Doc. 36 Motion to Dismiss Indictment for Delay

haitiliberte

Case 1:05-cr-20874-CMA Document 36 Entered on FLSD Docket 02/28/2017 Page 1 of 9

UNITED STATES OF AMERICA,

vs.

Plaintiff,

GUY PHILIPPE,

Defendant.

___________________________/

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 05-cr-20874-CMA

MOTION TO DISMISS INDICTMENT

FOR UNREASONABLE AND UNNECESSARY POST INDICTMENT DELAY

COMES NOW Defendant, GUY PHILIPPE, through his undersigned attorney and

pursuant to the Sixth Amendment of the United States Constitution; the Speedy Trial Act (18

U.S.C. §3161, §3162 and Rule 48(b)(3) of the Fed.R.Crim.Pro and moves the Court to dismiss the

Indictment in this case and as grounds therefor would show:

PROCEDURAL HISTORY

1. The Defendant was indicted in this case on November 22, 2005. The defendant’s

initial appearance was on January 6, 2017.

2. Count I of the Indictment alleges a conspiracy to import a controlled substance into the

United States from in or about 1997 continuing up until in or about March of 2001. Count II of the

Indictment charges a conspiracy to launder the proceeds of unlawful activity from in or about June,

1999 continuing up until in or about April of 2003. Finally, Count III of the Indictment alleges

that the Defendant did engage in a monetary transaction in violation of 18 U.S.C.§1957 on or

about December 1, 2000.

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3. Accordingly, the Defendant was indicted for conduct which is alleged to have occurred

some 20 years ago and, despite his having been indicted more than 12 years ago, it was not until

January 5, 2017 that the Defendant was kidnapped and brought to Miami where he is now facing

these charges.

4. According to the docket sheet, although the Indictment was returned on November 22,

2005, the Indictment was sealed pursuant to a Court Order [DE2]. Presumably a warrant issued for

the arrest of the defendant.

5. On January 31, 2006, there was a notice to transfer to fugitive status the instant case.

6. In 2006, the Defendant went to the United States embassy in Haiti and entered the

embassy effectively placing himself on U.S. soil. The Defendant was not arrested.

MR. PHILIPPE’S PERSONAL HISTORY

7. Guy Philippe is a native born Haitian who has, with very few exceptions, lived his

entire life in Haiti. Mr. Philippe was an active participant in the Haitian movement to remove

former president Aristide in 2004. As noted above, Mr. Philippe went to the U.S. Embassy in 2006

and was not arrested on the instant charge. Subsequently, Mr. Philippe ran for President of the

country of Haiti and lost that election. He has continued to be a person of public significance in

the country of Haiti and on November 20, 2016 was elected to the Senate of that country. Mr.

Philippe was kidnapped by United States agents, presumably with the assistance of Haitian

authorities, on January 5, 2017 and was brought to Miami where he now faces these charges.

8. Mr. Philippe has been a public official well known to all in Haiti and certainly, the

government was aware of his political activities in the country.

THE INDICTMENT

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9. The government would generally characterize the case as a narcotics importation

conspiracy and a money laundering conspiracy. The allegations are of events that purportedly

occurred as far back as 1997, 20 years ago. Despite the fact that presumably a warrant issued for

the arrest of the Defendant when the Indictment was returned and filed in November of 2005, there

was and has been no activity whatsoever and no effort by the United States to bring Mr. Philippe to

trial until the Defendant’s kidnapping on January 5, 2017.

MEMORANDUM OF LAW

10. More than 11 years have now elapsed since the return of the Indictment in this case.

The government has made no meaningful effort during those many years to bring Mr. Philippe to

trial. The unreasonable delay has deprived Mr. Philippe of his Sixth Amendment right to a

speedy trial.

11. The sixth amendment guarantees that “in all criminal prosecutions” the accused shall

enjoy the right to a speedy…trial…” (emphasis added) that right has been recognized as being as

fundamental as any of the rights secured by the Sixth Amendment. See e.g. Kloper v. North

Carolina, 386 U.S. 213 (1967). Simply put, it is an essential safeguard of at least three demands

of our legal system:

1) To prevent undue and oppressive incarceration prior to trial;

2) To minimize the anxiety and condemnation that flows from being subject to public

allegations of criminal wrongdoing;

3) To limit the possibilities that a long delay will impair the ability of the accused to

defend himself. See e.g. United States v. Ewell, 383 U.S. 116, 120 (1966) and United States v.

Marion, 404 U.S. 307, 320 (1971).

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Case 1:05-cr-20874-CMA Document 36 Entered on FLSD Docket 02/28/2017 Page 4 of 9

After defining the parameters and implications of this right in Barker v. Wingo, 407 U.S.

514 (1972) the United States Supreme Court established a four factor test to determine whether the

accused sixth amendment speedy trial rights have been violated. The elements of that test are:

(1) the length of the delay between Indictment and trial;

(2) the reason for delay;

(3) whether the accused asserted his speedy trial right; and

(4) the prejudice to the accused caused by the delay.

To trigger a sixth amendment speedy trial analysis, the accused must first allege and

demonstrate that the time interval between the return of the Indictment and trial have crossed the

threshold which divides ordinary from presumptively prejudicial delay. See e.g. Doggett v.

United States, 505 U.S. 647 (1992), citing Barker, 407 at 530-531. Once this threshold has been

breached, the Court then proceeds with an analysis of the final three factors. See e.g. United

States v. Clark, 83 F.3d 1350, 1352 (11 th Cir. 1996). Where the delay exceeds one year, it is

“presumptively prejudicial” and obligates the Court to analyze the remaining factors. Doggett,

505 U.S. at 652, n.1. See also Clark, 83 F.3d at 1352. Ultimately, in determining whether a

Defendant’s right to a speedy trial has been violated, the conduct of the Government must be

weighed against the conduct of the Defendant. United States v. Bagga, 782 F.2d 1541, 1543 (11 th

Cir. 1986).

When the threshold inquiry is satisfied, the Court then evaluates the second and third

factors. If each of the three factors is found to weigh heavily against the government, the accused

need not show actual prejudice (the 4 th factor) to succeed in establishing a violation of the Sixth

Amendment right to a speedy trial. Doggett, 505 U.S. 656-57.

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Case 1:05-cr-20874-CMA Document 36 Entered on FLSD Docket 02/28/2017 Page 5 of 9

The application of the four prong case established in Barker, to the facts of this case

demonstrate that Mr. Philippe’s Sixth Amendment speedy trial rights were, indeed, violated. To

begin with, approximately 20 years have now elapsed from the date of the alleged conspiracy in

Count I of the Indictment and more than 11 years have passed since the date that Mr. Philippe was

indicted. That delay is 11 times greater than the one year threshold that decisional authority has

established as sufficient for presuming prejudice and clearly sufficient to trigger this Court’s

obligation to consider and analyze the remaining three Barker factors. The government cannot

offer any justifiable reason or excuse for not having timely brought Mr. Philippe to trial. There is

nothing to suggest that the Government has ever made even a minimal effort, let alone a good faith

effort, over the last more than a decade, to secure Mr. Philippe’s presence. Mr. Philippe has never

sought to change either his appearance or his identity. To the contrary, Mr. Philippe has lived

openly and, in fact, very publically as a well-known and highly publicized politician in Haiti. To

Mr. Philippe’s knowledge, the first and only effort ever made to arrest him and move this case

forward towards a trial occurred at his kidnapping on January 5, 2017 where he, having recently

been elected as a senator in the country of Haiti, was appearing on a radio program. As a result, this

factor must weigh heavily against the government.

Mr. Philippe recognizes that there is a plausible argument that he did not aggressively

assert his right to a speedy trial. Although that argument may have some facial appeal, when

carefully analyzed, it is a factor that neither favors the Government nor the accused. To begin

with, this is not a case where the accused in any way affirmatively concealed his whereabouts,

disguised his identity or took steps to avoid being apprehended. To the contrary, Mr. Philippe has

always lived openly and maintained a very public existence. Frankly, there is absolutely no

argument to be made that the United States’ ability and apparent willingness to kidnap Mr.

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Case 1:05-cr-20874-CMA Document 36 Entered on FLSD Docket 02/28/2017 Page 6 of 9

Philippe could not have been effectuated eleven years ago as easily or perhaps more easily than it

was done in January of this year. Thus, on balance, the third factor should be viewed as not

weighing against Mr. Philippe. Nor should it be viewed as weighing in favor of the government.

The fourth Barker factor, the prejudice to the accused caused by the delay weighs heavily

in Mr. Philippe’s favor. The more than eleven years that have elapsed since the return of the

Indictment and the filing of this motion, have rendered it virtually impossible for Mr. Philippe to

receive a fair trial. In Barker, the Supreme Court explicitly recognized that the impairment of the

defense of the accused is the most difficult form of speedy trial prejudice to prove because time’s

erosion of exculpatory evidence and testimony “can rarely be shown.” Barker, 407 U.S. at 532,

although time can tip the case against either side, I.d. at 521; United States v. Loud Hawk, 474

U.S. 302, 315 (1986), one cannot generally be sure which of them it has prejudiced more severely.

Thus, it is generally recognized that excessive delay presumptively compromises the reliability of

a trial in ways that neither party can prove or, for that matter even identify.

In Doggett the Supreme Court again spoke to the issue of presumptive prejudice evidence

in cases where there have been extraordinary delays occasioned by the government’s inaction in

prosecuting the accused. In Doggett, there was an 8 1/5 year delay between Indictment and arrest.

Six years of the delay was squarely attributable to the government. In holding that dismissal was

the appropriate remedy, the court stated “when the Government’s negligence thus causes delay six

times as long as is generally sufficient to trigger judicial review… and when the presumption of

prejudice, albeit unspecified, is neither extenuated either by the Defendant’s acquiescence nor

persuasively rebutted, the Defendant is entitled to relief. I.d. at 657, 658.

Barker and Doggett both recognized that where there is extraordinary delay it is

appropriate to presume the accused has been prejudiced.

If it was proper to apply that

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presumption in Doggett where there was a six year delay, it is certainly at least as appropriate, if

not more so, to presume prejudice in this case where the delay has now reached more than eleven

years.

RULE 48-AN INDEPENDENT GROUND FOR

DISMISSAL OF THE INDICTMENT

Rule 48 of the Fed.R.Crim.Pro. provides a separate, independent basis for the dismissal of

the charges in this case. Rule 48 provides in pertinent part: “[b]y the court. The Court may

dismiss an Indictment, Information or complaint if unnecessary delay occurs in: (3) bringing a

defendant to trial.”

The authority of the Court to dismiss an Indictment pursuant to this rule “is derived from

the Court’s supervisory authority in regards to its own jurisdiction.” United States v. Simmons,

536 F.2d 827, 832 (9 th Cir. 1976). Consequently, subsection (b) of the rule not only allows the

Court to dismiss the Indictment on constitutional grounds, see e.g. Pollard v. United States, 352

U.S. 354, 361 n.7. (1957) (nothing that Rule 48(b) provides for enforcement of the Sixth

Amendments speedy trial right) but also restates the Court’s inherent power to dismiss an

Indictment for lack of prosecution where the delay is not of a constitutional magnitude. See

Fed.R.Crim.Pro.48(b) advisory committee note pointing out that the rule re-states the inherent

power of the Court to dismiss a case for want of prosecution. See also United States v. Balochi,

527 F.2d 562, 562-564(4 th Cir. 1976) (per curiam)(rule 48b supplements the District Court’s

obligation to dismiss Indictments in order to protect the Defendant’s constitutional rights and is a

broader encompass. Rule 48 also operates independently of statutory and constitutional speedy

trial concerns and permits dismissal even though there has been no constitutional violation.

Simmons, supra. United States v. Carlson, 697 F.2d 231, 236 (8 th Cir. 1983) and United States

v. De Leo, 422 F.2d 487 (1 st Cir. 1970). Thus, the rule imposes a more stringent standard than the

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Case 1:05-cr-20874-CMA Document 36 Entered on FLSD Docket 02/28/2017 Page 8 of 9

Sixth Amendment and permits dismissal of the Indictment even though there has been no

constitutional violation. See e.g. Mathies v. United States, 374 F.2d 312 (D.C. Cir. 1967) and

United States v. Rowbotham, 430 F.Supp. 1254 (D.Mass 1977).

This Court now has this case before it, which has been open for eleven years. It is

questionable at this stage whether the government has the interest or the ability to continue to

prosecute this matter. What is not questionable is that from the date when the original Indictment

was filed in 2005, the Government undertook no efforts to bring Guy Philippe to trial. As noted

above, Mr. Philippe was in the United States embassy in Haiti and was not arrested despite it being

after the Indictment in this case was returned. What is also beyond question is that the 11 year

delay in failing to prosecute Mr. Philippe and to bring him to trial is unreasonable and apparently

was a deliberate and intentional decision by the United States to gain the tactical and advantage

which it now has.

OTHER CONSIDERATIONS

Not only has the Government delayed more than a decade in taking any action to bring to

trial the 2005 Indictment, the government deliberately waited until Mr. Philippe had been elected

to national office as a Senator in Haiti. Even then, the Government attempted to time its

kidnapping of Mr. Philippe to just days before the second Monday in January which is the

beginning date of the Senate per the Constitution of Haiti.

It is difficult enough for a Defendant from Haiti to obtain witnesses and evidence from that

country to present in the Courts of the United States. It is nearly impossible to do so more than

eleven years after the Indictment and absolutely impossible to do so 20 years after the conduct

which the Government alleges was criminal. If the prosecution of this case had been brought

timely, Mr. Philippe would have had a difficult time obtaining witnesses even then. Now, he is, in

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Case 1:05-cr-20874-CMA Document 36 Entered on FLSD Docket 02/28/2017 Page 9 of 9

fact, prejudiced, in his ability to defend and indeed, the Court must presume that he is and given

the Barker factors and the background of this case, this motion should be granted. The Court

should dismiss the Indictment based on unreasonable, unnecessary and intentional post-Indictment

delay.

Respectfully submitted,

BOZANIC LAW, P.A.

2847 Hollywood Blvd.

Hollywood, FL 33020

Telephone: 954.920.9750

Facsimile: 954.200.8832

E-Mail: Zeljka@bozaniclaw.com

By:_____/s/Zeljka Bozanic___________

Zeljka Bozanic

Florida Bar No. 23707

CERTIFICATE OF SERVICE

I HEREBY certify that on February 28, 2017, undersigned counsel electronically filed

foregoing document with the Clerk of Courts using CM/ECF which will send notification of such

filing to all counsel of record.

BOZANIC LAW, P.A.

By:_____/s/Zeljka Bozanic___________

Zeljka Bozanic

Florida Bar No. 23707

BOZANIC LAW, P.A. · 2847 HOLLYWOOD BLVD., HOLLYWOOD, FL 33020 · TELEPHONE 954.920.9750 · FAX 954.200.8832

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