CHUUK STATE SUPREME COURT TRIAL DIVISION

Cite as Chuuk v. William, et al., 15 FSM Intrm. 381 (Chk. S. Ct. Tr. 2007)

[15 FSM Intrm. 381]

CHUUK STATE,

Plaintiff,

vs.

JOSEPH WILLIAM and DEO WILLIAM,

Defendants.

CRIMINAL CASE NO. 061-2003

ORDER DENYING MOTION FOR DISMISSAL AND MOTION TO SUPPRESS AND REDACT

Camillo Noket

Chief Justice

Hearing:  October 18, 2007

Decided:  October 19, 2007

APPEARANCES:

For the Plaintiff:            Joses Gallen

                                     Assistant Attorney General

                                     Office of the Chuuk Attorney General

                                     P.O. Box 1050

                                     Weno, Chuuk FM 96942
 

For the Defendant:      Steven Y. George

 (Joseph William)        Office of the Public Defender

                                    P.O. Box 245

                                    Tofol. Kosrae   FM   96944
 

[15 FSM Intrm 382]

For the Defendant:     Gideon Doone

    (Deo William)          P.O. Box 882

                                    Weno, Chuuk FM 96942
 

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HEADNOTES

Criminal Law and Procedure ) Speedy Trial

      The four-factor balancing test applicable for cases implicating a defendantís right to a speedy trial or a Chuuk Criminal Rule 48(b) dismissal for unnecessary delay in prosecution is: 1) length of delay, 2) the reason for the delay, 3) the defendantís assertion of his right, and 4) prejudice to the defendant. The first factor, whether there has been a lengthy delay, is a triggering mechanism for further analysis to determine if a defendantís right to a speedy trial has been violated. A delay of one year is presumptively prejudicial and triggers application of the three remaining factors. Chuuk v. William, 15 FSM Intrm. 381, 386 (Chk. S. Ct. Tr. 2007).

Constitutional Law ) Declaration of Rights; Criminal Law and Procedure ) Speedy Trial

      The provisions in the FSM Constitutionís Declaration of Rights are traceable to the United States Constitutionís Bill of Rights, and when a FSM Declaration of Rights provision is patterned after a U.S. Bill of Rights provision, United States authority may be consulted to understand its meaning. The FSM speedy trial right is patterned after the United States Constitution. Chuuk v. William, 15 FSM Intrm. 381, 387 n.1 (Chk. S. Ct. Tr. 2007).

Criminal Law and Procedure ) Speedy Trial

      It is the prosecutionís burden to take the necessary steps to bring a criminal matter to trial, but, a defendant cannot take advantage of delays caused by his own conduct or consent, whether or not those delays were justified. Any delay resulting from a defendantís difficulty in obtaining counsel and adequately preparing a defense should not be attributed to the prosecution, and a defendant may waive his right to a speedy trial. He effects a waiver, in respect of a particular delay, when he requests it, consents to it, enters a plea of guilty, makes certain dilatory pleas or motions, or when the delay is otherwise attributable to the defendant. Chuuk v. William, 15 FSM Intrm. 381, 387 (Chk. S. Ct. Tr. 2007).

Criminal Law and Procedure ) Speedy Trial

      Delay caused by pre-trial motions, including a successful motion to disqualify a judge or government prosecutor, is attributable to the defense and is a waiver of the speedy trial right until that delay is over even if the delay is justified. Chuuk v. William, 15 FSM Intrm. 381, 387 (Chk. S. Ct. Tr. 2007).

Criminal Law and Procedure ) Speedy Trial

      Delays on one defendantís part are not attributable to the government and the government is not required to request severance when one defendant causes delay in the prosecution of a co-defendant. Rather, a single speedy trial "clock" governs in cases with multiple defendants. The "clock" starts to run with the most recently added defendant and any delay attributable to any one defendant is charged against the single clock, thus making the delay applicable to all defendants. No other rule is practical. If every co-defendant had a different "clock," the advantages of a joint trial would be destroyed and multiple trials, with all their disadvantages, would have to be held in sequence. A defendant is free to seek severance himself when a co-defendant causes delay in the ticking of the speedy trial "clock." Chuuk v. William, 15 FSM Intrm. 381, 387 n.2 (Chk. S. Ct. Tr. 2007).

[15 FSM Intrm 383]

Criminal Law and Procedure ) Speedy Trial

      Assuming the government is to blame for the delay, the weight to be given to the governmentís reason for delay depends upon what that reason is. If delay is due to a government effort to impede the defense, then, of course it will weigh heavily against the government. If the reason is neutral, such as crowded courts, it will still go against the government, but less heavily. Chuuk v. William, 15 FSM Intrm. 381, 387 (Chk. S. Ct. Tr. 2007).

Criminal Law and Procedure ) Speedy Trial

      A valid reason justifies appropriate delay. If the court should find that the prosecution was conducted with such disregard of the appellantís interests that it can be said that the delay resulted from the prosecutorís deliberate, or at least negligent, actions and the prosecutor fails to show that the accused suffered no serious prejudice beyond that which ensued from the ordinary and inevitable delay, then the accusedís speedy trial rights have been denied and the convictions must be vacated and the indictments dismissed, but if the court finds that all the delay attributable to the prosecutor was necessary for fair and just prosecution of the charge, then the conviction will stand. Chuuk v. William, 15 FSM Intrm. 381, 388 (Chk. S. Ct. Tr. 2007).

Criminal Law and Procedure ) Speedy Trial

       When much of the delay, such as that resulting from the defendantsí difficulties in obtaining and retaining counsel, timely appearing for scheduled court dates, and their pre-trial motions, is attributable to the defendants and any objection to the delay was waived; when other delays attributable to the death of the presiding judge, judge recusal for conflict of interest, and judge reassignment do not weigh heavily against the government as the delays were due either to neutral factors or the courtís extraordinary circumstances (although these "neutral" delays are attributable to the government); but when none of the delay was the result of the governmentís deliberate or negligent action and the government was prepared to present its case in October of 2004 before defense counselís departure for medical treatment lead to a continuance, the third factor favors a finding that there was no constitutional speedy trial violation. Chuuk v. William, 15 FSM Intrm. 381, 388 (Chk. S. Ct. Tr. 2007).

Criminal Law and Procedure ) Speedy Trial

      For speedy trial or unnecessary delay purposes, a defendantís demand for a prompt trial will always weigh heavily in his favor, while a failure to assert the right will make it difficult for him to prove that he was denied it. Chuuk v. William, 15 FSM Intrm. 381, 388-89 (Chk. S. Ct. Tr. 2007).

Criminal Law and Procedure ) Speedy Trial

      Prejudice to an accused may consist of: 1) oppressive pretrial incarceration; 2) the accusedís pretrial anxiety; and 3) impairment of the defense. Of these, the most serious is the last because the possibility that an accused may not be able to adequately prepare his defense skews the fairness of the entire system. Pretrial anxiety is the least significant factor, and, because a certain amount of pretrial anxiety naturally exists, the accused must demonstrate that he suffered extraordinary or unusual pretrial anxiety. Chuuk v. William, 15 FSM Intrm. 381, 389 (Chk. S. Ct. Tr. 2007).

Criminal Law and Procedure ) Speedy Trial

      Since the mere erosion of memory through the passage of time is not sufficient for a showing of prejudice, any claim of failing memory must be supported by a specific showing of which memories were affected and how any memory problem affects the defense. When the only witness a defendant addresses in his motion is himself and, assuming he testifies at his trial, he has not asserted that his memory is impaired other than by the passage of time, or what he would be able to testify if his memory were not impaired, his vague assertions of memory impairment alone do not constitute a showing of prejudice from the delay and this factor, therefore, favors the government. Chuuk v. William, 15 FSM Intrm. 381, 389 (Chk. S. Ct. Tr. 2007).

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Criminal Law and Procedure ) Speedy Trial

      When, although the delay of over three years was presumptively prejudicial, such presumptive prejudice alone is not determinative of the speedy trial analysis, but must be considered in the context of the other factors and when delay is justified by legitimate reasons, a speedy trial claim will fail absent a demonstration of actual prejudice. Thus, when the delays were not the result of any deliberate or negligent act of the government since it was due to necessary changes in counsel and judges, defendantsí pre-trial motions, scheduling difficulties, and other reasons unrelated to the diligence of the governmentís prosecution, and since the accused only now raises his right to a speedy trial, and he has not shown any prejudice from the delay, he did not suffer a constitutional speedy trial violation. Chuuk v. William, 15 FSM Intrm. 381, 390 (Chk. S. Ct. Tr. 2007).

Criminal Law and Procedure ) Motions

      Even though failure to timely oppose a motion is deemed consent to the motion, a court still needs good, proper grounds before it may grant the motion. Chuuk v. William, 15 FSM Intrm. 381, 390 (Chk. S. Ct. Tr. 2007).

Criminal Law and Procedure ) Discovery

      When the grounds for a motion to suppress and redact were that the government did not respond to discovery before the court-imposed deadline set in its scheduling order and the accused does not argue that the governmentís delays have been in bad faith, the motion will be denied because less drastic remedies, such as a continuance are proper instead of suppression since the governmentís discovery violations are not in bad faith. Chuuk v. William, 15 FSM Intrm. 381, 390 (Chk. S. Ct. Tr. 2007).

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COURTíS OPINION

CAMILLO NOKET, Chief Justice:

      On October 18, 2007, the court heard oral argument from both counsel on Defendant Joseph Williamís motion for dismissal pursuant to Rules 12(b) and 48(b) of the Chuuk State Supreme Court Rules of Criminal Procedure. The court also heard oral argument on Defendant Joseph Williamís motion to suppress and redact. The court denied the motions. The reasons follow.

Procedural Background

1.  On December 1, 2003, the Government filed a criminal information against the Defendants Joseph William and Deo William. The information set forth counts of manslaughter and murder against each Defendant allegedly arising from an altercation occurring on November 27, 2003, which resulted in the death of Kulou Harper, a Chuukese male of Satowan municipality.

2.  On December 22, 2003, the Defendants made their initial appearance and were released from custody pending their arraignment.

3.  On January 26, 2004, Defendantsí arraignment was held before Acting Chief Justice Keske S. Marar. Defendants pleaded not guilty to both charges, and trial was set for April 12, 2004.

4.  On September 15, 2004 Acting Chief Justice Keske S. Marar issued an order of recusal after a conflict issue arose resulting from unintended contact with witnesses.

[15 FSM Intrm 385]

5.  On September 20, 2004, the case was reassigned to Associate Justice Petewon and on September 28, 2004, Associate Justice Petewon rescheduled trial for October 13, 2004.

6.  On or about October 7, 2004, the Attorney Generalís office filed a motion to continue based on the fact that defense counsel Ready Johnny could not be present on the scheduled trial date due to medical reasons. In the motion, the Attorney Generalís office explained that Ready Johnny, due to the exigencies of his medical condition, was unable to file the motion for the continuance himself as would normally be the case.

7.  On March 24, 2005, Associate Justice Petewon issued a rescheduling order setting trial for March 31, 2005. Trial was again rescheduled under the Courtís own directive to May 23, 2005.

8.  On May 9, 2005, Defendant Deo Williamís counsel, Richard Anobad, filed a motion for disqualification of Associate Justice Petewon for conflict of interest. Soon after, Richard Anobad passed away leaving Defendant Deo William without counsel.

9.  On March 6, 2006, the Court issued a notice of hearing, which scheduled oral argument on Deo Williamís motion for disqualification for March 10, 2006 before Associate Justice Machime OíSonis. On March 10, 2006, neither counsel attended the scheduled motion for disqualification and it was rescheduled for March 24, 2006.

10.  On March 30, 2006, Associate Justice Machime OíSonis issued an arrest warrant for Deo William upon request of the Government. On May 15, 2006, the Court ordered the release of Defendants from custody while awaiting trial schedule under the same conditions as their initial release on December 22, 2003.

11.  Chief Justice Noket was assigned the case and on March 22, 2007 held a status conference. Defendants did not appear at the status conference as required. As both counsel were new to the case and had not yet prepared their cases for trial, the Court issued a new scheduling order setting discovery cutoff for May 10, 2007 and trial for July 27, 2007.

12.  On May 1, 2007, the Court was informed by the Chuuk Public Defenderís Office that the attorneys representing the Defendants were no longer on its staff and its current staff was unable to represent the Defendants for conflict reasons.

13.  On May 7, 2007, Defendant Joseph William filed his discovery requests to the Government. On May 14, 2007, the Court entered an Order of Admission Pro Hac Vice for Joseph Williamís new attorney from the Kosrae Office of Public Defender, Steve Y. George.

14.  On June 15, 2007, the Government filed its response to Defendant Joseph Williamís request for discovery and made its own request for discovery to Defendants.

15.  On June 21, 2007, Defendant Joseph William filed his motion to suppress co-defendantís statements and redact Joseph Williamís name from documents. The Government did not file a response. He filed a supplemental motion in support of his motion to suppress on the same day.

16.  On June 22, 2007 Defendant Joseph William filed his motion for dismissal pursuant to Rules 12(b) and 48(b) of the Chuuk State Supreme Court Rules of Criminal Procedure. On July 11, 2007, the Government filed its opposition.

17.  On July 13, 2007, a hearing was scheduled on Defendant Joseph Williamís motion to

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dismissal. The attorney for the Government appeared. Both Defendants and counsel for Joseph William appeared, but Deo William informed the court that he was currently unrepresented by counsel. Upon agreement of all parties, the Court determined to postpone the hearing in order to give Deo William an opportunity to obtain new counsel. The parties were also directed to address any of the outstanding discovery that remained on both sides, including Defendant Joseph Williamís preparation of responses to the Governmentís June 15, 2007 discovery requests.

18.  On July 17, 2007 the Court issued a scheduling order which required Deo Williamís new counsel to file a notice of appearance by July 26, 2007 or counsel would be appointed for him, set the close of discovery for August 3, 2007, set the hearing on Joseph Williamís motion to dismiss and any other pre-trial motions for September 7, 2007, and set trial to begin on September 21, 2007.

19.  Deo Williamís new counsel entered his appearance on July 31, 2007 and, on August 24, 2007, filed a motion to amend the courtís July 17, 2007 scheduling order.

20.  On September 3, 2007, the court issued an order granting Deo Williamís counselís motion for entry of appearance and granting Deo Williamís motion to amend the July 17, 2007 scheduling order. By that order, the court set the hearing for pre-trial motions for October 18, 2007 and trial for November 8, 2007 at 9:30 a.m.

21.  On October 18, 2007, counsel for all parties appeared and presented arguments on Defendant Joseph Williamís motion to dismiss pursuant to Chuuk Crim. R. 48(b) for unnecessary delay in his prosecution. Steve Y. George from the Kosrae Public Defenderís Office appeared on behalf of Joseph William. Gideon K. Doone appeared on behalf of Deo William. Joses R. Gallen represented the Government.

Analysis of Motion to Dismiss

      In their briefs, both counsel correctly set forth the applicable four-factor balancing test for cases implicating a defendantís right to a speedy trial or a Chuuk Crim. R. 48(b) dismissal for unnecessary delay in prosecution:

1)  length of delay,

2)  the reason for the delay,

3)  the defendantís assertion of his right, and

4)  prejudice to the defendant

      See FSM v. Kansou, 14 FSM Intrm. 497, 499 (Chk. 2006) (citing FSM v. Wainit, 12 FSM Intrm. 405, 410 (Chk. 2004) adopting rule of Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972)).

1. The Length of Delay is a Triggering Mechanism for Further Analysis

      The first factor, whether there has been a lengthy delay, is a triggering mechanism for further analysis to determine if a defendantís right to a speedy trial has been violated. FSM v. Kansou, 14 FSM Intrm. 497, 499 (Chk. 2006) (citing FSM v. Wainit, 12 FSM Intrm. 405, 410 (Chk. 2004)). A delay of one year is presumptively prejudicial and triggers application of the three remaining factors. United States v. Bass, 460 F.3d 830, 836 (6th Cir. 2006) (applying Barker v. Wingo test) (citing Maples v.

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Steglall, 427 F.3d 1020, 1026 (6th Cir. 2005). Indisputably, there has been a lengthy delay in this case. Thus, the Court must consider the remaining three factors. Id.

2. The Reason for the Delay Favors a Finding that there was No Constitutional Violation.

      The second factoróthe reason for delayófavors a finding that there was no constitutional violation. The purpose of the inquiry is to determine "whether the government or the criminal defendant is more to blame for [the] delay." Id.

      It is the burden of the prosecution to take the necessary steps to bring a criminal matter to trial. Pohnpei v. Weilbacher, 5 FSM Intrm. 431, 446 (Pon. S. Ct. Tr. 1992) (citing Trust Territory v. Ogo, 3 TTR 287, 289 (Mar. 1967). But, a defendant cannot take advantage of delays caused by his own conduct or consent, whether or not those delays were justified. FSM v. Kansou, 14 FSM Intrm. 497, 500 (Chk. 2006). Any delay resulting from a defendantís difficulty in obtaining counsel and adequately preparing a defense should not be attributed to the prosecution. See FSM v. Wainit, 12 FSM Intrm. 405, 411 (Chk. 2004). Finally, a defendant may waive his right to a speedy trial. He effects a waiver, in respect of a particular delay, when he requests it, consents to it, enters a plea of guilty, makes certain dilatory pleas or motions, or when the delay is otherwise attributable to the defendant. FSM v. Kansou, 15 FSM Intrm. 180, 185 (Chk. 2007). Delay caused by pre-trial motions, including a successful motion to disqualify a judge or government prosecutor, is attributable to the defense and is a waiver of the right until that delay is over even if the delay is justified. Id. at 186; FSM v. Kansou, 14 FSM Intrm. 497, 500 (Chk. 2006).

      Assuming the Government is to blame for the delay, the weight to be given to the Governmentís reason for delay depends upon what that reason is. If delay is due to a Government effort to impede the defense, then, of course it will weigh heavily against the Government.  If the reason is neutral, such as crowded courts, it will still go against the Government, but less heavily. Pohnpei v. Weilbacher, 5 FSM Intrm. 431, 443 (Pon. S. Ct. Tr. 1992) (citing Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972)); see also United States v. Bass, 460 F.3d 830, 836 (6th Cir. 2006) ("government delays motivated by bad faith, harassment, or attempts to seek a tactical advantage weigh heavily against the government, while Ďmore neutralí reasons such as negligence or overcrowded dockets weigh against the government less heavily").

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      A valid reason justifies appropriate delay. Weilbacher, 5 FSM Intrm. at 443. In Trust Territory v. Ogo, delays were due in part to absences of the Public Defender, District Attorney and an essential witness from the Trust Territory. The court stated that the court had discretion to dismiss an information, complaint or citation "if there is unnecessary delay in bringing the accused to trial." 3 TTR at 289. The court enunciated the rule laid down in Hanrahan v. United States, 348 F.2d 363 (D.C. Cir. 1965) and reaffirmed in Hanrahan v. United States, 255 F. Supp. 957 (D.D.C. 1966):

if . . . the court should find that the prosecution was conducted with such disregard of the appellantís interests that it can be said that the delay resulted from deliberate, or at least negligent, actions on the part of the prosecutor and the prosecutor fails to show Ďthat the accused suffered no serious prejudice beyond that which ensued from the ordinary and inevitable delay,í then appellantís Sixth Amendment rights have been denied and the convictions must be vacated and the indictments dismissed.

Ogo, 3 TTR at 289 (quoting United States v. Hanrahan, 255 F. Supp. at 968-69). The Hanrahan court stated that if the court should, however, find that all the delay attributable to the prosecutor was necessary for fair and just prosecution of the charge, then the conviction will stand. United States v. Hanrahan, 255 F. Supp. at 968-69; see also United States v. Ewell, 383 U.S. 116, 120, 86 S. Ct. 773, 776, 15 L. Ed. 2d 627, 630-31 (1966) (passage of 19 months between the original arrest and the hearings on the later indictments was not violation of right to speedy trial as the delays were not "purposeful or oppressive," the essential ingredient to a speedy prosecution being orderly expedition and not mere speed); Trust Territory v. Este, 7 TTR 568 (App. 1977) (where trial was not had until seventeen months after arrest and the prosecution had not attempted to delay trial and no prejudice to defendant was shown, the defendantís right to speedy trial was not violated).

      Also, "extraordinary circumstances" may be considered in assessing the reasons for delay. In Trust Territory v. Este, the Court noted, "the lesson learned from Barker v. Wingo is that each case must be analyzed and the four factors [. . .] considered in the light of the case before the court." 7 TTR at 570. Taking into account the realities of life in, and the circumstances of, the Trust Territory, the Court qualified the fact of "no permanent justice assigned to certain districts" as an extraordinary factor for the court to consider in determining whether an accusedís constitutional right to a speedy trial has been violated.  Under the Trust Territory Courtís formulation, the Court concluded the four-factor balancing test must take into account the uniqueness of the Micronesian islands and their differing cultures and customs. Id.

      In this case, it is apparent that the government is not any more to blame than Joseph William for the delays. Indeed, much of the delay, such as that resulting from Defendantsí difficulties in obtaining and retaining counsel, timely appearing for scheduled court dates, and their pre-trial motions are attributable to Defendants and any objection to the delay was waived. Other delays attributable to the death of the presiding judge, judge recusal for conflict of interest, and judge reassignment do not weigh heavily against the Government as the delays were due either to neutral factors or the extraordinary circumstances of the Court. Although his counsel correctly attributes the "neutral" delays in this case to the Government, Joseph William has made no showing that any of the delay was the result of deliberate or negligent action by the Government. Indeed, according to the Government, it was prepared to present its case in October of 2004 before defense counselís departure for medical treatment lead to a continuance. The third factor favors a finding that there was no constitutional violation.

3. For Speedy Trial and Lengthy Delay Purposes, the Burden is on the Defendant to Assert his Right.

      For speedy trial or unnecessary delay purposes, the defendantís demand for a prompt trial will always weigh heavily in his favor, while a failure to assert the right will make it difficult for him to prove

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that he was denied it. See Weilbacher, 5 FSM Intrm. at 443 (following Barker v. Wingo). Although non-assertion of the right does not constitute waiver of the speedy trial right, a court can consider whether the right was asserted, and how vigorously, in determining the reasonableness of any delay. FSM v. Kansou, 15 FSM Intrm. 180, 185 (Chk. 2007).

      This factor also weighs in favor of the Government. During the three years before Defendant Joseph William filed his motion for dismissal there had been no prior objections to any delay in this case on the basis that it was unnecessary or violated Joseph Williamís right to a speedy trial. See Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972) (post-indictment delay of more than four years, although unjustified, did not prejudice a defendant who did not demand a speedy trial until three years after he was indicted).

4. Prejudice to the Defendant

      The last factor for the Court to balance is whether Joseph William has been prejudiced by the delay. Prejudice to an accused may consist of: 1) oppressive pretrial incarceration; 2) the accusedís pretrial anxiety; and 3) impairment of the defense. Barker, 407 U.S. at 532, 92 S. Ct. at 2193, 33 L. Ed. 2d at 118. Of these, the most serious is the last because the possibility that an accused may not be able to adequately prepare his defense "skews the fairness of the entire system." Id. "Pretrial anxiety Ďis the least significantí factor and, because a Ďcertain amount of pretrial anxiety naturally exists,í the [accused] must demonstrate that he suffered Ďextraordinary or unusualí pretrial anxiety." Whitney v. State, 99 P.3d 457, 475 (Wyo. 2004) (quoting Campbell v. State, 999 P.2d 649, 656 (Wyo. 2000)).

      Defendant Joseph William has not made any showing whatsoever of extraordinary or unusual pretrial anxiety. Joseph William also has not asserted that his incarceration before release pending trial was oppressive. In his motion, Defendant Joseph William asserts only that his memory of events has eroded since this case was initiated. Mere erosion of memory through the passage of time is not sufficient for a showing of prejudice. See FSM v. Kansou, 15 FSM Intrm. 180, 188 (Chk. 2007) (citing United States v. Bass, 460 F.3d 830, 838 (6th Cir. 2006). With respect to a defendantsí or his witnessís testimony, the court made clear in United States v. Bass, that any claim of failing memory must be supported by a specific showing of which memories were affected and how any memory problem affects the defense:

[The defendant] argues generally that the six-year delay resulted in prejudice because witnesses were unavailable to testify at the time of trial and because testifying witnessesí memories of events had deteriorated. He also claims this own memory became poor due to head injuries he suffered during the pendency of his case, hampering his ability to aid in his own defense. [The defendant], however, does not state what testimony any missing witnesses could have provided, which witnessesí memories were affected, or how is own memory problems affect his defense. Accordingly, without a further showing, it is impossible for this court to discern prejudice from [the defendantís] vague and unsupported assertions.

Bass, 460 F.3d at 838.

      In this case, the only witness Defendant Joseph William addresses in his motion is Joseph William himself. Assuming Joseph William testifies at his trial, he has not asserted that his memory is impaired other than by the passage of time, or what he would be able to testify if his memory were not impaired. Joseph Williamís vague assertions of memory impairment alone do not constitute a showing of prejudice from the delay. The fourth factor, therefore, favors the Government.

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Conclusion

      The four speedy trial factors, on balance, show that Joseph William has not suffered a violation of his right to a speedy trial or otherwise made a showing that would warrant a Rule 48(b) dismissal. Although the delay of over three years was presumptively prejudicial, such presumptive prejudice alone is not determinative of the speedy trial analysis, but must be considered in the context of the other factors. Bass, 460 F.3d at 838. When delay is justified by legitimate reasons, a speedy trial claim will fail absent a demonstration of actual prejudice. Id. In this case, the delay was due to necessary changes in counsel and judges, Defendantsí pre-trial motions, scheduling difficulties, and other reasons unrelated to the diligence of the Governmentís prosecution. Because the delays were not the result of any deliberate or negligent act of the Government, Joseph William only now raises his right to a speedy trial, and he has not shown any prejudice from the delay, Joseph William did not suffer a constitutional violation.

      Accordingly, Joseph Williamís motion for dismissal is denied.

Motion to Redact and Suppress

      Joseph Williamís June 21, 2007 motions to suppress and to redact were unopposed by the Government. Even though failure to timely oppose a motion is deemed consent to the motion, a court still needs good, proper grounds before it may grant the motion. Beal Bank S.S.B. v. Maras, 11 FSM Intrm. 351, 353 (Chk. 2003); Kelly v. Lee, 11 FSM Intrm. 116, 117 (Chk. 2002); Medabalmi v. Island Imports Co., 10 FSM Intrm. 32, 34 (Chk. 2001). The grounds for the Joseph Williamís motion to suppress and redact were that the Government did not respond to discovery before the court imposed deadline set in its scheduling order of March 27, 2007. The Government did not provide discovery responses until September 27, 2007, after the court-imposed deadline. Less drastic remedies, however, such as a continuance are proper instead of suppression when the governmentís discovery violations are not in bad faith. FSM v. Wainit, 11 FSM Intrm. 186, 191 (Chk. 2002). Joseph William does not argue that the Governmentís delays have been in bad faith. Therefore, based on its review of Joseph Williamís motion and the points and authorities submitted in support of the motion, the court does not find good grounds to grant the motion. If Joseph William has grounds to object to any specific evidence the Government intends to place on the record, these objections may be raised at trial.

      Accordingly, Joseph Williamís motion to suppress and redact is denied.

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Footnotes:

1.  The provisions in the FSM Constitutionís Declaration of Rights are traceable to the United States Constitutionís Bill of Rights, and when a FSM Declaration of Rights provision is patterned after a U.S. Bill of Rights provision, United States authority may be consulted to understand its meaning. The FSM speedy trial right is patterned after the United States Constitution. FSM v. Kansou, 15 FSM Intrm. 180, 185 n.1 (Chk. 2007).

2.  At oral argument, counsel for the defendants appeared to argue that delays due to Deo Williamís loss of counsel should not be attributable to his co-defendant, but to the Government, which should have requested severance so that it could proceed with prosecution of Joseph William. Delays on the part of one defendant are not, however, attributable to the Government and the Government is not, therefore, required to request severance when one defendant causes delay in the prosecution of a co-defendant. Rather, a single speedy trial "clock" governs in cases with multiple defendants. FSM v. Kansou, 15 FSM Intrm. 180, 187-88 & n.5 (Chk. 2007). The "clock" starts to run with the most recently added defendant and any delay attributable to any one defendant is charged against the single clock, thus making the delay applicable to all defendants. No other rule is practical. If every co-defendant had a different "clock," the advantages of a joint trial would be destroyed and multiple trials, with all their disadvantages, would have to be held in sequence. Id. Of course, a defendant is free to seek severance himself when a co-defendant causes delay in the ticking of the speedy trial "clock." Id.

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