Petition for Writ of Certiorari — Mark Eldon Wilson, Petitioner v. United States

In the

Supreme Court of the United States

MARK ELDON WILSON, Petitioner

V.

UNITED STATES OF AMERICA, Respondent

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

Petition for Writ of Certiorari

CUAUHTEMOC ORTEGA

Federal Public Defender

JOSHUA D. WEISS"

Deputy Federal Public Defender

321 East 2nd Street

Los Angeles, California 90012-4202

Telephone: (2138) 894-3287

Facsimile: (213) 894-0081

Email: Josh_Weiss@fd.org

Attorneys for Petitioner

* Counsel of Record

Questions Presented

Whether a criminal complaint, at least when paired

with an arrest warrant, triggers a defendant’s Sixth

Amendment speedy trial rights, which attach once “the

putative defendant in some way becomes an ‘accused.”

United States v. Marion, 404 U.S. 307, 313 (1971)

(quoting U.S. Const. amend. VI).

Whether, after the Government rests its case and a

defendant raises a meritorious motion for a judgment of

acquittal under Federal Rule of Criminal Procedure

Rule 29, a district court has the discretion to reopen the

evidence to permit the Government to correct a

deficiency in its proof.

Statement of Related Proceedings

e United States v. Mark Eldon Wilson,

Case No. 2:04-cr-0476-SJO-TJH (C.D. Cal.)

e United States v. Mark Wilson,

Case No. 18-50338 (9th Cir.)

ul

Table of Contents

Page(s)

Opinions Below ... ssssasseccssncrsvuccsvsvecsnuaevvessisscenannesaen snisnmcvesiaesssssemseneecexasaneaewes 1

JULISCICLION......... cenpennrneanserneanneenennasenenssemannnsnmnennns maT sa ranbiiecs tiies Laan SAGA DAMAGES RETROR 2

Constitutional and Statutory Provisions Involved .........ccccccccccceeeeeeeeeeeeeeeeeeeeeees Z

Introduction. .......creersnrnanenensenpenemenansanan panes tonng tens saeeetin titan sate peNdenipsiAa sIDETSACSE AERA DIOSE 3

Statement of the Case ... sssicsvssswvesuanavennsunesecmisaassvennmasensasasmuceneaemmmanmenamccenes 5

Reasons for Granting the Wri1t.............cccccccccccccseeeeccceeeeecececueeseaeaueeeeeuaneeeseeeaeeers 8

A. This Court should decide whether a criminal complaint, at least when

paired with an arrest warrant, triggers the speedy trial protections of

the Sixth Amendme nt.........cccccccccccccssececcasseeccceeeeeseececaeeeeeseeaeeeeceeaaeseeeeauanens 8

1. There is an entrenched inter- and intra-circuit split on the

QUESTION PLESeENted............ccccccseeeeecceeeeeeceeueeeeeesneneeeeceeeneceeseeeeeeeeaeeeeeees 8

2. The question presented is of exceptional importance...............cee 11

3. Mr. Wilson’s petition presents a good vehicle for the question

presented because the Ninth Circuit’s application of the Sixth

Amendment right conflicts with this Court’s precedents................. 15

B. Alternatively, the Court should grant the writ to correct consistent

but erroneous caselaw that contravenes the plain terms of Rule 29.... 28

1. The circuit courts’ consistent rulings subvert the plain terms of

Rule 29 o.occceccecccccccececccceeeeeeceeeeceeecaeeeeeeeeeeeceeeeueeeeeessaeeeeessaeeeeeeaeeeesenaes 23

2. The problem will persist without this Court’s intervention ............ 28

3. This case presents a good vehicle to correct the lowers courts’

MUSIMEST OMe TATONNOL AUICLZAD "ccnsescnansssemnssonasscncncoresirancriesuasesitecantcrsacesnsaa men 29

Conc] usion gecorapaaiacioacaadannaeedanaheneaise using ue Weuiee Ren TE STCCSCSS SNES SST ESATA RET SANE Za Se DaNN A SOE SHAS 30

11

Index to Appendix

Memorandum Disposition

Filed February 9, 2021

Nin. Cir. 18-50333, Docket No. 65 scssescsssccsocarersocencwcoreseacenes

Order Denying Petition for Rehearing En Banc

Filed February 9, 2021

Nin. Cir. 18-503833, Docket No. 69 .0.........ccceecseceeeeeeeeeeneeeeteeeers

Order Denying Motion to Compel Discovery

Filed December 4, 2017

C.D. Cal. 04-cr-476-SJO, Docket No. 118 .....ecccceecceeeeeeeeeeeeees

Order Denying Motion to Dismiss Indictment

for Speedy Trial Violations

Filed March 18, 2018

C.D. Cal. 04-cr-476-SJO, Docket No. 139 0... eeeeeeeeeeeees

Transcript of Trial Proceedings: Rule 29 Motion

Filed August 13, 2018

C.D. Cal. 04-cr-476-SJO, Docket No. 191 ..........ccceeecceeeeeeeeeeees

1Vv

Table of Authorities

Page(s)

Cases

Arnold v. McCarthy,

566 F.2d 1377 (9th Cir. 1978)...............ssssseesssemaempeedanunep seve manny canes susvanusenses 10

Bank of Nova Scotia v. United States,

A87 U.S. 250 (1988) 0... cc ccccescssssessesesseeeesseeseeeeeeeeceeeeeeeeeeeeeteceececeeeeeeeeeneeseess 25

Barker v. Wingo,

A407 U.S. 514 (1972). cccsccvsxsucicersiavsessovssnvavosnuumusuaaniesmmueamassxaneasuennccemeasnees passim

Bostock v. Clayton Cty., Georgia,

140 S. Ct. 1731 (2020)........... messcsmesapnenssaxcuncvesssemnnucnsnvessassvssssueovvounsvusieearccs. 28

Brown v. United States,

189 S. Ct. 14 (2018) oie cccccccccseeeeseeeeeseeaeeeeseaeeeeeeeeeegeeeteeteeeterereneeees 11

Carlisle v. United States,

Del WS; 4G (DOG) .ccemcraasessascoastnaiss. stints eons ah EATEN EEN NORE 25

Dickey v. Fla.,

398 U.S. 30 (1970)... cessive swsuaxeasiessenswentaeusenssanectaarcsrnnconcureacensencereniae 3, 18

Doggett v. United States,

BOB: U.S. 647 (1992) ..-ernenonmnnnemrenrarneneenandbancsisssaseasiebiinaghsinecntneiniat 8, 13, 17, 18

Favors v. Eyman,

AGG F.2d 1325 (Oth Cir. 1972) .cccccccecsccsessecsessessesescseeseeseesessvevesvssseeresveseeseeees 10

In re Winship,

397 U.S. 358 (1970) .......0.. -nccussccenccsaievaveccieerussssissaneteaacesaumnmanaeannnsnananuenns 25

Jackson v. Virginia,

443 U.S. 307 (1979) .. nonecoovsssin sardine acces sudgsegusudeccnveipanc ests coeades ies iacasaccuaguecaueceaaexs 25

Klopfer v. State of N.C.,

B86 U.S. 2138 (1967)... cccccccccccccccsseeecceeeeeseeeceeeneceueeceeeeeeeueeesneeeeuereseaeeeeeaeeeesea 11

McNeely v. Blanas,

336 F.3d 822 (9th Cir. 2008)...cccccccscsscsecscssecsssseseesessvereesesressesesvesvesessveseeveeees 17

Northern v. United States,

455 F.2d 427 (Oth Cir. 1972)... ccccesccccccneesseeeeeeeeeeeceeeseaeeeeeeeeseeeeeaeeteeteetees 9

Rehaif v. United States,

VSO Ciel 29, (2011-9) bescconwreerseestaresssinasessespmsn tenes RSNA PANERA RSD RRR 28

Rhyne v. United States,

407 F.2d 657 (7th Cir. 1969)... cccccisssevanaswsaismevsaseeuenesaasseasassaiacenaianaeseasccranes 24

United States v. Agutrre,

994 F.2d 1454 (9th Cir. 1998)........cccccccccseeeseecececeeeeeseeteeeeneneeneeneeeeeeesereentnenes 21

United States v. Alexander,

Siu Boe, 1 B38) tla tie, ZO GC) stremrreceamrrereeeas che RcRERIERRSEN ANON R RENNESNSONEE 17

United States v. Arledge,

553 F.3d 881 (th Cir. 2008) swscieveevsannvasenwasnnomncnrnmnee 24

United States v. Black,

918 F.3d 243 (2d Cir. 2019) .......ccsserereneconeeonnanpesentsisesauessuns eonsnpauessbaspsccseaseness 17

United States v. Brown,

181 F.3d 104 (6th Cir. 1999)... cecesssseeesseseseseesesesseseeeeeeeececeeeeeeeeeeeeeeeeeeeees 24

United States v. Cano-Matus,

274 F. App’x 558 (Oth Cir. 2008) sssssissssscsciccsaveswessccncanowe weauaussmnanuivernnnenenies 28

United States v. Castro,

704 F. App’x 675 (th Cir. 2017) scssscncssesassemensenasnanenacismasemnaeass 28

United States v. Cruz,

554 F.3d 840 (Oth Cir. 2009)... cccccceccseeseeeaneeeeeeseeeeesseeeeeeeeseeeeeeeteeeesenees 27

United States v. Cuesta,

286 F. App’x 358) Qt Cir. 2008 )hessansasesemeansascentes:iasnicetentete steht ait SNR DRESOCIRSHER 28

United States v. Davis,

583 F.2d 190 Oth Cir. 1978). ccssasasnmaccessmammecmccuseaessaboumavewuennnes 24

United States v. Ewell,

383 U.S. 116 (1966)... ccecc cc cecececceseeecccscuseeccesseereceeeeseeeeccasnescenseeeeseeenees 11,12

vl

United States v. Gonzalez-Avina,

234 F. App’x 758 (th Cir. 2007) .c.ccccccsesseesecsessesecssesveseeseeseeecsesesesseesneneeesen 10

United States v. Gray,

AOS) Bsc 227 GiGhrCir, 2005 )%. .;-wamesmsssssenssnassssssssmessecaeeaacs sr einticiiineneserRRIOOCERIE 24

United States v. Gregory,

322 F.3d 1157 (Oth Cir. 2003) ...ccccccssssessecsessesscsvssvereesessseseeseassvessvesessesseeeevees 16

United States v. Henson,

945 F.2d 430 (1st Cir. 1991) wo.cccccccccccceccccccccceccceceeeeececeeeeeeeeeeenseaseeeeeneneeenaannenes 8

United States v. Loud Hawk,

ATA TT US) OZ (CGS) iracamesccnseacesecs sco eserstareceestseean sess ita ASANTE RESEARCH NBER 14

United States v. Lovasco,

431 U.S. 783 (1977)... .ccssswsinnussscaneuaypvivaseussieunancusnoanwas paapncaar ince eECnGC RENNES 13

United States v. MacDonald,

AGG US. 1 (19B2)........2.-2-n2-0e----cganseneenegmeerennennennemeennsiiisgsisvsih ie asiaanhapensnss 8,13

United States v. Manning,

56 F.3d 1188 (9th Cir. 1995)... ccceeeseeeeeceeeeeneeeeeeeeeeeeeeeqeaeseseeeeeeeeaeanees Pan

United States v. Marion,

404 U.S. 307 (197)... cavssssncscccacescausiminceccaeenumacucsnnussueaassnasneccsatnastes 3, 8,13

United States v. Mendoza,

530 F.3d 758 (9th Cir. 2008) sisessscesssnnmacessscconsmmnmacaceauiaeseenmuceasouass 13, 17, 20

United States v. Mojica-Baez,

229 F.3d 292 (Ast Cir. 2000) 2.0.0... cccccccccceeeeccceesseceeeseeeeceeeeuececeeaaeneeeeeneuenteees ys)

United States v. Molinares,

700 F.2d 647 (11th Cir. 1983)..cccccccccscsessccvssveseeseeseeseesesssereesesseseeseeseeseeseaseeees 24

United States v. Moran,

759 F.2d 777 (Oth Cir. 1985) gexscesascessmesseescancaravsvnnieaxeveniievensecaenssasusosssulnaentinn 13

United States v. Navarro Viayra,

365 F.3d 790 (9th Cir. 2004). 0.0.0... cceceeeececccecccesseesececececceeeeeeeeseeeeeeeegeneenneeees 27

vu

United States v. Parkes,

A497 F.3d 220 (2d Cir. 2007) ceenevernoreragengeseesnspensansansventep nad ieasgesbanesensteasiinn 23, 24

United States v. Richardson,

780 F.3d 812 (7th Cir. 2015)... ecceessessesstssneetesseesesseneeseesteeeeesererers 8, 9, 10

United States v. Rouse,

111 F.3d 561 (8th Cir. 1997)...ccccccscssecsesceseeseesecsesseeseesessessessessssessvesesseeseeseeses 24

United States v. Shell,

974 F.2d 1035 (9th Cir. 1992)....0................20200000. sagsenasecs Seneunende datas sopaamaneceys 17

United States v. Smurthwaite,

590 F.2d 889 (LOth Cir. 1979)..........ccscsseeseeseeeeeeeseeeeeeeeeeneeeeeeeeceeeeeeeeeeeseeeeeeees 24

United States v. Suarez-Rosario,

237 F.3d 1164 (Oth Cir. 2001). scccisssscsevosesossxesvavsvunsvaruvsaaveontnesnconsevaneusens 7, 24

United States v. Terrack,

515 F.2d 558 (9th Cir, 1975)..cccccccscssccoveceseesessesseeseesesseeseesesscsessessesneasenven 9, 10

United States v. Thomas,

55 F.3d 144 (4th Cir. 1995) ......... cc ccccccseeeessessseeeeeeeeeeeeeeeeeeeeneneeeteeneeeeeeeeereenenes 8

United States v. Tisor,

66) Table SHO (COeA ty ARS) Baers rT URS ONES RNS 24

United States v. Trant,

924 F.3d 83 (8d Cir. 2019) sscasscsssernanseodsvavscrnmernnneswacarmensnenccmmncremncascaues .. 23

United States v. Velazquez,

TAQ F.3d 161 (3d Cir. 2014) -..scecoscoeenecoeeeeresnererenenngruceueennsuaisouossnsaiens 17, 19, 20

United States v. Wiley,

B17 F.2d 1212 (D.C. Cir, 1975) .occcccccccccccccccccceccceeceeeeeeeceeeceeeeeaeaseuaeseeaeeaseennnes 26

United States v. Woolfolk,

399 F3d 590 (4th Circ. 2005) wisssssevssscmnccsccssccacieencecescsmmeaxvascusmuumesenunnmaatins 8

vill

Statutes and Rules

28 U.S.C. § 1254...........:++++-cammmnnnseensenunsommeannennneonsnnnenecennepandtsesess sunaasbacse vay inisiSnSRNs 2

Calla tn IPO, COnvGlUet, TY) sa-csmsaencssescuencnanensneneennnccopenascmmsnceeen sam eseneteysaenmeces 26

Fed. R. Crim. P. 3............00.sssssseessenvounseanssvesatsavasvassnumecamanennsnsonsnccevcenurnemanoneoenreane 9

Fed. R. Crim. P. 29............. assesescusssevamscesteessas as evsscatuvmupmasnammnueereccevessuss.. passim

Constitutional Provision

United States Constitution, Sixth Amendment................:c:ceeseesseneeseereeees passim

Other Authorities

1C. Wright & A. Miller, Federal Practice and Procedure § 41

(4th ed. 2014)................00.-gguaasamenppamaavendeonanvannnnvrsscmnnninanencuaseemenatsE.. 10

Black’s Law Dictionary (11th ed. 2019) .........cccceccenenneeeeereeneesseessnneneesenes 9, 23

Restatement (Third) of the Law Governing Lawyers § 16 (2000)................... 26

1X

In the

Supreme Court of the United States

MARK ELDON WILSON, Petitioner

Vv.

UNITED STATES OF AMERICA, Respondent

Petition for Writ of Certiorari

Mark Eldon Wilson petitions for a writ of certiorari to review the

judgment and opinion of the United States Court of Appeals for the Ninth

Circuit in his case.

Opinions Below

The opinion of the Court of Appeals is unreported and is included in the

Appendix at App. 1-5. The Court’s denial of rehearing and rehearing en

banc is included in the Appendix at App. 6. The relevant rulings of the

District Court are also unreported and are included in the Appendix at

App. 7-30.

Jurisdiction

The judgment of the Ninth Circuit Court of Appeals was entered on

February 9, 2021. App.1. The Court of Appeals denied a timely petition for

rehearing and rehearing en banc on April 19, 2021. App.6. This Court’s

miscellaneous orders dated March 19, 2020, and July 19, 2021, extended the

deadline for this petition for a writ of certiorari to 150 days from the Court of

Appeals’ order denying the petition for rehearing. The jurisdiction of this

Court is invoked under 28 U.S.C. § 1254(1).

Constitutional and Statutory Provisions Involved

U.S. Const., Amend. VI provides:

In all criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury of the State and

district wherein the crime shall have been committed, which

district shall have been previously ascertained by law, and to be

informed of the nature and cause of the accusation; to be

confronted with the witnesses against him; to have compulsory

process for obtaining witnesses in his favor, and to have the

Assistance of Counsel for his defence.

Federal Rule of Criminal Procedure 29(a) provides:

Before Submission to the Jury. After the government closes its

evidence or after the close of all the evidence, the court on the

defendant's motion must enter a judgment of acquittal of any

offense for which the evidence is insufficient to sustain a

conviction. The court may on its own consider whether the

evidence is insufficient to sustain a conviction. If the court denies

a motion for a judgment of acquittal at the close of the

government's evidence, the defendant may offer evidence without

having reserved the right to do so.

2

Introduction

The Government filed a criminal complaint and arrest warrant

accusing Mark Wilson of mail and wire fraud, and then it waited six-and-ahalf years to initiate Mr. Wilson’s prosecution. In denying Mr. Wilson’s

challenge this extraordinary delay, the Ninth Circuit acknowledged that

there is a circuit split, as well as a split of authority from within the Ninth

Circuit, about whether a criminal complaint triggers the protections of the

Sixth Amendment’s speedy trial rights, which attach once “the putative

defendant in some way becomes an ‘accused.” United States v. Marion, 404

U.S. 307, 313 (1971). This case presents this Court an opportunity to resolve

this circuit split and address this important question of law.

The Ninth Circuit rejected Mr. Wilson’s speedy trial claim by

concluding that regardless of whether his speedy trial rights triggered with

the complaint, his “claim still fails.” App. 2. Specifically, the Court

reasoned that Mr. Wilson’s claim that the Government violated his speedy

trial rights failed because he knew about the charges and did not

affirmatively pursue his own trial. But the Ninth Circuit’s analysis

contradicts this Court’s consistent admonition that a defendant has “no duty

to bring himself to trial,” Barker, 407 U.S. at 527, and that it is instead “the

duty of the charging authority [] to provide a prompt trial,” Dickey v. Fla.,

398 U.S. 30, 38 (1970). This case thus presents a good vehicle for the Court

to address whether a criminal complaint triggers Sixth Amendment speedy

trial rights while affirming that a defendant does not have a duty to bring on

his own trial.

Alternatively, this case also presents an opportunity for this Court to

correct the circuit courts’ consistent but erroneous interpretation of Federal

Rule of Criminal Procedure 29. The Rule provides that a district court

“must” enter an acquittal if the evidence is insufficient after the Government

“closes its evidence.” But in contravention of the plain terms of the Rule, the

circuit courts have all held that after the Government rests its case and a

defendant brings a meritorious Rule 29 motion, a district court can reopen

the evidence to allow the Government to fix a deficiency in its proof. The

circuit courts’ have all coalesced around this interpretation in a series of terse

decisions that do not consider the text of the Rule. This case presents an

ideal vehicle to correct this persistent error.

Statement of the Case

In June 2000, the Government filed a criminal complaint and arrest

warrant charging Mark Wilson with wire fraud. App. 2; ER 92-122.!

Although the Government admitted that it could have sought Mr. Wilson’s

extradition on the basis of the complaint, ER 171 n.3, 277 n.4, the

Government waited approximately six-and-a-half years to request Mr.

Wilson’s extradition from Canada. The Government indicted Mr. Wilson in

April 2004, nearly four years after it filed the complaint, and it finally sent

an extradition request to Canada in January 2007. ER 123, 298, 2179.

Once he was extradited to the U.S., Mr. Wilson argued that the delayed

prosecution violated his constitutional speedy trial rights. ER 240-57. The

District Court found that Mr. Wilson “had no control over when he would be

arrested, nor did he seek to avoid detection by Canada or the Government.”

App. 17. Additionally, Mr. Wilson “lived openly under his own name, and

stayed within the law’ after being indicted.” App. 17 (citation omitted). The

Court nonetheless denied the motion, concluding that the nearly four-years

between complaint and indictment were irrelevant to the Sixth-Amendment

analysis and that the remaining two-and-a-half years between indictment

1 Citations to “ER” refer to the Excerpts of Record filed in Mr. Wilson’s

appeal to the Ninth Circuit Court of Appeals, case number 18-50333.

5

and the extradition request did not violate the Sixth Amendment.

App. 9-10, 15-20.

Mr. Wilson proceeded to trial facing mail fraud and wire fraud charges.

ER 141-46. At the conclusion of trial, after both parties rested, the Defense

moved for a judgment of acquittal under Federal Rule of Criminal

Procedure 29 because “no one’s identified Wilson in the courtroom.”

App. 25-26. The District Court indicated that this lack of identification was

a problem for the Government’s case, meaning that the evidence was

insufficient at the time the Government rested. See App. 26-29. But

instead of entering a judgment of acquittal, the Court reopened the evidence,

over the Defense’s objection. App. 29-30. The Government then introduced

evidence of identification. ER 1547-49.

The jury returned guilty verdicts on all counts. App. 1; ER 2102-11.

On appeal, Mr. Wilson argued, among other things, that the Government’s

six-and-a-half-year delay violated his Sixth Amendment right to a speedy

trial, and that the District Court’s decision to reopen the evidence violated

the plain terms of Rule 29. App. 1-2, 5.

A panel of the Ninth Circuit Court of Appeals issued an unpublished

memorandum decision affirming the conviction. First, the Ninth Circuit

“recognize[d| that a split exists within our circuit over whether a complaint is

sufficient to trigger the protections of the speedy trial right.” App. 2. But

the Ninth Circuit concluded that “even assuming that Wilson’s right to a

speedy trial attached upon the filing of the complaint, his claim still fails.”

App. 2. The Ninth Circuit’s analysis hinged on the fact that Mr. Wilson

“knew of the charges against him potentially as early as 2001 but at the

latest by 2003.” App. 3. The Ninth Circuit reasoned that Mr. Wilson “could

have at that time ended the delay and avoided any prejudice caused by the

passage of time by voluntarily presenting himself to United States

authorities.” App. 3 (quotation marks and citation omitted). The Ninth

Circuit concluded that Mr. Wilson thereby “contributed” to the delay, and the

panel therefore refused to apply the presumption of prejudice that applies to

lengthy delays caused by the Government. App. 3.

As to Mr. Wilson’s Rule 29 motion, the Ninth Circuit concluded that

under United States v. Suarez-Rosario, 237 F.3d 1164, 1167 (9th Cir. 2001),

the District Court had discretion to “reopen|[] the evidence after the defense’s

Rule 29 motion.” App. 5.

Mr. Wilson then filed a petition for rehearing that the Ninth Circuit

denied without analysis. App. 6.

Reasons for Granting the Writ

A. This Court should decide whether a criminal complaint, at least

when paired with an arrest warrant, triggers the speedy trial

protections of the Sixth Amendment

1, There is an entrenched inter- and intra-circuit split on the

question presented

The Sixth Amendment provides that in “all criminal prosecutions, the

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

amend. VI. By its text, Sixth Amendment speedy trial rights attach once

“the putative defendant in some way becomes an ‘accused.” United States v.

Marion, 404 U.S. 307, 313 (1971). The right therefore attaches once “a

defendant is indicted, arrested, or otherwise officially accused.” United

States v. MacDonald, 456 U.S. 1, 6 (1982); see also Doggett v. United States,

505 U.S. 647, 655 (1992).

There is a circuit split about whether a criminal complaint, at least

when paired with an arrest warrant, is an official accusation that triggers the

Sixth Amendment speedy trial right. Specifically, the Fourth Circuit and

the First Circuit have held that a criminal complaint (along with an arrest

warrant) is “sufficient to implicate the speedy trial provision of the Sixth

Amendment.” United States v. Thomas, 55 F.3d 144, 149 (4th Cir. 1995); see

also United States v. Woolfolk, 399 F3d 590, 595 (4th Cire. 2005); United

States v. Henson, 945 F.2d 430, 437 (1st Cir. 1991). In contrast, in United

States v. Richardson, 780 F.3d 812 (7th Cir. 2015), the Seventh Circuit held

that a complaint and federal detainer (serving the function of a warrant for

an incarcerated defendant) do not trigger speedy trial rights since, prior to

arrest, the complaint “imposes no deprivation of liberty on the defendant.”

Id. at 814.

For its part, the Ninth Circuit has issued published decisions on both

sides of this split. In one line of cases, the Ninth Circuit has concluded that

the Sixth Amendment speedy trial right attaches when the complaint is filed

See United States v. Terrack, 515 F.2d 558, 559 (9th Cir. 1975); Northern v.

United States, 455 F.2d 427, 429 (9th Cir. 1972). In these decisions, the

Ninth Circuit reasoned that it is a basic tenet of federal criminal procedure

that a criminal complaint is an official accusation that initiates a criminal

proceeding. To that end, Court looked to foundational definitions of a

criminal complaint: Blacks’ Law Dictionary defines a criminal complaint as

a “formal charge accusing a person of an offense.” Complaint, Black’s Law

Dictionary (11th ed. 2019); see also Terrack, 515 F.2d at 559. Rule 3 of the

Federal Rules of Criminal Procedure similarly states, “the complaint is a

written statement of the essential facts constituting the offense charged.”

Fed. R. Crim. P. 3; see also Terrack, 515 F.2d at 559. Indeed, the sole

purpose of the complaint is to charge a defendant and initiate criminal

proceedings against him. See 1C. Wright & A. Miller, Federal Practice and

Procedure § 41 (4th ed. 2014) (‘A complaint is the typical way for a criminal

proceeding to be instituted in federal court.”). These considerations led the

Ninth Circuit to conclude that “[c]learly, once a suspect is ‘charged’ with an

offense, he is an ‘accused,’ within the meaning of United States v. Marion,”

and so the speedy trial right attaches when the complaint is filed. Terrack,

515 F.2d at 559.

In another line of cases, the Ninth Circuit also looked to this Court’s

decision in Marion but drew the opposite conclusion, holding that the period

following the filing of a complaint but “prior to arrest or formal indictment” is

not protected by the Sixth Amendment. Arnold v. McCarthy, 566 F.2d 1377,

1382 (9th Cir. 1978); see also Favors v. Eyman, 466 F.2d 1325, 1327-28 (9th

Cir. 1972) (same). This case is at least the second time the Ninth Circuit has

recognized this internal split of authority without resolving the issue.

See United States v. Gonzalez-Avina, 234 F. App’x 758, 759 (9th Cir. 2007)

(unpublished) (assuming without deciding that a complaint triggers speedy

trial rights).

There is thus a long-standing circuit split on the issue, and given that

the Seventh Circuit recently took the opposite position from majority of

circuits, see Richardson, 780 F.3d at 813-15, the split is unlikely to resolve

10

itself in the circuit courts. There is no reason to let the lower courts

continue to struggle over the question; this is a case that “presents an

important question of federal law that has divided the courts of appeal” and

merits this Court’s review. See Brown v. United States, 139 S. Ct. 14, 16

(2018) (Sotomayor, J., dissenting from denial of certiorari) (citing Sup. Ct.

Rule 10).

2. The question presented is of exceptional importance.

The Sixth Amendment speedy trial right “is an important safeguard to

prevent undue and oppressive incarceration prior to trial, to minimize

anxiety and concern accompanying public accusation and to limit the

possibilities that long delay will impair the ability of an accused to defend

himself.” United States v. Ewell, 383 U.S. 116, 120 (1966). Evenifa

defendant is not subject to pretrial detention of any form, his public

accusation “may subject him to public scorn and deprive him of employment,

and almost certainly will force curtailment of his speech, associations and

participation in unpopular causes.” Klopfer v. State of N.C., 386 U.S. 213,

222 (1967).

As demonstrated by the facts of this case, a complaint is an official

accusation that causes the same public scorn as an indictment or

information. Once the complaint was unsealed in June 2001, several media

11

outlets discussed the accusation against Mr. Wilson, and a Government

attorney even testified before the Senate about the allegations. See ER 276,

412, 466-70. But the Government did not indict Mr. Wilson until April 2004,

nearly four years after it filed the complaint, and it finally sent an extradition

request to Canada and thereby initiated the prosecution in January 2007.

ER 123, 298, 2179. The speedy trial right is meant to protect against

lingering accusations precisely to protect against these kinds of reputational,

economic, and liberty-related harms. See Ewell, 383 U.S. at 120.

If, as the Government argued below, a complaint does not trigger Sixth

Amendment speedy trial rights, then the Government can publicly charge a

defendant—thereby sullying his reputation and economic prospects—and

then wait years to actually prosecute the case and thereby give the defendant

the opportunity to clear hisname. Indeed, the Government here filed a

complaint and arrest warrant and then intentionally waited approximately

four years—until the eve of the statute of limitations—to indict Mr. Wilson.

See ER 170 (Government brief acknowledging that it waited until the statute

of limitations was “approaching” to indict Mr. Wilson).

While a defendant can challenge a preindictment delay under the Due

Process Clause, a defendant bringing such a claim carries a “heavy burden” of

12

showing actual prejudice that is “definite and not speculative.” United States

v. Moran, 759 F.2d 777, 782 (9th Cir. 1985); see also United States v. Lovasco,

431 U.S. 783, 790 (1977). The Due Process Clause—with its actual prejudice

requirement—provides an insufficient remedy for post-accusation delays

since, as this Court has recognized, “excessive delay presumptively

compromises the reliability of a trial in ways that neither party can prove or,

for that matter, identify.” Doggett v. United States, 505 U.S. 647, 655 (1992).

Because of this issue, an excessive delay “skews the fairness of the entire

system.” Id. at 564 (citation omitted). Consequently, in assessing a delay

between accusation and trial under the Sixth Amendment, “no showing of

prejudice is required when the delay is great and attributable to the

government.” United States v. Mendoza, 530 F.3d 758, 764 (9th Cir. 2008)

(citation omitted). “Instead, we presume prejudice.” Jd.; see also Doggett,

505 U.S. at 647.

Recognizing the importance of the Sixth Amendment speedy trial right,

this Court has issued multiple decisions specifying when, exactly, the right

attaches. See Marion, 404 U.S. at 313 (speedy trial right attaches when “the

putative defendant in some way becomes an ‘accused.”); Lovasco, 431 U.S. at

788-95 (speedy trial clause does not require the Government to rush its

investigation if no accusatory document is pending); United States v.

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MacDonald, 456 U.S. 1, 6 (1982) (period between the dismissal of charges in

military court and indictment in civilian court does not factor into the speedy

trial analysis since no accusatory document was pending); United States v.

Loud Hawk, 474 U.S. 302, 310-11 (1986) (any delay between dismissal of one

indictment and filing a new indictment did not trigger speedy trial rights

because defendant was not subject to any accusation or liberty restraints).

But the Court has never addressed whether a criminal complaint is an

official accusation that triggers Sixth Amendment speedy trial rights. The

Court should resolve the issue here, as it is of fundamental importance.

14

Ds Mr. Wilson’s petition presents a good vehicle for the question

presented because the Ninth Circuit’s application of the Sixth

Amendment right conflicts with this Court’s precedents

The Ninth Circuit concluded that even if Mr. Wilson’s speedy trial

rights triggered with the complaint, his “claim still fails.” App. 2. But the

Ninth Circuit’s application of the Sixth Amendment right conflicts with this

Court’s precedents and therefore presents an opportunity for this Court to

reaffirm and clarify them.

The Ninth Circuit reasoned that even if the criminal complaint

triggered Mr. Wilson’s speedy trial rights, his “claim still fails” because he

was aware of the charges against him and could have pursued his own trial.

App. 2-3. This analysis conflicts with this Court’s precedents which have

repeatedly emphasized that it is the Government—as the charging authority

and plaintiff in the case—that has the duty to bring a speedy trial. The

defendant has “no duty to bring himself to trial.” Barker v. Wingo, 407 U.S.

514, 527 (1972). Tobe sure, a defendant’s conduct can undermine a speedy

trial claim where he evades prosecution or otherwise actively causes the

delays about which he later complains. But this Court should reaffirm that

where, as here, the defendant lives openly and does not evade arrest or

prosecution, it is the Government’s duty, and not the defendant’s, to bring a

speedy trial.

15

ik To assess whether a defendant’s speedy trial right has been

violated, the Court balances four factors: “Length of delay, the reason for the

delay, the defendant’s assertion of his right, and prejudice to the defendant.”

Barker, 407 U.S. at 5380. Assuming that the complaint triggered Mr.

Wilson’s speedy trial rights, the Barker factors compel the conclusion that the

Government violated Mr. Wilson’s speedy trial rights.

First, as the Ninth Circuit decision recognizes, approximately six-anda-half years elapsed from the filing of the complaint until the Government

finally requested Mr. Wilson’s extradition from Canada and thereby initiated

the prosecution. App. 2. This Court has called even a five-year delay

“extraordinary,” which weighs in favor of dismissal. Barker, 407 U.S. at 533.

Second, even by the Government’s account of the facts, the Government

intentionally caused the vast majority of the delay in order to gather

additional evidence and add charges to the indictment. (See ER 171 n.8,

277 n.4.) The second Barker factor—the reason for the delay—must

therefore weigh against the Government. See Barker, 407 U.S. at 533-34;

United States v. Gregory, 322 F.3d 1157, 1160-62 (9th Cir. 2003). This is

especially so since, as the District Court found, Mr. Wilson “had no control

over when he would be arrested, nor did he seek to avoid detection by Canada

or the Government.” App. 17.

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Third, under United States v. Alexander, 817 F.3d 1183 (9th Cir. 2016),

the assertion-of-the-right factor “favors neither party” where, as here: (1) the

delay at issue regards the Government’s delay in seeking extradition;

(2) following that delay, the defendant lawfully defended himself in his home

country by contesting extradition; and (3) the defendant timely asserted his

speedy trial rights once he was extradited to the United States. Jd. at 1183.

Finally, such a lengthy delay that is attributable to the Government

creates a “strong” presumption of prejudice requiring dismissal unless the

Government can “persuasively rebut[]” the presumption. Doggett v. United

States, 505 U.S. 647, 658 (1992); United States v. Shell, 974 F.2d 1035, 1036

(9th Cir. 1992). This presumption of prejudice is so strong that the Third

Circuit has characterized it as “potentially insurmountable.” United States

v. Velazquez, 749 F.3d 161, 185 (8d Cir. 2014). This Court and circuit courts

consistently dismiss cases based on similar, and even shorter, delays without

requiring any showing of prejudice from the defendant. See McNeely v.

Blanas, 336 F.3d 822, 831 (9th Cir. 2003) (dismissing case based on 29-month

delay); Shell, 974 F.2d at 1036 (five-year delay); United States v. Black, 918

F.3d 248, 248-49 (2d Cir. 2019) (68-month delay); Velazquez, 749 F.3d at 185

(six-years and eight-months of delay); Mendoza, 530 F.3d at 765 (eight-year

ling]

delay); Doggett, 505 U.S. at 657 (eight-and-a-half-year delay). This caselaw

compels the same result here.

ll. The Ninth Circuit concluded that the delay did not violate the

Sixth Amendment since Mr. Wilson “knew of the charges against him .. . at

the latest by 2003.” App. 3. The Ninth Circuit reasoned that Mr. Wilson

“could have at that time ended the delay and avoided any prejudice caused by

the passage of time by voluntarily presenting himself to United States

authorities.” App. 3 (quotation marks and citation omitted). The Ninth

Circuit concluded that Mr. Wilson thereby “contributed” to the delay, and it

consequently refused to apply the presumption of prejudice. App. 3.

The Ninth Circuit’s analysis contradicts this Court’s consistent

admonition that a defendant has no “no duty to bring himself to trial,”

Barker, 407 U.S. at 527, and that it is instead “the duty of the charging

authority [] to provide a prompt trial,” Dickey v. Fla., 398 U.S. 30, 38 (1970).

By placing the burden on Mr. Wilson to initiate his own prosecution, the

Ninth Circuit undermined this fundamental principle that it is the plaintiff—

the Government—who has the duty to prosecute its case or suffer dismissal.

To be sure, the Ninth Circuit decision points to cases where defendants

undermined their speedy trial claims by evading prosecution, misleading the

authorities, or otherwise actively causing the delays. But, as addressed

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below, the Court has never placed the burden on a defendant to actively seek

his own prosecution so long as he does not actively undermine it. Here, as

the District Court found, Mr. Wilson “had no control over when he would be

arrested, nor did he seek to avoid detection by Canada or the Government.”

App. 17. Additionally, Mr. Wilson “lived openly under his own name, and

stayed within the law’ after being indicted.” App. 17 (citation omitted). The

Government decided to delay his prosecution for six-and-a-half years, and yet

the Ninth Circuit decision faults Mr. Wilson for failing to bring himself to

trial, in direct contravention of this Court’s guidance from Barker and Dickey.

The Ninth Circuit decision also conflicts with the Third Circuit’s

decision in Velazquez and the Ninth Circuit’s decision in Mendoza. In

Velazquez, defendant-Velazquez learned of the complaint and arrest warrant

in 2005. Velazquez, 749 F.3d at 170. The authorities did not know his

whereabouts. Jd. Velazquez did not bring himself to the authorities and

remained “transient” until his arrest in 2011. Jd. at 173. The Court

nonetheless reversed the district court’s finding that Velazquez bore

responsibility for the delay and ordered the indictment dismissed. Id. at

178-79 & 186. The Court held that “Velazquez had no duty to bring on his

own trial,” and his knowledge of the arrest warrant “does not diminish any

governmental negligence in failing to pursue him.” Id. at 179. “Absent

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evidence of evasive conduct, Velazquez’s knowledge does not aid the

government’s argument.” Id.

The Ninth Circuit articulated the same rule in Mendoza:

If a defendant attempts to avoid detection, the government is not

required to make heroic efforts to apprehend a defendant who is

purposefully avoiding apprehension. However, if the defendant is

not attempting to avoid detection and the government makes no

serious effort to find him, the government is considered negligent

in its pursuit.

Mendoza, 530 F.3d at 763 (quotation marks and citations omitted). In

Mendoza, the defendant learned the FBI was investigating him while he was

abroad, and he contacted the FBI, informing them that he would return to

the country within a few months. Id. at 761-62. He refused, however, to

share his whereabouts or contact information. Jd. Despite his earlier

promise to return to the country within months, the defendant did not return

to the country for eight years. Jd. The Ninth Circuit reversed the

conviction, concluding that since the defendant did not actively evade arrest,

it was the Government’s burden to pursue him. Jd. The Government was

negligent in its pursuit, which caused the delay, and so the presumption of

prejudice attached. Id.

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