More than a Mantra: Pitfalls of Excluding Time under Speedy Trial Analysis

By: James Trusty

This week the Second Circuit Court of Appeals issued a stinging reminder about the need for precision in the case of U.S. v. Pikus, No. 20-3080 (2d Cir. 2022). Aleksander Pikus was one of four defendants charged with money laundering conspiracy and related offenses for bilking Medicare and Medicaid through false billings. The scheme featured unnecessary ambulance rides to a Brooklyn medical clinic apparently run for the sole purpose of tapping into federal health care dollars. A Health Care Fraud Task Force of local and federal agents brought the case to the DOJ Fraud Section and an indictment was filed in June of 2016.  The guilty verdict was enrolled in October 2019.

The right to a Speedy Trial is embedded in the Sixth Amendment’s trial guarantees, and federal prosecutions also operate under the rubric of 18 United States Code § 3161 et seq, which provides that an indicted criminal case shall be brought to trial within 70 days. The constitutional right is not wedded to a specific time-to-trial requirement, but its vagueness in that regard generally means its violation is difficult to establish. The statutory speedy trial right, however, is easier to implicate but rarely leads to a lasting victory for the defense, in that its violation most often leads to dismissal “without prejudice,” which means the government simply reindicts the case as if it is brand new.

All told in the case of Mr. Pikus, there would be a 3 ½ year delay before trial. For many weeks and months, the defense did not object to the delays, but most of the long stretches of inactivity were due to the government struggling to meet its discovery obligations. While the task force approach to prosecution has many benefits, it has the potential to greatly complicate the prosecutor’s ability to comply with discovery demands. If the judge thinks specific state or federal agencies are part of “the team,” then the obligation to dig up reports and information from those agencies to satisfy Jencks,[1] Giglio[2] and Brady[3] disclosure requirements can become challenging.

The trial court held numerous status conferences to be updated on the case’s progress during those years. At the initial appearance, the Court excluded the time between appearances from speedy trial calculations, citing the case’s complexity and that the jointly-accepted exclusion of these days was in the best interest of the parties and outweighed the public interest in a speedy trial. As the hearings began to rack up, the Court would announce the exclusion based upon a) designating the matter as a complex case, b) the parties engaging in plea negotiations, and c) pretrial motions are pending—all acceptable bases for “stopping the clock” under a speedy trial analysis. The Court drifted away—for over two years—from announcing specific findings as to why the need for delay trumped the public interest in a speedy trial.

The Circuit Court looked carefully at the case chronology and reasons for delay, eventually concluding that the overall delay was extraordinary, and that two particular periods of delay, by themselves, each exceeded 70 days. The auto-pilot nature of the trial court’s justifications did not sit well with the 2^nd Circuit. The trial judge neglected to weigh the public interest component of speedy trial on most of the occasions, and never articulated specific reasons why the public interest was outweighed by the need for delay. At various times, the judge indicated that there were pending motions when, in fact, there were none. And the exclusion of time to allow for plea negotiations was similarly unfounded. Even one of the most common and routinely-used bases for time exclusion—that the case is complex and requires more preparation—was viewed as unsupported by specific findings.

Experienced federal practitioners know that in the context of statutory speedy trial violations, the mandatory “dismissal” sanction is often illusory. As was the case here, the appellate court reversed the conviction and remanded the matter for the trial court to determine the often-critical issue of whether dismissal is “with prejudice” (final) or “without prejudice” (enabling re-indictment). In the absence of extraordinary foul play by the government, we frequently see re-charging of the case (or at least a new plea agreement) and a big “do-over” for a case with a statutory speedy trial violation but not a Constitutional one.

The record here is so replete with government-caused delay and sloppy judicial record-keeping that there is a real likelihood that Aleksander may feel Great when the court decides that issue of prejudice. Either way, the broader lesson for litigants is that judges need to be precise, specific, and aware of the co-equal status of a defendant and the public when it comes to tolling speedy trials.

[1] Referring to prior statements of witnesses.

[2] Referring to impeachment materials relating to government witnesses.

[3] Referring to exculpatory or mitigating information.