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United States v. Kincade

United States District Court, D. Nevada

December 28, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
ROBERT DEVELL KINCADE, Defendant.

          FINDINGS & RECOMMENDATIONS RE: MOTION TO DISMISS (ECF NO. 130)

          GEORGE FOLEY, JR. UNITED STATES MAGISTRATE JUDGE

         This 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.

         BACKGROUND

         1. Facts Relating to Alleged Violation of Defendant's Sixth Amendment Right to a Speedy Trial.

         Defendant 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.

         Kincade, 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.

         The 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).[1]

         On July 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).

         On 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).

         On 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. 76).[2]

         On 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).

         On June 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.

         On June 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. Michael stated:

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.

         Ms. 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.

         Ms. 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.

         The 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. 103).

         On July 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. 112).

         At the 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 No. 121).

         Defendant 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 ...


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