United States District Court, D. Nevada
December 28, 2016
UNITED STATES OF AMERICA, Plaintiff,
ROBERT DEVELL KINCADE, Defendant.
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 October 21, 2016,
the Court, on its own motion, continued the trial date to
February 28, 2017 so that pending pretrial motions can be
decided prior to trial. Order (ECF No. 165).
October 21, 2016, the Court granted Defendant's motion to
sever trial of the September 12, 2011 robbery charge from the
November 2014 robbery charges. The Court also denied the
Government's motion to disqualify Ms. Bliss from
representing Defendant Kincade on the November 2014 robbery
charges. Order (ECF No. 167). On October 27, 2016,
Defendant Kincade, through attorney Todd Leventhal, filed a
motion to dismiss the September 12, 2011 robbery charge on
the grounds that the Government's pre-indictment delay
violated his Fifth Amendment right to due process of law.
Motion to Dismiss (ECF No. 169).
Kincade has attached to his instant motion to dismiss a June
7, 2016 report by the Las Vegas Metropolitan Police
Department's Forensic Laboratory regarding DNA tests on
four items allegedly associated with Defendant Kincade: (1) a
pair of Adidas pants, (2) a black doo rag, (3) a black
bandana with a white design, and (4) a BB gun. A match was
found between Robert Kincade's known DNA and the DNA on
the Adidas pants. No DNA match could be established on the
other items. Motion (ECF No. 130), Exhibit G. The
Adidas pants were apparently taken from Mr. Kincade at the
time of his arrest in October 2011 and he has never denied
that those pants belonged to him.
Government provided additional information regarding its
decision to charge Defendant Kincade with the September 12,
2011 robbery in its response to Defendant Kincade's
motion to dismiss filed on October 27, 2016.
Government's Response (ECF No. 203). The
Government states that in October 2011 Defendant
Kincade's former girlfriend, S.P., told law enforcement
officers that Mr. Kincade had committed the September 12,
2011 robbery. S.P. stated that on September 13, 2011, Kincade
told her that he had robbed a bank on September 12, 2011. On
October 2, 2011, Kincade talked about robbing another bank
and explained how the September 12, 2011 robbery was
committed. S.P. told the officers that the hooded sweatshirt
and bandana that Kincade used in the robbery were located in
a motor vehicle that she and Kincade jointly owned. S.P. took
the officers to where the vehicle was located, and provided
them with the vehicle's keys and a signed consent to
search the vehicle. Upon searching the vehicle, the officers
recovered a box of vinyl gloves, a black BB gun, a hooded
sweatshirt, a black doo rag, a black t-shirt and a black
bandana. Government's Response (ECF No. 203), Exhibit
Defendant Kincade was arrested in October, 2011, he allegedly
called S.P. and implied that physical harm would come to her
if she stuck to her story. S.P. thereafter retracted the
statement she gave to the officers on October 4, 2011.
Government's Response (ECF No. 203), Exhibit 2.
In May 2016, while preparing for trial on July 12, 2016, law
enforcement officers again made contact with S.P. who stated
that everything in her October 4, 2011 statement was true.
The Government also located the victim teller from the
September 2011 robbery. Based on this information, the
Government decided to charge Defendant Kincade with the
September 12, 2011 robbery. Government's Response
(ECF No. 203), pgs. 5-6. The Government further states
that it “proceeded when it had the proper evidence to
support the charge which was, in large part, based on
locating and obtaining S.P.'s statements in May
2016.” Id. at pg. 8. None of this information
was provided to Ms. Bliss in June 2016 when the Government
informed her of its decision to charge Defendant with the
September 12, 2011 robbery and to seek her disqualification.
In a footnote, to its response to Defendant's motion to
dismiss the September 12, 2011 robbery charge, the Government
states that due to safety concerns for S.P. it did not wish
to highlight this information in its June 2016 communication
with Defendant's counsel. Id. at pg. 8, n. 2.
Facts Relating to Government's Alleged Intrusion into
Kincade has been detained in the Nevada Southern Detention
Center (“Detention Center”) in Pahrump, Nevada
since his arrest in March 2015. On November 12, 2015, the
Government served a trial subpoena on the Warden of the
Detention Center for “recordings of all telephone calls
made by Robert Devell Kincade from March 25, 2015 to
present.” Defendant's Hearing Exhibit N.
On August 19, 2016, the Government served a subpoena on the
Warden for “copies of all incoming and outgoing
correspondence to and from Robert Devell Kincade.”
Defendant's Hearing Exhibit L. On June 27, 2016,
the Government provided supplemental discovery to the
Defendant which included “a compact disc containing
hundreds, if not thousands, of recordings of telephone calls
made by Kincade from the Nevada Southern Detention Center in
Pahrump, Nevada.” Motion (ECF No. 130), pg.
10. The recordings included some telephone calls made by
Mr. Kincade to his counsel, Ms. Bliss. In addition, the
Government subsequently produced a copy of an envelope and a
one page letter that Mr. Kincade addressed to Ms. Bliss's
legal assistant. See Defendant's Hearing Exhibit
K (copy of envelope).
Detention Center “Detainee Handbook, ” which is
provided to detainees upon their admission to the facility,
states that “[t]here are telephones in each housing
unit for detainee use. Telephone conversations may be
monitored and/or recorded for security reasons.”
Defendant's Hearing Exhibit A, pg. 27. The
handbook further states: “Phone calls will be recorded
with the exception of legal calls.” Id. Until
recently, the Detainee Handbook did not provide specific
instructions as to what detainees are required to do to
prevent the recording of telephone calls with their
attorneys. On October 27, 2016, the Detention Center
conducted a “town hall” meeting in which
detainees were instructed that there are two ways to request
that their legal calls not be recorded. First, detainees can
call the Detention Center's telephone service provider
and request that calls to the attorney's telephone number
not be recorded. Second, detainees can complete a
non-recorded call form which can be obtained from the unit
case manager or correctional counselor. The case manager or
counselor will then enter the attorney telephone information
into the phone system so that it is not recorded.
Defendant's Hearing Exhibit B. In October 2016,
the Detention Center also prepared an insert to be placed in
the Detainee Handbook which states:
Non-Recorded Phone Calls: All calls are
subject to being recorded. If you do not want calls with your
attorney to be recorded, you must request a NON RECORDED
LEGAL CALL by completing the Attorney Verification form and
submitting it to one of the Unit team members, These forms
are available in the housing units. Upon verification you
will receive confirmation that the Attorneys phone number has
been added to the Non recorded list. Once you receive
confirmation the calls with your attorney are no longer being
recorded. If you fail to follow these steps, the calls will
be recorded. Public Defenders telephone numbers are
automatically marked for non-recording.
Hearing Exhibit B.
Detainee Handbook contains the following provision regarding
Legal mail is delivered within 24 hours of receipt in the
mail room except on weekends and holidays. Detainees have to
sign for all legal mail, which verifies receipt. All legal
mail is opened in the presence of the detainee and inspected
for contraband. You must show staff your ID before legal mail
is given to you. Outgoing legal mail must be sealed and
marked (date and initials) by Unit staff verifying it is
legal mail. Unit staff takes all legal mail directly to the
mail room. The address on legal mail MUST be a law office,
lawyer, judge, or court to be considered legal mail.
Hearing Exhibit A, pg. 34.
Zavala, the Detention Center's facility investigator,
testified that he is responsible for monitoring
detainees' phone calls and mail. He testified that the
Detention Center does not actively monitor detainee telephone
calls. Those calls are recorded, however. When the Detention
Center receives a subpoena for the production of detainee
telephone recordings, personnel under his supervision
download the requested recordings onto a compact disc and
produce them in compliance with the subpoena. Detention
Center personnel do not review the downloaded telephone calls
for privileged communications. Mr. Zavala testified that if
the telephone number of the detainee's attorney is
entered into the telephone system with instructions that
calls to that number not be recorded, the telephone system
will automatically recognize the number and the calls will
not be recorded. The fact that an attorney's telephone
number is shown on the call list, does not mean that calls to
that number were recorded. Mr. Zavala reviewed Detention
Center records to determine if Defendant Kincade ever
requested that any telephone numbers be designated as his
attorney's telephone number. There was no such
designation. Mr. Zavala also testified that there was no
record that Mr. Kincade's attorneys had requested that
their telephone numbers be designated for non-recording. Mr.
Zavala has not personally been involved in advising detainees
about the procedures for ensuring that telephone calls with
counsel are not recorded. He did not know whether the
Detention Center provides instructions to detainees'
attorneys regarding necessary steps to ensure that telephone
calls with their clients are not recorded.
Zavala testified that in regard to outgoing “legal
mail, ” the detainee presents the unsealed mail to a
unit manager, who inspects it to confirm that it is legal
mail. The unit manager then seals the envelope and marks it
as legal mail. Legal mail is taken to the mail room where it
is noted in the mail log and sent out. When the Detention
Center responds to a subpoena for copies of a detainee's
incoming or outgoing correspondence, the documents produced
should not contain a detainee's legal mail. Although Mr.
Zavala's testimony was less than clear, it appears that
the Detention Center makes copies of incoming and outgoing
mail which it can thereafter produce in response to a
subpoena. Legal mail, if properly handled, is not copied and
therefore cannot be produced in response to a subpoena. Mr.
Zavala testified that he looked at a copy of the envelope
that was addressed to Ms. Bliss's paralegal.
Defendant's Hearing Exhibit K. He testified that
the envelope was not marked as legal mail. Mr. Zavala
testified that if a detainee places a letter to his
attorney's office in the regular mail drop box, it will
not be marked or treated as legal mail.
Brandel, who is also represented by Ms. Bliss, testified that
he has been detained at the Detention Center since December
2015. The Detention Center did not provide him with any
instructions regarding the recording of telephone calls with
his attorney, beyond what was stated in the Detainee
Handbook. He was told by another detainee that if he was
going to make telephone calls to an attorney, he should let
the unit manager know. Mr. Brandel spoke to the unit manager
who gave him a form to fill out listing his attorneys'
telephone numbers. Mr. Brandel listed Ms. Bliss's
telephone numbers on the completed form that he returned to
the unit manager. Mr. Brandel became concerned about the
possible recording of his attorney telephone calls after he
read a news account about this case. He called the telephone
service provider and asked if the recording of telephone
calls to his attorney' phone numbers had been
“turned-off.” The provider told him that the
recording of calls to those numbers were not “turned
off.” Mr. Brandel testified that notices were recently
posted by the telephones stating that detainees need to
complete the non-recording form and provide it to their unit
manager if they do not want their attorney telephone calls to
be recorded. Mr. Brandel testified that at the time he
received his first letter from Ms. Bliss, he was informed
that legal mail is to be opened in the presence of the
detainee. He was also informed that if he wanted to send mail
to an attorney, he had to take it to a unit manager who would
sign off on it and seal the envelope.
Kincade testified that when he entered the Detention Center
in March 2015, he was not provided with any information about
the policy regarding legal calls. He just thought that legal
calls were not recorded. He learned in July or August 2016,
however, that recordings of telephone calls with his attorney
had been turned over to the Government. He was not informed
by the Detention Center at any time between March 2015 and
August 2016 of any steps he should take to ensure that his
attorney telephone calls were not recorded. His understanding
with respect to legal mail is that it just needs to be
addressed to a law office. There was no consistent policy
that required that legal mail be provided to a unit manager
and verified as legal mail before it goes out. Mr. Kincade
has, however, read the Detainee Handbook provision regarding
legal mail. He also acknowledged that his outgoing legal mail
has been sealed and marked by Detention Center staff.
Special Agent Henry Schlumpf testified that he is the case
agent for the prosecution of Defendant Kincade. In November
2015, he asked the Assistant United States Attorney to issue
a trial subpoena to obtain Defendant Kincade's incoming
and outgoing telephone calls. The United States
Attorney's office prepared the subpoena and Agent
Schlumpf emailed it to Mr. Zavala. Although the subpoena
called for the telephone recordings to be produced on
“February 9, 2015, ” i.e., February 9, 2016, the
Detention Center sent him discs of recorded telephone calls
on a monthly basis. The subpoena did not state that
attorney-client telephone calls should not to be produced.
Agent Schlumpf testified that it was his understanding at the
time the subpoena was served that the Detention Center did
not record attorney-client telephone calls. The discs
received from the Detention Center contained recordings of
approximately 50 telephone calls that Defendant Kincade
initially made to his girlfriend and during which he asked
her to transfer to his attorney's office. Agent Schlumpf
testified that Mr. Zavala told him that Mr. Kincade's
conduct in having his girlfriend transfer his calls to a
third person violated the Detention Center policy. There is
no such prohibition in the Detainee Handbook. He testified
that Defendant Kincade's conduct, in any event, bypassed
the telephone system that automatically stops the recording
of telephone calls placed to listed attorney numbers.
Although Agent Schlumpf questioned whether these calls were
privileged, he did not listen to the calls after they were
connected to Defendant's attorney's office.
Schlumpf testified that there were approximately 10 to 12
telephone calls on the discs that Mr. Kincade made directly
to Ms. Bliss's office. He believed that the recording on
most of these calls ended within a second or two after the
call was answered by the attorney's office. However, some
of these direct calls were recorded. Mr. Kincade also made
telephone calls that were answered by a person named Jason,
whom Agent Schlumpf initially believed was Ms. Bliss's
paralegal, but later learned is an attorney in her office.
Agent Schlumpf testified that he stopped listening once he
recognized that the calls were to the attorney's office
and he did not listen to the substance of any conversations
between Defendant Kincade and his attorneys. Agent Schlumpf
provided copies of the discs to the United States
Attorney's office for production to Defendant's
counsel. He did not inform the Assistant United States
Attorney that the discs contained recorded telephone calls
between Defendant Kincade and his counsel. He knew that the
Assistant United States attorneys would not listen to the
calls because they were counting on him to do so. He stated
that if there was an interesting call, he would tell the
attorneys about it.
the hearing, Defendant's counsel filed under seal a disc
containing the recordings of the telephone calls that Mr.
Kincade made directly to his counsel's telephone numbers
and which were subsequently provided to the Government.
Notice of Manual Filing (ECF No. 217). The notice
lists 13 recordings. The length of each recorded conversation
is also provided in the notice. Defendant requests that
“the Court refrain from listening to the content of
these calls, unless the Court doubts that the conversations
between Kincade and his counsel were regarding Kincade's
case and were therefore privileged communications.”
Id. at pg. 1.
September 2016, the Detention Center provided Agent Schlumpf
with a disc that contained the image of a mailing envelope
addressed to Ms. Bliss's legal assistant. See
Defendant's Hearing Exhibit K. When Agent Schlumpf
opened the file, he could see that it was a two page
document. After looking at the image of the envelope, he
opened the second page of the document “figuring it
would probably be the backside of the envelope.”
Instead, it was a handwritten letter. He observed a heading
on the letter that stated “medical records.”
Agent Schlumpf testified that he immediately closed the file
and did not read the contents of the letter. Agent Schlumpf
called Assistant United States Attorney Michael and advised
her of what occurred. Ms. Michael instructed him to prepare a
form 302 report and he did so. See Defendant's
Hearing Exhibit M. Agent Schlumpf later printed a copy
of the envelope and letter and placed them in a sealed
envelope to be delivered to Defendant's counsel. He did
not read the letter when performing this task.
Alleged Violation of Defendant's Sixth Amendment
Right to a Speedy
Sixth Amendment to the United States Constitution states that
“[i]n all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial.” The
alleged violation of a defendant's Sixth Amendment right
is evaluated under a balancing test which considers the
following factors: (1) the length of the delay; (2) the
reason for the delay; (3) the defendant's assertion of
his right to a speedy trial; and (4) the prejudice to the
defendant resulting from the delay. United States v.
Alexander, 817 F.3d 178, 1181 (9th Cir. 2016) and
United States v. Gregory, 322 F.3d 1157, 1161 (9th
Cir. 2003) (citing Barker v. Wingo, 407 U.S. 514,
530, 92 S.Ct. 2182 (1972)). The four factors are related and
must be considered together with such other circumstances as
may be relevant. Gregory, 322 F.3d at 1161 (quoting
United States v. Tank Huu Lam, 251 F.3d 852, 855-56
(9th Cir. 2001)).
length of the delay is a threshold factor. The delay must
have been sufficiently lengthy, and therefore presumptively
prejudicial, to trigger examination of the other factors.
Alexander, 817 F.3d at 1181 (citing United
States v. Sears, Roebuck & Co., Inc., 877 F.2d 734,
739 (9th Cir. 1989)). Delays approaching one year are
generally considered presumptively prejudicial. Id.
(citing United States v. Gregory, 322 F.3d at
1161-62). See also United States v. Beamon, 992 F.2d
1009, 1012 (9th Cir. 1993) (citing Doggett v. United
States, 505 U.S. 647, 652 n. 1, 112 S.Ct. 2686, 2691 n.
1 (1992)). The court in Beamon noted that delays of
17 and 20 months were more than sufficient to trigger the
speedy trial inquiry under Barker. If the threshold
showing is made, then the court considers the extent to which
the delay exceeds the threshold point in light of the degree
of diligence by the government and acquiescence by the
defendant to determine whether sufficient prejudice exists to
warrant relief. Beamon, 992 F.2d at 1012, citing
Doggett, 505 U.S. at 657, 112 S.Ct. at 2693-94.
original indictment in this case was filed on March 11, 2015.
The current trial date is February 28, 2017. Assuming that
the case proceeds to trial on that date, the period of delay
from the filing of the indictment to the commencement of
trial will have been just short of two years. This period of
delay is sufficiently long to trigger application of the
second factor considers the reasons for the delay. As stated
in Barker, the reason for delay is closely
associated with the length of the delay. Different weights
should be assigned to different reasons for delay. “A
deliberate attempt to delay the trial in order to hamper the
defense should be weighted heavily against the government. A
more neutral reason such as negligence or overcrowded courts
should be weighted less heavily, but nevertheless should be
considered since the ultimate responsibility for such
circumstances must rest with the government rather than with
the defendant.” Barker, 407 U.S. at 531, 92
S.Ct. at 2192. This case involves two distinct periods with
respect to the reasons for the delay. The first period is
from March 11, 2015 to July 12, 2016. The second period is
from July 12, 2016 through the current trial setting of
February 28, 2017.
March 11, 2015 and March 31, 2016, the Court granted five
stipulated continuances of the trial date. Defendant has
attempted to cast responsibility for most of these
continuances on the Government's alleged delay in
providing discovery. Reply (ECF No. 186), pgs. 2-4.
The record, however, does not support this assertion. The
original indictment was filed approximately four months after
the November 14, 2014 robbery. There is no evidence that the
Government was dilatory in taking Mr. Kincade into custody
and bringing him before the court within a month after the
indictment was filed. Defendants requested the first
continuance of the trial date so that they would have
adequate time to prepare.
Kincade argues that the second stipulation to continue
resulted from the Government's decision to file the first
superceding indictment. There is, again, no indication that
the Government unreasonably delayed filing the November 25
robbery charge. In any event, the filing of the first
superceding indictment was not the only reason for the
continuance. Defendant Kincade filed a motion to dismiss his
appointed counsel, Mr. Fumo, on July 10, 2015. The Court
informed Defendant that a change of counsel would likely
require continuance of the trial. He did not oppose a
continuance and the Court granted his motion for new counsel.
The superceding indictment was filed on the same day that
attorney Jennifer Waldo was appointed as Defendant's
counsel. Because the trial was only two weeks away, Ms. Waldo
would likely have requested a continuance even if the first
superceding indictment had not been filed.
third stipulation to continue the trial was filed after Ms.
Bliss substituted into the case as Defendant's counsel.
Although Government counsel's medical leave was also
cited as a reason for the continuance, it was primarily due
to Ms. Bliss's retention and Defendant has accepted
responsibility for this continuance. Reply (ECF No. 186),
pg. 3. The fourth stipulation, filed on January 21,
2016, requested a continuance so that Defendant Kincade could
file a motion for reconsideration of the magistrate
judge's order denying his motion for production of the
grand jury transcripts. After the continuance was granted,
however, Defendant did not file a motion. Defendant has not
shown that the Government's refusal to produce the grand
jury transcripts or the denial of his motion for their
production was incorrect. Finally, the fifth continuance was
sought because Defendant Kincade's counsel represented a
defendant in another case that was set for trial in May, 2016
and because the Government's counsel had three other
trials scheduled during the same week as the trial in this
Kincade has not demonstrated that the five continuances of
the trial granted up through March 31, 2016 were caused by
the Government's unreasonable delay. While the filing of
the first superceding indictment and Government counsel's
responsibilities in other cases played some role in the
continuances, the principal factor requiring the continuances
was Defendant Kincade's change of counsel. There is no
evidence that negligence or bad faith by the Government
caused any delay of the trial during the period from March
11, 2015 through July 12, 2016.
third Barker factor considers the defendant's
assertion of his right to a speedy trial. Whether and how a
defendant asserts his right is closely related to the other
factors. Barker, 407 U.S. at 531, 92 S.Ct. at 2192.
“The strength of [defendant's] efforts will be
affected by the length of the delay, to some extent by the
reason for the delay, and most particularly by the personal
prejudice, which is not always identifiable, that he
experiences. The more serious the deprivation, the more
likely a defendant is to complain. The defendant's
assertion of his speedy trial right, then, is entitled to
strong evidentiary weight in determining whether the
defendant is being deprived of the right. We emphasize that
failure to assert the right will make it difficult for a
defendant to prove that he was denied a speedy trial.”
Id., 407 U.S. at 531-32, 92 S.Ct. at 2192-93.
is no evidence that Defendant Kincade affirmatively asserted
his right to a speedy trial or objected to any requested
continuance prior to June 2016. In United States v.
Shetty, 130 F.3d 1324 (9th Cir. 1997), the defendant
alleged that his rights under the Speedy Trial Act, 18 U.S.C.
§ 3161(c)(1), were violated. The defendant's
counsel, however, executed several stipulations to continue
the trial date which specifically set forth the reasons why
the continuances were sought. The district court also
provided findings as to the necessary length of each
continuance. In rejecting the defendant's argument that
his statutory right to a speedy trial was violated, the court
stated that “[h]ad Shetty or his counsel not agreed
with any of the factual circumstances supporting the
continuances or the length of any continuance, it was
incumbent upon Shetty and his counsel to refrain
from signing the stipulations and to advise the court by
objection or otherwise.” 130 F.3d at 1330 (emphasis in
original). Although Defendant Kincade's motion is based
on the violation of his Sixth Amendment right, his
attorneys' stipulations to five continuances also weighs
against a finding that his Sixth Amendment rights were
violated prior to June 2016.
considering the fourth Barker factor, prejudice, the
Court evaluates the second and third factors in regard to the
period of delay from July 12, 2016 through the currently
scheduled trial date of February 28, 2017. On June 1, 2016,
Ms. Michael asked Defendants' counsel if they and their
clients would agree to another continuance based on the fact
that Ms. Michael had a pre-scheduled vacation at the same
time as the July trial date. Ms. Bliss responded that Mr.
Kincade was eager to go to trial and did not want to waive
his “Speedy Trial.” Ms. Bliss thereafter stated
on June 6th that Defendant Kincade would not waive his right
to speedy trial and was prepared to go to trial on July 12,
2016. Prior to receiving Ms. Bliss's June 6th email, Ms.
Michael did not inform her that the Government was
contemplating filing a superceding indictment against Mr.
Kincade for the September 12, 2011 robbery and moving to
disqualify Ms. Bliss on the basis of that charge. Ms.
Michael's June 15 and 17 emails stated that the
Government's decision to bring this additional charge was
based on the DNA test results that were received on June 6,
2016. See Motion (ECF No. 130), Exhibits C and D.
(The DNA report, itself, is dated June 7, 2016. Id.
at Exhibit G.). Because the DNA testing only matched
Mr. Kincade's DNA to the Adidas pants, which Defendant
Kincade acknowledged belonged to him and which had been
obtained by law enforcement back in 2011, it is not
surprising that Defendant viewed the Government's
explanation for charging him with the 2011 robbery in June
2016 as ludicrous.
response to Defendant's motion to dismiss filed on
October 27, 2016, the Government states that the decision to
file the September 2011 robbery charge was based on law
enforcement agents having reestablished contact with S.P. in
May 2016, and her having reaffirmed her October 4, 2011
statements regarding Defendant Kincade's commission of
the robbery. This a more credible reason for charging
Defendant Kincade with the robbery four years and nine months
after it occurred. The Government's conduct is
nevertheless troubling. By bringing the September 12, 2011
robbery charge in this case and then filing a motion to
disqualify Ms. Bliss on the basis of that charge, the
Government forced a continuance of the July 12, 2016 trial
date. The Government was not required to join the September
2011 robbery charge in this case and the legal basis for
doing so was questionable. See Order (ECF No. 167)
(granting Defendant's motion for severance). The fact
that the Government pursued this course of action after
Defendant refused to agree to a further trial continuance
supports a finding that the Government's conduct was, at
can be a fine line between a negligent, but honest,
misjudgment and bad faith. If the Government's counsel
had objectively and fairly considered the circumstances in
June 2016, she would have determined that the proper course
of action was to obtain a separate indictment on the
September 2011 robbery, notify Ms. Bliss, if necessary, that
she could not represent Mr. Kincade on that charge, and have
permitted the November 2014 robbery charges to proceed to
trial as scheduled on July 12, 2016. Although the
prosecutor's course of action was unreasonable, the
undersigned stops short of finding intentional wrongdoing or
bad faith. The prosecutor may, in fact, have believed that
she was acting properly in joining the September 2011 robbery
by superceding indictment, and moving to disqualify Ms. Bliss
from representing Mr. Kincade in the case as a whole.
Regardless of her actual subjective intent, however, the
Government caused an unreasonable and unnecessary
postponement of the July 12, 2012 trial date. The second and
third Barker factors therefore weigh in
total delay in this case is just short of two years. This is
not long enough to excuse Defendant Kincade from
demonstrating actual prejudice. United States v.
Gregory, 322 F.3d at 1163 (22 month delay not long
enough to excuse proof of actual prejudice). In analyzing a
9.6 month delay arguably caused by the government's
negligence, the court in United States v. Alexander
stated that “[t]he amount of prejudice a defendant must
show is inversely proportional to the length and reason for
the delay. [ ] While we are concerned that the initial
prosecutorial delay could have been reduced, a 9.6 month
period of negligence alone would not deny Alexander's
right to a speedy trial without a sufficient showing of
prejudice.” 817 F.3d at 1183, citing Doggett v.
United States, 505 U.S. at 655- 56, 112 S.Ct. 2686.
Here, the Government's unreasonable conduct has caused a
seven month trial delay which is also not sufficient to
establish a violation of Defendant Kincade's Sixth
Amendment speedy trial right without proof of actual
is assessed in light of the interests of the defendant which
the speedy trial right was designed to protect. The Supreme
Court has identified three such interests: (1) to prevent
oppressive pretrial incarceration; (2) to minimize anxiety
and concern of the accused; and (3) to limit the possibility
that the defense will be impaired. “Of these, the most
serious is the last, because the inability of a defendant to
adequately prepare his case skews the fairness of the entire
system. If witnesses die or disappear during a delay, the
prejudice is obvious. There is also prejudice if defense
witnesses are unable to recall accurately events of the
distant past. Loss of memory however, is not always reflected
in the record because what has been forgotten can rarely be
shown.” Barker, 407 U.S. at 532, 92 S.Ct. at
Kincade has not shown that he has suffered actual prejudice
in his ability to defend against the robbery charges. He has
not identified any lost witnesses or evidence. The prejudice
to Defendant is the additional pretrial detention and the
anxiety or concern he will experience while awaiting trial.
He asserts that as a result of being incarcerated for nearly
21 months, “[h]e has lost his job, he has lost his
money, his personal relationships have been broken, and he
has been severely hindered in his ability to effectively
assist in preparing his defense.” Reply (ECF No.
186), pg. 13. The Government is responsible for the last
7 months of this delay. Defendant's loss of employment,
money or personal relationships had arguably already occurred
during the first 14 months of detention for which the
Government is not at fault. Although the prejudice suffered
by Defendant is not unimportant, it does not weigh as
strongly in favor of dismissal as prejudice that impairs the
Supreme Court in Barker noted that dismissal of an
indictment for violation of a defendant's speedy trial
right “is indeed a serious consequence because it means
that a defendant who may have been guilty of a serious crime
will go free, without having been tried. Such a remedy is
more serious than an exclusionary rule or a reversal for a
new trial, but it is the only possible remedy.”
Id. at 522, 92 S.Ct. at 2188. The undersigned has
frankly struggled with whether the Government's conduct,
and the resulting delay after Defendant explicitly invoked
his speedy trial rights, justifies the serious consequence of
dismissing the indictment. If the Court believed that the
prosecutor acted with knowledge that her course of conduct
was improper and for the purpose of obtaining a continuance
so that she could take a vacation, or to improperly harm the
Defendant's ability to defend the case, then it would
recommend dismissal of the indictment. Because the Court does
not conclude that the prosecutor acted in bad faith, however,
dismissal of the indictment is too severe a sanction, in
light of the length of the delay and the nature of prejudice
suffered by Defendant.
Alleged Government Intrusion into Attorney-Client
Kincade argues that the indictment should be dismissed based
on the Government's violation of his attorney-client
privilege. The sanctity of the attorney-client relationship
is one of the cornerstones of the adversary system.
United States v. Hernandez, 937 F.2d 1490, 1493 (9th
Cir. 1991) (citing Upjohn Co. v. United States, 449
U.S. 383, 389, 101 S.Ct. 677, 682 (1981)). As Upjohn
states, the purpose of the privilege “is to encourage
full and frank communications between attorneys and their
clients and thereby promote broader public interests in the
observance of law and administration of justice.”
Id. The ability of detained defendants to engage in
confidential telephonic communications with their attorneys
is an important right that should be protected from the
prying ears of the prosecution. The Federal Detention Center
and the Government are responsible for adopting reasonable
procedures to ensure that detainees have the ability to
confer confidentially with their counsel and that those
confidences are not violated.
evidence presented at the hearing casts serious doubt on
whether the Detention Center took adequate steps to ensure
that attorney-client telephone calls are not recorded.
Although the recording of attorney-client telephone calls can
be avoided by entering the attorney's telephone number
into the Detention Center's telephone system, which is
then programmed not to record calls to or from the number,
the steps that detainees or their attorneys are required to
take to prevent the recording of calls were not well
disseminated until recently. While it is possible that
detainees were informed of these matters prior to October
2016, the Government did not attempt to show that Defendant
Kincade or other detainees were adequately informed of the
procedures to prevent the recording of attorney telephone
calls. The Government, instead, opposes Defendant's
motion on the basis that it did not listen to the recordings
of attorney-client telephone calls and, therefore, Defendant
cannot show that his defense has somehow been prejudiced.
United States v. Hernandez, the court stated that
“[d]espite the high approbation our system has for the
attorney-client privilege, the Supreme Court has twice held
that government invasion of that privilege or of the defense
camp is not sufficient by itself to cause a Sixth Amendment
violation. The defendant must have been prejudiced
by such action.” 937 F.2d at 1493 (citing United
States v. Morrison, 449 U.S. 361, 365, 101 S.Ct. 665,
668 (1981) and Weatherford v. Bursey, 429 U.S. 545,
558, 97 S.Ct. 837, 845 (1977) (emphasis in original)). The
court held that the defendants' Sixth Amendment rights
were not violated where a co-defendant, after agreeing to
become a government witness, attended joint defense meetings
with the defendants and their counsel. In affirming the
denial of the motion to dismiss, the court relied on the
district judge's findings that the witness did not
disclose to the government any statements made by
co-defendants or trial strategy he may have learned of during
United States v. Morrison, which involved
unsuccessful efforts by law enforcement agents to undermine
the defendant's relationship with her attorney, the Court
stated that “absent demonstrable prejudice, or
substantial threat thereof, dismissal of the indictment is
plainly inappropriate, even though the violation may have
been deliberate.” 449 U.S. at 365, 101 S.Ct. at 668. In
Weatherford v. Bursey, an undercover law enforcement
officer participated with plaintiff in the commission of a
crime. The officer, while still posing as a conspirator, was
invited to meetings between plaintiff and his criminal
defense counsel. The officer attended the meetings, but did
not discuss or pass on to his supervisors or the prosecuting
attorney “‘any details or information regarding
the plaintiff's trial plans, strategy, or anything having
to do with the criminal action pending against the
plaintiff.'” 429 U.S. at 548, 97 S.Ct. at 840. The
Supreme Court stated that “[t]here being no tainted
evidence in this case, no communication of defense strategy
to the prosecution, and no purposeful intrusion by [the
officer], there was no violation of the Sixth Amendment
insofar as it is applicable to the States by virtue of the
Fourteenth Amendment.” Id., 429 U.S. at 558,
97 S.Ct. at 845.
United States v. Green, 962 F.2d 938 (9th Cir.
1992), the defendant was charged with attempted
counterfeiting. A law enforcement officer recorded a
telephone call between a paper company employee and a law
clerk in defendant's attorney's office. The law clerk
asked questions about the type of paper the defendant had
purchased from another supplier and stated that the defense
team was trying to determine the differences between the
types of paper purchased by the defendant and the type used
to produce currency. The officer provided the recording to
the prosecutor who subsequently notified defendant's
attorney of the incident and produced the officer's
report and a copy of the recorded call. In holding that the
defendant's Sixth Amendment rights were not violated, the
court stated that “[w]e have repeatedly held in similar
circumstances that the Sixth Amendment is violated only when
the government's action ‘substantially prejudices
the defendant.'” 962 F.2d at 941. (Citations
omitted). Although a defense strategy was revealed to the
prosecutor, there was no indication that defendant's
ability to defend himself was impaired or that the government
was able to use the information in any way. The court
therefore found no Sixth Amendment violation. Id. at
941. The court also rejected defendant's argument that
the government violated his Fifth Amendment due process
rights. The court noted that the officer could have used
better judgment in deciding to record the clerk's
conversation, but that his less than exemplary performance of
duty did not justify the extreme measure of dismissing the
indictment. Id. at 941-42.
United States v. Haynes, 216 F.3d 789 (9th Cir.
2000), a private investigator, hired by defendant's
attorney, became involved in criminal activity with the
defendants and then turned informant for the government.
Although the investigator turned over privileged information
to the government, the government was vigilant about the
privilege and established safeguards to protect such
information. The court held that suppression of the tainted
evidence at trial was sufficient to cure any prejudice
resulting from the intrusion on the attorney-client
relationship and that dismissal of the indictment was not
required. 216 F.3d at 796-97.
Court has no reason to doubt that some of the recorded calls
produced in response to the subpoena contain privileged
discussions between Defendant Kincade and his counsel.
See Notice of Manual Filing (ECF No. 217). Agent
Schlumpf's conduct with respect to these telephone calls
also raises some doubt as to his testimony that he did not
listen to them. Agent Schlumpf testified that at the time the
subpoena was issued in November 2015, he believed that the
Detention Center did not record telephone calls between
detainees and their attorneys. He became aware as he listened
to the recordings, however, that at least some of the
recorded telephone calls were placed directly by Defendant
Kincade to his attorney's phone numbers. Agent Schlumpf
also testified that the recordings of most of these calls
stopped within a second or two after the calls were
connected. The notice filed by Defendant, however, states
that the shortest duration of any recording was 49 seconds.
See Notice of Manual Filing (ECF No. 217). Assuming
the notice is accurate, Agent Schlumpf's testimony is
Agent Schlumpf became aware that attorney-client telephone
calls had, in fact, been recorded and produced, it seems
logical that he would have made some inquiry as to whether
the receipt of such recorded conversations pursuant to the
subpoena was proper. He did not. It is also puzzling that
Agent Schlumpf did not notify the prosecutors about the
recorded attorney-client calls when he provided them with
copies of the discs to produce to the Defendant. It was
certainly foreseeable that Defendant would raise the issue of
whether the Government had listed to the attorney-client
calls, such that Agent Schlumpf would have warned the
prosecutors about the presence of attorney-client telephone
calls on the recordings. While these circumstances raise
doubt about the credibility of Agent Schlumpf's
testimony, the Court cannot conclude on the present record
that he or the Government attorney's listened to any of
the attorney-client conversations, and, in so doing,
acquired information that has unfairly prejudiced the
Defendant's ability to defend against the charges in this
has also not shown that his attorney-client privilege was
violated by the production of his letter to Ms. Bliss's
legal assistant. The Detainee Handbook sets forth the
procedure for handling incoming and outgoing legal male.
While it is possible that the envelope and letter were copied
by the Detention Center in violation of its own procedures
for handling legal mail, it is equally possible that
Defendant Kincade bears responsibility for its production by
failing to follow the procedures for sending legal mail to
his attorney. Agent Schlumpf testified that he did not read
the letter and the Court finds no reason to reject his
testimony. Defendant has not shown that the letter contained
information, which if disclosed to the Government, would so
prejudice his ability to defend the case as to require
dismissal. Defendant has failed to show that he has been
prejudiced by the production of his attorney-client
communications to the Government. His motion to dismiss the
indictment on this ground must therefore be denied.
Government's unreasonable conduct has caused a seventh
month delay of Defendant Kincade's trial on the November
2014 robbery charges. Defendant's ability to defend the
charges against him, however, has not been prejudiced by this
delay. The prejudice experienced by Defendant in the form of
extended pretrial detention and anxiety and concern are not
so severe in light of the length of the delay and the
egregiousness of the Government's conduct, to justify
dismissal of the indictment. The Defendant has also not shown
that he has suffered actual prejudice by the production of
his attorney-client communications to the Government which it
denies having listened to or read. Accordingly,
RECOMMENDED that Defendant Robert Kincade's Motion to
Dismiss for Prosecutorial Delay and Misconduct (ECF No. 130)
to Local Rule IB 3-2, any objection to this Finding and
Recommendation must be in writing and filed with the Clerk of
the Court within fourteen (14) days. The Supreme Court has
held that the courts of appeal may determine that an appeal
has been waived due to the failure to file objections within
the specified time. Thomas v. Arn, 474 U.S. 140, 142
(1985). This circuit has also held that (1) failure to file
objections within the specified time and (2) failure to
properly address and brief the objectionable issues waives
the right to appeal the District Court's order and/or
appeal factual issues from the order of the District Court.
Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir.
1991); Britt v. Simi Valley United Sch. Dist, 708
F.2d 452, 454 (9th Cir. 1983).
 Each stipulation to continue the trial
date was accompanied by proposed findings of fact,
conclusions of law and an order which repeated the reasons
set forth in the stipulation to justify the continuance and
the exclusion of time under the Speedy Trial Act, 18 U.S.C.
 The Court also granted Defendant
Kincade an extension of time until February 4, 2016 to file
the motion for reconsideration. Order (ECF No. 75).
Instead of filing a motion, however, Defendant Kincade filed
a notice of objection to the magistrate judge's order
stating that he “hereby reserves his appellate rights
with regards to the aforementioned order.” Notice
of Objection (ECF No. 77).
 Reportedly, the telephone numbers of
the Federal Public Defender's office have been entered
into the telephone system, and calls to and from that office
are not recorded.
 Defendant states in his motion to
compel production of grand jury transcripts that Agent
Schlumpf interviewed Co-Defendant Florez on August 9, 2016
and “Florez again changed his story, adding new
details. This interview occurred after Schlumpf obtained and
listened to 13 calls from Kincade to counsel.”
Motion (ECF No. 216), pg. 4. This assertion does not
support a finding of prejudice. Nor does it reasonably
indicate that further inquiry will establish prejudice.
First, Defendant provides no information regarding the
substance of Florez's statements. Second, Defendant does
not show how any change in Florez's statements relates to
information that was disclosed during Mr. Kincade's
confidential discussions with his attorney-thereby indicating
that the change in Florez's statement resulted from the
Government's knowledge of what Defendant and his counsel
discussed. Third, Defendant does not show how any “new
details” in Florez's statements have prejudiced his