UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

Case Number 08-20497-BC

v. Honorable Thomas L. Ludington

ROBERT NOEL,

Defendant.

__________________________________________/

ORDER DENYING AS MOOT DEFENDANT’S MOTION TO STAY PROCEEDINGS

AND DEFENDANT’S MOTION TO PRECLUDE CROSS-EXAMINATION OF

DEFENDANT AND DENYING DEFENDANT’S MOTIONS FOR DISMISSAL OF

COUNTS 1 AND 2

On April 9, 2010, at the conclusion of a jury trial in this Court, Defendant was convicted of

two counts of violating 18 U.S.C. § 922(g)(1), for being a felon in possession of a firearm. A

sentencing hearing is scheduled for July 22, 2010; however, several of Defendant’s pro se motions

remain pending. Now before the Court are Defendant’s motion to preclude cross-examination of

Defendant as to prior convictions or bad acts [Dkt. # 133], Defendant’s motion to stay proceedings

[Dkt. # 121], and Defendant’s three motions to dismiss counts 1 and 2 due to speedy trial violations

[Dkt. # 131, 132, 144].

First, Defendant’s motion to preclude cross-examination of Defendant as to prior convictions

or bad acts [Dkt. # 133] will be denied as moot, as the trial concluded on April 9, 2010. Second,

Defendant’s motion to stay proceedings [Dkt. # 121] will be denied as moot because the Sixth

Circuit Court of Appeals dismissed Defendant’s interlocutory appeal as premature on July 8, 2010.

Third, Defendant’s motions to dismiss counts 1 and 2 [Dkt. # 131, 132, 144] will be denied for the

reasons stated below.
1

 It is possible that a docketing error occurred and that Defendant only intended to file this motion

once, as the second of the two motions has Defendant’s witness and exhibit lists for trial attached. It is

potentially only the witness and exhibit lists that should have been docketed.

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Defendant’s pro se motions to dismiss filed at Docket Nos. 131 and 132 are identical,1 and

the pro se motion filed at Docket No. 144 is substantively the same. In general, Defendant asserts

that his rights under the Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution and the

Speedy Trial Act, 18 U.S.C. § 3161, were violated based on the delay before trial because he did not

cause the delay and he was prejudiced by the delay. Defendant’s standby counsel, Kenneth Sasse,

filed a supplemental brief [Dkt. # 146] on Defendant’s behalf, advancing the four-factor balancing

test of Barker v. Wingo, 407 U.S. 514 (1972). The government filed a response [Dkt. # 147] in

opposition.

The Sixth Amendment to the United States Constitution guarantees that “[i]n all criminal

prosecutions, the accused shall enjoy the right to a speedy and public trial.” U.S. Const. amend VI.

Similarly, the Speedy Trial Act imposes time limitations on when a criminal defendant must be

brought to trial. See § 3161(b) (generally allowing for thirty days between an arrest and an

indictment); § 3161(c)(1) (generally allowing for seventy days between the filing of an indictment

and a trial). As between the Speedy Trial Act and the Sixth Amendment, “it will be an unusual case

in which the time limits of the Speedy Trial Act have been met but the Sixth Amendment right to

speedy trial has been violated.” United States v. DeJesus, 887 F.2d 114, 116 (6th Cir. 1989)

(quotations omitted).

In Barker, the Supreme Court identified four factors that district courts must consider in

determining whether a defendant has been denied a speedy trial in violation of the Sixth

Amendment: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion
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of his right; and (4) the prejudice to the Defendant. 407 U.S. at 530. In Doggett v. United States,

505 U.S. 647 (1992), the Court “refined the inquiry,” by explaining that a court must balance

“whether delay before trial was uncommonly long, whether the government or the criminal

defendant is more to blame for that delay, whether, in due course, the defendant asserted his right

to a speedy trial, and whether he suffered prejudice as the delay’s result.” United States v. O’Dell,

247 F.3d 655, 667 (6th Cir. 2001) (quoting Doggett, 505 U.S. at 651). The factors “must be

considered together” and “[n]one of these factors alone is sufficient to establish a violation of the

Sixth Amendment.” Id.

First, Defendant contends that the “length of the delay” weighs against the government.

Defendant asserts that the length of delay is measured from “the earlier of the date of indictment or

the date of arrest,” quoting Cain v. Smith, 686 F.2d 374, 381 (6th Cir. 1982) (citing United States

v. Marion, 404 U.S. 307, 320 (1971)), and Maples v. Stegall, 427 F.3d 1020, 1026 (6th Cir. 2005).

Defendant emphasizes that he was initially arrested by local authority in Saginaw County on August

21, 2008; that after he was released on bond he was again arrested by local authorities on September

4, 2008; that on September 17, 2008, local charges against Defendant were dismissed and Defendant

was taken into federal custody for appearance on a complaint; that a federal indictment was returned

against Defendant on September 4, 2008; and that Defendant’s trial did not commence until April

6, 2010. Defendant asserts that a delay approaching one year, or greater, is “presumptively

prejudicial,” citing Doggett, 505 U.S. at 652 n.1, and that the delay of approximately a year and a

half before his trial here weighs against the government.

Second, with respect to the “reason for the delay,” Defendant asserts that the government has

not advanced an explanation. Defendant contends that “[u]nexplained delay is weighed against the
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prosecution,” quoting Redd v. Sowders, 809 F.2d 1266, 1269 (6th Cir. 1987). Defendant contends

that his own pretrial motions do not justify the delay because they were not brought for the purpose

of delay.

Third, Defendant insists that he has repeatedly requested a speedy trial and objected to delays

in the proceedings, and that his assertions are “entitled to strong evidentiary weight,” quoting

Barker, 407 U.S. at 531-32. In particular, Defendant highlights the fact that he requested bond on

September 18, 2008, and suggests that such a request is the functional equivalent of the request for

a speedy trial, citing Maples, 427 F.3d at 1029, and Redd, 809 F.2d at 1271. In addition, Defendant

filed a statement asserting his right to a speedy trial on April 7, 2009, see [Dkt. # 35]; he objected

to the government’s request for an extension of time to respond to his motion on November 19,

2009, see [Dkt. # 82]; and he objected to other delays on the record at various hearings.

Fourth, Defendant asserts that he has been prejudiced with respect to three interests that the

right to a speedy trial is intended to protect: “(i) to prevent oppressive pretrial incarceration; (ii) to

minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will

be impaired,” quoting Barker, 407 U.S. at 531-32. Defendant contends that he was subjected to

oppressive pretrial incarceration because he was incarcerated from September 4, 2008, until the

beginning of his trial on April 6, 2010, citing Redd, 809 F.2d at 1272 (finding that ten months of

incarceration is prejudicial). Defendant further contends that such a lengthy period impairs his

interest in minimizing anxiety and concern. Finally, Defendant contends that he was “hindered in

his ability to gather evidence, contact witnesses, or otherwise prepare for his defense,” quoting

Barker, 407 U.S. at 533, particularly because he exercised his right to self representation.
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In response, the government acknowledges that “the length of the delay” is sufficient to

trigger the speedy trial analysis. However, the government emphasizes that in assessing the “reason

for delay,” the court’s “core task is determining which party shoulders the balance of

blameworthiness for this delay,” quoting O’Dell, 247 F.3d at 667. The government contends that

the delay in this case was due almost entirely to the many pretrial motions filed by Defendant

himself or through defense counsel. The government identifies over thirty motions or objections

filed by Defendant and approximately ten supplemental or amended filings, all of which necessitated

attention from the Court and the government. In contrast, the government emphasizes that it only

requested one extension of time to file a response, from November 2 to November 23, 2009.

The government summarizes the timeline of the proceedings as follows:

Defendant was arrested and brought to federal court on a complaint on September 17,

2008, and has been held in custody since that date. An indictment was returned by the grand

jury on September 24, 2008. (R.7: Indictment). On October 9, 2009, the Court conducted

a scheduling conference, at which defendant’s attorney requested additional time to review

discovery material and discuss it with defendant. The parties specifically agreed that the

interests of justice served by such an adjournment would outweigh the interests of the

defendant and the public in a speedy trial, and stipulated that the resulting delay would be

excludable from the time period within which trial would otherwise be required to

commence pursuant to the Speedy Trial Act, 18 U.S.C. § 3161. The Court therefore ordered

that the period from October 9, 2008, until January 9, 2009, be excluded in calculating the

time limits under that Act. (R. 12: Scheduling Order and Order to Continue).

On January 7, 2009, defense counsel filed several motions to suppress evidence. (R. 16:

Motion to Suppress Evidence; R. 17: Motion to Suppress Evidence; R. 18: Motion to

Suppress Evidence). On January 21, 2000, defendant, acting pro se, filed three more

suppression motions. (R. 19: Motion for Suppression; R. 20: Motion for Franks Hearing and

Suppression; R. 21: Motion to Suppress / For Lack of Jurisdiction). On February 2, 2009,

the government responded to the motions filed by counsel, but (in accord with the Court’s

usual instructions) not to defendant’s pro se motions. (R. 26: Response [to R. 16, R. 17, and

R. 18]). Defendant, pro se, filed a motion to dismiss, and “Addendums” to two of his

motions to suppress. (R. 27: Motion to Dismiss; R. 30: Addendum to R. 20; R. 31:

Addendum to R. 19). The Court conducted a hearing on these, and other motions on March

6, 2009. Defense counsel requested a continuance to review the pro se motions. The Court

granted this request and continued the hearing until after defendant had submitted a brief
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identifying those parts of defendant’s pro se motions that he could professionally and

ethically advance. (R. 32: Order Continuing Hearing on Motions).

Defense counsel filed his supplemental brief on April 7, 2009 (R. 36: Supplemental

Brief), identifying those pro se arguments which he considered to be viable. On April 29,

2009, defendant, pro se, filed an objection to his attorney’s supplemental brief. (R. 37:

Objections to Supplemental Brief). Accordingly, defendant’s attorney filed a motion to

withdraw as counsel. (R. 39: Second Motion for Withdrawal of Attorney Russell J. Perry).

The parties stipulated to another “ends of justice” continuance until May 22, 2009, while

they negotiated issues in the case, and the court granted such a continuance. (R. 40:

Stipulation and Order for Continuance). On May 21, 2009, the Court granted attorney

Perry’s motion to withdraw; appointed attorney Sasse to represent defendant; and ordered

an ends of justice continuance until June 22, 2009, to allow attorney Sasse adequate time to

prepare for trial. (R. 41: Order Granting Withdrawal, Appointing New Counsel, and

Determining Excludable Delay).

After attorney Sasse entered an appearance, the parties stipulated to, and the Court

ordered an additional ends of justice delay until July 31, 2009, to allow new counsel to

prepare for the hearing on the pending motions. (R. 43: Stipulation and Order for

Continuance of Hearing on Motions). On June 29, 2009, a status conference was conducted.

Defense counsel requested an additional 30 days’ continuance in order to consult with

defendant on the twelve pending defense motions. The Court granted the request, and

continued the hearing on these motions until September 22, 2009. (R. 47: Order Continuing

Hearing on Motions).

On August 3, 2009, attorney Sasse filed a motion for determination of his role, as

defendant continued to file documents pro se. (R. 56: Motion for Determination of Counsel’s

Role). After a hearing on September 22, 2009, the Court ordered that defendant be allowed

to represent himself; that attorney Sasse continue in the case only as standby counsel; and

that the government, therefore, respond to defendant’s pro se filings by October 1, 2009. (R.

68: Order Granting Standby Counsel, etc.). The government filed a timely response (R. 70),

and a hearing was held on October 21, 2009. On October 26, 2009, the Court entered an

order resolving several of the pending motions, and continuing others for further action by

the parties. (R. 72: Order on numerous pretrial motions).

As directed by that order, the government filed a supplemental brief on those motions

that were still pending on November 23, 2009. (R. 81: Supplemental Brief). Defendant, pro

se, filed additional motions during November and December or 2009. (R. 73: Motion to

Dismiss; R. 79: Motion for Reconsideration; R. 83: Motion for Disclosure of Informants; and

R. 84: Motion for Discovery). On January 11, 2010, the Court granted defendant’s motion

for a Franks hearing on his motions to suppress evidence; granted in part his motion for

return of property; directed the government to file a further response to defendant’s motion

for disclosure of informants; and denied several other motions. (R. 86: Order re: motions).

On January 19, 2010, in response to the order granting the Franks hearing, the

government moved to dismiss Count Three of the indictment. (R. 110: Petition for Dismissal

of Count Three). Defendant objected to the dismissal. On February 23, 2010, the Court
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resolved this, and several other pending motions. The Court granted the motion to dismiss

Count Three; denied several pending defense motions; and ordered further proceedings on

other pending motions. (R. 109: Order Resolving Various Pretrial Motions). This order also

expressly determined that the entire time period between January 7, 2009, and February 23,

2010, be excluded from the calculations under the Speedy Trial Act, pursuant to Section

3161(h)(1)(D) and (H), as delay resulting from defendant’s motion to suppress (R. 17) and

subsequent defense pretrial motions (R. 18, 19, 20, 21, 22, 24, 25, 27, 33, 34, 39, 49, 51, 52,

56, 58, 67, 73, 79, 91, 92, and 101). (Id., at 7-8). That order was later corrected by deleting

reference to R. 33 as resolved, since that motion was still pending in part. (R. 115: Order

Correcting Scrivener’s Error).

Thereafter, defendant filed an interlocutory appeal and moved for a stay of proceedings

in this Court pending resolution of the appeal. (R. 118: Notice of Appeal; R. 121: Motion

to Stay Proceedings). On March 15, 2010, the Court conducted a hearing on four pending

defense motions. On March 16, 2010, the Court ordered that his motions for return of

property; disclosure of informants; discovery; and discovery of personnel records be denied.

(R. 122: Order re: Motions). The Order also expressly ordered that the time from March 23,

2009, until March 16, 2010, be excluded from Speedy Trial Act calculations pursuant to

Section 3161(h)(1)(D) and (H) as a period of delay resulting from pretrial motions,

specifically, R. 33, R.83, R. 84, and R. 97. (Id., at 10).

On March 22, 2010, the Court conducted a pretrial conference, and then scheduled trial

for April 6, 2010. (R. 125: Order Pursuant to Pretrial Conference). On April 5, 2010,

defendant, pro se, filed a motion for dismissal of counts one and two based on alleged

violations of the Speedy Trial Act and the Sixth Amendment. (R. 132: Motion for

Dismissal). Trial began the following day. . . .

Gov’t Br. 2-8. Based on the above, the government asserts that Defendant is almost exclusively to

blame for the delay in his trial.

The government also challenges Defendant’s contention that he exercised his speedy trial

rights simply by requesting bond. In Maples, cited by Defendant, the defendant’s motion for bond

referred to Michigan’s 180 day speedy trial rule. 427 F.3d at 1029. Here, Defendant’s motion for

bond did not refer to the Speedy Trial Act. The government acknowledges that Defendant later

asserted his right, see [Dkt. # 35], but contends that Defendant wavered in his assertion. For

example, Defendant subsequently requested additional time to review discovery with his attorney.

Indeed, Defendant even requested a stay of proceedings to allow the Sixth Circuit to review his
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interlocutory appeal. Thus, the government suggests that Defendant’s own conduct undermines his

assertion of his right to a speedy trial.

Finally, the government argues that Defendant has not established “substantial prejudice,”

United States v. Schreane, 331 F.3d 548, 557 (6th Cir. 2003), through the vague assertion that his

pretrial incarceration “severely limited his ability to effectively prepare his case.”

Taking into account all of the facts and arguments advanced by Defendant and responded

to by the government, Defendant has not established that his Sixth Amendment right to a speedy trial

was violated, nor has he established a violation of the Speedy Trial Act. Under the Speedy Trial

Act, Defendant was indicted within thirty days of being taken into federal custody. In addition, no

more than thirty-four days are countable towards the calculation of the seventy-day time limit, as

explained in the Court’s prior orders and upon further review.

The delay in the case was due primarily, if not exclusively, to the myriad pretrial motions

filed by Defendant and the need to clarify Defendant’s sometimes ambiguous conduct concerning

whether he wished to proceed pro se or through defense counsel. Moreover, any prejudice that

Defendant alleges he experienced with respect to his ability to pursue his defense due to his

incarceration and decision to proceed pro se was ameliorated by the fact that Defendant always had

highly competent and cooperative standby counsel to assist him in his defense. Defendant has not

identified any specific prejudice that could not have been addressed by this arrangement. Based on

a review of the parties’ filings and the entire court record, it is determined that Defendant’s speedy

trial rights have not been violated. Thus, Defendant’s motions will be denied.
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Accordingly, it is ORDERED that Defendant’s motion to preclude cross-examination of

Defendant as to prior convictions or bad acts [Dkt. # 133] and Defendant’s motion to stay

proceedings [Dkt. # 121] are DENIED AS MOOT.

It is further ORDERED that Defendant’s motions to dismiss counts 1 and 2 [Dkt. # 131,

132, 144] are DENIED.

s/Thomas L. Ludington 

THOMAS L. LUDINGTON

United States District Judge

Dated: July 21, 2010

PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served

upon each attorney or party of record herein by electronic means or first

class U.S. mail on July 21, 2010.

s/Tracy A. Jacobs 

TRACY A. JACOBS