United States v. Riviera Marshall

360 F. App'x 24
CourtCourt of Appeals for the Eleventh Circuit
DecidedJanuary 5, 2010
Docket08-11149
StatusUnpublished
Cited by1 cases

This text of 360 F. App'x 24 (United States v. Riviera Marshall) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Riviera Marshall, 360 F. App'x 24 (11th Cir. 2010).

Opinion

PER CURIAM:

Riviera Marshall appeals his conviction and 360-month sentence for kidnapping, in violation of 18 U.S.C. § 1201. The evidence adduced at trial showed that Marshall and two codefendants, while armed, entered into and ransacked a home occupied by a mother and her one-year-old child, transported them to another home in search of drugs and money, and then took the child across state lines and demanded ransom money from the child’s family. On appeal, Marshall first contends that his rights to due process and a speedy trial, pursuant to the Fifth and Sixth Amendments, were violated by the government’s excessive pre-indictment and post-indictment delays. Second, he argues that his sentence was procedurally and substantively unreasonable.

I. Right to Due Process and Speedy Trial

A. Pre-Indictment Delay

Because Marshall did not raise a challenge to the pre-indictment delay before the district court, we review his claim for plain error only. See United States v. Dowling, 403 F.3d 1242, 1247 (11th Cir.2005). We may only correct plain error where the defendant demonstrates that there is (1) error, (2) that is plain, and (3) that affects substantial rights so as to seriously affect the fairness, integrity, or public reputation of judicial proceedings. United States v. Moriarty, 429 F.3d 1012, 1019 (11th Cir.2005). “A plain error is an error that is obvious and is clear under current law.” United States v. Humphrey, 164 F.3d 585, 588 (11th Cir.1999) (internal quotation marks omitted).

To prove a Fifth Amendment due process violation resulting from a pre-indictment delay, the defendant bears the burden to show: (1) actual prejudice to his defense from the delay; and (2) that the delay resulted from a deliberate design by the government to gain a tactical advantage. United States v. Thomas, 62 F.3d 1332, 1339 (11th Cir.1995). Marshall has not satisfied this “very heavy burden.” Stoner v. Graddick, 751 F.2d 1535, 1540 (11th Cir.1985).

The indictment of Marshall one year and twelve days after his crime occurred was well within the limitations period for kidnapping a minor child, which is the longer of the life of the child or ten years after the offense. 18 U.S.C. § 3283. Marshall nonetheless claims that the preindictment delay caused him substantial prejudice. These claims are merely speculative. Marshall proffers no evidence that *26 eyewitness Daphne Wilson’s ability to identify him at his federal trial but not at the state court proceeding two days after the crime resulted from the pre-indictment delay. Nor does he provide any support for his claim that but for the delay his codefendant Darrell Joseph would have testified in his support at trial. Moreover, there was other substantial evidence at trial that implicated Marshall in the kidnapping, including forensic evidence placing him at the site of the offense and eyewitness testimony of his custody of the baby immediately following the kidnapping.

Even if Marshall could establish prejudice resulting from the one-year pre-in-dictment delay, he has not attempted to identify any conduct by the government evidencing intentional delay tactics. Even where no good, detailed reason for the delay exists, we will not provide relief due to a pre-indictment delay unless there is evidence of bad faith or intent to gain a tactical advantage. See Stoner, 751 F.2d at 1543. Therefore, he has failed to meet his burden of showing that the delay resulted from a deliberate design by the government to gain a tactical advantage. See Thomas, 62 F.3d at 1339; Stoner, 751 F.2d at 1543. Accordingly, he did not establish a Fifth Amendment violation to require reversal under our plain-error review.

B. Post-Indictment Delay

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy ... trial.” U.S. Const, amend. VI. We also review Marshall’s Sixth Amendment speedy trial challenge for plain error because he did not raise the issue before the district court. See Dowling, 403 F.3d at 1247. In Barker v. Wingo, the Supreme Court identified four factors that should be considered in determining whether the defendant’s constitutional right to a speedy trial has been violated: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his right; and (4) prejudice to the defendant. 407 U.S. 514, 530-32, 92 S.Ct. 2182, 2192-93, 33 L.Ed.2d 101 (1972). The defendant must demonstrate a “presumptively prejudicial” period of delay under the first factor before we will weigh the additional Barker factors. United States v. Register, 182 F.3d 820, 827 (11th Cir.1999).

The Sixth Amendment speedy trial protection attaches when an individual becomes an accused by arrest or indictment. United States v. Marion, 404 U.S. 307, 320-21, 92 S.Ct. 455, 463, 30 L.Ed.2d 468 (1971). Marshall’s trial began approximately fifteen months after his indictment. We have determined that a delay approaching one year is presumptively prejudicial. United States v. Schlei, 122 F.3d 944, 987 (11th Cir.1997). However, the Supreme Court has held that, if the government diligently pursued prosecution, and had good faith reasons for delaying the trial, the defendant’s Sixth Amendment claim generally will fail, unless he can show actual prejudice to his defense. Doggett v. United States, 505 U.S. 647, 656, 112 S.Ct. 2686, 2693, 120 L.Ed.2d 520 (1992).

The Government bears the burden of explaining pre-trial delay. United States v. Ingram, 446 F.3d 1332, 1337 (11th Cir.2006). Here, the Government sought and obtained two continuances that resulted in the fifteen-month delay between Marshall’s indictment and trial. Marshall’s attorney concurred with the Government’s request for both continuances, which were based on the need to complete discovery, obtain results of ongoing forensic evaluations, await arraignment of Marshall’s co-defendants in order to consolidate their *27

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Related

Marshall v. United States
176 L. Ed. 2d 939 (Supreme Court, 2010)

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Bluebook (online)
360 F. App'x 24, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-riviera-marshall-ca11-2010.