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United States v. Sims

United States Court of Appeals, Eighth Circuit

February 2, 2017

United States of America Plaintiff- Appellee
v.
Robin M. Sims Defendant-Appellant

          Submitted: November 16, 2016

         Appeal from United States District Court for the Western District of Missouri - Kansas City

          Before RILEY, Chief Judge, WOLLMAN and KELLY, Circuit Judges.

          KELLY, Circuit Judge.

         This is Robin Sims' second time before the court. On the government's interlocutory appeal in 2014, we found that the district court's[1] exclusion of DNA evidence as a sanction for the government's late disclosure was not an abuse of discretion. The case then proceeded to trial, and a jury convicted Sims on all counts. Now, in Sims' post-judgment appeal, he argues that the delay created by the government's interlocutory appeal was a violation of his Sixth Amendment right to a speedy trial. Finding no such violation, we affirm.

         I. Background

         We set forth a detailed description of the facts leading up to trial in our prior opinion, United States v. Sims (Sims I), 776 F.3d 583 (8th Cir. 2015), which we incorporate herein. Relevant facts are repeated here for context.

         Sims was arrested on June 24, 2013, and an initial indictment followed on July 17, 2013. Pursuant to a superceding indictment, Sims was charged with three counts of conspiring to distribute, distributing, and aiding and abetting the distribution of heroin; and one count of being a felon in possession of a firearm. During the first scheduling conference in August 2013, the district court set trial for April 28, 2014, pursuant to Sims' request. It also ordered the government to disclose all expert evidence "no later than seven days before the pretrial conference."

         Five days after the pretrial conference and six days before trial, the government first notified Sims of its intention to call a forensic analyst to testify that Sims was the source of "the majority of the DNA on the gun" that was seized from him. Sims moved to exclude the DNA evidence as untimely and the government responded by seeking a continuance of the trial, which Sims opposed. The district court granted Sims' motion, excluded the DNA evidence from trial, and denied the government's motion for a continuance.

         On April 25, 2014, the government filed an interlocutory appeal, arguing that the district court's exclusion of the DNA evidence was too harsh of a sanction and it should have continued the trial instead. After filing, the government sought and received three extensions of the deadline to file its opening brief, one extension of its reply deadline, and two extensions of the filing date for a petition for rehearing which was never filed. Sims sought reconsideration of the court's first grant of an extension in part on the ground that he wanted to go to trial. Reconsideration was denied. On January 14, 2015, we issued our opinion in Sims I affirming the district court's exclusion of the DNA evidence as a sanction for the government's non-compliance with the scheduling order.

         First, in Sims I, we held that the district court did not abuse its discretion in concluding that the government had acted in reckless disregard of the discovery deadline. 776 F.3d at 586. We noted that although the gun was originally submitted to the crime lab for DNA testing in summer 2013, the analyst did not perform testing because she mistakenly believed she did not have Sims' DNA on file to use as a comparator. Id. at 584. She emailed the detective on the case and informed him that she could not make the comparison, but the detective did not respond. Id. Two weeks before trial, on April 14, 2014, the government contacted the lab to inquire about the DNA testing, and discovering that nothing had been done, requested expedited testing. Id. At a pretrial conference three days later, the government stated it was "definitely ready for trial, " and did not mention the DNA evidence or forensic expert. Id. The government received the DNA report on April 21, 2014, and disclosed it and its expert to Sims and the court the following day. Id. After Sims moved to exclude the forensic expert, the government added two supplemental forensic specialists to its witness list just four days before trial. Id. at 585. The court found these facts "confirm[ed] the district court's conclusion that the government showed more than just negligence in missing the discovery deadline." Id. at 586.

         The Sims I court also agreed with the district court that the late disclosure prejudiced Sims because "[t]he DNA evidence would have played a key part in Sims's prosecution on the firearm charge" and Sims had no opportunity to review or challenge it. Id. The district court rejected the government's suggested lesser sanction of a continuance in part because "the Defendant does not want to further delay resolution of this case, and a delay should not be forced on him because of the government's conduct." We held that the district court did not abuse its discretion in refusing to continue the trial. Id.

         Prior to the issuance of the mandate in Sims I, on February 4, 2015, Sims filed a pro se motion to dismiss the indictment as a violation of his speedy trial rights, which the district court denied for lack of jurisdiction. After the mandate issued, Sims, through counsel, moved to dismiss on speedy trial grounds. The district court denied the motion without discussion.

         A jury trial began on May 11, 2015, and Sims was convicted on all counts. Sims now appeals the district court's denial of his motion to dismiss the indictment, arguing the government violated his Sixth Amendment right to a speedy trial by filing an ...


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