[00:00:01] Speaker 04:
Case number 16-31, come on you up.

[00:00:04] Speaker 04:
The United States of America versus Juan Pettus McClendon.

[00:00:08] Speaker 04:
Mr. Katzoff for the appellate.

[00:00:11] Speaker 04:
Mr. Katzoff, good morning.

[00:00:15] Speaker 01:
Good morning.

[00:00:16] Speaker 01:
Howard Katzoff appearing on behalf of Juan McClendon.

[00:00:21] Speaker 01:
This is an appeal that arises from the denial of 2255 petition by Mr. McClendon before the District Court.

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Certificate of Appealability was granted by the District Court.

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The issue is whether the District Court erred in denying ineffective assistance of counsel claims relating to Speedy Trial Act errors by both trial counsel and appellate counsel.

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The conviction in Mr. McClendon's case occurred after the third trial.

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The first two trials resulted in mistrials.

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The first one, there was acquittal on three counts.

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I believe in MJOA on one count and mistrial declared on the remaining counts.

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The second trial, there was a mistrial on all counts.

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He was convicted on the third count.

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Prior to the first trial,

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there was a speedy trial act violation.

[00:01:22] Speaker 04:
Mr. Cassis, let me just interrupt you and ask, if we assume that there was a speedy trial act violation, and then we assume that both trial and appellate counsel were deficient in not raising it, if we just assume that, could you address what prejudice occurred?

[00:01:43] Speaker 04:
How there would be a different result?

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First of all, separate it apart from exactly what the prejudice is, there's a problem in that the district court didn't adequately set out what the prejudice is in terms of this court's ability to review what the district court was thinking.

[00:02:08] Speaker 02:
But he said that the dismissal would have been without prejudice and that the government would have reindited.

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and your client would have been in exactly the same position, which is he still has to face trial on those charges.

[00:02:26] Speaker 01:
The district court judge said that in a somewhat summary fashion, but didn't consider even the issues that were discussed in Miller and I believe in Marshall, that even in a dismissal without prejudice, the court needs to address

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the implications of a dismissal without prejudice.

[00:02:52] Speaker 02:
Whether it makes any difference, and in a case where the government just reindites the next day, makes no difference.

[00:03:02] Speaker 01:
Well, it does make a difference in this case.

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First of all, there's a liberty interest, and that wasn't considered at all by the district court.

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What liberty interest would be impaired if we make all these assumptions?

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Immediately, Mr. McClendon was detained and immediately, if the cases were dismissed as they should have been, Mr. McClendon would have been released.

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The next thing is... If the cases were dismissed?

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If the case were dismissed, the release order would be issued.

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The immediate re-indictment.

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Well, indicted as quickly as the government could, assuming that's the case.

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But that's making assumptions, first of all.

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So the district court raises the Speedy Trial Act concern on January 4th.

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And by January 7th or 8th at the status conference, the government already has

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a new indictment.

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We can talk about whether it's premature or not, but that shows pretty clearly that A, they would have gotten it, and B, they would have gotten it almost instantaneously.

[00:04:08] Speaker 01:
Well, you know, it seems under the facts of this case that they were going to get it as quickly as they could, but depending on when the grand jury sits.

[00:04:16] Speaker 01:
But if Mr. McClendon is released for a day, for a week,

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It changes the calculation for him in terms of whether he gets bombed, whether he stays out.

[00:04:27] Speaker 01:
If they reindite and he surrenders, he's entitled to a new bond hearing, he's entitled to be considered for release.

[00:04:36] Speaker 02:
Is there any reason to think he wouldn't have been subjected to pretrial detention on a new indictment, as he was on the original one?

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He had virtually no record.

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He had serious charges, and so someone who... Charges with distributing 50 grams of crack with weapons.

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Exactly.

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He was arrested and charged on a detainable offense, one in which the government would clearly seek detention.

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where there would be a rebuttable presumption.

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But having the opportunity to be released, to surrender himself, and to show compliance and show that there are conditions that can be set can go a long way in this kind of situation, even for a drug distribution charge such as this.

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So if he's released, that affects his ability

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you know, come in through the front door, which helps in terms of trial.

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And we already know that the government didn't get a conviction for the first two trials.

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It took three trials.

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So it's not like it was a slam dunk to begin with.

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So any benefit, even a small benefit, tends to tip that prejudice standard.

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I understand your point about

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liberty interest for whatever small amount of time he might have been out.

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But how does this impact his ability to defend on the later trial?

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Well, historically it's just defendants who are able to come in not from the back door and in an orange suit and have to change into some

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Some clothing tends to help in terms of the ability to locate witnesses, things that often trial counsel and investigators can't do as well.

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The presentation, being able to come in through the front door and sit.

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Oftentimes, defendants are more relaxed.

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They don't have to get up at the jail at three o'clock in the morning, be exhausted, be inattentive at council table.

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There are huge differences.

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And that would all be dependent upon his having obtained bonds.

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That's true.

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There's no reason is there to believe that he's any more bondable if the first dismissal was without prejudice than if it was with prejudice or vice versa.

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I mean, if it was with prejudice, it wouldn't be in the indictment.

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Here it's going to be without credit, if we can assume that.

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I mean, the judge said that.

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He's already been through that.

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And while I agree with you that strategically, I would much rather have had a client who was not in jail than the one who was in the jail, that all depends on him making bonds when he's not been able to make bonds before.

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Why should we believe he would be bondable just because the first indictment was dismissed in one fashion as opposed to it being the only indictment, for example?

[00:07:57] Speaker 01:
Because it happens, because it's a factor that has influenced courts in the past.

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When someone is released, they comply.

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They show that they have a certain level of responsibility.

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You really think they're willing to let him out of their sight if this case unfolded?

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I mean, he would not have gotten out of the court after that being re-arrested, would he?

[00:08:18] Speaker 01:
Well, you know, that's part of the government's strategy in trying to

[00:08:24] Speaker 01:
uh... the issue of superseding and bypass the speech trial act uh... so that didn't happen but if if things work the way they're supposed to if dismissals entered and a dismissal orders entered as it's supposed to that goes to the marshals that goes to the jail and he should be released that day it's unlikely if the judge did what he was supposed to do that Mr. McClendon would not have

[00:08:53] Speaker 01:
uh... been released to the community to prove himself and the court has not made any findings as to uh... what what what what there was no prejudice you may not have mentioned that specific conjecture but he found there was no prejudice that's that's right in the summary fashion he he he uh... the district court summary fashion is your characterization

[00:09:18] Speaker 03:
About a terse patient.

[00:09:21] Speaker 01:
I'll accept that.

[00:09:24] Speaker 01:
My point is that it wasn't detailed in a way.

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In fact, you know, at the time that the decision was made initially, there were no reasons put on the record and then there was

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some analysis in the, you know, obviously that came along with the denial of the 2255, where he did in a terse fashion address the three factors, but didn't address the non-trial factors.

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He seemed to just address the trial factor in some terse or summary belief that

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it would have resulted in a conviction without going through an analysis.

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That included the possible liberty interest, the possible release of Mr. McClendon, the possible benefit in a close case to Mr. McClendon in a trial that took three trials to be convicted of.

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And so it's Mr. McClendon's position, obviously, that at a minimum

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that the matter has to be remanded for the court to at least review those factors and review the implication of a dismissal without prejudice if this court determines that that's where things should lie.

[00:10:44] Speaker 01:
but the district court would still need to make those determinations regarding the implication of that dismissal with regard to the Speedy Trial Act and also with regard to

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whether it results in Strickland prejudice.

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And more importantly, as in Miller, it was discussed that that's an unresolved issue in this circuit, and that has been the practice where the record is not clear with regard to that particular issue, whether a dismissal without prejudice can constitute Strickland prejudice.

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And I would submit in this case,

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There's the factors that we discussed in the brief and discussed here support a finding that it would lend to strong arguments for stricken bridges.

[00:11:38] Speaker 02:
Could I take you a step back and ask about whether or not there's a Speedy Trial Act violation at all?

[00:11:47] Speaker 02:
So let's assume that you are right about all of the counting issues.

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Okay, so we're at a point in January.

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The 70-day clock has expired.

[00:12:01] Speaker 02:
But the way the statute works, the defendant can still be tried if two things happen.

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One is that the first indictment is dismissed without prejudice, and the second is the government reindicts on the same charges.

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And it's perfectly clear that can happen in that order.

[00:12:29] Speaker 02:
Why does it violate the statute if the government as a protective matter just flips the order and gets the new indictment immediately before the dismissal rather than immediately after, which is what happened here?

[00:12:47] Speaker 01:
The problem is that in January 8th,

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at the time the matter is being addressed, both of those indictments are out of time under the Speedy Trial Clock, because the same Speedy Trial Clock... No, but the second one is in a different case.

[00:13:03] Speaker 01:
It's a new case.

[00:13:05] Speaker 02:
It's not a superseding indictment in the original case.

[00:13:08] Speaker 01:
It's a new case number, but it has the identical charges under the

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Rule 45.1 and under?

[00:13:16] Speaker 02:
It would get a new clock if it were filed one day after a dismissal without prejudice of the original case 98-320, whatever it was.

[00:13:29] Speaker 01:
I believe that Marshall and I believe that 45.1 in the speedy trial act plan suggests that that's not the appropriate way that it should be characterized that way.

[00:13:38] Speaker 02:
If it's a superseding indictment in the original case.

[00:13:42] Speaker 01:
correct, but it's identical to a superseding indictment.

[00:13:48] Speaker 01:
It's an identical indictment and the Speed Trial Act, I don't believe, is intended to contemplate

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that kind of manipulation by the government.

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And so I would submit that.

[00:13:58] Speaker 02:
I mean, is it manipulation?

[00:14:01] Speaker 01:
It's absolutely manipulation.

[00:14:03] Speaker 01:
It's an extension of another, it's 140 days instead of 70 days.

[00:14:07] Speaker 02:
The government can do the same thing immediately after the dismissal.

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If they persuade the court to dismiss the first case without prejudice, they can do exactly the same thing one second after the dismissal.

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So, I mean, it just seems like all that's going on is the government is trying to line up their ducks so that they can ensure that detention is preserved without a gap.

[00:14:39] Speaker 02:
And I'm not sure that's a manipulation.

[00:14:43] Speaker 01:
Well, I mean, it's part of my argument that it is a manipulation.

[00:14:48] Speaker 01:
And, you know, if the Speed Trial Act is intended

[00:14:51] Speaker 01:
If you're not at trial, 70 days, less the excludable, including the excludable time, and you hit the 70th day, 71st day, then it should be dismissed.

[00:15:03] Speaker 02:
I understand there's something jarring about restarting the clock, but the statute allows that if the government persuades the court to dismiss without prejudice.

[00:15:18] Speaker 01:
what you're proposing is that in tandem there is a new indictment and a motion or something to convince the court that the first one should be dismissed and that the second one shouldn't be dismissed at all.

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And I believe there's strong argument that the second one would have to be dismissed if it's an identical

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absolutely identical indictment.

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It would have to be dismissed at that point on motion and the government would have to figure out how to proceed.

[00:16:13] Speaker 00:
Morning and may it please the court, Daniel Honnold for the United States.

[00:16:17] Speaker 00:
This court should affirm the judgment of the district court because the district court correctly held that appellant failed to demonstrate any sufficient Strickland prejudice from either of his attorneys' handleings of the Speedy Trial Act issues in this case.

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Beginning with the issues related to trial counsel related to the Speedy Trial Act, the judge

[00:16:41] Speaker 00:
The district court clearly held that any dismissal in this matter from any purported violation of the Speedy Trial Act would have been without prejudice, and he did not abuse his discretion in so holding.

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He clearly articulated the three statutory factors and found that each of them favored dismissal without prejudice.

[00:17:02] Speaker 00:
As a result, against that backdrop, the district court found that the appellant was unable to demonstrate any prejudice related to the loss of an opportunity of a dismissal without prejudice.

[00:17:14] Speaker 00:
And for just the reasons that Judge Katz has mentioned earlier this morning, that is correct.

[00:17:20] Speaker 00:
The government clearly would have re-indicted this defendant and would have proceeded to conviction of this defendant in just the exact same way that it had, even without

[00:17:29] Speaker 00:
what would have been a dismissal without prejudice.

[00:17:33] Speaker 00:
Appellant can point to nothing more than the minor impairment of what he characterizes as a liberty interest in the release of a couple days' time at most between the time when a dismissal without prejudice would have been entered and the time when the new indictment would have been issued.

[00:17:49] Speaker 03:
The defendant almost certainly would have been... Nobody has asked this, and I don't know this particularly to me.

[00:17:54] Speaker 03:
If there were no indictment pending, if you hadn't got the second indictment yet and he were released off the first and without prejudice, could he be re-arrested under a warrant before an indictment was returned?

[00:18:05] Speaker 00:
Your Honor, I don't know the answer to that question, but my suspicion is that the government would have sought at the first possible moment to obtain a new indictment.

[00:18:13] Speaker 03:
I understand that, but we're talking about applying a law that applies on a lot of districts that don't have grand juries made very often.

[00:18:23] Speaker 03:
where that would not be possible.

[00:18:25] Speaker 03:
There would be any reason why you couldn't just take the agent, then you've got probable cause obviously, and get a warrant and arrest him to hold him until you got the intent.

[00:18:33] Speaker 00:
It's possible, Your Honor, but I don't know the answer to that.

[00:18:36] Speaker 00:
Okay.

[00:18:37] Speaker 00:
But what's safe to say is that the liberty interest that the repellent points to at most would have been a liberty impairment of a couple of days and would not have, as Strickland analysis requires, done anything to alter or impact the outcome of the proceeding as a whole, which was the case, and not simply the dismissal of the indictments in 98 CR 320.

[00:18:58] Speaker 00:
And absent any other showing that

[00:19:01] Speaker 00:
anything related to that delay or anything related to the Speedy Trial Act would have changed the outcome.

[00:19:05] Speaker 00:
There can be no finding of Strickland prejudice, which is what the court found here.

[00:19:10] Speaker 00:
Similarly, for the same reasons, any dismissal of the indictment without prejudice following a remand

[00:19:16] Speaker 00:
From a direct appeal, raising speedy trial act issues would not have altered the outcome of the case.

[00:19:21] Speaker 00:
The government would have done the exact same thing just a few years later and reindicated the case due to conviction at that point.

[00:19:26] Speaker 00:
There's nothing to indicate that the quality of the evidence or the government's ability to proceed would have changed or have been altered in any way.

[00:19:33] Speaker 00:
And so the government would have proceeded exactly the same way.

[00:19:36] Speaker 00:
Finally, with respect to the loss of or alleged deficiency or prejudice with the loss of the ineffective assistance of counsel claim on direct appeal, there's clearly no prejudice here as the appellant has, as we've heard today, been able to raise that exact same claim before the court on this 2255.

[00:19:57] Speaker 00:
And so, Your Honors, hearing no questions from the panel.

[00:20:00] Speaker 02:
Could I just ask, do you have a view on the

[00:20:05] Speaker 00:
Speedy Trial Act question that I was engaging your

[00:20:18] Speaker 00:
having secured the indictment prior to the dismissal would have been sufficient to alleviate any issues under the Speedy Trial Act.

[00:20:26] Speaker 00:
And because we didn't press that issue, I'm hesitant to take it up here at argument today, but would potentially reserve it for future argument when we had raised that below.

[00:20:34] Speaker 02:
Okay.

[00:20:34] Speaker 00:
I appreciate that.

[00:20:35] Speaker 00:
Thank you, Art.

[00:20:37] Speaker ?:
All right.

[00:20:37] Speaker 00:
Thank you.

[00:20:37] Speaker 00:
And so we would submit on briefs and ask that this court affirm the judgment of the district court.

[00:20:42] Speaker 00:
Thank you.

[00:20:43] Speaker ?:
Thank you.

[00:20:48] Speaker 01:
Your Honor, I don't think I have time remaining, but I was going to address Judge Katz's issue just briefly.

[00:20:54] Speaker 01:
In my understanding of the Speedy Trial Act, a speed trial plan is the controlling language that under the circumstances in our case, if after an indictment or information has been filed, a complaint indictment or information is filed which charges the... I'm sorry, what text are you reading from?

[00:21:15] Speaker 01:
Reading from...

[00:21:19] Speaker 02:
This is the statute, I assume.

[00:21:21] Speaker 01:
The speedy trial plan of the U.S.

[00:21:24] Speaker 01:
District Court for the District of Columbia, 45.1, and I think that I looked and I did not, unfortunately, include in the addendum.

[00:21:33] Speaker 01:
It's referenced, but I did not include in the addendum.

[00:21:36] Speaker 01:
I realized that when I was preparing for the argument only.

[00:21:42] Speaker 03:
Could you speak up, please?

[00:21:43] Speaker 03:
I'm sorry.

[00:21:45] Speaker 01:
I didn't hear the end of what you were saying.

[00:21:47] Speaker 01:
I'm sorry.

[00:21:48] Speaker 01:
Criminal Rule 45.1 of the Speedy Trial Plan of the U.S.

[00:21:53] Speaker 01:
District Court for the District of Columbia.

[00:21:58] Speaker 01:
I apologize that that was omitted from the addendum.

[00:22:04] Speaker 01:
It sets out under subsection 8 on page 10 certain time limits that apply and under

[00:22:18] Speaker 01:
8D, small d, superseding charges, is the language I was reading from where it says that where indictment or information has been filed and then a subsequent indictment or complaint or whatever is filed, based on charging the same offense or offenses or requiring to be joined in the offense, then the applicable time limit will be determined as follows.

[00:22:46] Speaker 01:
And it says that the original indictment

[00:22:48] Speaker 01:
is pending at the time of the subsequent charges filed.

[00:22:51] Speaker 01:
The trial shall commence within the time limit for commencement of trial on the original indictment.

[00:22:57] Speaker 01:
So that's the basis for my argument that it doesn't, it can't trigger new on that day.

[00:23:02] Speaker 01:
On January 8th, both have to be dismissed under this analysis, which I think would be upheld by courts based on at least the way Marshall, I think, was one of the cases, Clarence Marshall, I think, 1991 case.

[00:23:18] Speaker 01:
that address the issue of whether indictments charging the same offenses carry the same speed trial clock.

[00:23:27] Speaker 01:
So on January 8, there was no choice.

[00:23:29] Speaker 01:
The only remedy was dismissal of both, and the trial judge didn't do that.

[00:23:34] Speaker 04:
Mr. Katzoff, before you sit down, you were appointed to represent the defendant.

[00:23:40] Speaker 04:
And we want to thank you for your assistance.

[00:23:43] Speaker 04:
And let me just go a little further and say I was concerned

[00:23:48] Speaker 04:
It's ironic we're talking about the Speedy Trial Act here because this case has gone on for 19 years and it wasn't until you came into it in, as I understand it, 2012 that the district court four years later issued an order.

[00:24:09] Speaker 04:
It was then three years getting up to us and I just want to say you've done an especially good job in

[00:24:18] Speaker 04:
in getting this very long case, over long case.

[00:24:22] Speaker 01:
Appreciate it.

[00:24:23] Speaker 04:
Thank you.

[00:24:24] Speaker 01:
Have a good day.