United States District Court, D. Nevada
FINDINGS & RECOMMENDATIONS RE: MOTION TO DISMISS
(ECF NO. 130)
FOLEY, JR. UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Defendant Robert Devell
Kincade's Motion to Dismiss for Prosecutorial Delay and
Misconduct (ECF No. 130), filed on October 3, 2016. The
Government filed its Response (ECF No. 163) on October 20,
2016 and the Defendant filed his Reply (ECF No. 186) on
November 11, 2016. The Court conducted an evidentiary hearing
in this matter on November 23, 2016.
Facts Relating to Alleged Violation of Defendant's
Sixth Amendment Right to a Speedy
Kincade's defense counsel, Kathleen Bliss, was an
Assistant United States Attorney in the District of Nevada in
2010-2012. In October 2011, Defendant Kincade, a convicted
felon on supervised release, was accused of committing a
September 12, 2011 robbery of the City National Bank in Las
Vegas, Nevada. Ms. Bliss requested that the matter be
assigned to her for purposes of prosecuting a petition for
violation of conditions of supervised release against Mr.
and possibly filing a criminal complaint against him for the
robbery. A petition for violation of supervised release was
filed against Defendant Kincade in October 2011, and Ms.
Bliss represented the Government on that petition. Ms. Bliss
subsequently informed the District Court in May and June
2012, however, that the Government had determined that
Defendant Kincade did not commit the robbery. The petition to
revoke his supervised release was amended to eliminate the
robbery as an alleged violation. Defendant Kincade was
instead charged with violating his supervised release by
committing malicious destruction of property and domestic
battery. Ms. Bliss left the United States Attorney's
office and entered private law practice prior to November
2014 when Defendant Kincade allegedly committed two other
robberies. As discussed herein, Defendant Kincade
subsequently retained Ms. Bliss to defend him on the November
2014 robbery charges.
original indictment, filed on March 11, 2015, charged
Defendants Kincade and Jose Rogli Florez with the robbery of
the IBEW Credit Union in Las Vegas on November 14, 2014.
Indictment (ECF No. 10). Defendant Florez was
arraigned on the indictment on March 18, 2015, at which time
trial was set for May 12, 2015. Minutes of Proceedings
(ECF No. 15). Defendant Kincade made his initial
appearance and was arraigned on the indictment on April 10,
2015. Attorney Osvaldo Fumo was appointed to represent him.
Minutes of Proceedings (ECF No. 18). On April 30,
2015, the parties filed their first stipulation to continue
the pretrial motion deadlines and trial date. Stipulation
to Continue (ECF No. 25). The stipulation stated that
Defendants were in custody, but did not oppose the
continuance which was sought “to allow counsels for
defendants sufficient time to complete necessary research,
prepare and submit appropriate pretrial motions.”
Id. at pg. 2. The Court granted the requested
continuance on April 30, 2015 and scheduled trial for August
11, 2015. Order (ECF No. 26).
10, 2015, Defendant Kincade filed a motion to dismiss Mr.
Fumo as his counsel. Motion to Dismiss (ECF No. 30).
During the July 21, 2015 hearing on this motion, the Court
advised Defendant Kincade that the appointment of new counsel
would require a further continuance of the trial. Defendant
agreed to a continuance and the Court granted his motion.
Minutes of Proceedings (ECF No. 32). On July 22,
2015, the first superceding indictment was filed which added
a second robbery charge against Defendants Kincade and Florez
for the robbery of the Wells Fargo Bank in Reno, Nevada on
November 25, 2014. Superceding Indictment (ECF No.
35). On July 22, 2015, attorney Jennifer Waldo was
appointed to represent Mr. Kincade. Order (ECF No.
34). On July 28, 2015, the parties filed the second
stipulation to continue the motion deadlines and the August
11, 2015 trial date. Stipulation to Continue (ECF No.
41). The stipulation stated that as a result of the
first superceding indictment, Defendants' counsel
“need time in order to consult with defendants and
review records relating to the additional charges.”
Id. at pg. 2. It also stated that Ms. Waldo
“need[ed] additional time to effectively and thoroughly
investigate the case.” Id. The Court granted
the requested continuance on July 29, 2015 and scheduled
trial for November 3, 2015. Order (ECF No. 42).
September 1, 2015, attorney Kathleen Bliss filed a
designation of retained counsel and appearance praecipe on
behalf of Defendant Kincade. Designation of Retained
Counsel (ECF No. 45). The Court entered a minute order
on September 24, 2015 stating that “if Defendant
Kincade wishes to replace CJA counsel Jennifer Waldo, the
parties should file a Substitution of Attorneys.”
Minute Order (ECF No. 47). A substitution of
attorneys was thereafter filed on October 2, 2015 and
approved by the Court on October 5, 2015. Motion to
Substitute Attorney (ECF No. 48); Order (ECF No. 50). On
October 5, 2015, the parties filed the third stipulation to
continue the trial date. Stipulation to Continue (ECF No.
49). The stipulation stated that Ms. Bliss needed time
to review all discovery. It also stated that counsel for the
government would soon be going on medical leave. Id.
at pg. 1. The Court granted the requested continuance on
October 5, 2015 and scheduled trial for February 9, 2016.
Order (ECF No. 51).
October 6, 2015, Defendant Kincade filed a stipulated motion
to extend the pretrial motions deadline. Motion (ECF No.
52). The Court set January 4, 2016 as the new pretrial
motions deadline. Order (ECF No. 53). Defendant
Kincade thereafter filed motions to compel (1) the
preservation and production of government officers'
notes; (2) the production of exculpatory grand jury
transcript evidence; and (3) the production of exculpatory
physical and forensic evidence. Motions (ECF Nos. 56, 57,
58). The Court entered orders on these motions on
December 31, 2015, January 4, 2016, and January 7, 2016.
Orders (ECF Nos. 69, 70, 71). On January 20, 2016,
the parties filed the fourth stipulation to continue the
trial date. Stipulation to Continue (ECF No. 74).
The stipulation stated that Defendant Kincade would be filing
a motion for reconsideration of the magistrate judge's
order denying production of grand jury transcripts. The
stipulation also stated that the Government's counsel had
two trials scheduled in March and therefore needed a 60 day
continuance of the trial date. Id. at pgs. 1-2. On
January 21, 2016, the Court granted the requested continuance
and scheduled trial for April 19, 2016. Order (ECF No.
March 31, 2016, the parties filed the fifth stipulation to
continue the trial date. Stipulation to Continue (ECF No.
86). The stipulation stated that Defendant Kincade's
counsel had a May 16, 2016 trial in another case which
involved complex financial transactions and required
extensive trial preparation. The stipulation also stated that
the Government's counsel had three other trials set to go
the same week as the trial in this case. The stipulation also
stated that Defendants had received additional discovery
since the previous continuance and needed more time to review
the discovery, identify and interview witnesses and obtain
subpoenaed materials. Id. at pgs. 1-2. The Court
granted the requested continuance and scheduled trial for
July 12, 2016. Order (ECF No. 87).
1, 2016, the Government's counsel, Alexandra Michael,
sent an email to Defendants' attorneys stating that she
was “set to be on a pre-scheduled vacation at the time
this case is set for trial. My understanding is that it is
expected to go to trial so I was wondering if you both, and
your clients, would agree to a stip to reschedule CC and
trial. I am scheduled to start a trial July 25 so I was going
to propose the first or second week of August so as not to
set it out too far. Please let me know when you get the
chance.” Motion to Dismiss (ECF No. 130), Exhibit
A. Ms. Bliss responded by stating that there was certain
discovery that she needed to obtain from the Government. She
also stated that “Mr. Kincade is eager to go to trial,
and in my last meeting with him, he stated that he does not
want to waive Speedy Trial. I will have to approach it with
him again. I will try to see him next week.”
Id. On June 6, 2016, Ms. Bliss sent an email to Ms.
Michael and Defendant Florez's attorney stating that
Defendant Kincade “will not agree to waive Speedy
Trial, so we will be ready to go July 12.” Motion
(ECF No. 130), Exhibit B.
14, 2016, Ms. Michael sent an email to Ms. Bliss, stating
that she was responding to Ms. Bliss's letter dated June
1, 2016. Motion (ECF No. 130), Exhibit C. After
addressing Defendant Kincade's discovery requests, Ms.
However, a more pressing issue has arisen regarding a
conflict with your representation of the defendant. The
government intends to supercede and add a charge against your
client of bank robbery relating to an incident that occurred
at City National Bank on September 12, 2011. This new charge
presents a conflict with your representation of the defendant
based on your previous employment as an AUSA with the
District of Nevada and more specifically you having been the
AUSA who was assigned to handle Robert Kincade's
case/supervised release revocation hearing . . . . This
situation implicates Nevada Rules of Professional Conduct:
1.11, 1.6, 1.7, 1.8, and 1.9. This email is to serve as
informal notice of the government's concerns regarding
said conflict and if not resolved the government intends to
file a motion to disqualify counsel with the court by the end
of this week or early next week.
Id. at Exhibit C.
Bliss responded by email that day, inquiring: “Is the
case you are charging him with the one that I declined for
lack of evidence? You need to give me more information so I
can assess this and figure out why you are doing something
like this on the eve of trial.” Motion (ECF No.
130), Exhibit D. Ms. Michael responded on June
15, 2016, stating that the charge to be added was the
September 12, 2011 robbery. She further stated:
Additionally, I received DNA evidence regarding the September
12, 2011 bank robbery on June 6, 2016 and the government
believes that presenting said additional information is also
a basis for disqualification due to conflict. I do not
believe the timing of my notification would qualify as
“on the eve of trial” as the new evidence, which
has contributed to adding the additional bank robbery, was
received last week. I provided you this information as a
courtesy, and out of due diligence given our regular
communications about the status and progress of this case.
Id. at Exhibit D.
Bliss responded, as follows, on June 15, 2016:
I am not going to withdraw based upon a threat that you may
try to introduce evidence of an entirely unrelated case and
based on a threat on the eve of trial that you might
supercede. You are violating his right to a speedy trial and
I am deeply concerned about the timing. File your motion.
Should you supercede, I will move to dismiss it. Or the court
can appoint another attorney to do so or simply sever the
case. You should probably research prosecutorial misconduct.
Id. at Exhibit D.
second superceding indictment was filed on June 29, 2016.
Superceding Indictment (ECF No. 90). That same day,
the Government filed a motion to disqualify Ms. Bliss.
Sealed Motion to Disqualify (ECF No. 94). On July 6,
2016, the parties filed the sixth stipulation to continue the
trial date. Stipulation to Continue (ECF No. 102).
The stipulation stated that the second superceding indictment
was filed on June 29, 2016, adding the additional robbery
charge against Defendant Kincade. The stipulation further
stated that the Government continued to produce discovery and
had recently filed notices of expert witnesses and an intent
to introduce evidence under Rule 404(b), and that Defendant
Kincade and his counsel required additional time to review
the new discovery and file motions relating to the
Government's notices of expert witnesses and intent to
introduce evidence under Rule 404(b). Id. at pg. 1.
The stipulation also stated that the Government's motion
to disqualify Ms. Bliss needed to be briefed and considered
by the court, and that the time frame for doing so rendered
the current trial setting impracticable. Id. at pg.
2. The Court granted the requested continuance and
scheduled trial for August 23, 2016. Order (ECF No.
14, 2016, the Court granted a stipulation to continue the
hearing on the motion to disqualify so that Defendant could
obtain documents needed to respond to the motion.
Stipulation to Extend Time (ECF No. 104); Order (ECF No.
106). The hearing on the motion to disqualify was
subsequently rescheduled to August 23, 2016. Stipulation
to Continue Hearing (ECF No. 108); Order (ECF N0. 109).
On August 4, 2016, the parties filed the seventh stipulation
to continue the trial date. Stipulation to Continue (ECF
No. 111). The stipulation stated that the parties were
in the midst of briefing the motion to disqualify Ms. Bliss
and that the hearing on the motion was scheduled for the same
day that trial was set to commence. The stipulation also
stated that the Government had produced additional discovery
in connection with the new charge which Defendant
Kincade's counsel needed time to review, to discuss with
Defendant, and to locate and interview witnesses. It also
stated that Defendant Kincade anticipated filing a motion to
sever or dismiss the new charge. Id. at pg. 2. The
Court granted the requested continuance on August 5, 2016 and
scheduled trial for November 1, 2016. Order (ECF No.
hearing on August 23, 2016, the Court found that Ms. Bliss
had a conflict of interest that disqualified her from
representing Defendant Kincade on the September 12, 2011
robbery charge. The Court reserved its decision on whether
Ms. Bliss should be disqualified from representing Mr.
Kincade on the November 2014 robbery charges pending the
filing and decision of a motion to sever. Minutes of
Proceedings (ECF No. 15); Order (ECF No. 116). Defendant
Kincade filed his motion to sever on September 7, 2016.
Motion to Sever (ECF No. 118). On September 19,
2016, the Court appointed attorney Todd Leventhal to
represent Defendant Kincade on the September 12, 2011 robbery
charge. Minutes of Proceedings (ECF No. 120); Order (ECF
Kincade filed his instant motion to dismiss for prosecutorial
delay and misconduct on October 3, 2016. During the October
14, 2016 hearing on Defendant's motion to sever, the
Court and counsel discussed the status of the November 1,
2016 trial date. Although Defendant Kincade's counsel
recognized the need for a continuance in view of pending and
anticipated pretrial motions, they declined to stipulate to a
further continuance out of concern that it might be viewed as
a waiver of Defendant's argument that his right to a
speedy trial had been violated. The Government did not oppose
a further continuance of the trial date. On ...