Petition for Writ of Certiorari — Bakhtiyor Jumaev, Petitioner v. United States

No. 22In The

Supreme Court of the United States

____________________

BAKHTIYOR JUMAEV,

Petitioner,

v.

UNITED STATES OF AMERICA,

____________________

Respondent.

On Petition for a Writ of Certiorari to the United States Court of Appeals

for the Tenth Circuit

____________________

PETITION FOR A WRIT OF CERTIORARI

____________________

CALEB KRUCKENBERG

Counsel of Record

3100 Clarendon Blvd

Suite 610

Arlington, VA 22201

Telephone: 202.888.6881

CKruckenberg@pacificlegal.org

Counsel for Petitioner

i

QUESTIONS PRESENTED

I. Whether the judge-made and ahistorical balancing test for assessing a

deprivation of the Sixth Amendment’s right to a speedy trial set out in Barker v.

Wingo, 407 U.S. 514 (1972) should be overruled.

II. May a court penalize a defendant for asserting his constitutional right to

exculpatory evidence by weighing resultant delays against him in determining

whether his right to a speedy trial was violated?

III. Must a defendant undergo exceptional and disfavored efforts to properly

invoke his right to a speedy trial, such as by filing pro se motions, despite his

representation by counsel?

ii

RELATED PROCEEDINGS

This petition arises from the decision of the United States Court of Appeals for

the Tenth Circuit in United States v. Jumaev, No. 18-1296. The Tenth Circuit’s panel

decision was filed on December 8, 2021, and is reported at 20 F.4th 518.

The petition is related to the proceedings in the United States District Court

for the District of Colorado, United States v. Jumaev and Muhtorov, No. 1:12-cr00033-JLK-2, and the Tenth Circuit proceedings related to a co-defendant in United

States v. Muhtorov, Tenth Circuit No. 18-1366, reported at 20 F.4th 558.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................................................................... i

RELATED PROCEEDINGS.......................................................................................... ii

TABLE OF AUTHORITIES .......................................................................................... v

PETITION FOR A WRIT OF CERTIORARI ................................................................ 1

OPINION BELOW......................................................................................................... 1

JURISDICTIONAL STATEMENT ............................................................................... 1

RELEVANT CONSTITUTIONAL PROVISIONS ........................................................ 1

INTRODUCTION .......................................................................................................... 2

STATEMENT OF THE CASE....................................................................................... 5

REASONS FOR GRANTING THE WRIT .................................................................... 8

I. The Balancing Test in Barker v. Wingo, 407 U.S. 514 (1972) Conflicts with the

Original Public Understanding of the Right to a Speedy Trial ................................... 9

A. The Barker Court’s Reasoning Was Not Based on History ................................ 9

B. The Sixth Amendment Rejects a Balancing Test ............................................. 10

1. The Bill of Rights Must Be Read Consistently With the Public

Understanding of the Rights When It Was Adopted ....................................... 10

2. The Speedy Trial Clause Must Be Read Based on Historical

Understanding .................................................................................................. 12

3. The Original Public Meaning of the Speedy Trial Clause Does Not

Excuse Extreme Delays Based on Policy Preferences Nor Does It Require

Repeated Invocation By a Defendant ............................................................... 14

C. The Court of Appeals’ Analysis Ignores the Historical Understanding of

the Speedy Trial Clause ......................................................................................... 19

D. Review Is Necessary to Restore the Right to a Speedy Trial........................... 20

iv

II. The Tenth Circuit Improperly Penalized Mr. Jumaev for Asserting his

Constitutional Right to Exculpatory Evidence by Weighing Resultant Delays

Against Him ................................................................................................................. 22

III. A Defendant Need Not Undergo Exceptional and Disfavored Efforts to Properly

Invoke His Right to a Speedy Trial, Such as by Filing Pro Se Motions Despite His

Representation by Counsel .......................................................................................... 26

CONCLUSION............................................................................................................. 29

APPENDIX

Opinion in the United States Court of Appeals for the Tenth Circuit

(December 8, 2021) .......................................................................................... App. 1

Memorandum Opinion and Order on Sentencing in the United States District

Court for the District of Colorado

(July 18, 2018) ............................................................................................... App. 66

Judgment in a Criminal Case in the United States District Court for the District

of Colorado

(July 19, 2018) ............................................................................................. App. 122

Order Denying Petition for Rehearing en banc in the United States Court of

Appeals for the Tenth Circuit

(March 24, 2022) .......................................................................................... App. 129

v

TABLE OF AUTHORITIES

Page(s)

Cases

Barker v. Wingo,

407 U.S. 514 (1972) .......................................................................................... passim

Brady v. Maryland,

373 U.S. 83 (1963) ............................................................................................ passim

Commonwealth v. Adcock,

49 Va. 661 (Va. Gen. Ct. 1851)................................................................................. 18

Crawford v. Washington,

541 U.S. 36 (2004) .............................................................................................. 11, 12

Kloper v. North Carolina,

386 U.S. 213 (1967) ........................................................................................ 9, 14, 15

McKaskle v. Wiggins,

465 U.S. 168 (1984) .................................................................................................. 28

New York State Rifle & Pistol Ass'n, Inc. v. Bruen,

142 S. Ct. 2111 (2022) ...................................................................... 11, 12, 13, 19, 20

Petition of Provoo,

17 F.R.D. 183 (D. Md. 1955) .............................................................................. 17, 18

Simmons v. United States,

390 U.S. 377 (1968) .............................................................................................. 3, 25

State v. Sims,

1 Tenn. 253 (Tenn. Super. L. & Eq. 1807)......................................................... 18, 20

United States v. Agurs,

427 U.S. 97 (1976) .................................................................................................... 23

United States v. Batie,

433 F.3d 1287 (10th Cir. 2006) ................................................................................ 27

United States v. Fox,

3 Mont. 512 (Mont. Terr. Ct. 1880).......................................................................... 13

vi

United States v. Jumaev,

20 F.4th 518 (10th Cir. 2021)........................................................................... passim

United States v. Kosmel,

272 F.3d 501 (7th Cir. 2001) .................................................................................... 28

United States v. Muhtorov,

20 F.4th 558 (10th Cir. 2021)........................................................................... passim

United States v. Olsen,

21 F.4th 1036 (9th Cir. 2022)............................................................................. 16, 17

United States v. Provoo,

350 U.S. 857 (1955) ............................................................................................ 17, 18

Constitution and Statutes

U.S. Const. amend. IV ................................................................................................. 13

U.S. Const. amend. VI ......................................................................................... passim

28 U.S.C. § 1254(1) ........................................................................................................ 1

Habeas Corpus Act of 1679 ............................................................................. 16, 17, 20

Rules

Fed. R. Crim. P. 16(a)(1)(A) ......................................................................................... 23

Fed. R. Crim. P. 16(a)(1)(B) ......................................................................................... 23

Other Authorities

Darren Allen, The Constitutional Floor Doctrine and the Right to A Speedy

Trial, 26 Campbell L. Rev. 101 (2004) .................................................................... 21

Judith Avrutick, Commissions of Oyer and Terminer in Fifteenth Century

England, (1967) ........................................................................................................ 17

William Blackstone, 1 Commentaries on the Laws of England (1765) ...................... 18

Peter Eisler, Linda So, Jason Szep, Grant Smith and Ned Parker, Reuters, Why

4,998 Died in U.S. Jails Without Getting Their Day in Court (Feb. 16, 2020)

https://www.reuters.com/investigates/special-report/usa-jails-deaths/ ................. 22

vii

Robert Lewis, Waiting for Justice (Mar. 31, 2021),

https://calmatters.org/justice/2021/03/waiting-for-justice/ ..................................... 21

Seth Osnowitz, Demanding A Speedy Trial: Re-Evaluating the Assertion Factor

in the Barker v. Wingo Test, 67 Case W. Res. L. Rev. 273 (2016) .......................... 21

Alan L. Schneider, The Right to A Speedy Trial, 20 Stan. L. Rev. 476 (1968) .......... 16

The Second Part of the Institutes of the Laws of England (1642) .............................. 15

H. Richard Uviller, Barker v. Wingo: Speedy Trial Gets A Fast Shuffle, 72

Colum. L. Rev. 1376 (1972) ...................................................................................... 21

1

PETITION FOR A WRIT OF CERTIORARI

Petitioner Bakhtiyor Jumaev respectfully petitions for a writ of certiorari to

review the judgment of the United States Court of Appeals for the Tenth Circuit.

OPINION BELOW

The split panel decision of the court of appeals is reported at 20 F.4th 518 and

is reprinted in the Appendix to the Petition (Pet. App.) at App.1. The relevant

proceedings in the district court are unpublished.

JURISDICTIONAL STATEMENT

The panel decision was issued on December 8, 2022. On March 25, 2022, the

court of appeals denied en banc review. On June 16, 2022, Justice Gorsuch extended

the deadline to file this petition until July 22, 2022. This Court has jurisdiction under

28 U.S.C. § 1254(1).

RELEVANT CONSTITUTIONAL PROVISIONS

The Sixth Amendment to the U.S. Constitution 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.

2

INTRODUCTION

Bakhtiyor Jumaev was imprisoned for six years and one day while he waited

for his trial to begin. But his trial could not start until the government turned over

exculpatory evidence that had been in its possession since before his arrest. All the

while he was presumed to be innocent.

Even while recognizing that “six years is an exceptionally long time to await

trial,” and that the delay caused specific prejudice to his defense, a divided panel of

the Tenth Circuit sustained Mr. Jumaev’s conviction. The majority applied the

balancing test set out in Barker v. Wingo, 407 U.S. 514 (1972), before deciding that,

despite the extraordinary delay, and the clear harm to Mr. Jumaev, the equities

nevertheless justified Mr. Jumaev’s treatment.

This Court should reconsider this ahistorical, judge-made test, which cannot

be squared with the Sixth Amendment’s guarantee of a speedy trial. The Framers,

after all, were familiar with how government had trampled on liberty by excessive

delays in proceeding to trial. Recognizing the need for protection for such abuse, the

founding generation understood the Speedy Trial Clause to reinforce strict limits on

pretrial incarceration. Application of this constitutional right did not turn on why the

government failed to timely bring cases to trial. Nor did the Amendment require

defendants to continuously object to mistreatment. The question was instead simple:

Die the government provide a speedy public trial?

Barker’s balancing test uproots this straightforward historical test. It requires

courts to weigh policy factors that are not relevant to the Constitutional speedy-trial

3

protections. And it allows courts to infuse their own views of the relative social values

of enforcing the constitutional limits. This ahistorical test should be reformed, and

this Court should apply the original public understanding of the constitutional text.

The decision below show how far afield the Barker test sits from the Sixth

Amendment’s text. Even though the six-year delay caused specific and demonstrable

prejudice to Mr. Jumaev, the Barker test still allowed the court to avoid finding a

constitutional violation, mostly because Mr. Jumaev actively litigated his case and

merely moved to dismiss his case on speedy trial grounds twice. At common law such

reasoning would be unthinkable, because a right so malleable would rightly be seen

as no right at all.

Even if this Court hews to the Barker analysis, review is warranted because

the Court of Appeals created two new limits on the right to a speedy trial that

threaten the Sixth Amendment’s core constitutional protections. The court of appeals

excused the delay largely because of the government’s claim that the delay was

caused by Mr. Jumaev’s efforts to acquire discovery. In other words, it was Mr.

Jumaev’s fault for trying so hard to see the evidence against him. This conclusion

creates a new rule that offends core precepts of fairness, rewards the government’s

misconduct and conflicts with the rule that a defendant may not be required to forfeit

one constitutional right to preserve another. See Simmons v. United States, 390 U.S.

377, 394 (1968).

The court of appeals also faulted Mr. Jumaev for failing to invoke pro forma

speedy trial objections, and even for not raising them pro se despite his representation

4

by counsel. This analysis mocks the Sixth Amendment’s protections, incentivizes

hybrid representation, and undermines the attorney-client relationship.

The Court should grant certiorari and reverse.

5

STATEMENT OF THE CASE

On March 15, 2012, Mr. Jumaev was arrested on a criminal complaint charging

him, along with Jamshid Muhtorov, with one count of providing material support to

a foreign terrorist organization, and one count of conspiring to do so. Vol. I, 269-70;

Vol. XV, 151. 1 He has not been at liberty since. 2

Mr. Jumaev moved for production of discovery on September 5, 2012, because

he lacked, among other things, his complete recorded statements. Vol. I, p. 465, 46769. The government did not produce this information for more than four years.

On “September 1, 2016,” “[m]ore than four years after the defense requested

their respective client’s statements[,] the government produced a hard drive

containing approximately 39,000 files of recorded statements” from 2011 and 2012.

Vol. V, 438. As the government later acknowledged, these statements included

“information that we identified as Brady.” Vol. XIII, 426. 3

An original March 13, 2017, trial date was set based on the government’s 2016

production. Vol. XI, 367.

But Mr. Jumaev didn’t proceed to trial in 2017. Instead, trial was delayed an

additional year—until March 2018—because the government improperly withheld

additional Brady material from the defense.

1 Citations to the Tenth Circuit’s Record on Appeal set forth volume and page numbers.

2 Since his release from federal detention Mr. Jumaev has been held in the custody of the Department

of Homeland Security, where he remains, pending final adjudication of a separate appeal of an order

of removability.

3 In this petition “Brady material” refers to exculpatory information that the government is

constitutionally required to disclose to the defense under Brady v. Maryland, 373 U.S. 83 (1963) and

its progeny.

6

For instance, shortly before trial the defense learned that one of the

government’s primary translators had misrepresented his qualifications. Vol. VII, 37;

Vol. XI, 867. This led the defense to discover translation errors that directly

undermined the government’s case. One error infected the government’s 2016

superseding indictment, which included new allegations that Mr. Jumaev had sent

his son to a madrassa in Turkey to further acts of terrorism. Vol. III, 262-63. At a

pretrial hearing shortly after the new indictment was filed, a special agent relied on

a translation of a phone call to testify, falsely, that Mr. Jumaev told his son, “Be

patient. There’s one bullet from that conflict still left. I think. All right my child?” Vol.

XI, 448. But the actual recording included no such statement. Vol. XVIII, 53.

Mr. Jumaev then moved for dismissal on speedy trial grounds, in part because

counsel could not go forward to trial as scheduled based on the new revelations. Vol.

VII, 48. The district court denied the motion but granted a continuance and sanctions

against the government. Vol. XVIII, 83.

The government, however, had engaged in even more Brady violations—a fact

that was discovered only much later. For instance, materials concerning the

government translator’s lack of qualifications and his eventual termination by the

FBI after failing a polygraph examination were not disclosed until well into 2018.

Vol. VII, 347. Further, it was not until late 2017 that the government disclosed—

contrary to its earlier false implications—it had granted immigration benefits to a

cooperating witness. Vol. VII, 405. As the trial court concluded, the government had

7

been “not forthright” with the court its representation “bordered on deceitful.” Vol.

VII, 403.

On February 16, 2018—five years and 11 months after his arrest—Mr. Jumaev

moved once again to dismiss the indictment for want of a speedy trial. Vol. XVI, 81.

But the court denied that motion, and Mr. Jumaev finally went to trial in March 2018.

He was convicted of both counts against him, and on July 18, 2018, the court

sentenced Mr. Jumaev to time served in prison. Vol. XV, 448.

On appeal, Mr. Jumaev argued, as did Mr. Muhtorov, that he had been

deprived of his right to a speedy trial. Mr. Jumaev also argued that the trial court

had inadequately remedied the government’s Brady violations.

A split panel of the Tenth Circuit issued a published opinion in both cases, each

of which partially incorporated the other. See United States v. Jumaev, 20 F.4th 518

(10th Cir. 2021); United States v. Muhtorov, 20 F.4th 558 (10th Cir. 2021). Despite

concluding that “six years is an exceptionally long time to await trial,” and that the

delay caused Mr. Jumaev specific prejudice in two distinct ways—through “his

pretrial incarceration” and “due to impairment of his defense,” a majority concluded

that “the delay in this case was due to discovery” and the prejudice did not show a

constitutional violation. See Jumaev, 20 F.4th at 532, 535, 542-43. The majority also

concluded that the remedies imposed by the trial court for the Brady violations,

namely exclusion of certain evidence and a continuance, were sufficient. Id. at 550.

Senior Judge Lucero dissented in both cases, and in his dissent in Jumaev, he

incorporated his speedy trial analysis in Muhtorov “in its entirety.” Id. at 553. Judge

8

Lucero would have vacated the convictions. See id. He also noted that Mr. Jumaev’s

case was “even more compelling” than Mr. Muhtorov’s because of the government’s

extended failure “to provide discovery information long in its possession until the eve

of Jumaev’s first scheduled trial.” Id.

REASONS FOR GRANTING THE WRIT

The Sixth Amendment’s guarantee of a speedy trial is now a moribund

remnant of the bulwark envisioned by the Framers. Instead of categorically requiring

the government to provide a speedy trial, the Sixth Amendment now—according to

the Tenth Circuit—permits trial delays to drag on for years, even when they result

from the government’s failure to abide by its discovery obligations. That is wrong.

This Court’s adoption of a policy-driven balancing test set the stage for the

right’s gradual eradication, which the Tenth Circuit embraced by declining to find a

violation here. If no remedy exists against the government for forcing a presumptively

innocent person to spend six years in custody, even when it demonstrably prejudices

his trial defense, then the Sixth Amendment is little use to thousands of others facing

such treatment across the country. But the original understanding of the Sixth

Amendment would never have accepted such outcomes. This Court should therefore

grant the writ.

9

I. The Balancing Test in Barker v. Wingo, 407 U.S. 514 (1972) Conflicts with

the Original Public Understanding of the Right to a Speedy Trial

A. The Barker Court’s Reasoning Was Not Based on History

The Sixth Amendment’s Speedy Trial Clause provides simply: “In all criminal

prosecutions, the accused shall enjoy the right to a speedy … trial[.]” But what is a

“speedy trial,” and when does the government violate a defendant’s rights?

This Court’s attempted to answer these questions in Barker v. Wingo, 407 U.S.

514 (1972), which established the now-familiar balancing test for Sixth Amendment

speedy trial claims. Describing the right as “slippery” and “amorphous,” the Court

identified four factors to consider: “Length of delay, the reason for the delay, the

defendant’s assertion of his right, and prejudice to the defendant.” Id. at 522, 530. It

emphasized in parting, “We regard none of the four factors identified above as either

a necessary or sufficient condition to the finding of a deprivation of the right of speedy

trial. Rather, they are related factors and must be considered together with such

other circumstances as may be relevant. In sum, these factors have no talismanic

qualities; courts must still engage in a difficult and sensitive balancing process.” Id.

at 533.

The Court’s decision was very much a product of its time, and explicitly

rejected competing “inflexible approaches,” advocated by the litigants. Id. at 529. In

so doing, the Court considered only contemporary practice. See id. at 524 n. 20, 524

n. 21. It set out no historical analysis, merely referencing its then-recent

acknowledgement that the right is “fundamental,” but then crafting its own balancing

analysis. See id. at 515 (citing Kloper v. North Carolina, 386 U.S. 213, 223 (1967)).

10

In the Court’s mind, the Constitution’s clear demand had to give way to various

interests such as “a large backlog of cases in urban courts,” or even, how, in the

Court’s view the “deprivation of the right may work to the accused’s advantage,”

because “[d]elay is not an uncommon defense tactic.” Id. 520-21. Thus, the Court took

great pains to adopt a test that excused even long delays based on government

“negligence or overcrowded courts” and one that weighed heavily “the defendant’s

responsibility to assert his right.” Id. at 531. Neither factor, however, relied on any

historical justification. See id.

Nonetheless, Barker’s ahistorical balancing test remains controlling today, and

was the basis for the Court of Appeals’ decision below.

B. The Sixth Amendment Rejects a Balancing Test

The “amorphous” balancing test created out of thin air by the Barker Court is

no more justified today than it was 50 years ago. The Speedy Trial Clause

incorporated a preexisting right very different from the one recognized by the Court,

and one that considers neither policy-driven considerations of expediency nor imposes

any burden on a defendant to bring himself to trial. Barker’s policy-driven, judgemade balancing test in fact defies the historical right encompassed by the Sixth

Amendment’s text. It should be overruled.

1. The Bill of Rights Must Be Read Consistently With the Public

Understanding of the Rights When It Was Adopted

As this Court recently emphasized, “the scope of the protection applicable to

the Federal Government and States is pegged to the public understanding of the right

11

when the Bill of Rights was adopted in 1791.” New York State Rifle & Pistol Ass’n,

Inc. v. Bruen, 142 S. Ct. 2111, 2137 (2022). Indeed, while this Court has often

employed balancing tests, and “means-end scrutiny” in constitutional adjudication,

its decisions increasingly recognize that such analysis might depart from the public

understanding of the relevant rights. See id. at 2127; Crawford v. Washington, 541

U.S. 36, 62-63 (2004) (abandoning longstanding balancing test for the Sixth

Amendment’s Confrontation Clause because it was not faithful to historical

understanding).

Reading constitutional language in accord with the original public

understanding of the rights accords with the proper role to the judiciary. Rather than

empowering judges to make “difficult empirical judgments” regarding the conflict

between constitutional protections and legislative determinations, the Constitutional

protection itself is often “the very product of an interest balancing by the people.”

Bruen, 142 S.Ct. at 2131 (citation omitted). “It is this balance—struck by the

traditions of the American people—that demands our unqualified deference.” Id.

An “unqualified” constitutional right preserves the same right understood in

1791 and carries that right forward to today. See id. at 2126. In such instances, “the

Constitution presumptively protects that conduct. The government must then justify

its regulation by demonstrating that it is consistent with the Nation’s historical

tradition” of intrusion into that right. Id. at 2130. This historical analysis might

occasionally be difficult, of course. See id. “But reliance on history to inform the

meaning of constitutional text—especially text meant to codify a pre-existing right—

12

is, in our view, more legitimate, and more administrable, than asking judges to make

difficult empirical judgments about the costs and benefits” of restricting liberty. Id.

(cleaned up).

This Court has also explained which constitutional rights must be viewed

based on historical practice. We must always start with the relevant amendment’s

“text, as informed by history.” Id. at 2118. And when the text creates an “unqualified”

right, and a clear prohibition against government encroachment, then it brings the

presumption that any infringement is impermissible. See id. Moreover, if the

constitutional provision has “codified a pre-existing right”—i.e. it “was not intended

to lay down a novel principle but rather codified a right inherited from our English

ancestors,” then it must be viewed in context of the how the right was understood at

the time of its codification. Id. at 2127 (cleaned up).

2. The Speedy Trial Clause Must Be Read Based on Historical

Understanding

The Sixth Amendment codifies a pre-existing right to a “speedy trial,” and

must, therefore, be read in accord with the original public understanding of that

right. This Court has emphasized, of course, that the Sixth Amendment should be

viewed through this same historical lens. See, e.g., Crawford, 541 U.S. at 62-63

(adopting historical test for Confrontation Clause violations). In fact, this Court in

Bruen highlighted this analysis as applied to Sixth Amendment guarantees, to

support its application to the Second Amendment. See 142 S.Ct. at 2130 (“If a litigant

asserts the right in court to ‘be confronted with the witnesses against him,’ U.S.

13

Const., amend. 6, we require courts to consult history to determine the scope of that

right.”).

More specifically, the Speedy Trial Clause bears the hallmarks of the kinds of

rights analyzed in Bruen. Like the “unqualified” right to bear arms, the “accused shall

enjoy the right to a speedy … trial.” U.S. Const. amend. 6 (emphasis added). There is

no qualifier, for instance, that the invasion of the right be “unreasonable.” See U.S.

Const. amend. 4. And like the right to bear arms, the guarantee of a speedy trial

incorporated an existing right well understood by the Framers. See United States v.

Fox, 3 Mont. 512, 515–16 (Mont. Terr. Ct. 1880) (the right to a speedy trial is “in

accord with the enlightened spirit of the common law, and form a part of the

framework of the English Constitution” and it is “guaranteed and secured by Magna

Charta, the Petition of Rights, the Bill of Rights, and by a long course of judicial

decision, and [it] belong[s] to us as a part of our inheritance from the mother country.

Th[is] right[] w[as] claimed by our ancestors in Colonial times, and [it has] been

engrafted into and secured by our Constitution, the supreme law of the land[.]”).

Thus, the right should be viewed with a presumption against government

infringement, which can be justified only by pointing to a historically-acceptable

intrusion. See Bruen, 142 S.Ct. at 2126-27. In other words, the government must be

able to point to comparable delays that are consistent with historical practice.

14

3. The Original Public Meaning of the Speedy Trial Clause Does Not

Excuse Extreme Delays Based on Policy Preferences Nor Does It

Require Repeated Invocation By a Defendant

The historical record and tradition—which Barker failed to consider—reveals

that, the Sixth Amendment’s original guarantee of a speedy trial looks very different

than what was created by the justices in 1972.

Even though it was decided just five years before Barker this Court did engage

in a limited historical analysis of the speedy trial right in Klopfer v. North Carolina,

386 U.S. 213 (1967). But it did so only to decide whether the right set out in the Sixth

Amendment was worthy of incorporation under the Fourteenth Amendment. Id. at

226. The Court steadfastly declined to incorporate the historical understanding of the

right when it finally “attempted to set out the criteria by which the speedy trial right

is to be judged” in Barker. See 407 U.S. at 516.

Klopfer’s analysis concluded that “the right to a speedy trial is as fundamental

as any of the rights secured by the Sixth Amendment.” 386 U.S. at 223. In so doing it

recognized that the “right has its roots at the very foundation of our English law

heritage,” having been referenced in the Magna Carta (1215) (“To no one will we sell,

to no one deny or delay, right or justice.”), and having been recognized “in even earlier

times … in the Assize of Clarendon (1166).” Id. The latter document recognized that

“when a robber or murderer or thief or receiver of them has been arrested through

the aforesaid oath, if the justices are not about to come speedily enough into the

country where they have been taken,” the sheriffs were required to bring forth

alternate justices for their trial. Id. n. 9 (citation omitted). Historical practices

15

confirmed that “[b]y the late thirteenth century, justices, armed with commissions of

gaol delivery and/or oyer and terminer were visiting the countryside three times a

year” to dispense “speedy” trials. Id. at 223-24.

Historical practice further confirms that the overriding interest in a speedy

trial was limiting pre-trial incarceration. Id. at 234. The traveling justices ensured

that “at their next coming [they] have given the prisoner full and speedy justice,

without detaining him long in prison.” Id. (citation omitted). And Sir Edward Coke,

writing in the 17th Century, emphasized that “prolonged detention without trial

would have been contrary to the law and custom of England.” Id. (quoting The Second

Part of the Institutes of the Laws of England 45 (1642)). “‘And therefore, every subject

of this realme, for injury done to him … without exception, may take his remedy by

the course of the law, and have justice, and right for the injury done to him, freely

without sale, fully without any deniall, and speedily without delay.’” Id.

This English practice was well-know to the Founders. Id. Coke’s writing on

this topic was “read in the American Colonies by virtually every student of the law,”

and, according to Thomas Jefferson, “Coke Lyttleton was the universal elementary

book of law students.” Id. at 225 (citations omitted). And the right was incorporated

into “the first of the colonial bills of rights,” the Sixth Amendment, of course, and

today, each of the constitutions of the 50 states. Id. at 225-26.

But what did the right to a speedy trial mean when it was included in the Sixth

Amendment? Two themes become apparent when viewing historical practice: (1) The

right to a speedy trial was meant to prevent periods of pretrial detention drastically

16

shorter than contemporary practice allows; and (2) A defendant had no affirmative

duty to continuously assert his right. And, at the very least, no historical evidence

even hints at the government’s ability to hold a prisoner for six years before trial.

Consider first the length of acceptable pretrial detention intended by the Sixth

Amendment. “The full contours of the right may be unresolved, but the text and

history of the Speedy Trial Clause establish an enduring principle: the primary

guarantee of the right is to protect against prolonged pretrial detention by the

government.” United States v. Olsen, 21 F.4th 1036, 1058 (9th Cir. 2022) (Bumatay,

J., concurring). The “history of the development of the right strongly indicates that

it” applied after arrest and was seen as having “granted a right that was virtually

absolute.” Alan L. Schneider, The Right to A Speedy Trial, 20 Stan. L. Rev. 476, 483

(1968) (citing Coke, Institutes at 45).

The Magna Carta’s speedy justice provision “was first implemented by special

writs and commissions under which the jails were cleared twice a year. Later, in

response to a number of abuses, one of which was lengthy imprisonment prior to

indictment, Parliament passed the Habeas Corpus Act of 1679.” Id. “Whereas great

delays have been used by Sheriffes, Goalers [jailers] and other Officers, to whose

Custody, any of the King’s Subjects have beene committed for criminall or supposed

criminall Matters,” the Act established a procedure “in makeing Returnes of Writts

of Habeas Corpus to them directed[.]” Act of 1679, § 1. Its stated purpose was clear:

“For the prevention whereof and the more speedy Releife of all persons imprisoned

for any such criminall or supposed criminall Matters whensoever.” Id. “[I]f any person

17

or persons committed [for treason or felony] ... upon his prayer or petition in open

court ... to be brought to his trial, shall not be indicted and tried the second term,

sessions of Oyer and Terminer or general gaol-delivery, after his commitment, or upon

his trial shall be acquitted, he shall be discharged from his imprisonment.” Id. § 7(2).

Such sessions usually occurred twice a year. Judith Avrutick, Commissions of Oyer

and Terminer in Fifteenth Century England, 24 (1967). Thus, for felonies, the Act

required trial within a year, or discharge, with no discussion at all about various

balancing tests. And while a defendant could benefit from the Act by seeking a writ

of habeas corpus, courts did not, as a part of their analysis, consider how strenuously

a defendant had objected to his treatment. See Act of 1679, § 7(2).

In 1765 William Blackstone observed that the English law had incorporated

the 1679 Act’s into its constitutional directives. Olsen, 21 F.4th at 1060 (Bumatay, J.,

concurring) (citing William Blackstone, 1 Commentaries on the Laws of England, 131

(1765)). Blackstone wrote, “English law commanded that ‘no subject of England can

be long detained in prison, except in those cases in which the law requires and

justifies such detainer.” Id. Thus, “at least twice a year, prisoners would be tried or

released—setting a general outer limit for pretrial detention. For Blackstone, this

right was the ‘bulwark of [the British] constitution.’” Id. (citing 4 Blackstone at 431).

Shortly after the Sixth Amendment was ratified, most states considered the

right to a “speedy trial” to follow the contours of the English right and the Act of 1679.

Petition of Provoo, 17 F.R.D. 183, 197 (D. Md.), aff’d sub nom. United States v. Provoo,

350 U.S. 857 (1955). Many states enacted statutory provisions that tracked the

18

English statute, and others interpreted their own constitutional provisions in light of

the English Act. See id. For instance, in an early decision in Tennessee, the court

construed the state constitutional right to “a speedy public trial” to require trial

within two terms of court, and when the state simply failed to “provide a public

prosecutor,” there was “no ground to keep the prisoner six months longer in

confinement.” State v. Sims, 1 Tenn. 253, 253 (Tenn. Super. L. & Eq. 1807). As in

England, the analysis did not balance competing interests, much less consider

whether the defendant had invoked the right more than once. See id.

Similarly, in Virginia, an early decision recognized that the state constitutional

speedy trial clause “guaranties to every one accused of crime a speedy trial, and

thereby secures him against protracted imprisonment. And this provision of the bill

of rights announced or enacted no new principle or safeguard of freedom. It was but

the re-affirmance of a principle declared and consecrated by the famous habeas

corpus act, that second Magna Carta of English liberty.” Commonwealth v. Adcock,

49 Va. 661, 676–77 (Va. Gen. Ct. 1851). Rather than impose any balancing test, or

burden on the accused, the re-affirmed right to a speedy trial set an outer limit on

the government’s ability to detain someone pre-trial. “[I]ndeed the evil the act was

chiefly intended to remedy, is the neglect of the accuser to prosecute in time. Even in

case of high treason, where the party has been committed upon the warrant of the

secretary of state, after a year has elapsed without prosecution, the Court will

discharge him upon adequate security being given for his appearance.” Id. (emphasis

added).

19

Two things are thus clear about the understanding of the Speedy Trial Clause

in 1791. A delay of more than a year while a defendant was in custody would have

been almost unthinkable. And it would have been no excuse for the prosecutor to

insist that the defendant hadn’t objected strenuously enough to the delay. A proper

test therefore presumes that long delays are unlawful, and can be justified only if the

government can prove that such delays would have been historically justified. See

Bruen, 142 S.Ct. at 2126-27.

C. The Court of Appeals’ Analysis Ignores the Historical Understanding of

the Speedy Trial Clause

Viewed with a proper historical perspective, one wonders whether the speedy

trial analysis applied by the Court of Appeals refers to the same constitutional

provision. Indeed, while Barker’s balancing test was created out of thin air, the

version applied by the majority below is a parody of the preexisting right reaffirmed

by the text of the Sixth Amendment.

The Court of Appeals allowed the “exceptionally long” sex-year delay, which

demonstrably impaired Mr. Jumaev’s defense, because it weighed the reason for the

delay and the assertion of the right against Mr. Jumaev. See Jumaev, 20 F.4th at 532,

535. The court recognized that “the delay in these cases was due to discovery.”

Jumaev, 20 F.4th at 534. But it credited the government’s claims that the delays

came with the territory of prosecuting the case. “Under the circumstances of this case,

a primary consideration is that the delay was attributable to necessities of the

discovery process untainted by government bad faith or negligence.” Muhtorov, 20

20

F.4th at 658-59; see also Jumaev, 20 F.4th at 547 (“Here, the government acted

diligently and without bad faith or negligence.”) (citation omitted). Further, the court

concluded that Mr. Jumaev did not “sufficiently assert his speedy trial right,” even

though he filed to formal motions to dismiss, one of which was a year before his

ultimate trial. Jumaev, 20 F.4th at 536-37.

The Tenth Circuit could have just as easily held that it simply didn’t want to

find a Sixth Amendment violation, or that it did not believe it advisable to remedy

the harm caused to Mr. Jumaev. Either would have been just as faithful to the text

of the Speedy Trial Clause. Indeed, the pre-existing right to a speedy trial didn’t

account for motives, and it applied with equal rigor even if judges might not have

agreed with the outcome. See, e.g., Sims, 1 Tenn. at 253. The point, of course, was to

deter delays through a clear and predictable remedy. See Act of 1679 § 1 (“For the

prevention whereof and the more speedy Releife of all persons imprisoned for any

such criminall or supposed criminall Matters whensoever.”). Just as with the Second

Amendment, a historical Speedy Trial Clause analysis avoids the “difficult empirical

judgments” about the advisability of a certain outcome because the Constitutional

protection itself is “the very product of an interest balancing by the people.” See

Bruen, 142 S.Ct. at 2131 (citation omitted).

D. Review Is Necessary to Restore the Right to a Speedy Trial

Mr. Jumaev is not the only person harmed by the evisceration of the Speedy

Trial Clause started by Barker. “The flexibility of the Barker test leaves defendants

at the mercy of a court’s discretion. A court can find that a defendant made a timely

21

demand for a speedy trial, was prejudiced by the delay, did not personally cause the

delay, but deny dismissal because the defendant did not sufficiently and vigorously

assert his right. Courts essentially have the power to determine whether a defendant

actually wanted a speedy trial, and decide that to be dispositive.” Seth Osnowitz,

Demanding A Speedy Trial: Re-Evaluating the Assertion Factor in the Barker v.

Wingo Test, 67 Case W. Res. L. Rev. 273, 293 (2016). The legacy of Barker “seem[s] to

arrive at a distorted formula for the interplay of the elements of the speedy trial

guarantee.” H. Richard Uviller, Barker v. Wingo: Speedy Trial Gets A Fast Shuffle,

72 Colum. L. Rev. 1376, 1400 (1972). Indeed, “the flexibility of the Barker test allows

courts to create nearly impossible conditions for defendants to prove speedy-trialright violations, which begs the question of whether the Sixth Amendment actually

guarantees the accused the right to a speedy trial.” Osnowitz, 67 Case W. Res. L. Rev.

at 298–99. And this is primarily because of supposed expediency—“the speedy trial

right is now under attack in many jurisdictions because pragmatic judges are loath

to address the pending crisis of crowded dockets.” Darren Allen, The Constitutional

Floor Doctrine and the Right to A Speedy Trial, 26 Campbell L. Rev. 101 (2004)

While it has grown more elusive, the right to a speedy trial is more pressing

than ever. For instance, an investigation in 2021 in California found more than 7,000

people in pretrial custody for a year or more, with at least 1,317 people having been

in custody for more than 3 years, and 332 in custody for more than five years. See

Robert

Lewis,

Waiting

for

Justice

(Mar.

31,

2021),

https://calmatters.org/justice/2021/03/waiting-for-justice/. In the midst of the Covid

22

pandemic, moreover, at least 4,998 people died in jail in the United States while

waiting for trial. See Peter Eisler, Linda So, Jason Szep, Grant Smith and Ned

Parker, Reuters, Why 4,998 Died in U.S. Jails Without Getting Their Day in Court

(Feb. 16, 2020) https://www.reuters.com/investigates/special-report/usa-jails-deaths/.

Without a meaningful constitutional backstop, extended pretrial detention will

continue to plague presumptively innocent people. And until this Court restores the

Speedy Trial Clause to its proper place, these abuses will remain a feature of our

system.

II. The Tenth Circuit Improperly Penalized Mr. Jumaev for Asserting his

Constitutional Right to Exculpatory Evidence by Weighing Resultant

Delays Against Him

Even if this Court allowed the Barker test to remain, review is still appropriate

because the Tenth Circuit created a new rule that traded the constitutional right to

exculpatory evidence for that of a speedy trial. The majority refused to find a

constitutional violation primarily because Mr. Jumaev requested the production of

evidence to which he was constitutionally entitled. This conclusion creates a new rule

penalizing defendants who exercise their constitutional rights, forcing them to choose

between which rights they wish to preserve.

The majority was clear why it took so long—“the delay in these cases was due

to discovery, which lasted for Jumaev [from March 2012] until February 2018.”

Jumaev, 20 F.4th at 534. But it gave the government a pass because Mr. Jumaev

requested the discovery in the first place: “‘Given the volume of materials requested,

23

meeting those requests required time,’” and thus “the government has carried its

burden.” Id. (quoting Muhtorov, 20 F.4th at 645).

The Tenth Circuit got the standard exactly backward. “A defendant has no

duty to bring himself to trial; the [government] has that duty as well as the duty of

insuring that the trial is consistent with due process.” Barker, 407 U.S. at 527.

Accordingly, the government “must” disclose a defendant’s recorded statements,

regardless of whether it intends to use the statement at trial. Fed. R. Crim. P. 16

(a)(1)(A), (B). Moreover, the government has a constitutional obligation to disclose

Brady material without ever being asked. See United States v. Agurs, 427 U.S. 97,

110 (1976) (“there are situations in which evidence is obviously of such substantial

value to the defense that elementary fairness requires it to be disclosed even without

a specific request”).

But because Mr. Jumaev did ask for the relevant discovery, which the

government conceded included Brady material, the majority held it against him

because “meeting those requests required time.” Jumaev, 20 F.4th at 534. The Tenth

Circuit essentially concluded that Mr. Jumaev should not have been so insistent on

his other constitutional rights.

Make no mistake either, the majority acknowledged that the government’s

delays weren’t limited to producing discovery under Rule 16, but also extended to a

wealth of Brady material that it was constitutionally obligated to disclose. But the

panel majority found no error in Mr. Jumaev’s related claim concerning the

sufficiency of the trial court’s remedies for the government’s Brady violations, despite

24

“the slow pace of discovery, the late-filed charges, and a last-minute disclosure of

potential impeachment information [that] caused Jumaev some prejudice,” and

despite the fact that these Brady violations resulted in the need to delay the trial

until 2018. Jumaev, 20 F.4th at 549-50.

The court of appeal’s discussion just scratched the surface of the government’s

misdeeds. The record is replete with evidence of Brady material withheld from Mr.

Jumaev until years into this case. It was included in the vast disclosures withheld

until September 1, 2016. See Vol. XIII, 426. And then the first trial was delayed for

another year because of late disclosures undermining the existing transcript

translations, including the revelation that a government witness had testified using

a transcript that had simply been fabricated. See Vol. VII, 37; Vol. XI, 448, 867; Vol.

XVII, 53. Finally, in the run-up to the second trial the defense learned, among other

things, that the government had been, in the district court’s views, “not forthright,”

concerning benefits given to one of its witnesses. See Vol. VII, 347, 403.

Judge Lucero cataloged many of these government failures, noting that the

central impediment to bringing the case to trial was the “excessive governmental

delay in responding to timely discovery requests made by” the defense. Jumaev, 20

F.4th at 553. While those failures were present in Mr. Muhtorov’s case, Mr. Jumaev’s

case was “even more compelling,” “because the government waited to provide

discovery information long in its possession until the eve of Jumaev’s first scheduled

trial,” which “caused an additional delay of one year.” Id. This “constitutionallyrequired evidence” simply wasn’t produced when it should have been. Id.

25

But how was Mr. Jumaev able to obtain this exculpatory information? He had

to fight for it. As Judge Lucero put it, long after the “court-imposed discovery cut-off”

Mr. Jumaev “waited on the government to fulfill its responsibilities, diligently and

persistently filing discovery motions that were not met in a timely fashion.” Id. at

557. The Tenth Circuit majority’s contention that it was still the defendants’ fault

because these materials were for their benefit “approaches double-speak: what the

majority is saying is that any and all government delay is excusable because of its

own delay in discovery production.” Muhtorov, 20 F.4th at 663 (Lucero, J.,

dissenting).

By holding the delays against Mr. Jumaev for litigating these issues, the Tenth

Circuit has created the “intolerable” condition “that one constitutional right should

have to be surrendered in order to assert another.” See Simmons, 390 U.S. at 394. To

avoid this unlawful compromise, Judge Lucero would simply have held the delay

against the government, not Mr. Jumaev for pointing these failures out. See Jumaev,

20 F.4th at 558.

The absurdity of the Tenth Circuit’s rule is best demonstrated by comparing

how it resolved Mr. Jumaev’s speedy trial and Brady claims. As discussed, it did not

fault the government for the delays caused solely through its failure to meet its

discovery obligations. See id. at 534. Yet it also dismissed Mr. Jumaev’s argument

that he needed a better remedy for the Brady violations than just the delay of the

trial. Id. at. 550. According to the majority, the “remedy that Jumaev most strongly

objects to—the continuance—was not only within the district court’s discretion to

26

order, but is generally the preferred method for dealing with discovery violations.” Id.

In other words, according to the majority, the proper remedy for a Brady violation is

a continuance, but even that remedy shall not be weighed against the government in

the speedy trial analysis.

Surely the government will take note of the incentives presented by this rule.

Why should it endeavor to meet its Brady requirements at all, much less in a timely

fashion? If the worst it will face is a delay that won’t even be counted against it, why

not err on the side of omission? This is particularly so when the government can

“avoid its fundamental discovery obligations in order to coerce a plea from a

defendant incarcerated and awaiting trial.” See Muhtorov, 20 F.4th at 666 n. 9

(Lucero, J., dissenting).

III. A Defendant Need Not Undergo Exceptional and Disfavored Efforts to

Properly Invoke His Right to a Speedy Trial, Such as by Filing Pro Se

Motions Despite His Representation by Counsel

Finally, the Court should grant the petition because the Tenth Circuit’s

holding creates a new requirement for defendants to invoke their right to a speedy

trial that is not only inconsistent with Barker itself, but also creates bizarre

incentives that frustrate the attorney-client relationship.

Even though Mr. Jumaev filed two formal motions to dismiss for want of a

speedy trial, the first of which he filed a year before his eventual trial, the majority

concluded that he did not “sufficiently assert his speedy trial right.” Jumaev, 20 F.4th

at 536-37. The Tenth Circuit also discounted his counseled objections to the “pace of

discovery,” and his repeated requests to proceed to trial quickly, because these did

27

not “expressly rais[e] a speedy trial objection.” Id. at 539-40. By contrast, the majority

found that Mr. Muhtorov did sufficiently assert his speedy trial right, because he

filed two additional pro se motions complaining of the delay, even though they were

not accepted by the trial court as he was represented by counsel. See id. at 556

(Lucero, J., dissent).

Barker requires “a balancing test, in which the conduct of both the prosecution

and the defendant are weighed.” 407 U.S. at 530. In Barker the Court specifically

rejected a requirement for “a purely pro forma objection.” Id. at 529. Instead, a court

must ask “whether the defendant’s behavior during the course of litigation evidences

a desire to go to trial with dispatch.” United States v. Batie, 433 F.3d 1287, 1291 (10th

Cir. 2006).

The Tenth Circuit “majority conducted a rigid and formalistic Barker analysis”

that failed to follow this precedent. Jumaev, 20 F.4th at 554 (Lucero, J., dissenting).

The complete record showed Mr. Jumaev’s desire to go to trial as soon as possible,

even if he did not always raise “a purely pro forma objection.” See Barker, 407 U.S. at

530. After all, in January 2013, less than a year after Mr. Jumaev’s arrest, counsel

informed the court that because “discovery [wa]s far from complete,” they could not

provide appropriate advice about whether Mr. Jumaev should proceed to trial at all.

Vol. I, 518-19. Then, on December 2, 2015, at a status conference, defense counsel

asserted that “this case needs to move forward” and “echo[ed]” the “refrain” that they

“want[ed] to get this case to trial.” Vol. XI, 305, 322-23. Then again on March 24,

2016, three years after Mr. Jumaev’s arrest, both defendants moved for an order to

28

set pretrial deadlines and a trial date. Vol. XV, 183. Again on July 13, 2016, when the

court held a status conference to set “a trial date for this case,” Mr. Jumaev’s counsel

objected to the government’s request to continue the trial date into 2017. Vol. XI, 34447. Relatedly, counsel objected to the government’s request for a September 1, 2016,

discovery deadline because any future trial date would be “illusory” because none of

the relevant trial deadlines would be “feasible until discovery is produced.” Vol. XI,

371. Then, of course, Mr. Jumaev moved to dismiss the case for lack of a speedy trial

on February 28, 2017, almost five years after his arrest, and then again on February

16, 2018, almost six years after his arrest. Vol. VI, 693; Vol. XVI, 81. Under the

majority’s analysis, none of those efforts told the court that Mr. Jumaev wanted to go

to trial.

Even more problematically, the path the Tenth Circuit embraced for raising a

speedy trial objection undermines the attorney-client relationship. The majority

“fault[ed] Jumaev for not filing a pro se speedy trial motion separate and apart from

those filed by his counsel.” Jumaev, 20 F.4th at 554 (Lucero, J., dissenting). But “it is

obvious that [the Court] cannot require counseled defendants to file pro se motions in

order for Barker’s assertion-of-the-right factor to weigh in their favor.” Id. at 556.

After all, a defendant has a constitutional right to counsel, or self-representation, not

both. See McKaskle v. Wiggins, 465 U.S. 168, 183 (1984). Indeed, many courts “clearly

disfavor[] any form of hybrid representation, because it typically results in neither

competent counseled representation nor independent pro se representation. United

States v. Kosmel, 272 F.3d 501, 506 (7th Cir. 2001). By penalizing Mr. Jumaev for not

29

engaging in hybrid representation, the Tenth Circuit suggests that the proper way to

invoke the Sixth Amendment right to a speedy trial is to undermine the Sixth

Amendment right to counsel.

CONCLUSION

For the foregoing reasons, this Court should grant the petition for a writ of

certiorari.

DATED: July 22, 2022

Respectfully submitted,

CALEB KRUCKENBERG

Counsel of Record

Pacific Legal Foundation

3100 Clarendon Blvd

Suite 610

Arlington, VA 22201

Telephone: 202.888.6881

CKruckenberg@pacificlegal.org

Counsel for Petitioner