The Sixth Amendment guarantees that the “accused shall enjoy the right to a speedy and public trial.” But when does the clock begin to run? In United States v. Black, the Second Circuit (Pooler, Newman, and Cote sitting by designation and dissenting) held that the right to a speedy trial attaches at the first indictment or arrest and not when the defendant is accused of a particular charge, as is true with the right to counsel. On that basis, the Court affirmed the dismissal of criminal charges (relating to a murder) asserted for the first time in a superseding indictment, finding that because the charges stemmed from the same conduct as the initial indictment (which charged an armed robbery that led to the death of victims), the length of delay for speedy-trial purposes was the sixty-eight months between the initial indictment and trial, rather than the considerably shorter period between the superseding indictment and trial. As the panel repeatedly emphasized, the decision marks the third time in two years that the Circuit has found a speedy trial violation in the Western District of New York. See United States v. Tigano, 880 F.3d 603 (2d Cir. 2018) (covered here and here); United States v. Pennick, 713 F. App’x 33 (2d Cir. 2017) (summary order).

In a lengthy and thoughtful dissent, Judge Cote concluded that the right to a speedy trial attaches when the defendant is accused of a crime, as with the right to counsel, and would have applied double-jeopardy principles as set forth in Blockburger v. United States, 284 U.S. 299 (1932), to determine whether the new charges in the superseding indictment were the “same offense” as those asserted in the initial indictment. Because they were not the same offense under Blockburger, the new charges in the superseding indictment did not “relate back” for speedy-trial purposes to the date of the original charge. Therefore, she would have held that this shorter delay between the superseding indictment and trial was not in violation of the Speedy Trial Act and did not require dismissal of the charges added in the superseding indictment. As discussed below, both opinions make forceful cases for their respective arguments, and it is possible that the government will seek rehearing en banc.


On March 6, 2012, Rodshaun Black, Daniel Rodriguez, and Ernest Green were indicted and charged with a single count of Hobbs Act conspiracy arising out of the 2009 murder of Jabril Harper. During an arraignment the following day, prosecutors represented that they would likely file additional charges and possibly seek the death penalty. Given the importance of that decision, defense counsel successfully sought to defer motion practice, while the government opposed any extension because it could not say how long the process would take.

At a subsequent conference in May 2012, the government admitted it had not yet requested authorization from Washington to seek the death penalty but said it would have a decision in approximately sixty days. Citing their clients’ desire to move the case along, defense counsel agreed to a limited extension to July 24. Just days before that deadline, however, the government still had not reached a decision, leading to another round of extensions and further representations that a decision might come in October 2012. During an August 2012 conference, defense counsel again raised concerns about delay and agreed to proceed with motions on the assumption that the government would not file a superseding indictment. At the motion hearing in December 2012, the government refused to provide a timeline for its decision and revealed that it had not even met with the Department of Justice to discuss whether to seek the death penalty.

In the meantime, the parties engaged in extensive litigation concerning the disappearance of several photo arrays that law enforcement had shown to witnesses to identify the defendants. On December 28, 2012, the defendants requested additional discovery and to suppress identification evidence. In February 2013, with some arrays still missing, the court ordered the government to produce all arrays, and in March 2013 ordered the government to confer with law enforcement again. After several additional extensions to account for the government’s inability to locate the photo arrays, the court scheduled a hearing on the pre-trial motions for October 2, 2013. Yet that hearing would be deferred four times to February 19, 2014—140 days after it was initially scheduled—due to the government’s conflicts and its inability to produce its witnesses and the defendants. Finally, in April 2014, the government reported that it had located the photo arrays in the home of a retired police detective who was not involved in the identification efforts and, by June 2014, the parties reported that the remaining discovery disputes were largely resolved.

On December 12, 2014, before the magistrate judge could issue his report and recommendation on the pre-trial motions, the government filed a nine-count superseding indictment that charged the defendants with five counts in connection with the murder of Mr. Harper: (1) Hobbs Act conspiracy, (2) Hobbs Act robbery and extortion, (3) kidnapping, (4) discharge of a firearm causing death, and (5) use, brandishing, and discharge of a firearm. The superseding indictment also charged Green and Black with four counts related to the kidnapping of Morris Singer in January 2010: (6) Hobbs Act conspiracy, (7) Hobbs Act robbery and extortion, (8) kidnapping, and (9) possession and brandishing of a firearm. Finally, the indictment added two new defendants who were charged with Counts 1-3 and 5.

On January 13, 2015, two years and ten months after arraignment on the original indictment, the government informed the parties and the court that it would not seek the death penalty. During arraignment on the superseding indictment, Green expressed his frustration with the delay, stating that he had “put in for a speedy trial,” and suggested his counsel had been ineffective. The court subsequently appointed Green new counsel. For the next year, the parties engaged in a new round of pre-trial motions and evidentiary hearings. On July 6, 2016, the magistrate issued a report and recommendation on the motions and granted the defendants several extensions to file objections. On April 26, 2017, the court finally resolved the parties’ objections and scheduled trial for October 31, 2017.

On October 27, 2017, four days before trial was set to begin, Green filed a motion to dismiss the superseding indictment on speedy trial grounds, which Black and Rodriguez promptly joined. While the motion was pending, trial proceeded on October 31, 2017. On January 18, 2018, the jury acquitted Green and Black on the 2010 armed robbery charges but hung on the five charges related to the 2009 murder. On February 8, the district court granted the motion to dismiss, applying the four factors set forth in Barker v. Wingo, 407 U.S. 514 (1972): the length of the delay before trial, the reason for the delay, the defendants’ assertion of their speedy trial rights, and prejudice. Starting from the date of the initial indictment, the court calculated a delay of sixty-eight months, much of which was attributable to the government as a result of its prolonged death-penalty determination, misplacement of the photo arrays, and scheduling issues, and the court found that the defendants had repeatedly asserted their speedy trial rights. While the court also deemed some delay attributable to the court’s schedule and the defendants’ requests for extensions and adjournments and found no prejudice, the Barker factors, taken as a whole, warranted dismissal of the superseding indictment.

The Majority Opinion

In a decision by Judge Pooler, the Second Circuit held that the district court did not abuse its discretion and affirmed. Much of the majority’s analysis, and its dispute with the dissent, centered on the first factor—the length of delay—and specifically when the clock began to run for the charges that were asserted for the first time in the superseding indictment. The majority held that, under governing precedent, the right to a speedy trial runs from “the first indictment or arrest to trial.” Op. 34. By contrast, the dissent would have held that the right to a speedy trial, like the right to counsel, attaches when formal charges are filed, given that both rights stem from the Sixth Amendment’s guarantee of rights to “the accused” “in all criminal proceedings.” On that basis, the dissent would have applied double-jeopardy principles as set forth in Blockburger v. United States, 284 U.S. 299 (1932)—namely, whether the offense requires proof of additional elements—to decide whether charges in a superseding indictment are the “same offense” as, and relate back to the date of, the offenses charged in the initial indictment.

The majority rejected the dissent’s approach for three reasons.

First, the government forfeited the argument by never raising it. To the contrary, the government accepted the calculation of time and claimed that there was no speedy trial violation in light of the remaining factors.

Second, the Supreme Court has already held on several occasions that the right to a speedy trial attaches before any formal charge is filed. In United States v. Marion, the Court held that the right is “engaged by either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge.” 404 U.S. 307, 320 (1971) (emphasis added). In Dillingham v. United States, the Court reversed a decision based on the lower court’s failure to calculate delay from the date of arrest, as opposed to the indictment. 423 U.S. 64, 65 (1975) (“[T]he Government constituted petitioner an ‘accused’ when it arrested him and thereby commenced its prosecution of him.”). And in United States v. MacDonald, the Court held that the right attached at arrest despite the fact that a “literal reading of the Amendment suggests that this right attaches only when a formal criminal charge is instituted and a criminal prosecution begins.” 456 U.S. 1, 6, 8 (1982). The majority reasoned that these decisions reflect the fact that the right to a speedy trial exists to protect the individual’s liberty interest, which is jeopardized by arrest even prior to accusation, whereas the right to counsel exists to protect the accused during trial-type confrontations. These decisions were also consistent with Barker’s recognition that the right to a speedy trial is “amorphous” and not easily susceptible to formalistic rules. Op. 32 (quoting 407 U.S. 522).

Third, the dissent’s rule would “vitiate” the interests served by the Speedy Trial Clause, which include protecting against oppressive pretrial incarceration, minimizing the accused’s anxiety and concern in the face of criminal charges, and limiting the possibility that the defense will be impaired. Op.32. Were the government permitted to use an indictment as a placeholder “while contemplating more severe charges based on the same conduct,” as here, the courts would ignore years of pretrial delay, the anxiety and concern amplified by the superseding indictment, and increased concerns over aging evidence. Op. 33. The majority noted that six other circuits, including most recently the First Circuit in United States v. Handa, 892 F.3d 95 (1st Cir. 2018), have likewise rejected the notion that the right to a speedy trial is subject to a Blockburger analysis.

Having calculated a delay of sixty-eight months, the majority easily found that the delay was presumptively prejudicial, placing the burden on the government to show it was justified in light of the remaining Barker factors. Yet each weighed further in the defendants’ favor.

With respect to the reason for the delay, the government failed to justify the nearly three years it took to decide whether to pursue the death penalty, and while not all of that time could be attributed to the government on that basis, it was the driving force behind numerous extensions at the start of the case. The majority also found “particularly egregious” the government’s misplacement of the photo arrays and had no difficulty attributing the resulting delay to the government. The government’s failure to produce witnesses and the defendants for hearings and its repeated requests for extension also contributed to the delay, as did its decision to file a superseding indictment nearly three years after the initial indictment, which rendered much of the previous pre-trial motion practice irrelevant. Although the defendants were responsible for some delays, they paled in comparison to the amount attributable to the government.

With respect to the third factor, the defendants had repeatedly asserted their right to a speedy trial, as early as August 2012, placing the government on notice of the potential violation. And with respect to the last factor—prejudice—each of the three interests served by the Speedy Trial Clause was undermined, given the sheer length of the delay, the cloud of uncertainty over whether the government would seek the death penalty, and the fact that defense counsel were constrained by prior choices they had made when litigating a very different case under the initial indictment. All of these factors demonstrated that the court and the government had failed in their affirmative duty to bring the case to trial without unnecessary delay, as the Speedy Trial Clause requires.

The Dissent

While Judge Cote had “no quarrel” with the Court “expressing dismay” over the “extraordinary” near-six-year delay in bringing the defendants to trial, she disagreed with the majority’s legal framework. Dissent Op. 2. As noted, she would have held that the Sixth Amendment right to a speedy trial, like the Sixth Amendment right to counsel, attaches at the commencement of adversarial proceedings because both rights stem from the same textual guarantee “in all criminal prosecutions” to “the accused,” and it would be nonsensical to ascribe a different meaning to the same language in the same provision.

The dissent distinguished the various Supreme Court cases cited by the majority, reasoning that while the Court “has frequently used the term ‘arrest’ to indicate” that “the rights protected by the Speedy Trial Clause attach prior to the filing of an indictment or information,” it has subsequently clarified that it is in fact the “‘holding to answer a criminal charge’ following an arrest that triggers the attachment.” Dissent Op. 27 (quoting Marion, 404 U.S. at 320). Indeed, all Sixth Amendment rights attach based on one’s status as “accused,” and the right to a speedy trial is and should be no different.

The dissent dismissed the majority’s concerns about vitiating the Speedy Trial Clause, because “[t]he Sixth Amendment’s liberty interests, whether addressed to the right to counsel or to a speedy trial, are those that accompany a prosecution, not the act of arrest.” Dissent Op. 24. Moreover, the Fifth Amendment’s Due Process Clause, and statutes of limitations, will protect against undue investigative delay. By contrast, the majority’s framework “invites manipulation of the criminal justice system and interferes improperly with the executive’s duty to investigate criminal activity with care and to exercise its discretion to file charges with prudence.” Dissent Op. 29. In this case, Judge Cote reasoned, the government could have proceeded with the single charge in the initial indictment, lost, and brought a new indictment post-trial, and the only bar to prosecution would be the Double Jeopardy Clause’s protection against facing the same offense twice. There was no reason to force the government to instead rush its investigative process and bring all charges in the initial indictment or wait until a later proceeding.

The dissent took special aim at the First Circuit’s recent decision in Handa, which held that the bringing of an additional charge does not reset the speedy-trial clock if the charge is based on the same act or transaction as a prior charge or is connected with a common scheme or plan previously charged, and the government could have with diligence brought the charge at the time of the prior accusation. 892 F.3d at 106-07. That approach, the dissent reasoned, effectively requires what the Supreme Court has explicitly rejected in the Double Jeopardy context: that charges arising out of the same transaction be brought in the same prosecution. The dissent dismissed the remaining appellate court decisions relied on by the majority on the basis that they did not engage in any real analysis or were inapposite.

Applying the Blockburger test, the dissent found Counts 2-5 (the new charges as to the 2009 murder) were separate offenses from the initial charge and therefore did not trigger speedy-trial rights until the filing of the superseding indictment. The approximately three years between the superseding indictment and trial was not enough, moreover, to warrant a speedy-trial violation, and the defendants had never seriously argued otherwise.


Both the majority and dissent believed the other’s approach would “revolutionize Sixth Amendment speedy trial jurisprudence.” Op. 26, Dissent Op. 18 n.7. And both make compelling points and the issue seems like a close one. The two decisions together run more than 110 pages, but it is well worth the read if you are interested in criminal procedure and the Sixth Amendment.

The majority’s approach to the Sixth Amendment seems more consistent with the language of the Supreme Court’s seminal speedy-trial decision in Barker. In that case, the Court observed that “[t]he right to a speedy trial is generically different from any of the other rights enshrined in the Constitution for the protection of the accused”: it not only serves the individual’s liberty interest but also society’s independent interest in minimizing the deleterious effects of undue pretrial delay, including lengthy exposure to jail and the economic costs of incarceration. 407 U.S. at 519-20. “[P]erhaps most importantly, the right to a speedy trial is a more vague concept than other procedural rights” and it is “impossible to determine with precision when the right has been denied.” Id. at 521. As the First Circuit recognized in Handa, it seems inappropriate in this “amorphous” context to say that the “start-date question is subject to per se rules.” 892 F.3d at 106.

By ruling that the right attaches at trial and not upon the superseding indictment, the majority is hoping to find “safety in numbers” given that the unanimous view of the Circuits that have addressed the Blockburger issue is to reject the view advanced by the dissenting opinion. To be sure, the Supreme Court sometimes takes the less popular view of the issue, as it did in Lagos v. United States, 138 S. Ct. 1684 (2018), when the Court unanimously took the side of the D.C. Circuit against the view of six other Circuits. But it is not surprising that the Second Circuit decided the case in a manner that avoided creating a Circuit split.

The dissent’s strongest point is that it is unusual to accord different interpretations to different parts of a single constitutional text—here, the Sixth Amendment. However, this is not unheard of in the context of constitutional law, much of which is based on judicially created concepts rather than the Constitution’s rather-limited text. To name just one prominent example, the meaning of “due process of law” in the Fourteenth Amendment may vary significantly depending on the life, liberty, or property interest at issue. The majority may have had similar variations in mind when it recognized that the point at which one becomes an “accused” can vary depending on the nature of the Sixth Amendment right at issue, as well as the underlying principles served by the right.

Even so, it is questionable whether the majority needed to reach the difficult question of whether the “accused’s” right to a speedy trial attaches at arrest, as opposed to the initial indictment. As the dissent recognized, there are compelling arguments against such a holding, and the Supreme Court decisions on which the majority relied have arguably been undermined by more recent decisions. At the same time, there was no daylight between the date of arrest and the initial indictment, so it would have been sufficient for the majority to hold that the right to a speedy trial attached at the initial indictment while rejecting the dissent’s attempt to import double-jeopardy principles into the very-different speedy trial context. Indeed, despite some offhand references to arrest, that is what the Handa court did when it looked to the date of the original indictment in conducting its analysis. One can accept the majority’s concerns over placeholder indictments and undue delay without holding, at least here, that the right to a speedy trial of the accused must attach at arrest. It is possible that the Court may take a narrower approach limited to the circumstances of the case, as the government has sought additional time to potentially seek leave for rehearing en banc, by May 1.

Finally, even apart from the precedent that is being set here for cases in the future, one cannot lose sight of the high stakes at issue in this individual case. The defendants have been charged with murder, the most serious offense in our criminal justice system, and one that could have led to a lifetime of imprisonment. Due to the unseemly and unconstitutional delay in prosecution, this decision allows the defendants to walk away free, even if they are guilty of the crime. This is beyond unfortunate and should be a wake-up call to prosecutors to make certain that nothing like this is ever permitted to occur again. While on the New York Court of Appeals, Justice Cardozo once asked whether the criminal should “go free because the constable has blundered.” People v. Defore, 242 N.Y. 13, 21 (1926). In our system, this is sometimes precisely what happens, the cost of having a system of enforceable constitutional rights of criminal procedure. Absent further appellate review, the years of delay here will lead to the result that troubled Justice Cardozo. No one—not the defendant, the prosecutor or the public—is well-served by such delay, and steps should be taken to prevent this from happening in the future (e.g., the expansion of the WDNY bench with new permanent or at least visiting judges to clear any backlog; additional funding for defense counsel and prosecutors).