Petition for Writ of Certiorari — Roger Rachon Cooley, Petitioner v. United States

No. ____________

__________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

__________________________________________________________________

ROGER RACHON COOLEY,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

_____________________________________________

On Petition

for a Writ of Certiorari

Petition for

Certiorari

To the United States

States Court of Appeals

for

the

Eighth Circuit

for

Circuit

_____________________________________________

APPENDIX

_____________________________________________

____/s/Adam Justinger________________

Adam Justinger (ND#08635 MN#0400351)

SW&L Attorneys

4627 44th Avenue South, Suite 108

Fargo, North Dakota 58104

Telephone: (701) 297-2890

Fax: (701) 297-2896

adam.justinger@swlattorneys.com

ATTORNEY FOR PETITIONER

TABLE OF APPENDICES

APPENDICES

TABLE

Court of Appeals Opinion (March 28, 2023)……………………………………………1a

Order Denying Defendant’s Motion to Dismiss (January 19, 2022)...........................11a

Order (January 24, 2022)……………………………………………………………….19a

Court of Appeals Order Denying Petition for Rehearing (May 10, 2023)..................24a

United States Court of Appeals

For the Eighth Circuit

___________________________

No. 22-2201

___________________________

United States of America

Plaintiff - Appellee

v.

Roger Rachon Cooley

Defendant - Appellant

____________

Appeal from United States District Court

for the District of North Dakota - Eastern

____________

Submitted: February 15, 2023

Filed: March 28, 2023

____________

Before COLLOTON, BENTON, and KELLY, Circuit Judges.

____________

BENTON, Circuit Judge.

A grand jury indicted Roger R. Cooley. He moved to dismiss for violation of

his Sixth Amendment right to a speedy trial. The district court 1 denied his motion.

A unanimous jury found him guilty of conspiracy to possess with intent to distribute

1

The Honorable Peter D. Welte, United States District Judge for the District

of North Dakota.

App. 1a

(and distribute) a controlled substance in violation of 21 U.S.C. §§ 846, 841(a)(1),

841(b)(1)(C), and 18 U.S.C. § 2. Cooley appeals. Having jurisdiction under 28

U.S.C. § 1291, this court affirms.

I.

On August 21, 2019, a grand jury indicted Roger R. Cooley and eight other

defendants. Within two days, an arrest warrant for Cooley issued and was entered

into the National Crime Information Center system by the Federal Bureau of

Investigation.

About 14 months later, the FBI discovered that, due either to human or

technical error, the arrest warrant was removed from the NCIC system around

February 28, 2020—about six months after the warrant issued. The FBI then

reentered the warrant into the NCIC system. On October 20, 2020, the United States

Marshals Service was assigned Cooley’s arrest warrant. In February 2021, the

USMS confirmed his address. He was arrested March 16, 2021, arraigned March

20, and scheduled for trial on July 13.

After three continuances—including two by Cooley’s co-defendants (to

which Cooley did not object)—trial was rescheduled. Cooley moved to dismiss on

December 28, 2021, asserting his Sixth Amendment right to a speedy trial. The

district court denied the motion on January 19, 2022, without holding an evidentiary

hearing. Cooley moved for reconsideration. On January 24, the district court, after

a “limited evidentiary hearing,” denied reconsideration. The jury trial began on

January 25. The jury unanimously found Cooley guilty.

Cooley appeals, alleging the district court erred by not holding an evidentiary

hearing on his motion to dismiss, and by denying his motion to dismiss for violation

of his Sixth Amendment right to speedy trial.

-2App. 2a

II.

Cooley argues that the district court abused its discretion by not holding an

evidentiary hearing on his motion to dismiss. See United States v. Santos-Pulido,

815 F.3d 443, 445 (8th Cir. 2016) (“We review the district court’s decision to resolve

the motion to dismiss without a hearing for the abuse of discretion.”). “A district

court must hold an evidentiary hearing only when the moving papers are sufficiently

definite, specific, and detailed to establish a contested issue of fact.” United States

v. Stevenson, 727 F.3d 826, 830 (8th Cir. 2013) (motion to suppress). “A hearing is

not required if a dispute can be resolved on the basis of the record.” Santos-Pulido,

815 F.3d at 446, quoting United States v. Polanco-Gomez, 841 F.2d 235, 237-38

(8th Cir. 1988).

Denying the motion for reconsideration, the district court found that Cooley’s

moving papers were not sufficiently definite, specific, and detailed to establish a

contested issue of fact. He contends that the moving papers established contested

facts about: (i) the cause for the delay in his arrest, (ii) the oppressiveness of his

pretrial incarceration, (iii) his anxiety about the charges and possible punishments,

and (iv) the degree of prejudice due to the delay. But, as the district court observed:

“The majority of these assertions are unsupported by evidence, either affidavit or

otherwise.” See United States v. Saucedo, 956 F.3d 549, 554 (8th Cir. 2020) (“On

appeal, [defendant] does not identify any facts in the record, such as the dates or

other factual circumstances of his detention, that are actually in dispute. Rather, he

contests certain inferences that can be drawn from those facts and the district court’s

legal conclusion . . . . Further, [defendant] does not identify what evidence, if any,

he would have presented to the district court had it held an evidentiary hearing.”);

Stevenson, 727 F.3d at 831 (“Where a defendant offers only conclusory allegations

in support of a motion . . . and where those allegations are unsupported by any

citation to the record, a district court does not abuse its discretion by refusing to hold

an evidentiary hearing.”).

-3App. 3a

The district court, “in the interests of fundamental fairness,” held a limited

evidentiary hearing on the motion to reconsider. Cooley submitted four factual

affidavits from his sister, investigator, mother, and himself. According to the

affidavits, he has a learning disability, lived with his mother in Detroit, Michigan for

eight years, did not know of the arrest warrant, and law enforcement had not stopped

by his residence since the indictment. The evidence did not establish a contested

issue of fact.

The motion to dismiss, and even the limited evidentiary hearing, addressed

only contested inferences and legal conclusions, not facts. See Saucedo, 956 F.3d

at 554. The district court did not abuse its discretion by not holding an evidentiary

hearing on Cooley’s motion to dismiss.2

III.

Cooley alleges that the government violated his Sixth Amendment right to a

speedy trial. 3 “We review the district court’s findings of fact on whether a

2

The government repeatedly notes that Cooley requested only oral argument,

not an evidentiary hearing. The government states that the standard of review is

abuse of discretion; it does not raise “whether the district court’s failure to hold an

evidentiary hearing sua sponte constitutes plain error.” Bath Junkie Branson, LLC

v. Bath Junkie, Inc., 528 F.3d 556, 561 (8th Cir. 2008) (applying both abuse of

discretion and plain error review to a district court’s decision not to hold a sua sponte

evidentiary hearing on a motion to enforce a settlement). Here, the district court

neither abused its discretion nor committed plain error by not holding an evidentiary

hearing. See id. (“[T]he district court had no basis to believe that either party desired

an evidentiary hearing or had even suggested that the submission of additional

evidence, beyond that accompanying their motions, would be necessary or helpful.

Under these circumstances, the district court’s decision not to hold an evidentiary

hearing was not an abuse of discretion.”) (“Based on the record before the district

court, there was no substantial factual dispute . . . and the district court did not err

by deciding not to hold an evidentiary hearing sua sponte.”).

3

On appeal, Cooley does not assert a violation of the Speedy Trial Act. See

18 U.S.C. § 3161; United States v. Sprouts, 282 F.3d 1037, 1041 (8th Cir. 2002)

-4App. 4a

defendant’s right to a speedy trial was violated for clear error but review its legal

conclusions de novo.” United States v. Aldaco, 477 F.3d 1008, 1016 (8th Cir. 2007).

“The Sixth Amendment right to a speedy trial attaches at the time of arrest or

indictment, whichever comes first, and continues until the trial commences.” United

States v. Williams, 557 F.3d 943, 948 (8th Cir. 2009). “Initially, we must determine

whether the delay between indictment and [defendant’s] motion to dismiss was

presumptively prejudicial.” United States v. Summage, 575 F.3d 864, 875 (8th Cir.

2009), citing Doggett v. United States, 505 U.S. 647, 651-52 (1992). “If so, we

proceed to analyze the four factors governing the Sixth Amendment’s speedy trial

protections under Barker v. Wingo, 470 U.S. 514 (1972).” Id.

The delay between Cooley’s indictment and motion to dismiss—about 28

months—is presumptively prejudicial. See United States v. Jeanetta, 533 F.3d 651,

656 (8th Cir. 2008) (“A delay approaching one year may meet the threshold for

presumptively prejudicial delay requiring application of the Barker factors.”);

Doggett, 505 U.S. at 652 n.1 (“Depending on the nature of the charges, the lower

courts have generally found postaccusation delay ‘presumptively prejudicial’ at least

as it approaches one year.”).

The Barker factors present a four-factor test that balances: “Length of delay,

the reason for the delay, the defendant’s assertion of his [speedy trial] right, and

prejudice to the defendant.” Barker, 407 U.S. at 530.

Under the first Barker factor, this court considers “whether delay before trial

was uncommonly long.” Aldaco, 477 F.3d at 1019. A delay of 29 months—the total

time from indictment to trial—is a lengthy but not extraordinary delay. See United

States v. Mallett, 751 F.3d 907, 914 (8th Cir. 2014) (“First, we acknowledge

seventeen months is a lengthy delay. But our court, under the Sixth Amendment,

(“Sixth Amendment and Speedy Trial Act challenges for delay are reviewed

independently of one another.”).

-5App. 5a

has permitted even longer delays.”), citing Summage, 575 F.3d at 870, 876 (over 32

months); Aldaco, 477 F.3d at 1018-20 (40 months). See also United States v.

Walker, 92 F.3d 714, 717 (8th Cir. 1996) (37 months); United States v. Richards,

707 F.2d 995, 998 (8th Cir. 1983) (35 months).

The district court properly found, “On balance, the first factor weighs in

Cooley’s favor, but not heavily.”

“Under the second Barker factor, we consider the reasons for the delay and

evaluate ‘whether the government or the criminal defendant is more to blame.’”

United States v. Erenas-Luna, 560 F.3d 772, 777 (8th Cir. 2009), quoting Doggett,

505 U.S. at 651. “We weigh an intentional delay by the government heavily against

it. We weigh negligence by the government less heavily but still regard such

negligence as a considerable factor in the weighing process.” Id. “We weigh delay

caused by the defense against the defendant.” Id. “In Doggett, the Supreme Court

indicated that appellate courts are to treat with ‘special deference’ a district court’s

determination concerning whether the government was negligent.” Walker, 92 F.3d

718, quoting Doggett, 505 U.S. at 652.

The period from Cooley’s indictment to his arrest is 19 months of the total 29month delay. The 10-month period of post-arrest delay was primarily due to motions

for continuance submitted by the government and Cooley’s co-defendants (for health

concerns). For 8 of the first 19 months, Cooley’s warrant had been removed from

the NCIC database. The district court found no evidence that the government

negligently or intentionally delayed prosecution. Although this court treats this

finding with special deference, human or technical error resulting in the removal of

Cooley’s warrant from the NCIC database was the fault of the government.

But this error is attributable only to negligence. There is no evidence that the

government intentionally caused any delay. See United States v. Shepard, 462 F.3d

847, 864 (8th Cir. 2006). See also Barker, 407 U.S. at 531 (“A more neutral reason

such as negligence . . . should be weighted less heavily but nevertheless should be

-6App. 6a

considered . . . .”); Williams, 557 F.3d at 949 (“While any negligence is not weighted

as heavily against the prosecution as deliberately dilatory tactics, it would

nonetheless fall ‘on the wrong side of the divide between acceptable and

unacceptable reasons for delaying a criminal prosecution once it has begun.’”),

quoting Doggett, 505 U.S. at 657. The negligent error accounts for only 8 of the 29

months of delay. The FBI reentered Cooley’s arrest warrant into the NCIC system

the same day the error was discovered. Except for that error, there is no evidence in

the record that the government acted negligently in pursuing Cooley.

Because government negligence resulted in 8 of the 29 months of delay, the

second Barker factor favors Cooley, but not heavily.

“The third Barker factor considers whether in due course the defendant

asserted his right to a speedy trial.” Erenas-Luna, 560 F.3d at 778. “In United

States v. Richards, where the defendant was unaware of his indictment until his arrest

but later raised a speedy-trial claim, we similarly held that the third Barker factor

had no application and merely ‘[could] not be weighed against [the defendant].’” Id.

(alterations in original), quoting United States v. Richards, 707 F.2d 995, 997 (8th

Cir. 1983). The district court found that Cooley undeniably asserted his right to a

speedy trial. This factor is neutral. See id. (“Applying this precedent, we agree with

the district court that the third Barker [factor] weighs in neither party’s favor.”).

“The final Barker factor—prejudice—considers whether the defendant

suffered prejudice as a result of the delay.” United States v. Rodriguez-Valencia,

753 F.3d 801, 807 (8th Cir. 2014). “The extent to which a defendant must

demonstrate prejudice under this factor depends on the particular circumstances.”

Erenas-Luna, 560 F.3d at 778. “A showing of actual prejudice is required if the

government exercised reasonable diligence in pursuing the defendant.” Id. at 77879. See also United States v. Flores-Lagonas, 993 F.3d 550, 565 (8th Cir. 2021)

(“In cases without government negligence, however, we have required the defendant

to show actual or specific prejudice.”). “Where the government has been negligent,

-7App. 7a

however, prejudice can be presumed if there has been an excessive delay.” ErenasLuna, 560 F.3d at 779, citing Doggett, 505 U.S. at 656-58.

This factor is assessed “in the light of the interests of defendants which

the speedy trial right was designed to protect. . . . (i) to prevent

oppressive pretrial incarceration; (ii) to minimize anxiety and concern

of the accused; and (iii) to limit the possibility that the defense will be

impaired.”

Rodriguez-Valencia, 753 F.3d at 807-08 (alteration in original), quoting Barker,

407 U.S. at 532.

Here, the 8-month delay from government negligence “was not so great that

we are able to discount [defendant’s] inability to show particularized prejudice from

that delay.” United States v. Sims, 847 F.3d 630, 636-37 (8th Cir. 2017) (holding a

12-and-a-half-month delay caused by government negligence insufficient for

presumption where defendant could not show prejudice). See Williams, 557 F.3d at

950 (same for 16-month delay caused by government negligence); Doggett, 505 U.S.

at 657 (“[T]o warrant granting relief, negligence unaccompanied by particularized

trial prejudice must have lasted longer than negligence demonstrably causing such

prejudice.”); Rodriguez-Valencia, 753 F.3d at 808 (holding that, even though the

six-year delay was excessive, “the government pursued [defendant] with reasonable

diligence” and he failed to “show actual or specific prejudice”). Cf. Erenas-Luna,

560 F.3d at 780 (remanding a case for application of presumptive prejudice where

“serious negligence of the government” resulted in “a three-year delay between

[defendant’s] indictment and arraignment”). Except for the 8-month delay, there is

no evidence in the record that the government acted negligently in pursuing Cooley.

These facts do not warrant a presumption of prejudice.

Cooley alleges actual prejudice in the oppressiveness of his pretrial

incarceration and his anxiety from the charges and possible punishments. But his

pretrial incarceration was prolonged, in part, due to his codefendants’ motions for

continuance, to which he did not object. Cooley offers nothing to demonstrate “that

-8App. 8a

the delay weighed particularly heavily on him in specific circumstances.” Morris v.

Wyrick, 516 F.2d 1387, 1391 (8th Cir. 1975). See also Shepard, 462 F.3d at 865

(“Anxiety, without concurrent prejudice to the defendant’s ability to mount a

defense, is likely the weakest interest served.”). Cooley “has failed to show that the

delay was unusually burdensome or oppressive to him.” Williams, 557 F.3d at 94950.

Cooley did not offer evidence that the delay resulted in a loss of evidence or

witness testimony, or any impediment to his ability to mount a defense. See Aldaco,

477 F.3d at 1019 (“[H]e has not made any showing of how his defense was impaired

by the lengthy delay.”). The district court properly concluded: “This factor weighs

heavily against Cooley.”

Based on the Barker factors, the government was negligent in failing to

maintain Cooley’s arrest warrant in the NCIC system, but the government’s

negligence accounted for only 8 of the 29 months of delay and did not prejudice

Cooley’s defense. “Negligence by the government requires toleration by the courts

that ‘varies inversely with its protractedness . . . and its consequent threat to the

fairness of the accused’s trial.’” Williams, 557 F.3d at 950, quoting Doggett, 505

U.S. at 657.

The present case illustrates the Court’s wisdom in establishing a balancing

test.

The speedy-trial right is “amorphous,” “slippery,” and “necessarily

relative.” It is “consistent with delays and depend[ent] upon

circumstances.” In Barker, the Court refused to “quantif[y] the right

“into a specified number of days or months” or to hinge the right on a

defendant’s explicit request for a speedy trial.” Rejecting such

“inflexible approaches,” Barker established a “balancing test, in which

the conduct of both the prosecution and the defendant are weighed.”

-9App. 9a

Vermont v. Brillon, 556 U.S. 81, 89-90 (2009) (alterations in original), quoting

Barker, 407 U.S. at 522, 522-25, 529, 530. See also Erenas-Luna, 560 F.3d at 779

(“‘We cannot definitely say how long is too long,’ and there is ‘no constitutional

basis for holding that the speedy trial right can be quantified into a specified number

of days or months.’ As a result, ‘any inquiry into a speedy trial claim necessitates a

functional analysis of the right in the particular context of the case.’”), quoting

Barker, 407 U.S. at 521-23.

“Here, because the delay was not of such length to eliminate the need to show

particularized prejudice and because there is no evidence that the delay impeded

[Cooley’s] defense or threatened to deprive him of a fair trial, we conclude that there

was no Sixth Amendment violation.” See Williams, 557 F.3d at 950. The district

court properly denied Cooley’s motion to dismiss.

*******

The judgment is affirmed.

______________________________

-10App. 10a

Case 3:19-cr-00137-PDW Document 352 Filed 01/19/22 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NORTH DAKOTA

United States of America,

)

)

Plaintiff,

)

ORDER DENYING DEFENDANT’S

vs.

)

MOTION TO DISMISS

)

Roger Rachon Cooley,

)

Case No. 3:19-cr-00137

)

Defendant.

)

______________________________________________________________________________

Before the Court is Defendant Roger Rachon Cooley’s motion to dismiss on speedy trial

grounds filed on December 28, 2021. Doc. No. 326. The Government responded in opposition

on January 11, 2022. Doc. No. 333. Cooley filed his reply on January 14, 2022. Doc. No. 342.

For the reasons below, the motion is denied.

I.

BACKGROUND

On August 21, 2019, an indictment was filed charging nine defendants, including Cooley,

with various drug, money laundering, and kidnapping conspiracy charges. See Doc. No. 29.

Cooley was indicted on two counts: conspiracy to possess with intent to distribute and distribute a

controlled substance and money laundering conspiracy. Id., pp. 1, 10-11. This Court issued an

arrest warrant on August 22, 2019. Doc. No. 26.

On February 18, 2020, the Government moved to sever Cooley, and other codefendants,

arguing in part that it “has been unsuccessful in securing the appearance” of Cooley. Doc. No. 98.

The Court granted the Government’s motion to sever. Doc. No. 102. A few days later, on March

16, 2021, law enforcement arrested Cooley in Detroit, Michigan. Doc. No. 222. That same day,

Cooley had his initial appearance in the Eastern District of Michigan. Doc. No. 223. Cooley

appeared for his arraignment in this district on May 20, 2021. Doc. No. 234. Since his

App. 11a

Case 3:19-cr-00137-PDW Document 352 Filed 01/19/22 Page 2 of 8

arraignment, Cooley has remained in custody. See Doc. Nos. 234, 240. Cooley’s trial was

originally set for July 13, 2021. Doc. No. 237.

On May 27, 2021, the Government filed a motion for joinder and a motion to continue trial.

Doc. No. 241. Cooley opposed this motion, raising Speedy Trial arguments, among other things.

See Doc. No. 248. On June 21, 2021, the Court granted the motion for joinder over Cooley’s

objection and, as a result, reset Cooley’s trial date to the same trial date as his codefendants, August

3, 2021. Doc. No. 249.

On July 19, 2021, two of Cooley’s codefendants filed separate motions to continue, both

raising health concerns. See Doc. Nos. 251, 252. Cooley did not object to the continuance. See

Doc. No. 253. The Court granted the two codefendants’ unopposed motion to continue trial,

resetting trial for December 14, 2021. Id.

On November 19, 2021, a codefendant requested another continuance, again raising

ongoing health issues. Doc. N. 315-1. A few days later, another codefendant filed a separate

motion to continue based on her health issues. Doc. No. 322. In the interim, the Government

reversed course again and again moved to sever Cooley, explaining that it had “consulted with

defense counsel for the various defendants and noted no objections[.]” Doc. No. 321, p. 2. The

Court issued an order addressing the motion to sever and the motions to continue trial on December

1, 2021. Doc. No. 323. The Court denied the Government’s motion to sever and granted the

motions to continue, resetting trial for all remaining defendants in this case for January 25, 2022.

Id., p. 4. In that order, the Court specifically noted, “This is a date certain trial date, and the Court

will not be inclined to grant any further continuances.” Id. Trial is currently set for January 25,

2

App. 12a

Case 3:19-cr-00137-PDW Document 352 Filed 01/19/22 Page 3 of 8

2022. On December 28, 2021, Cooley moved to dismiss based on speedy trial grounds and

requested oral argument.1 Doc. No. 326.

II.

ANALYSIS

Although related, constitutional challenges under the Sixth Amendment speedy trial right

and statutory challenges under the Speedy Trial Act are reviewed separately. United States v.

Sprouts, 282 F.3d 1037, 1041 (8th Cir. 2002). Cooley’s motion appears to rely exclusively on the

Sixth Amendment. Nonetheless, the Court will briefly address the possibility of a Speedy Trial

Act violation at the outset.

A.

Speedy Trial Act

The Speedy Trial Act requires trial to commence within 70 days after a defendant is

charged or makes an initial appearance before “a judicial officer of the court in which such charge

is pending,” whichever occurs last. 18 U.S.C. § 3161(c)(1); see also Zedner v. United States, 547

U.S. 489, 497 (2006). That said, a multitude of circumstances toll the speedy trial clock. See 18

U.S.C. § 3161(h). For example, a pending pretrial motion tolls the clock. Id. § 3161(h)(1)(D).

Additionally, the speedy clock is tolled by the Court finding that the ends of justice are served by

granting a continuance outweigh the interest of the public and the defendant in a speedy trial. Id.

§ 3161(h)(7)(a). “Exclusions of time attributable to one defendant apply to all codefendants.”

United States v. Mallett, 751 F.3d 907, 911 (8th Cir. 2014) (cleaned up).

Cooley was indicted in the District of North Dakota on August 21, 2019. His speedy trial

clock began to run on May 20, 2021, when he appeared for arraignment before a judicial officer

1

The Court finds oral argument on this matter unnecessary. The parties have satisfactorily

briefed the legal issues at hand.

3

App. 13a

Case 3:19-cr-00137-PDW Document 352 Filed 01/19/22 Page 4 of 8

of this district.2 See 18 U.S.C. § 3161(c)(1). As the Government correctly points out, far fewer

than 70 nonexcludable days have elapsed since then.

Pretrial motions tolled a portion of the time following arraignment. The Government filed

a motion for joinder and a motion to continue trial on May 27, 2021. Doc. No. 241. Cooley

objected, raising Speedy Trial Act arguments, among other things. Doc. No. 248. The Court

granted the Government’s motion, over Cooley’s objection, on June 21, 2021 (the “June 21

Order”). Doc. No. 249. As a result, Cooley’s original trial date of July 13, 2021 was reset to the

date of his codefendants’ trial, which was then scheduled for August 3, 2021. Doc. No. 249. In

the June 21 Order, the Court specifically determined that “[a]ll time which elapses from the date

of this order until trial shall be excluded from any Speedy Trial Act calculation” citing 18 U.S.C.

§ 3161(h)(6) (“a reasonable period of delay when the defendant is jointed for trial with a

codefendant as to whom the time for trial has not run and no motion for severance has been

granted”) § 3161(h)(7)(A), § 3161(h)(7)(B)(i) and (iv). Doc. No. 249. Similarly, in each order

continuing trial since, all time elapsing from the date of the order until the new trial date was

excluded from any Speedy Trial Act calculation based on the ends of justice. Doc. Nos. 253, 323.

Additionally, Cooley’s motion to release, which the Court denied on August 30, 2021, also tolled

a portion of the speedy trial clock. Doc. Nos. 254, 267.

Because fewer than 70 nonexcludable days have passed, Cooley’s motion fails to the extent

he seeks dismissal under the Speedy Trial Act.

2

Although Cooley had an initial appearance in the Eastern District of Michigan on March 16,

2021 [Doc. No. 223], his speedy trial clock did not begin until he “appeared before a judicial

officer of the court in which such charge is pending,” the District of North Dakota. See 18

U.S.C. § 3161(c)(1).

4

App. 14a

Case 3:19-cr-00137-PDW Document 352 Filed 01/19/22 Page 5 of 8

B.

Sixth Amendment

In contrast to the Speedy Trial Act, the Sixth Amendment speedy trial right “attaches at the

time the of arrest or indictment, whichever comes first, and continues until the trial commences.”

United States v. Williams, 557 F.3d 943, 948 (8th Cir. 2009) (citations omitted). A constitutional

speedy trial challenge requires a court to “engage in a difficult and sensitive balancing process.”

Barker v. Wingo, 407 U.S. 514, 533 (1972). Four factors control: (1) length of delay, (2) the

reason for the delay, (3) the defendant’s assertion of his right, and (4) prejudice to the defendant.

Id. at 530. No one factor is “a necessary or sufficient condition” to establish a violation. Id. at

533. The Eighth Circuit Court of Appeals has repeatedly commented, “It would be unusual to find

the Sixth Amendment has been violated when the Speedy Trial Act has not.” United States v.

Titlbach, 339 F.3d 692, 699 (8th Cir. 2003) (citing Sprouts, 282 F.3d at 1042).

In application, the initial length of delay factor is twofold. First, the length of delay must

be presumptively prejudicial before consideration of the four Barker factors is warranted at all.

United States v. Summage, 575 F.3d 864, 875 (8th Cir. 2009). Cooley was indicted on August 21,

2019—over two years ago. That is enough to establish presumptive prejudice. See Doggett v.

United States, 505 U.S. 647, 652 n.1 (1992) (citations omitted) (noting that “the lower courts have

generally found postaccusation delay ‘presumptively prejudicial’ at least as it approaches one

year”); United States v. Sims, 847 F.3d 630, 635 (8th Cir. 2017) (concluding that approximately

22-month delay was presumptively prejudicial). Second, the length of delay weighs on the Barker

analysis. See Mallett, 751 F.3d at 914. More than two years is certainly a significant delay

between indictment and trial. Even so, that duration is not extraordinary, particularly considering

that the Eighth Circuit has deemed much longer delays reasonable. See, e.g., Summage, 575 F.3d

5

App. 15a

Case 3:19-cr-00137-PDW Document 352 Filed 01/19/22 Page 6 of 8

at 876 (32-month delay); United States v. Aldaco, 477 F.3d 1008, 1019-20 (8th Cir. 2007) (40month delay). On balance, the first factor weighs in Cooley’s favor, but not heavily.

The second factor is the reason for the delay. As well-stated by the Eighth Circuit:

We accord “‘different weights ... to different reasons.’” Vermont v. Brillon, --- U.S.

----, ----, 129 S. Ct. 1283, 1290, 173 L. Ed. 2d 231 (2009). We weigh an intentional

delay by the government “heavily against it.” Walker, 92 F.3d at 717 (citing Barker,

407 U.S. at 531, 92 S. Ct. 2182). We weigh negligence by the government “less

heavily” but still regard such negligence as “a considerable factor in the weighing

process.” Id. (citing Barker, 407 U.S. at 531, 92 S. Ct. 2182, and Doggett, 505 U.S.

at 652-53, 112 S. Ct. 2686). We weigh “delay caused by the defense ... against the

defendant.” Brillon, at 1290. The Supreme Court has called this Barker factor “[t]he

flag all litigants seek to capture.” United States v. Loud Hawk, 474 U.S. 302, 315,

106 S. Ct. 648, 88 L. Ed. 2d 640 (1986).

United States v. Erenas-Luna, 560 F.3d 772, 777 (8th Cir. 2009). Admittedly, the record is scant

as to the reason for delay in this case.3 Nevertheless, the record does shows that Cooley was one

of nine codefendants charged. These codefendants were arrested between August of 2019 and

March of 2020.4 See Doc. Nos. 36, 37, 56, 57, 80, 104, 105. While there was a 12-month delay

between the arrest of the last codefendant and the arrest of Cooley, based on the limited evidence

before the Court, there is no indication that the Government has negligently or intentionally

delayed prosecution. See Barker, 407 U.S. at 531. The Court has no evidence regarding whether

Cooley did or did not know about the indictment, and as such the Court cannot find him responsible

for the delay. Accordingly, the reason for delay weighs does not weigh against the Government.

3

Both Cooley and the Government assert various (and opposing) reasons for the delay in their

motions. See Doc No. 327, pp. 5-7; Doc. No. 333, pp. 4-5. The majority of these assertions are

unsupported by evidence, either affidavit or otherwise. The Court will not consider factual

assertions raised by either party that are unsupported by evidence. However, the Court can and

will consider the docket in this case, and to the extent the parties’ assertions rely on the docket

the Court will consider them in its analysis.

4

One codefendant was arrested prior to the Indictment. See Doc. No. 4.

6

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Case 3:19-cr-00137-PDW Document 352 Filed 01/19/22 Page 7 of 8

The third Baker factor considers “whether in due course the defendant asserted his right

to a speedy trial.” Erenas-Luna, 560 F.3d at 778 (internal citation and quotation omitted). In

support of this factor, Cooley argues “two separate Sixth Amendment claims:” (1) a claim arising

from the time between his Indictment and arrest; (2) a claim arising from the time between his

arrest and trial. Doc. No. 342, p. 5. In general, “[C]ourts in the Eighth Circuit have not held that

a defendant’s assertion of his speedy trial right strengthens his case, only that a failure to assert it

may weaken his case.” United States v. Soto, No. 5:18-CR-50050-01-KES, 2021 WL 1176068,

at *8 (D.S.D. Mar. 29, 2021) (citing United States v. Weber, 479 F.2d 331, 333 (8th Cir. 1973)).

Here, Cooley raised his right to speedy trial in response to the Government’s motion to join and

again here. Cooley has clearly asserted his speedy trial rights in this case. While Cooley’s case is

not weakened by a failure to assert his claims, nor is it strengthened; this factor is neutral. See

Erenas-Luna, 560 F.3d at 778.

For the last factor, “the degree of prejudice required, if any, depends on the defendant’s

showing under the preceding Barker factors.” Sims, 847 F.3d at 636 (internal citation omitted).

Because the Government has been reasonably diligent in pursuing this matter, Cooley must

establish actual prejudice. United States v. Rodriguez-Valencia, 753 F.3d 801, 808 (8th Cir. 2014).

Courts look to the three primary interests of the speedy trial right when examining prejudice: “(i)

to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused;

and (iii) to limit the possibility that the defense will be impaired.” Barker, 407 U.S. at 532.

Cooley has been in custody for a little over nine months. This pretrial incarceration does

not weigh in his favor, especially considering the complexities of a multidefendant conspiracy

case. He also asserts that “based on the nature and circumstances of the charges and the possible

penalties they bring, anyone in Mr. Cooley’s position would be anxious about the federal charges

7

App. 17a

Case 3:19-cr-00137-PDW Document 352 Filed 01/19/22 Page 8 of 8

is currently facing.” Doc. No. 327, p. 8. But, those concerns apply to anyone accused of a crime.

Beyond generalization, Cooley offers nothing to demonstrate “that the delay weighed particularly

heavily on him in specific circumstances.” Morris v. Wyrick, 516 F.2d 1387, 1391 (8th Cir. 1975);

see also United States v. Shepard, 462 F.3d 847, 864-65 (8th Cir. 2006) (citing Barker, 407 U.S.

at 534) (“Anxiety, without concurrent prejudice to the defendant’s ability to mount a defense, is

likely the weakest interest served.”). Finally, nothing indicates that the passage of time has caused

the disappearance of witnesses or other material evidence to impede Cooley’s ability to mount a

defense. He cannot show prejudice as a result. This factor weighs heavily against Cooley. After

careful consideration of the Barker factors, the Court concludes that Cooley’s Sixth Amendment

right to a speedy trial remains uninfringed.

IV.

CONCLUSION

The Court has reviewed the record, the parties’ filings, and the relevant legal authority.

The Court finds that the Government did not violate Cooley’s rights under either the Speedy Trial

Act or Sixth Amendment. See Titlbach, 339 F.3d at 699 (explaining that “[i]t would be unusual

to find the Sixth Amendment has been violated when the Speedy Trial Act has not” (citing Sprouts,

282 F.3d at 1042)). For the reasons above, Cooley’s motion to dismiss (Doc. No. 326) is DENIED.

IT IS SO ORDERED.

Dated this 19th day of January, 2022.

/s/ Peter D. Welte

Peter D. Welte, Chief Judge

United States District Court

8

App. 18a

Case 3:19-cr-00137-PDW Document 368 Filed 01/24/22 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NORTH DAKOTA

United States of America,

)

)

Plaintiff,

)

vs.

)

ORDER

)

Roger Rachon Cooley,

)

Case No. 3:19-cr-00137

)

Defendant.

)

______________________________________________________________________________

Before the Court is Defendant Roger Rachon Cooley’s motion for reconsideration filed on

January 20, 2022. Doc. No. 353. Cooley seeks reconsideration of this Court’s January 19, 2022

order denying his motion to dismiss. Doc. No. 352. The Government responded to the motion on

January 23, 2022. The Court held a limited evidentiary hearing on the motion to reconsider on

January 24, 2022. For the reasons below, the motion is denied.

I.

BACKGROUND

The Court previously reviewed and discussed the procedural posture and relevant factual

background of this criminal case in its order denying Cooley’s motion to dismiss. See Doc. No.

352. As such, the Court will only address those facts specifically highlighted in the motion to

reconsider and at the evidentiary hearing.

In his motion for reconsideration, Cooley raises two arguments – (1) that the Court erred

in not holding an evidentiary hearing, and (2) that Cooley had newly discovered evidence that

offered additional facts as to the claimed delay between Cooley’s indictment and his arrest. Doc.

No. 353. By way of review, Cooley moved to dismiss the indictment on Sixth Amendment speedy

trial grounds, focusing on the delay between his indictment and ultimate arrest. In the Court’s

January 19, 2022 order denying Cooley’s motion to dismiss, the Court specifically noted the

majority of the factual assertions as to the reason for the delay between indictment and arrest were

App. 19a

Case 3:19-cr-00137-PDW Document 368 Filed 01/24/22 Page 2 of 5

unsupported by evidence, either affidavit or otherwise. The Court, accordingly, considered the

docket and record in reaching its decision on the motion to dismiss.

As support for his motion for reconsideration, Cooley filed four affidavits. Viewed in the

light most favorable to Cooley, these affidavits could possibly contain facts in dispute pertaining

to his original motion to dismiss. Thus, the Court was placed in a position of having affidavit

testimony from Cooley but not from the Government as to what happened from the time of

indictment to arrest. Because of the proximity in time to the trial date, the Court ordered a limited

evidentiary hearing on the “factual issues raised in the new affidavits concerning the reason for the

claimed delay between Cooley’s indictment and arrest.” Doc. No. 357.

The day before the evidentiary hearing, the Government filed a response to Cooley’s

motion. Doc. No. 364. As a part of its response, the Government included attachments and

communications from the Federal Bureau of Investigation (“FBI”) and the United States Marshals

Service (“USMS”), which detailed the efforts those agencies made to arrest Cooley after his

indictment. Id.

With both parties having presented additional factual support as to the events that occurred

(or did not occur), the Court held the limited evidentiary hearing on January 24, 2022. Both parties

largely relied on the affidavit testimony and the record in support of their positions. Mr. Kevin

Fischer testified for Cooley. Both parties were afforded several opportunities to supplement the

record in this case.

II.

ANALYSIS

A motion for reconsideration “serves the limited function of correcting manifest errors of

law or fact or presenting newly discovered evidence.” Bradley Timberland Res. v. Bradley

Lumber Co., 712 F.3d 401, 407 (8th Cir. 2013) (cleaned up). Such motions are not “a vehicle to

2

App. 20a

Case 3:19-cr-00137-PDW Document 368 Filed 01/24/22 Page 3 of 5

identify facts or legal arguments that could have been, but were not, raised at the time the relevant

motion was pending.” SPV-LS, LLC v. Transamerica Life Ins. Co., 912 F.3d 1106, 1111 (8th Cir.

2019) (quoting Julianello v. K-V Pharm. Co., 791 F.3d 915, 923 (8th Cir. 2015)). Nor may a

motion for reconsideration attempt “simple reargument on the merits.” Broadway v. Norris, 193

F.3d 987, 990 (8th Cir. 1999).

A.

Evidentiary Hearing

Cooley first argues the Court was “required” to hold an evidentiary hearing on his motion

to dismiss. The Court disagrees. As an initial matter, the Court notes that counsel did not request

an evidentiary hearing on the motion; rather, counsel only requested oral argument. Counsel also

never requested an evidentiary hearing at a January 14, 2022 status conference, where the motion

to dismiss was discussed with counsel. Nevertheless, “A district court must hold an evidentiary

hearing only when the moving papers are sufficiently definite, specific, and detailed to establish a

contested issue of fact.” United States v. Stevenson, 727 F.3d 826, 830 (8th Cir. 2013).

Here, the parties’ briefs of the initial motion to dismiss were not “sufficiently definite,

specific, and detailed to establish a contested issue of fact[,]” which was why the Court did not

initially hold a hearing on the motion. Indeed, while the parties asserted various (and opposing)

reasons for delay, they did not explicitly dispute material facts such that the Court was required to

hold a hearing. The Court will not, and should not, consider factual assertions that are unsupported

by evidence or material facts.

The Court finds that it was not required to hold an evidentiary hearing. In the interests of

fundamental fairness, after Cooley submitted four affidavits, the Court held a limited evidentiary

hearing to permit both parties an opportunity to present evidence as to what happened (or did not

3

App. 21a

Case 3:19-cr-00137-PDW Document 368 Filed 01/24/22 Page 4 of 5

happen) during the delay between the indictment and arrest. As noted above, neither party had

previously offered such factual support.

The Court rejects Cooley’s argument that it erred by not holding an evidentiary hearing

on the motion to dismiss. The original moving papers were not “sufficiently definite, specific, and

detailed to establish a contested issue of fact.” See Stevenson, 727 F.3d at 830. Even so, the

Court, in its discretion, permitted Cooley and the Government another opportunity to present facts

explaining what occurred during the time between indictment and arrest. No facts or evidence

were presented at the evidentiary hearing that warrant a reversal of the Court’s prior order denying

the motion to dismiss. Accordingly, the Court denies Cooley’s motion for reconsideration on the

grounds that the Court erred in failing to hold an evidentiary hearing.

B.

Newly Discovered Evidence

Cooley next argues that his motion for reconsideration is warranted because of “newly

discovered evidence.” Doc. No. 354, p. 3. Cooley asserts that he retained Kevin Fischer as a

private investigator to gather evidence for this case. Id. According to Cooley, Fischer ran out of

funding and as such “was unable to interview key fact witnesses pertaining to the Motion to

Dismiss.” Id. Funding was approved on January 18, 2022. Id. On January 19, 2022, Fischer

completed two witness interviews, which Cooley asserts were “two key fact witnesses for the

Motion to Dismiss previously filed by Mr. Cooley.” Id. Fischer asserts that because funds for the

investigation were exhausted on or about January 6, 2022, his first opportunity to interview these

two witnesses was on January 19, 2022. Doc. No. 354-1, p. 2.

The Court is not convinced that the interviews of these two witnesses are newly discovered

evidence. According to Cooley, Fischer’s funding ran out on or around January 6, 2022. However,

Cooley filed his motion to dismiss on December 28, 2021—over a week before Fischer’s funding

4

App. 22a

Case 3:19-cr-00137-PDW Document 368 Filed 01/24/22 Page 5 of 5

ran out. As such, this evidence could have been, but was not, raised at the time the relevant motion

was pending. See SPV-LS, LLC v. Transamerica Life Ins. Co., 912 F.3d 1106, 1111 (8th Cir.

2019) (quoting Julianello v. K-V Pharm. Co., 791 F.3d 915, 923 (8th Cir. 2015)). Accordingly,

the Court finds that Cooley has failed to produce newly discovered evidence.

Finally, even after allowing both parties to offer additional factual explanation as to the

delay between indictment and arrest, the motion for reconsideration fails on the merits, and the

Court’s position remains unchanged. There has been no showing of a negligent or an intentional

delay, and the delay was not excessive. As previously ordered, Cooley has not demonstrated any

actual prejudice to his defense, and he has failed to show his Sixth Amendment right to a speedy

trial has been violated.

III.

CONCLUSION

The Court has reviewed the record, the parties’ filings, and the relevant legal authority.

For the reasons above, Cooley’s motion for reconsideration (Doc. No. 353) is DENIED.

IT IS SO ORDERED.

Dated this 24th day of January, 2022.

/s/ Peter D. Welte

Peter D. Welte, Chief Judge

United States District Court

5

App. 23a

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No: 22-2201

United States of America

Appellee

v.

Roger Rachon Cooley

Appellant

______________________________________________________________________________

Appeal from U.S. District Court for the District of North Dakota - Eastern

(3:19-cr-00137-PDW-7)

______________________________________________________________________________

ORDER

The petition for rehearing en banc is denied. The petition for rehearing by the panel is

also denied.

Judge Erickson did not participate in the consideration or decision of this matter.

May 10, 2023

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit.

____________________________________

/s/ Michael E. Gans

App. 24a