monitor the speed at which court reporters produce transcripts or at which
3 USMS provides court‐ordered transportation.
4 3. Plea Negotiations
5 Initial plea negotiations consumed approximately one year, which we have
6 held is time that must be counted against the government. See, e.g., Buffalo
7 Amusement, 600 F.2d at 378 (“Good faith plea negotiations by a defendant should
8 not be equated to a waiver of speedy trial rights, and, under the circumstances,
9 the government must assume responsibility for the risk of institutional delays
10 where the bargain ultimately is unsuccessful.”). It is particularly appropriate to
11 construe the time against the government in this case because it took the
12 government nearly a year to actually present a written plea offer to Tigano.
13 When it finally presented the plea offer, it did so on the night before the
trial were even more egregiously delayed, ranging from 205 days for the filing of
the sentencing hearing to an outrageous 2,194 days—or, 6 years and 2 days—for
the October 20, 2008 arraignment. Transcripts are essential tools to advocates in
the course of trial preparation and trial, as well as on appeal. These delays are
suggestive of substantial problems regarding the ability of criminal defendants to
obtain transcripts in the Western District of New York.
29
scheduled conference, 1 forcing Meyers Buth to request a 30‐day continuance
2 because she had not had any opportunity to review the plea offer with Tigano.
3 We additionally observe that the district court should have set a firm
4 cutoff date for plea negotiations rather than allow them to drag on for one‐and‐a5
half years. Indeed, about ten months into the plea negotiations—and we qualify
6 the word “negotiations” because Tigano had made clear from the time of his
7 arraignment that he had no interest in a plea—the government informed the
8 court that it had yet to present a written offer to Tigano. At that point, the district
9 court should have ordered the government to present its plea offer within a
10 reasonable number of days, and scheduled a trial after a brief period for
11 negotiations. Moreover, some of the delay was caused by the government’s
12 insistence on joint negotiations with Tigano’s father.
13 We have held that the time spent in plea bargaining is a gamble taken by
14 the government regarding the defendant’s speedy trial rights and is properly
15 counted against the government. See Buffalo Amusement, 600 F.2d at 378. The
16 government obliquely asserts that the process of plea bargaining counts against
17 Tigano, but this is incorrect. The substantial delay caused by the government’s
18 failure to timely produce a written plea offer, its obstinacy in insisting on a joint
30
resolution, and the court’s failure 1 to monitor the endless delays occasioned by
2 the “negotiations” are all attributed to the government.
3 4. District Court Congestion
4 Delays due to “overcrowded courts,” are counted against the government.
5 Barker, 407 U.S. at 531. It is clear that court congestion—and a failure of the court
6 to prioritize this long‐lingering criminal case—contributed to the substantial
7 delay faced by Tigano. For example, even though its calendar was congested, the
8 court could have set a trial date when Tigano’s attorney informed the court that
9 plea negotiations had failed and that she was ready to proceed to trial on October
10 23, 2014, over six months before the trial ultimately commenced. Considering
11 that this was a 2008 criminal case and that Tigano was incarcerated throughout
12 the entire pretrial period, the court should have given priority to this case.
13 Additional delays were caused by the court’s crowded docket, for example, at
14 the August 1, 2013 and September 20, 2013 status conferences, when the court
15 conceded that adjournments were being granted in part to accommodate the
16 court’s congested calendar. At the time of those status conferences, Tigano had
17 already been detained for over five years. It is difficult to imagine a case that
18 would have warranted scheduling priority over Tigano, yet time and again this
31
low‐priority case took a 1 backseat to competing demands. Again, we conclude
2 that this time must be counted against the government.
3 5. District Court Use of Magistrate Judges
4 On May 17, 2010, the magistrate judge who had been handling all of the
5 nearly two years of pretrial activity properly recused himself from the
6 suppression motion, because he had been the issuing magistrate of the search
7 warrant. Rather than deciding the suppression motion itself and sending it back
8 to the same magistrate, however, the district court split the motions and sent
9 them to two separate magistrates, despite the fact that they involved the same set
10 of facts. The motions were further delayed because of confusion among the
11 magistrates about who had authority over which issues, so that the magistrates
12 sat on their respective motions until the discovery appeal was determined by the
13 district court. In the end, Tigano spent two years in jail while this confusion was
14 sorted out.
15 There is no evidence the government was deliberately dilatory in its
16 handling of these motions. Instead, the delay seems attributable to a series of
17 misunderstandings and delays, as well as some poor decisions by the district
18 court regarding court efficiency. However, Barker makes clear that “neutral”
32
delays must 1 be considered “since the ultimate responsibility for such
2 circumstances must rest with the government rather than with the defendant.”
3 Barker, 407 U.S. at 531.
4 6. Dilatory Tactics of Defense Counsel
5 Despite Tigano’s repeated demands for a speedy trial, his attorney
6 requested multiple extensions and failed to urge the district court to set a trial
7 date. It seems likely that she wanted Tigano to plead to the reduced charge and
8 was repeatedly frustrated by Tigano’s continued refusal to consider a plea and
9 insistence on going to trial. Indeed, Tigano’s attorney requested several delays
10 for the purpose of trying to convince Tigano to accept a plea, requested or caused
11 other delays because of her discomfort with Tigano’s trial strategy, and generally
12 acceded to the requests for delays by Tigano’s father, rather than asserting
13 Tigano’s right to a speedy trial or his desire for severance.
14 Though her intentions may have been admirable, it is a bedrock rule of
15 professional conduct that the decision to accept or reject a plea is ultimately a
16 decision made by the client. See, e.g., American Bar Association Model Rules of
17 Professional Conduct R. 1.2(a). It is also fundamental that an attorney may not
33
coerce a client into accepting a plea. Purdy v. U.1 S., 208 F.3d 41, 45 (2d Cir. 2000).
2 This Court has explicitly instructed lower courts that:
3 [T]he defendant and not the court should decide what strategy should be
4 pursued to adequately protect the defendantʹs interest. To take this choice
5 out of his hands would deprive him of the right to conduct his defense in
6 his manner and in accordance with his own standards.
7 U.S. v. Anderson, 394 F.2d 743, 748 (2d Cir. 1968). In the same vein, we have
8 previously held that, “[i]t is the role of the lawyer to be a professional advisor
9 and advocate, not to usurp his client’s decisions concerning the objectives of
10 representation.” U.S. v. Wellington, 417 F.3d 284, 289 (2d Cir. 2005) (internal
11 citations and punctuation omitted). It would be improper to count these delays
12 against the objecting defendant, and we decline to do so in this case.
13 It will be an exceptional case where, as here, a delay caused by a defense
14 attorney counts against the government, under the Barker analysis, and not the
15 defense. Unless the record shows otherwise, we normally presume that a defense
16 attorney is carrying out his or her client’s chosen trial strategy and that any
17 delays resulting from that strategy count against the defendant.
18 C. Defendant’s Assertion of the Right
34
We also must consider the defendant’s 1 own assertion of his right to a
2 speedy trial. “The defendant’s assertion of his speedy trial right . . . is entitled to
3 strong evidentiary weight in determining whether the defendant is being
4 deprived of the right.” Barker, 407 U.S. at 531‐32. On this factor, Tigano’s case
5 again presents exceptional facts.
6 Tigano adamantly, consistently, and explicitly raised his speedy trial rights
7 at nearly every appearance he made before the court. At his October 20, 2008
8 arraignment, Tigano’s attorney at the time told the district court, “He also had
9 indicated to me that he does not wish to waive his speedy trial rights.” App’x at
10 56. At his next appearance on April 9, 2009, when the district court asked Tigano
11 about a delay for a competency evaluation in the wake of his hunger strike,
12 Tigano explained to the district court, “Sir, I mentioned it the last time I was in
13 court, I don’t want to waive my right to a speedy trial. And that—that’s my main
14 concern.” App’x at 68. During this same hearing, the district court instructed
15 Tigano’s attorney that there was no need to add a written statement to the record
16 regarding Tigano’s desire for a speedy trial because “he’s already stated that on
17 the record, and he thinks it’s necessary to do it by writing. It’s on the record,
18 leave it there.” App’x at 79. This pattern continued nearly every time Tigano
35
appeared before the district court, 1 to the extent that the government observed at
2 a March 31, 2010 hearing that the repeated speedy trial demands were part of the
3 reason for the district court’s decision to have Tigano’s competency evaluated.
4 App’x at 241 (“Mr. Tigano III had been sort of demanding his speedy trial, which
5 is part of the prompting for the Court sending him out for this evaluation.”).
6 Incredibly, the government now argues that Tigano made no formal assertion of
7 his speedy trial right for purposes of the Sixth Amendment analysis. We dismiss
8 that argument as implausible based on the facts and inapposite based on the law;
9 a defendant may waive his statutory right to a speedy trial by failing to formally
10 raise it, but not his constitutional right. Barker, 407 U.S. at 529‐30 (“We, therefore,
11 reject . . . the demand‐waiver rule because it is insensitive to a right which we
12 have deemed fundamental. The approach we accept is a balancing test, in which
13 the conduct of both the prosecution and the defendant are weighed.”)
14 Tigano requested his speedy trial so frequently and vociferously that it is
15 simply inconceivable the government was not “put on notice” that this issue
16 would resurface if Tigano’s speedy trial rights were not protected. Buffalo
17 Amusement, 600 F.2d at 378. Having offered this analysis, we do not mean to
18 suggest that the words “speedy trial” ought to function as a magical incantation
36
that guarantee an immediate 1 trial to any defendant who so wishes. We
2 acknowledge that there are many legitimate reasons why trials may be delayed.
3 Nor do we expect every defendant to raise the issue as frequently as Tigano in
4 order to preserve his right to a speedy trial. On this point we reiterate that the
5 right to a speedy trial is a right explicitly enumerated in the Sixth Amendment. A
6 defendant’s lack of vigor in pursuing this right—or his deliberately dilatory
7 behavior in forestalling trial—are factors to be considered in our analysis, buta
8 defendant’s failure to formally raise the right via motion does not necessarily
9 count against the defendant, as the government argues it should. The speedy
10 trial right is guaranteed to all defendants by the Sixth Amendment and its
11 precise contours are determined by courts on an “ad hoc basis” considering the
12 facts of each case, including the defendant’s invocation of that right. Barker, 407
13 U.S. at 530. Formal procedural requirements are out of place in this context.
14 We also observe that this case raises a new wrinkle to the fact patterns of
15 the speedy trial cases in our Circuit. While Tigano himself made very clear that
16 he desired a speedy trial, this desire was not always echoed by or reflected in the
17 choices made by his attorney. These facts are unusual in this area of law and
18 distinguish this case from others within this Circuit’s speedy trial jurisprudence.
37
Accordingly, we conclude that in the context 1 of a speedy trial action such as this
2 one, a defendant’s assertion of his own right to a speedy trial—even though
3 ignored or contravened by his counsel—is the relevant fact for purposes of Sixth
4 Amendment analysis. Quite simply, the right to a speedy trial belongs to the
5 defendant, not to defendant’s counsel.4
6 D. Prejudice to the Defendant
7 The last Barker factor to examine is the prejudice to the defendant
8 occasioned by the delay. Prejudice should be assessed in regard to those interests
9 the Sixth Amendment right to a speedy trial is designed to protect, namely, “(i)
10 to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern
11 of the accused; and (iii) to limit the possibility that the defense will be impaired.”
12 Barker, 407 U.S. at 532. While the last factor is “the most serious,” it is only one of
13 three interests protected by the Sixth Amendment right to speedy trial. Id.
4 The Seventh Circuit has observed that “the right is ill‐suited to rigid forfeiture
rules,” and that Barker’s balancing of the defendant’s assertion of the right is the
better approach. United States v. Oriedo, 498 F.3d 593, 596 (7th Cir. 2007). The
Ninth Circuit has similarly rejected rigid forfeiture rules in a statutory context
under the Speedy Trial Act, 18 U.S.C. 3161 et seq. See, e.g., United States v. Hall,
181 F.3d 1057, 1060‐61 (9th Cir. 1999) (“[W]here defense counsel does not assert
his client’s right to a speedy trial, a defendant may alert the court directly of his
desire not to waive those rights.”).
38
Affirmative proof of impairment of the 1 defense is not required in order to find a
2 Sixth Amendment violation. See, e.g., Doggett v. U.S., 505 U.S. 647, 655 (1992)
3 (“affirmative proof of particularized prejudice is not essential to every speedy
4 trial claim”) (citation omitted).
5 Tigano was severely prejudiced in terms of the first two factors. His nearly
6 seven years of pretrial incarceration were egregiously oppressive; we reiterate
7 that this appears to be the longest period of pretrial incarceration we have seen in
8 a speedy trial context in this Circuit. In addition to the sheer passage of time, his
9 confinement in local jails makes those years particularly oppressive. The Barker
10 Court noted that “[m]ost jails offer little or no recreational or rehabilitative
11 programs. The time spent in jail is simply dead time.” Barker, 407 U.S. at 532‐33.
12 Nearly seven years of pretrial detention in local jails—before the defendant has
13 been convicted of any crime—is precisely the type of prejudice contemplated by
14 the right to a speedy trial. Tigano amply demonstrates prejudice on this point.
15 The second interest protected by the Sixth Amendment right to a speedy
16 trial is the interest in minimizing the “anxiety and concern” of the accused. Id.,
17 407 U.S. at 532. On this point, Tigano was severely prejudiced. Tigano repeatedly
39
expressed his anxiety to the 1 district court and explicitly cited that anxiety as the
2 primary motivation for his desire for a speedy trial:
3 Basically time is going by, and more time goes on I’m just—how would
4 you say, just moving on in the past. Longer this takes, harder it is to
5 remember everything that’s happens. [sic] The sooner it happens, the
6 better.
7 App’x at 127‐28.
8 Tigano told the district court he wanted to proceed pro se because “[i]t will
9 just resolve this matter, sir.” App’x at 150. He later expressed his anxieties by
10 explaining
11 [t]hat’s why I was trying to go with the speedy trial thing, knowing that, if
12 anything, my dad, if he can’t stick around here, maybe he’d stay with my
13 mother, in, you know, the other part of New York, eastern New York.
14 Otherwise, I’m hoping to push things ahead. This way however—
15 whatever gets determined, I’m more, how would you say, everything has
16 been taken away from me. So to me, whatever you guys want me to have,
17 or do, I’m trying to bring right to the front, and go with it.
18 App’x at 213. Tigano made clear that he preferred to have the matter decided
19 rather than living with the anxiety and uncertainty of charges hanging over his
20 head. Nearly seven years of delay in a trial the AUSA described as “very
21 simple,” App’x at 829, imposes an inexcusable amount of anxiety on the
40
unconvicted defendant. 1 This anxiety is the type of prejudice the Sixth
2 Amendment right to a speedy trial was designed to prevent.
3 E. Balancing Test
4 Weighing the four Barker factors leads us to the inescapable conclusion that
5 Tigano’s Sixth Amendment right to a speedy trial was violated by his nearly
6 seven years of pretrial incarceration. The reasons for delay fall largely on the
7 district court and government attorneys. Tigano’s repeated assertions of his right
8 to a speedy trial place him on the extreme end of our Circuit’s case law. His
9 repeated pleas for trial also speak to the fourth and final prong, the prejudice
10 suffered by Tigano in the form of anxiety and the oppressiveness of his lengthy
11 period of pretrial incarceration. The only remedy is to dismiss the case with
12 prejudice, Strunk v. U.S., 412 U.S. 434, 440 (1973), which we did via court order
13 on November 15, 2017.
14 CONCLUSION
15 We reiterate that the nearly seven years of pretrial detention in this case, as
16 well as Tigano’s single‐minded focus on obtaining a speedy trial, present
17 extreme facts in the speedy trial context. In other words, these facts represent
18 what we expect will be a ceiling, rather than a floor, for Sixth Amendment
41
analysis. Yet the case is no 1 less significant because of its outlier status. Years of
2 subtle neglects resulted in a flagrant violation of Tigano’s Sixth Amendment
3 right to a speedy trial. On January 21, 2010, the slow progression of the case left
4 Tigano to reflect that “[s]o much time has gone by.” App’x at 225. He would wait
5 another 1,929 days—over 5 years—before his case would eventually proceed to
6 trial. Tigano’s years of imprisonment represent a failure of our courts to comply
7 with their obligation to bring defendants to “a speedy and public trial.” U.S.
8 Const. amend. VI.

Outcome: 9 Because we find that Tigano’s Sixth Amendment right to a speedy trial
10 was violated, we need not consider Tigano’s remaining claims. Accordingly, the
11 judgment of the district court is REVERSED and the indictment is DISMISSED
12 WITH PREJUDICE.

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