Report and Recommendation — United States v. Brandon Redmond (N.D. Ga., November 30, 2020)

Summary

This is a Report and Recommendation filed November 30, 2020, in the United States District Court for the Northern District of Georgia, Atlanta Division, in case 1:15-CR-284-AT-JKL-3 against Brandon Redmond. It addresses his pro se Motion to Dismiss the Case [Doc. 531] and his counsel's perfected Motion to Dismiss the Charges Against Him for Failure to Afford Him A Speedy Trial [Doc. 551]. It reviews the case history, including competency proceedings for co-defendant Mr. Jackson, under the four Barker factors. Magistrate Judge John K. Larkins III finds that Mr. Redmond has not been deprived of his constitutional right to a speedy trial, recommends that the motions be DENIED, and certifies the case ready for trial as to him.

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Case 1:15-cr-00284-AT-JKL Document 565 Filed 11/30/20 Page 1 of 17




                IN THE UNITED STATES DISTRICT COURT
               FOR THE NORTHERN DISTRICT OF GEORGIA
                         ATLANTA DIVISION

UNITED STATES OF AMERICA,

      v.                                  CRIMINAL ACTION FILE NO.

BRANDON REDMOND,                          1:15-CR-284-AT-JKL-3


      Defendant.

                    REPORT AND RECOMMENDATION

      Defendant Brandon Redmond is charged in this case with one count of

kidnapping, three counts of Hobbs Act robbery, and three counts of brandishing a

firearm during a robbery. [Doc. 134 at 3-6.] The case is presently before the Court

on Mr. Redmond’s pro se Motion to Dismiss the Case [Doc. 531] and his counsel’s

perfected Motion to Dismiss the Charges Against Him for Failure to Afford Him

A Speedy Trial [Doc. 551]. For the reasons that follow, I RECOMMEND that the

motions be DENIED.

I.    BACKGROUND

      Mr. Redmond was initially charged in this case by way of a superseding

criminal indictment in October 2015. 1 [Doc. 49.] On November 5, 2015, he was


      1
       The government obtained a second superseding indictment in July 2016,
which is the operative charging document in this case. [See Doc. 134.]
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arrested in Tennessee, and following a detention hearing there, a magistrate judge

detained him pending trial. [Doc. 77, 78-5.] Mr. Redmond remains in custody at

the Robert A. Deyton Detention Facility in Lovejoy, Georgia.

      On November 20, 2015, at his first appearance in this district, the Court

arraigned Mr. Redmond and appointed counsel to represent him. [Docs. 84, 82.] In

December 2016, Mr. Redmond moved for appointment of new counsel, and,

following a hearing, on January 17, 2017, the Court granted the motion and

appointed Derek Jones to represent him in the case.

      Following lengthy pretrial litigation—including multiple evidentiary

hearings and motions—the Court set this case for trial beginning October 9, 2018.

[See Dkt. Entry dated June 29, 2018.] At the government’s request, and without

opposition from Mr. Redmond or the other co-defendants, the Court reset the trial

to December 3, 2018. [Docs. 387, 388.] On November 4, 2018, Mr. Redmond

moved to sever his trial, which the Court granted, severing him and co-defendants

Dayna Liverman and Anthony Richardson from co-defendant Mario Jackson for

purposes of trial. [Doc. 418.] Mr. Redmond then filed a supplemental motion to

sever, in which he indicated that he would prefer to be tried separately from all

Defendants, but given the option, he preferred to be tried with Mr. Jackson and not

with Ms. Liverman and Mr. Richardson. [Doc. 423.] On December 4, the Court

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clarified its previous order granting severance, stating that it would try Mr. Jackson

and Mr. Redmond together first, followed by Ms. Liverman and Mr. Richardson

together. [See Dkt. Entry dated Dec. 4, 2018.] On that same date, the Court granted

Mr. Jackson’s motion to continue trial to August 12, 2019, so that his newly-

appointed counsel, Jeffrey Ertel, could adequately prepare for trial. [Doc. 429.]

      Issues then arose concerning Mr. Jackson’s competency to stand trial. Mr.

Ertel filed motions for a competency hearing and a psychiatric exam [Docs. 443,

449], which the Court granted, resulting in the continuance of trial to January 27,

2020 [Doc. 457]. On December 8, 2019, Mr. Jackson again moved to continue trial

due to the inability to complete competency proceedings before trial. [Doc. 488.]

The motion was granted, and trial was reset to April 13, 2020. [See Dkt. Entry dated

December 13, 2019.] To date, issues relating to Mr. Jackson’s competency to stand

trial remain pending, which the undersigned discusses further below.

      In the meantime, on June 22, 2020, Mr. Redmond filed a pro se motion

seeking dismissal of charges against him [Doc. 531], a motion for speedy trial, in

which he demanded a speedy trial [Doc. 534], and motions for appointment of new

counsel [Docs. 532, 533]. On July 29, 2020, Mr. Redmond’s case was decertified,

and those pending motions were referred to the undersigned for resolution. [Doc.

547.] On August 7, 2020, I held a hearing on Mr. Redmond’s motions for new

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counsel, which he withdrew. [Doc. 550.] I also gave Mr. Redmond’s attorney the

opportunity to perfect the pro se motion for speedy trial. [Id.]

      On August 24, 2019, counsel filed a perfected motion to dismiss. [Doc. 551.]

In the perfected motion, Mr. Redmond contends that his Sixth Amendment right to

a speedy trial has been violated, 2 and, thus, the charges against him should be

dismissed. [Id. at 3.] The government opposes his motion. [Doc. 562.] Mr.

Redmond has filed a reply. [Doc. 563.] The motion is now ripe for resolution.

II.   DISCUSSION

      The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the

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

VI. The Sixth Amendment speedy trial right attaches “at the time of arrest or

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

States v. Knight, 562 F.3d 1314, 1323 (11th Cir. 2009) (quoting United States v.

Walters, 591 F.2d 1195, 1200 (5th Cir. 1979)). To determine whether a criminal

defendant’s constitutional right to a speedy trial has been violated, the court

evaluates the following four factors that the Supreme Court identified in Barker v.




      2
        Mr. Redmond does not contend that the delay of trial is a violation of the
Speedy Trial Act; thus, I focus my analysis on whether the delay in this case
violates Mr. Redmond’s constitutional, rather than statutory, right to a speedy trial.
                                        4
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Wingo: (1) the length of delay, (2) the reason for the delay, (3) the defendant’s

assertion of his right, and (4) prejudice to the defendant. 407 U.S. 514, 530 (1972).

      The first factor, length of delay, serves as a double inquiry. United States v.

Villarreal, 613 F.3d 1344, 1350 (11th Cir. 2010). First, it serves as a threshold

inquiry that Mr. Redmond must satisfy before the Court weighs the remaining three

factors. Id. “Until there is some delay which is presumptively prejudicial, there is

no necessity for inquiry into the other factors that go into the balance.” Barker, 407

U.S. at 530. Second, the inquiry “examines ‘the extent to which the delay stretches

beyond the bare minimum needed’ to satisfy the threshold showing of presumptive

prejudice.” Villarreal, 613 F.3d at 1350 (quoting Doggett v. United States, 505 U.S.

647, 652 (1992)). “The longer the pretrial delay extended beyond the ‘bare

minimum’ necessary to show presumptive prejudice, the stronger the presumption

that the pretrial delay prejudiced the defendant.” Id.

      As noted above, Mr. Redmond was indicted in October 2015 and arrested in

early November 2015, all over five years ago. Mr. Redmond argues that this five-

year delay is more than sufficient to satisfy the threshold for presumptive prejudice

under the first Barker factor. [Doc. 551 at 7.] In response, the government concedes

that under Eleventh Circuit precedent, the delay is presumptively prejudicial

because it exceeds one year, “the dividing line between ordinary and presumptively

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prejudicial delay.” [Doc. 562 at 4.] But the government maintains that this factor

does not weigh in favor of Mr. Redmond because the delay in the case does not

approach the eight-year delay that the Supreme Court found to violate a defendant’s

Sixth Amendment right in Doggett. [Doc. 562 at 4.] In support, the government

cites United States v. Bonilla, 602 F. App’x 667, 668 (9th Cir. 2015), and United

States v. Serna-Villarreal, 352 F.3d 225, 232 (5th Cir. 2003), in which courts found

that twenty-two-month and three-and-a-half-year delays were not excessively long.

      Mr. Redmond has the better of the arguments. Though the five-year delay

here falls short of the eight-year delay in Doggett, this length of time “clearly

suffices to trigger the speedy trial enquiry . . . .” Doggett, 505 U.S. at 652. Moreover,

Bonilla and Serna-Villarreal do nothing to help the government’s position—the

lengths of delay presented in those cases were, respectively, forty-two and eighteen

months shorter than the delay here. Therefore, the Court will move on to the other

factors in the Barker analysis.

      In the second Barker factor, the Court examines the reasons for the delay.

“The government bears the burden of establishing valid reasons for the delay.”

Villarreal, 613 F.3d at 1351. “Different reasons for delay are accorded different

weight in the Barker analysis. Government actions which are tangential, frivolous,

dilatory, or taken in bad faith weigh heavily in favor of a finding that a speedy trial

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violation occurred.” United States v. Schlei, 122 F.3d 944, 987 (11th Cir. 1997)

(citation omitted). But delays that occur for valid reasons, like overcrowded courts,

will not be accorded heavy weight against the government. Id. “Furthermore, the

Supreme Court has reasoned that negligence is more a neutral act that should not

be weighed as heavily as bad faith.” United States v. Bibb, 194 F. App’x 619, 622

(11th Cir. 2006).

      Mr. Redmond asserts that “[t]he Government bears a significant

responsibility for the delay in this case.” [Doc. 551 at 7.] In particular, he points to

issues with Mr. Jackson that have led to the delay. Mr. Jackson, who is now

represented by his fourth attorney, moved for a competency hearing on June 4,

2019. [Doc. 443.] Mr. Redmond contends that the government was not diligent in

obtaining its own mental health examination of Mr. Jackson, which in turn, resulted

in this case not being tried before the suspension of jury trials due to COVID-19.

[Doc. 551 at 7-8.]

      The government responds that “nearly all of the delay is attributable to

pretrial litigation or a substitution of counsel by Redmond or his co-defendant

Jackson’s pretrial litigation and competency issues.” [Doc. 562 at 6.] The

government highlights the following events. In October 2015, Mr. Redmond filed

a motion to suppress [Doc. 97], and later adopted a motion to dismiss [Doc. 108],

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in February of 2016. He then moved to continue the evidentiary hearing. [Doc. 115].

In July 2016, Mr. Redmond moved to appoint new counsel [Doc. 133], and later

filed a second motion to appoint counsel [Doc. 274]. In January 2017 the Court

appointed Mr. Redmond’s current attorney. [Doc. 281]. Mr. Redmond then moved

to adopt additional motions to suppress and for Daubert hearings that Mr. Jackson

filed [Doc. 291], and to continue the Daubert hearing [Doc. 292]. Following the

hearing on those motions, Mr. Redmond sought severance and to be tried with Mr.

Jackson only. [Docs. 397, 423.] Following the pretrial conference, Mr. Redmond

did not object to Mr. Jackson’s motion to continue trial. [Doc. 492.]

      In reply, Mr. Redmond acknowledges that he made a change in counsel and

engaged in pretrial litigation but contends those actions did not seriously delay the

case. [Doc. 563 at 2.] As to his preference to be tried with Jackson, Mr. Redmond

asserts that the decision to go to trial with Mr. Jackson is “the lesser of two evils.”

[Id. at 2.] Moreover, he argues that the government made it clear that Mr. Jackson

would be tried first, so even if Mr. Redmond was going to be tried alone, it is

unlikely that his case would be tried before Mr. Jackson’s.

      The Court finds that the second factor weighs against finding a speedy trial

violation. The delays in this case can be broken down into two phases: the first

being the delay due to Mr. Redmond’s actions, and the second, the delay due to Mr.

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Jackson’s circumstances. The delay due to Mr. Redmond’s actions provides no

basis for arguing that the government has violated his constitutional right to a

speedy trial. Schlei, 122 F.3d at 987 (holding that where the delay was caused by

numerous pretrial motions or defendant’s substitution of counsel, there was no

violation of the Sixth Amendment right to speedy trial). Mr. Redmond requested

new counsel and engaged in substantial pretrial litigation. The pretrial suppression

motions were decided on July 12, 2018. [Docs. 382, 383]. Mr. Redmond’s motion

to sever was decided in November and December of 2018. Accordingly, the delay

between Mr. Redmond’s indictment and arrest in October and November 2015 and

the resolution of all his pretrial motions in late 2018 are not the product of bad faith

delay by the government.

      Turning, then, to the second phase of delay—from roughly late 2018 to the

present—this delay is chiefly due to the extreme difficulty in assessing Mr.

Jackson’s competency to stand trial. As will be discussed, the government bears

some blame for that delay, but most of the delay is due to circumstances beyond

the government’s control.

      To recap, on November 27, 2018, the Court granted Mr. Jackson’s motion

to continue trial to allow Mr. Ertel, who had been newly appointed, time to prepare.

[Doc. 424.] On February 12, 2019, the Court continued the trial to August 19, 2019.

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[Doc. 429.] Meanwhile, Mr. Ertel raised the issue of whether Mr. Jackson may not

be competent to stand trial or assist in his defense. [Doc. 443]. On April 26, 2019,

the Court authorized a psychiatric evaluation of Mr. Jackson [Doc. 438], and on

June 4, 2019, through counsel, Mr. Jackson filed a motion for a competency hearing

to determine his mental fitness to stand trial [Doc. 443]. In that motion, Mr. Jackson

indicated that his retained psychiatrist concluded that he is not competent to stand

trial. [Id.] On June 26, 2019, the government filed a motion to conduct its own

psychiatric examination of Mr. Jackson, which the Court granted. [Docs. 449, 457.]

The Court set a competency hearing for January 10, 2020, and on November 22,

2019, the case was decertified for the undersigned to conduct that hearing. [Doc.

481.]

        At a status conference before the undersigned on December 5, 2019, counsel

for Mr. Jackson and counsel for the government advised the Court that the defense

expert’s report had, in fact, not yet been finalized, and that the government had yet

to conduct its own examination. [See Doc. 486.] The undersigned set a deadline of

December 17, 2019 for the parties to complete the examinations and exchange their

reports; however, the parties were unable to meet that deadline because the

government was unable to get access to Mr. Jackson. [Docs. 486, 487; see also Dkt.

Entry dated Nov. 22, 2019.] Following a teleconference with Mr. Jackson’s counsel

                                        10
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and counsel for the government on December 18, 2019, the government was given

until January 6, 2020, to furnish its final expert evaluation report as to Mr. Jackson

and his competency. [Doc. 493.] The government thereafter informed the Court

that it was unable to meet that deadline because Mr. Jackson refused to meet with

the government’s expert. The government moved to compel Mr. Jackson’s

cooperation with the expert conducting the psychiatric evaluation [Doc. 495],

which the Court granted and ordered Mr. Jackson to undergo a competency

examination at the facility where he is detained [Doc. 497 at 10]. The Court also

ordered that the parties’ examination reports be filed by January 29, 2020, and set

a competency hearing for January 30, 2020. [Id.]

      On January 23, 2020, the government advised the Court that Mr. Jackson

had again refused to cooperate with the government’s evaluator. On January 27,

2020, the Court held another status conference with counsel to discuss how to

proceed, and subsequently ordered Mr. Jackson to be transferred to a BOP facility

for purposes of a psychiatric or psychological examination. [Doc. 499.] On April

20, 2020, following completion of the evaluation, the Court set the competency

hearing for June 23, 2020. [Doc. 520.] Five days prior to the hearing, however, Mr.

Jackson requested a continuance to obtain an updated report from his own expert,



                                        11
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given concerns over staleness and the conflict between his expert’s and the

government’s expert’s conclusions over his competency. [Docs. 528, 529.].

      From there, the efforts to have Mr. Jackson evaluated and the competency

hearing rescheduled were further stymied by circumstances outside the

government’s control. For one, the worsening COVID-19 pandemic created

logistical, health, and safety concerns for everyone involved in this case, including

Mr. Jackson, his counsel, his retained expert, and the BOP and Marshals Service

personnel involved with Mr. Jackson. [See, e.g., Docs. 528, 544, 545, 555.]

Separately, Mr. Jackson suffered an assault at BOP-Atlanta, where he was detained,

which reportedly resulted in some deterioration of his mental and emotional state.

[See, e.g., Doc. 555 at 2 n.1.] As a result, Mr. Jackson’s expert was unable to

evaluate Mr. Jackson in person, and the competency hearing was continued on

multiple occasions. [See Docs. 505, 529, 543, 546; see also Dkt. Entries dated July

16, 2020.] After communications with the parties, BOP, and the Marshals Service,

the Court scheduled a status conference on September 4, 2020, to discuss means by

which Mr. Jackson’s expert could evaluate him remotely. [Doc. 544.] Despite an

apparent solution, on the day prior to when the remote examination was scheduled

to take place, Mr. Jackson reportedly became destructive, refused to cooperate with

BOP personnel, and was placed on suicide watch. Faced with another impasse, Mr.

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Jackson filed another motion for a competency evaluation at a BOP facility [Doc.

555], which the Court granted on September 11, 2020 [Doc. 557]. As of the date

of this Report and Recommendation, the Court has not received confirmation that

Mr. Jackson’s competency evaluation has been completed, and the competency

hearing has not been rescheduled.

      The second factor focuses on “whether the government or the criminal

defendant is more to blame for th[e] delay.” Vermont v. Brillon, 556 U.S. 81, 90

(2009). In Barker, the Supreme Court established a “balancing test, in which the

conduct of both the prosecution and the defendant are weighed.” Barker, 407 U.S.

at 529-30. While deliberate delay “to hamper the defense” weighs heavily against

the prosecution, id. at 531, delay caused by the defense weighs against the

defendant, Brillon, 556 U.S. at 90.

      Applying that balancing test here, the Court readily concludes that the delay

in this case from late 2018 to the present is not Mr. Redmond’s fault. But it is not

the fault of the government either. Rather, it stems from the unprecedented

difficulty in evaluating Mr. Jackson’s competency, made worse by the ongoing

COVID-19 pandemic.

      Mr. Redmond stresses that he is in a catch-22: he argues that his “preference”

to be tried with Mr. Jackson was one of necessity and the lesser of two evils. He

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additionally argues that even if he had not chosen to be tried with Jackson, the

government indicated that Mr. Jackson would be tried first. In other words, no

matter what, the timing of Mr. Redmond’s trial depends on when Mr. Jackson is

ready for trial. Though the Court appreciates Mr. Redmond’s frustration, this does

not change the calculus. The focus of this Court’s inquiry is on the culpability of

the government for the delay, and this record simply does not demonstrate that the

government has acted in bad faith to delay these proceedings. Therefore, the fact

that Mr. Redmond and Mr. Jackson will be tried together is neutral and does not

support a finding that Mr. Redmond’s Sixth Amendment speedy trial rights have

been violated.

      The strongest argument Mr. Redmond has to demonstrate bad faith is that

the government delayed in obtaining its own psychiatric evaluation of Mr. Jackson

for six months between when the government announced its intention to do so and

its actual attempt to have him evaluated. But there is no indication that the

government acted out of bad faith—at worst, it was negligent. Moreover, since then,

the government has worked diligently to complete the psychiatric exam and the

competency hearing but it, Mr. Jackson’s counsel, and the Court have run into

roadblocks that no one could have predicted. Because there is no evidence the

government engaged in bad faith, the second Barker factor does not weigh heavily

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against the government. See, e.g. United States v. Burke, 673 F. Supp. 1574, 1579

(N.D. Ga. 1986).

      The third Barker factor—the timeliness of Mr. Redmond’s assertion of his

speedy trial right—also does not weigh heavily in favor of finding a constitutional

violation of Mr. Redmond’s right to a speedy trial. Indeed, Mr. Redmond properly

concedes this point. [Doc. 551 at 8.] Mr. Redmond waited nearly five years

following his initial indictment before demanding a speedy trial.3 Though on reply

he asserts that the delay “does not reflect the Hobson’s choice faced by Mr.

Redmond,” [Doc. 563 at 3], the government’s argument that Mr. Redmond did not

request severance so that he could proceed to trial more speedily (instead requesting

severance so he could be tried with Mr. Jackson) is persuasive.

      Because the first three Barker factors do not uniformly weigh one way or the

other, Mr. Redmond must also demonstrate actual prejudice, which he may do in

one of three ways: “(1) oppressive pretrial incarceration, (2) anxiety and concern

of the accused, and (3) possibility that the accused’s defense will be impaired.”

United States v. Dunn, 345 F.3d 1285, 1296-97 (11th Cir. 2003) (quoting United

States v. Clark, 83 F.3d 1350, 1354 (11th Cir. 1996)). The Supreme Court has noted

      3
        In his pro se motion, Mr. Redmond asserts that he asked his previous
attorney to demand a speedy trial in 2016. [Doc. 534.] Even so, that demand does
not appear to have been communicated to the government prior to June 2020.
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that its prior cases have held that “unreasonable delay between formal accusation

and trial threatens to produce all three types of harms.” Barker, 407 U.S. at 532.

      Mr. Redmond admits that he “has not shown prejudice in that his case has

suffered,” but he argues that he does not have to because he has had to endure

oppressive pretrial incarceration and anxiety awaiting resolution of his case [Doc.

551 at 9,10].4 He further asserts that the risk of contracting COVID-19 makes his

pretrial incarceration all the more oppressive. While the Court does not question

Mr. Redmond’s concerns, they are not enough to meet the fourth Barker factor or

excuse him from having to show actual prejudice under any of the ways identified

in United States v. Dunn. At the end of the day, Mr. Redmond “has not

demonstrated in any way that the conditions under which he [is] held or the length

of his confinement render[s] the delay a constitutional violation.” Dunn, 345 F.3d

at 1297. Nor does his worry, standing alone, satisfy Barker’s prejudice prong. See

United States v. Graham, 538 F.2d 261, 265 (9th Cir. 1976) (rejecting defendant's



      4
         Mr. Redmond cites Clark for the proposition that in cases of government
negligence, the concern for substantiating prejudice decreases as the period of delay
increases. However, Clark also held that “each case must be decided on its own
facts,” 83 F.3d at 1354, and here, at most an approximate six-month delay is
attributable to government negligence—not the entire five-year delay. The six-
month delay is insufficient to excuse Mr. Redmond from showing actual prejudice.
See id. (finding that defendant was required to show actual prejudice when there
was a seventeen-month delay).
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“conclusory allegations of general anxiety and strain” as insufficient evidence of

prejudice). Lastly, Mr. Redmond has not shown and cannot show that the delay has

prejudiced his defense. Without a showing of actual prejudice, then, Mr. Redmond

cannot establish the fourth Barker factor.

III.   CONCLUSION

       Accordingly, the undersigned finds that Mr. Redmond has not been deprived

of his constitutional right to a speedy trial. It is therefore RECOMMENDED that

his motions to dismiss the second superseding indictment due to a violation of his

constitutional right to a speedy trial [Doc. 531, 551] be DENIED.5

       As there are no further matters relating to this defendant pending before the

undersigned magistrate judge, this case is CERTIFIED READY FOR TRIAL as

to Mr. Redmond.

       IT IS SO RECOMMENDED this 30th day of November, 2020.


                                    ____________________________________
                                    JOHN K. LARKINS III
                                    United States Magistrate Judge




       5
         The Clerk is DIRECTED to terminate Mr. Redmond’s motion for a speedy
trial [Doc. 534] as his demand for a speedy trial need not be made by motion.
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