                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 05a0381n.06
                               Filed: May 11, 2005

                                             No. 04-3273

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                   )
                                                            )        ON APPEAL FROM THE
        Plaintiff-Appellee,                                 )        UNITED STATES DISTRICT
                                                            )        COURT     FOR     THE
v.                                                          )        NORTHERN DISTRICT OF
                                                            )        OHIO
MIRL WILSON,                                                )
                                                            )                            OPINION
        Defendant-Appellant.                                )


BEFORE:           COLE and SUTTON, Circuit Judges; and BARZILAY, Judge.*

        R. GUY COLE, JR., Circuit Judge. Mirl Wilson was arrested by local law enforcement

officials in Cleveland, Ohio, for possessing a concealed sawed-off shotgun. Wilson was placed in

custody in the Cuyahoga County Jail while state authorities prepared charges and sought an

indictment against him. During the period of his custody, state authorities agreed that they would

drop all charges against Wilson in consideration of an impending indictment in federal court on

similar charges. Following his indictment and arraignment in federal court, Wilson moved for

dismissal of the indictment, asserting that his constitutional right to a speedy trial had been violated.

The district court denied the motion. For the reasons that follow, we AFFIRM the judgment of the

district court.




        *
         The Honorable Judith M. Barzilay, Judge of the United States Court of International Trade,
sitting by designation.
No. 04-3273
United States v. Wilson

                                       I. BACKGROUND

       On June 6, 2003, law enforcement officers in Cleveland, Ohio arrested Mirl Wilson for

possession of a concealed sawed-off shotgun. Wilson was held in the Cuyahoga County Jail over

the weekend, until Monday, June 9, 2003, when he was arraigned in the Cleveland Municipal Court

for purposes of lodging an initial plea to the charge that he carried a concealed weapon. The parties

agree that a public defender was present during this initial arraignment and that this defender was

likely representing dozens of indigent defendants who were entering preliminary pleas that morning.

Moreover, Wilson concedes that an attorney—presumably the public defender—accompanied him

as he pleaded not guilty and waived a preliminary hearing. After Wilson entered his initial plea, the

Municipal Court set bond. Wilson was unable to pay the bond and therefore remained in state

custody. Wilson’s case thereupon was sent to the Cuyahoga County Grand Jury for possible return

of an indictment.

       Meanwhile, the Assistant County Prosecutor, Paul Myles, contacted federal prosecutors

about Wilson’s case. Myles is the state prosecutorial liaison for “Operation Safe Neighborhoods,”

a program whose goal is to transfer felony gun violation cases from state to federal court so that

violators will be subjected to tougher penalties. On July 2, 2003, a federal grand jury returned an

indictment against Wilson.

       Unaware that Wilson was in state custody in the county jail, the federal court issued a

warrant for Wilson’s arrest at his last known address.1 Assured that federal prosecutors were taking


       1
        The confusion on the part of the federal authorities may have stemmed from the fact that
Wilson’s name was misspelled as “Wilcox” on some of their documents, and this name did not

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No. 04-3273
United States v. Wilson

the case, Myles dropped the state charges against Wilson on July 17. Thus, the state grand jury

never indicted Wilson. At some point after the state charges were dropped, Wilson claims that, with

assistance of the jail’s law library staff, he viewed the state court docket for his case and learned that

there were no state charges pending against him. Wilson and the librarian apparently concluded that

the state’s case had been dismissed and that the state simply “forgot about him.” By August 22,

2003, the federal authorities realized that Wilson was in state custody. The Office of the United

States Attorney then sought a writ to bring Wilson into federal custody for arraignment. The writ

was granted and Wilson was arraigned on September 2, 2003. Wilson was assigned counsel at that

time.

        On the trial level, Wilson moved to suppress the shotgun and also moved for dismissal of the

indictment because he was held in state custody for sixty-two days—from July 2, 2003 until

September 2, 2003—without being presented with a federal indictment. At the district court’s

request, the parties filed supplemental pleadings addressing how Wilson got “lost in the system,”

the reason for the delay in locating him, and whether he suffered any prejudice as a result. The

district court ultimately denied both motions.

        Wilson entered a conditional guilty plea on November 13, 2003, and was sentenced on

February 10, 2004. Wilson appealed the district court’s denial of both motions; however, he now

challenges only the district court’s refusal to dismiss the indictment.

                                            II. ANALYSIS




appear on any of the state prison lists.

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No. 04-3273
United States v. Wilson

A. Standard of Review

       We review the district court’s decision to deny a motion to dismiss an indictment for abuse

of discretion. United States v. Washington, 127 F.3d 510, 512-13 (6th Cir. 1997); United States v.

Overmyer, 899 F.2d 457, 465 (6th Cir. 1990). As usual, we review factual findings for clear error

and questions of law de novo. United States v. Howard, 218 F.3d 556, 563 (6th Cir. 2000); United

States v. Knipp, 963 F.2d 839, 843 (6th Cir. 1992).

B. Sixth Amendment Right to a Speedy Trial

       The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial . . . .” U.S. CONST. amend. VI.

       Simply to trigger a speedy trial analysis, an accused must allege that the interval
       between accusation and trial has crossed the threshold dividing ordinary from
       “presumptively prejudicial” delay, since, by definition, he cannot complain that the
       government has denied him a “speedy” trial if it has, in fact, prosecuted his case with
       customary promptness. If the accused makes this showing, the court must then
       consider, as one factor among several, the extent to which the delay stretches beyond
       the bare minimum needed to trigger judicial examination of the claim.

Doggett v. United States, 505 U.S. 647, 651-52 (1992) (citations omitted). “[U]sed in this threshold

context, ‘presumptive prejudice’ does not necessarily indicate a statistical probability of prejudice;

it simply marks the point at which courts deem the delay unreasonable enough to trigger the [speedy

trial] enquiry.” Id. at 652 n.1. If the speedy trial analysis is triggered, the court must balance the

following four factors to determine whether the defendant’s right to a speedy trial has been violated:

(1) the length of the delay; (2) the reasons for the delay; (3) whether the defendant has asserted his

speedy trial right; and (4) the resulting prejudice to the defendant. Barker v. Wingo, 407 U.S. 514,

530-33 (1972). If the defendant’s speedy trial right has been violated, the court is empowered to

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No. 04-3273
United States v. Wilson

dismiss the federal indictment against him. FED. R. CRIM. P. 48(b) (“The court may dismiss an

indictment, information, or complaint if unnecessary delay occurs in: [1] presenting a charge to a

grand jury; [2] filing an information against a defendant; or [3] bringing a defendant to trial.”); see

also United States v. Goodson, 204 F.3d 508, 514 (4th Cir. 2000) (recognizing that in rare

circumstances, the court may exercise its supervisory power to dismiss an indictment when not

doing so would cause substantial prejudice to the defendant).

       Here, although the district court expressed its concern that Wilson was lost in the system for

over two months, the court concluded that the delay was not sufficiently unreasonable to trigger a

speedy trial inquiry. In determining that Wilson was not entitled to a finding of presumptive

prejudice, the court also found that Wilson suffered no actual prejudice to his defense, and thus

denied dismissal of the indictment. The question before us is whether the particular circumstances

surrounding the delay in Wilson’s case are so unreasonable as to trigger a constitutional speedy trial

inquiry. We conclude that they are not.

       The Supreme Court has stated that “[t]he length of the delay is to some extent a triggering

mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for

inquiry into the other factors that go into the balance.” Barker, 407 U.S. at 530. Although the

Supreme Court has set no minimum boundaries, it has determined that as a delay approaches one

year or more, the delay likely will trigger the four-factor speedy trial inquiry. Doggett, 505 U.S. at

652 n.1. We have previously determined that delays of a shorter duration do not trigger the speedy

trial inquiry. Howard, 218 F.3d at 564-65 (finding that a five-month delay was not presumptively




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United States v. Wilson

prejudicial); United States v. White, 985 F.2d 271, 275 (6th Cir. 1993) (finding that a six-and-a-half

month delay was not presumptively prejudicial).

       Wilson concedes that the length of the delay in his case—sixty-two days—alone is

insufficient to trigger the speedy trial inquiry. Wilson argues, however, the facts surrounding his

claim compel the triggering of the speedy trial inquiry and are thus distinguishable from our prior

precedent in which the speedy trial inquiry was not triggered. See Barker, 407 U.S. at 530-31

(noting that “because of the imprecision of the right to speedy trial, the length of delay that will

provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case”).

Wilson argues that the typical speedy trial claim arises when a defendant is either free, or out on

bond, and is simply waiting for the commencement of the trial. According to Wilson, in most cases

where the defendant is in custody while awaiting trial, the defendant has counsel during the delay.

Wilson also argues that his case is different because the federal authorities, whom he claims were

confused as to his whereabouts, could not present him with the federal indictment, nor did they

provide him with counsel while he was in custody. Wilson’s argument is unpersuasive.

       We recognize that there may be a set of particularly egregious or unusual circumstances that

would demand a speedy trial inquiry even where the delay is less than one year. A delay of a few

months may trigger the speedy trial inquiry if, for example, the defendant can show that the delay

actually prejudiced his ability to assert a defense. Cf. Doggett, 505 U.S. at 655-56 (noting that

prejudice may either be presumed from certain factual scenarios, such as excessive delay, or it may

be affirmatively proven by the defendant). Here, however, Wilson does not claim that his ability

to assert a defense was impaired in any meaningful way.

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No. 04-3273
United States v. Wilson

        Wilson also argues that he was denied counsel. Wilson claims that he could not afford

counsel and that no counsel was provided to him while he was held in custody during the sixty-two-

day delay prior to his arraignment in federal court. Wilson’s argument fails upon consideration of

the following facts: (1) Wilson conceded that he was, albeit briefly, assigned counsel for his initial

state arraignment when he waived a preliminary hearing and pleaded not guilty; (2) Wilson was

informed of his right to counsel twice in writing; (3) the record does not demonstrate that Wilson

ever asked to see the counsel who was initially appointed to him, nor did he request new counsel;

and (4) Wilson has had previous experience in the criminal justice system, and had previously been

assigned counsel for unrelated incidents, and therefore is aware of his right to counsel.

        Wilson counters that it is the Government’s burden, not his, to ensure that counsel was

appointed and met with him while he was in state custody, despite the fact that he made no such

request. It is undisputed that Wilson’s right to counsel attached on June 9, the date of his first

appearance in state court, when he pleaded not guilty. See Kirby v. Illinois, 406 U.S. 682, 688-89

(1972) (“[I]t has been firmly established that a person’s Sixth and Fourteenth Amendment right to

counsel attaches only at or after the time that adversary judicial proceedings have been initiated

against him. . . . [T]he right attaches at the time of arraignment, and the Court has recently held that

it exists also at the time of a preliminary hearing.”) (citations omitted). The parties do not dispute

that Wilson was appointed counsel for the purposes of this initial arraignment.

        “Once the right to counsel has attached and been asserted, the State must of course honor it.”

Maine v. Moulton, 474 U.S. 159, 170 (1985). In particular, the Supreme Court has stated that:




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No. 04-3273
United States v. Wilson

          The Sixth Amendment [ ] imposes on the State an affirmative obligation to respect
          and preserve the accused’s choice to seek this assistance. We have on several
          occasions been called upon to clarify the scope of the State’s obligation in this
          regard, and have made clear that, at the very least, the prosecutor and police have an
          affirmative obligation not to act in a manner that circumvents and thereby dilutes the
          protection afforded by the right to counsel.

Id. at 171 (emphasis added). Thus, the Court has made clear that both the state and federal

authorities would have had to honor Wilson’s request—had he made one—for counsel following

the initial plea hearing. However, Wilson made no such request nor did he assert any effort to

contact the public defender who represented him at the hearing. Nor does Wilson claim that the

state somehow violated his rights by failing to advise him of his right to counsel prior to his waiver

of the preliminary hearing. Furthermore, the mere fact that Wilson was in custody does not mean

that his right to counsel was infringed, as he makes no claim that county jail officials obstructed or

unjustifiably restricted any opportunity to meet with counsel. See Procunier v. Martinez, 416 U.S.

396, 419 (1974) (“[I]nmates must have a reasonable opportunity to seek and receive the assistance

of attorneys. Regulations and practices that unjustifiably obstruct the availability of professional

representation . . . are invalid.”), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401

(1989).

          Wilson has asked that the unique circumstances of the delay should trigger a speedy trial

inquiry that would otherwise not be triggered. The circumstances of his case, however, reveal no

actual prejudice, no intent on the part of Government authorities to delay his case, and no action by

such authorities to deny him access to court-appointed counsel. Hence, these circumstances are not




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No. 04-3273
United States v. Wilson

so unreasonable as to trigger a constitutional speedy trial inquiry.2 See generally Howard, 218 F.3d

at 563-65 (finding that a five-month delay did not violate the defendant’s speedy trial rights where

the Government had not proceeded in bad faith); White, 985 F.2d at 275 (finding that a six-and-a-

half month delay did not violate the defendant’s speedy trial rights where the defendant was already

in prison on unrelated charges and has suffered no prejudice); United States v. Love, No. 97-6360,

1999 WL 115523, at *7 (6th Cir. 1999) (unpublished) (finding that a twenty-one-month delay

between indictment and arraignment did not violate the defendant’s speedy trial rights where there

was no evidence of actual prejudice, the Government had not proceeded in bad faith, and most of

the delay was due to the fact that the Government was unable to find him prior to his arrest).

       Our decision does not foreclose the possibility that a set of circumstances could arise where

a defendant who truly was deprived of his right to counsel would be entitled to a speedy trial

inquiry. If the speedy trial inquiry were triggered in such a circumstance, the defendant might be

able to show that he suffered other forms of prejudice besides actual prejudice to his defense, such

as oppressive pretrial incarceration or excessive anxiety based on his deprivation of counsel. See

Barker, 407 U.S. at 523. But see Jackson v. Duckworth, No. 93-2773, 1995 WL 123074, at *3 (7th

Cir. 1995) (unpublished) (“[G]eneral allegations of anxiety and concern in anticipation of trial

ordinarily do not constitute sufficient evidence of prejudice where the other Barker factors do not


       2
         Wilson also attempts to couch his argument as a Fifth Amendment due process claim.
However this claim has no merit because the Fifth Amendment protects defendants only against
excessive or prejudicial pre-indictment delay. See United States v. Lovasco, 431 U.S. 783, 788
(1977); United States v. Greene, 737 F.2d 572, 574 (6th Cir. 1984). The twenty-six-day pre-
indictment delay in this case was not shown to be oppressive or prejudicial, and therefore cannot
help Wilson.

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No. 04-3273
United States v. Wilson

weigh in the defendant's favor.”). Alternatively, a true deprivation of counsel during the delay could

itself constitute a factor to be considered in addition to the four articulated in Barker. Barker, 407

U.S. at 533 (“We regard none of the four factors . . . as either a necessary or sufficient condition to

the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be

considered together with such other circumstances as may be relevant. In sum, these factors have

no talismanic qualities; courts must still engage in a difficult and sensitive balancing process.”).

Such extraordinary circumstances are not presented by Wilson’s case, and therefore the district did

not abuse its discretion by declining to dismiss the federal indictment against him.

                                        III. CONCLUSION

       For the preceding reasons, we hereby AFFIRM the judgment of the district court.




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