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United States v. Tigano

United States Court of Appeals, Second Circuit

January 23, 2018

JOSEPH TIGANO, III, Defendant-Appellant.

          Argued: October 12, 2017

         Joseph Tigano, III appeals from his conviction in the United States District Court for the Western District of New York (Elizabeth A. Wolford, J.) on five counts of drug-related charges, including the manufacture of 1, 000 or more marijuana plants, in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(A). Tigano argues that his constitutional and statutory rights to a speedy trial were violated by his nearly seven years of pretrial detention. Because we agree with Tigano that his Sixth Amendment right to a speedy trial was violated, we need not consider his remaining arguments regarding his statutory right to a speedy trial and an alleged Fourth Amendment violation by an aerial infrared scan of his residence. Accordingly, on November 15, 2017, we REVERSED the judgment of the district court and DISMISSED WITH PREJUDICE the indictment on all related charges against Tigano. We remanded to the district court for the limited purpose of releasing Tigano and indicated an opinion would follow.

          JOSEPH J. KARASZEWSKI, Assistant United States Attorney, for James P. Kennedy, Jr., Acting United States Attorney for the Western District of New York, Buffalo, N.Y., for Appellee.

          GARY STEIN (Andrew Gladstein, Andrew Joyce, Stephanie Kelly, on the brief), Schulte Roth & Zabel LLP, New York, N.Y., for Defendant-Appellant Joseph Tigano, III.

          Before: WINTER, WALKER, and POOLER, Circuit Judges. [1]

          POOLER, Circuit Judge:

         On July 8, 2008, Joseph Tigano, III and his father, Joseph Tigano, Sr., were arrested on charges related to a marijuana growing enterprise allegedly operated by the two men. When Drug Enforcement Administration ("DEA") task force members executed a search warrant at the Tiganos' residence on the morning of the arrest, they discovered over 1, 400 marijuana plants. On October 2, 2008, Tigano and his father were each indicted on six counts. Four of the counts charged drug offenses related to the alleged marijuana growing operation; the remaining two counts charged weapons offenses stemming from firearms found at the residence.

         Nearly five years later, on November 25, 2013, Tigano's father pled guilty to one count of manufacturing 50 or more marijuana plants. Tigano refused to accept a plea and proceeded to trial-nearly seven years after his arrest-on May 4, 2015. He was convicted by a jury on May 8, 2015 on five of the six counts in the indictment. Tigano was imprisoned during the entirety of the nearly seven years of pretrial proceedings. On appeal, Tigano argues that his Sixth Amendment right to a speedy trial was violated by an oppressive period of pretrial incarceration. On November 15, 2017, this Court filed an Order that reversed the judgment of the district court and dismissed with prejudice the underlying indictment. We remanded the case for the limited purpose of releasing Tigano from detention and indicated that an opinion would follow. Tigano was released pursuant to that Order on November 15, 2017.

         Tigano's facts are exceptional in nearly every meaningful respect within the context of a Sixth Amendment speedy trial analysis. Accordingly, we begin by detailing the circumstances that resulted in Tigano's nearly seven years of pretrial detention. We then offer some historical context for our analysis of this constitutional right in order to better situate Tigano's exceptional facts. Finally, we assess Tigano's delay under the legal framework provided by the Supreme Court in Barker v. Wingo, 407 U.S. 514 (1972).


         The pretrial detention experienced by Joseph Tigano, III appears to be the longest ever experienced by a defendant in a speedy trial case in the Second Circuit. Tigano's experience is an extreme outlier even among the severe examples found within Sixth Amendment case law. Yet no single, extraordinary factor caused the cumulative seven years of pretrial delay. Instead, the outcome was the result of countless small choices and neglects, none of which was individually responsible for the injustice suffered by Tigano, but which together created this extreme instance of a Sixth Amendment violation. A review of the procedural history reveals that Tigano was the victim of poor trial management and general indifference at every level toward this low-priority defendant in a straightforward case.

         I. July 8, 2008-April 8, 2009: Arrest, Arraignment, and Hunger Strike

         On July 8, 2008, Joseph Tigano, III and his father were arrested. On October 20, 2008, Tigano was arraigned and entered a not guilty plea before Magistrate Judge Hugh Scott. At his arraignment, Tigano (through his then- attorney Thomas Farley) conveyed to the court that he would not accept a plea and wished to preserve his speedy trial rights. The next court meeting on this case was initially scheduled for March 19, 2009, but was rescheduled on motion of Tigano's father, who requested a delay. Tigano's attorney failed to ever convey this change in date to Tigano. When the date of the scheduled conference arrived and no one explained to Tigano why he was not being transported to court, Tigano stopped eating. He later explained to the court that the hunger strike was his response to being left in his jail cell on a scheduled court date with no explanation from his attorney or the court.

         II. April 9, 2009-August 11, 2009: First Competency Exam

         On April 9, 2009, the parties convened for the delayed status conference. This status conference would result in the first of what would eventually be three court-ordered competency exams, each of which would confirm that Tigano was competent to stand trial. At this juncture in Tigano's pretrial detention, Farley requested a competency evaluation, which was ordered by Magistrate Judge Scott. The transcript of the proceeding makes clear that the driving motivation for the decision to order a competency exam was Tigano's repeated demand for his speedy trial. Tigano's prioritization of a speedy trial appears to have been his primary point of disagreement with Farley and Magistrate Judge Scott explicitly cited Tigano's repeated insistence on a speedy trial as he ordered the competency evaluation. Indeed, Tigano raised his speedy trial rights no fewer than ten times in this single status conference. It was no mystery to any party that Tigano's top priority was moving quickly to trial. Instead, Magistrate Judge Scott ordered a competency exam and, as a result, the next two status conferences were postponed while the court awaited the results of the competency exam.

         III. August 12, 2009-January 20, 2010: Unresolved Representation

         The parties were finally able to convene for a status conference on August 12, 2009 after Tigano had returned from his competency evaluation. The exam determined that "he did not suffer from any 'major mental illness, ' he had a 'good understanding of his current legal circumstances' and he was able to 'assist properly in his defense.'" Appellant's Br. at 8. Tigano asked the court for permission to proceed pro se, in large part because of conflicts with Farley regarding Tigano's desire to proceed straight to trial as quickly as possible. The court then engaged Tigano in an extended colloquy, and required the government to recite the possible sentence faced by Tigano if he were convicted. At this first hearing after the competency exam, Magistrate Judge Scott told Tigano that he was making a "huge mistake" and that his answers-specifically, his pleas to represent himself so as to proceed quickly to trial-"are tending to make me believe he needs to be evaluated again." App'x at 129. Magistrate Judge Scott declined to decide on the request to proceed pro se, appointed standby counsel to Tigano to explain the risks to him, and scheduled another status conference for two days later. The second status conference was largely a replay of the first: Tigano's standby counsel again confirmed that Tigano appeared to understand the charges, the government recited the charges Tigano was facing, and Magistrate Judge Scott expressed his skepticism and reserved decision. Nearly one month later, Magistrate Judge Scott granted Tigano's request to proceed pro se. There followed a series of short status conferences, one of which appears to have been scheduled only because Farley failed to appear as directed to hand over files to Tigano at the previous status conference.

         It is during this phase of the proceedings that Tigano's statements in court became increasingly desperate and plaintive as he pleaded for the case to move toward resolution. He continued to repeatedly raise his right to a speedy trial and to plead for severance from his father. As Tigano explained to the court, "What I'm saying is he's a free man. I'm incarcerated. I'm in jail. And my father and his lawyer can actually keep putting motions in to delay this further. I'd like to severance…" App'x at 142. Tigano's father repeatedly moved to delay proceedings. Even so, the court told Tigano that his father had "caused no delay in your case whatsoever." App'x at 142.

         IV. January 21, 2010-May 16, 2010: Second Competency Exam

         When oral argument was eventually held on January 21, 2010, Tigano appeared with his standby counsel, Cheryl Meyers Buth, who would remain his attorney-either stand-by or appointed-for most of the remaining five-plus years of pretrial detention. The scheduled trial date was postponed at the requests of both the father's attorney and the Assistant United States Attorney ("AUSA"), both of whom had other cases on their calendars. When Tigano's attorney addressed the court in this hearing, she first reiterated Tigano's desire for severance and a speedy trial. She next advised the court that

despite the fact that there's been a forensic exam finding that Mr. Tigano is competent to proceed, I have serious reservations about his ability to understand the charges and the procedures and represent himself.

App'x at 225.

         This advisement from Tigano's attorney prompted Magistrate Judge Scott to order the second competency exam of Tigano and led Tigano to ask, "Another one, sir?" App'x at 229. To be clear, there was no allegation that the first competency exam was defective in any way, nor was there any allegation that there had been a change in Tigano's behavior. Instead, both this second exam and the first exam 281 days earlier appear to have been prompted largely by Tigano's repeated invocation of his speedy trial rights.

         At a hearing on March 31, 2010-which Tigano did not attend because he had still not returned from his competency evaluation-the AUSA prosecuting the case acknowledged that Tigano's desire for a speedy trial was part of the rationale for the second competency exam, remarking that "Mr. Tigano III had been sort of demanding his speedy trial, which is part of the prompting for the Court sending him out for this evaluation." App'x at 241.

         The report for the second competency exam was received by the court on April 14, 2010-83 days after the hearing at which it was ordered-and acknowledged by Magistrate Judge Scott at an April 16, 2010 suppression hearing. Again, the report indicated that Tigano was competent to stand trial. Again, a hearing was delayed at the request of counsel, this time at the requests of counsel for both Tigano and Tigano's father. Again, Magistrate Judge Scott asked the government to submit an order excluding time under the Speedy Trial Act.

         V. May 17, 2010-April 4, 2012: Confusion Regarding Multiple Magistrate Judges, Repeated Extensions of Time by Tigano's Father Joined by Tigano's Attorney, and Court Reporter Delays

         Over the course of the next nearly two years, Tigano experienced multiple delays stemming primarily from confusion among judges regarding overlapping motions and an erroneous referral order from Judge Skretny. Most significantly, two separate magistrate judges held in abeyance two separate sets of evidentiary motions until Judge Skretny decided appeals regarding portions of the suppression motion initially decided by Magistrate Judge Scott. That decision was finally issued by Judge Skretny on January 19, 2011 as a three-sentence text order nearly six months after the motions were originally decided.

         Additional delays during this period resulted from a variety of small neglects. The long-postponed hearing before Magistrate Judge McCarthy was delayed for an additional 40 days because the government failed to produce discovery in a timely manner. The court reporter submitted the transcript of the one-day suppression hearing 117 days after it was held, delaying the progress of the case by nearly four months. Magistrate Judge Scott issued his report and recommendation on December 15, 2011, nearly seven months after the hearing and more than a year and a half after Tigano had filed his motion.

         VI. April 5, 2012-January 9, 2014: Plea Negotiations, Crowded Court Docket, Father's Competency Issues, and Adjournments by Counsel

         On April 5, 2012, Judge Skretny accepted the reports and recommendations issued by the magistrate judges and advised attorneys that they should submit motions to sever. Tigano's attorney entered no such motion and instead joined the father's request for an adjournment to delay the scheduled status conference. At this point, Tigano entered a new phase of delay caused largely by unsuccessful plea negotiations.

         Between the July 10, 2012 status conference-at which Tigano's attorney and the government informed the court that they were involved in plea negotiations -and the father's entry of a plea on November 25, 2013, the court held six status conferences that were each adjourned for one reason or another, each of which reported that Tigano was involved in plea negotiations with the government. A large part of the reason for this period of delay was that the government waited nearly a year to present Tigano a written plea offer. The transcript from the May 28, 2013 status conference indicates that AUSA Thomas S. Duszkiewicz was involved in a major criminal trial and Tigano's case had taken a definitive back seat within the U.S. Attorney's office. Indeed, an AUSA stepped in for Duszkiewicz at the May 28, 2013 status conference, and conceded when questioned about the delay, "[t]his is definitely not the defense's issue, " citing Duszkiewicz's lengthy trial and gaps in information within the U.S. Attorney's office as reasons for the delay in the presentation of a written plea. App'x at 661.

         When Tigano's attorney finally received the written offer, it was sent to her the day before a scheduled status conference, which resulted in yet another adjournment because she had not yet had an opportunity to present the plea to Tigano. At this status conference, as with several prior conferences, AUSA Duszkiewicz reiterated his view that the plea agreement was a "two-for-one" ...

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