Doc. 36 Motion to Dismiss Indictment for Delay

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. 

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


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 



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). 



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. 



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. 



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 



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 



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 



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

Doc. 36 Motion to Dismiss Indictment for Delay

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