Previous posts here and here highlighted the motion to dismiss filed by Lawrence Hoskins (a U.K. national criminally charged with FCPA offenses in 2013) based on violations of his Speedy Trial Act rights and his Fifth and Sixth Amendment rights.
Earlier this week, Judge Janet Bond Arterton (D. Conn.) denied the motion to dismiss paving the way for Hoskins’ trial to begin on October 16th.
In this 31 page ruling, heavy on facts, Judge Arterton concluded that “Mr. Hoskins has not suffered any violations of his rights ensured by the Speedy Trial Act.”
Regarding the Fifth Amendment, Judge Arterton noted that in order to demonstrate a Fifth Amendment violation the “defendant bears the heavy burden of proving both that he suffered actual prejudice because of the alleged pre-indictment delay and that such delay was a course intentionally pursued by the government for an improper purpose.”
In pertinent part, Judge Arterton concluded (internal citations omitted):
“In the absence of any argument by Mr. Hoskins as to any intentional pre-indictment delay by the Government for any improper purpose, and in light of Mr. Hoskins’ own acknowledgment of the difficulty faced by the Government in acquiring information necessary to support an indictment and prosecution, the Court disagrees with Mr. Hoskins’ assertion that the pre-indictment delay was ‘extreme’ and unwarranted.
Moreover, although the passage of time may causes witnesses’ memories to fade, Mr. Hoskins provides no support for the suggestion that the pre-indictment fading of memories in this case was so severe or unusual that to permit trial in this case to proceed would ‘violate those fundamental concepts of justice which lie at the base of our civil and political institutions.”
As to Hoskins’ Sixth Amendment claim, Judge Arterton set forth the following four-part balancing test (established in Barker v. Wingo, 407 U.S. 514 (1972) to determine whether delays in reaching trial violate the Sixth Amendment: (1) the length of the delay; (2) the reason the government assigns to justify the delay; (3) the defendant’s responsibility to assert his right; and (4) prejudice suffered by the defendant due to the delay.
As to the first factor, Judge Arterton agreed with Hoskins “that the passage of time of over six years between indictment [and trial] is sufficient to trigger consideration of the three additional Barker factors and weights in Defendant’s favor, though the weight of this delay in tempered by the complex nature of the charges.”
As to the second factor, Judge Arterton concluded:
“The delays in this case have been caused by a variety of reasons, including the valid but lengthy delay due to the interlocutory appeal [see here for the prior post]; some neutral delays caused by the Government but not done deliberately to hamper the defense […]; and significant delays attributable to the Defendants’ litigation efforts. In considering the many delays throughout this litigation and the sources of those delays, the Court concludes that the second factor weighs neither for nor against the Defendant.”
As to the third factor, Judge Arterton observed that Hoskins conceded that he had not previously asserted his right to a speedy trial and stated that “although this factor will not entirely prevent Mr. Hoskins from asserting a Sixth Amendment claim, it weighs heavily against him.”
As to the fourth factor, Judge Arterton observed:
“Mr. Hoskins’ own argument makes clear that the pre-indictment delay, not any post-indictment delay actionable under the Sixth Amendment, caused most of the prejudice suffered due to deteriorating witness memories.
[I]n the absence of more specific claims about memories lost post-indictment, the significance of missing witnesses, or casual links between claimed lack of access to evidence and post-indictment delays, Mr. Hoskins has not demonstrated any significant impairment of his defense for Sixth Amendment purposes.”
In balancing the above four factors, Judge Arterton considered it “to be close,” but concluded that “the combination of Mr. Hoskins’ failure to [previously assert a Speedy Trial Act right] and the failure to demonstrate significant prejudice suffered as a result of post-indictment delays makes clear that dismissal is not warranted under the Sixth Amendment.”
FCPA Institute - Houston (March 26-27, 2020)
A unique two-day learning experience ideal for a diverse group of professionals seeking to elevate their FCPA knowledge and practical skills through active learning. Learn more, spend less. CLE credit is available.