United States District Court, District of Minnesota
Ann Marie Ursini, United States Department of Justice, Criminal Division, 1301 New York Avenue NW, Suite 200, Washington DC 20530; and Nathan P. Petterson, United States Attorney’s Office, 300 South Fourth Street, Suite 600, Minneapolis, Minnesota 55415, for Plaintiff.
Reynaldo Aligada, Jr., Office of the Federal Defender, 300 South Fourth Street, Suite 107, Minneapolis, Minnesota 55415; and Theresa M. Bevilacqua, Dorsey & Whitney LLP, 50 South Sixth Street, Suite 1500, Minneapolis, Minnesota 55402, for Defendant.
MEMORANDUM OPINION AND ORDER
SUSAN RICHARD NELSON UNITED STATES DISTRICT JUDGE
This matter is before the Court on Defendant Zdenko Jakisa’s Objections [Doc. No. 56] to Magistrate Judge Steven E. Rau’s March 11, 2015 Report and Recommendation [Doc. No. 52], which recommended that Defendant’s Motion to Dismiss Indictment of Time-Barred Claims and for Pre-Indictment Delay [Doc. No. 24] be denied without prejudice. For the following reasons, the Court overrules Defendant’s Objections and adopts the Report and Recommendation.
Defendant was indicted on one count of being in possession of unlawfully-obtained documents in violation of 18 U.S.C. § 1546(a). (Indictment [Doc. No. 1] at 1.) The Indictment alleges:
On or about April 17, 2014, in the State and District of Minnesota, the defendant, ZDENKO JAKISA, did knowingly possess a document prescribed by statute and regulation as evidence of authorized stay and employment in the United States, that is a Permanent Resident Card (an I-551), commonly referred to as a “Green Card, ” which the Defendant knew to have been procured by means of materially false claims and statements and otherwise unlawfully obtained, in that in response to oral and written questions during his refugee and legal permanent resident applications, Defendant failed to reveal:
a. He was a member of the . . . armed forces of the Croatian Defense Council in Bosnia and Herzegovina (“Bosnia”) . . . during the Bosnian Conflict;
b. He had been arrested, charged, indicted and imprisoned for breaking or violating the law in Bosnia; and
c. He had committed crimes of moral turpitude in Bosnia.
(Id. at 1–2.)
Defendant moved to dismiss the Indictment on the grounds that it improperly asserts claims that are barred by the applicable statute of limitations and that there were pre-indictment delays that resulted in a violation of his rights to due process and a speedy trial. (Def.’s Mot. to Dismiss Indictment of Time-Barred Claims and for Pre-Indictment Delay [Doc. No. 24] at 1.) Both parties submitted briefing [Doc. Nos. 24, 32], and the matter was heard by the Magistrate Judge on October 31, 2014. After requesting and receiving supplemental briefing [Doc. Nos. 34, 36, 37], the Magistrate Judge determined that the Indictment was untimely and recommended that it be dismissed. (Report and Recommendation dated Dec. 30, 2014 [Doc. No. 46] at 3, 15–16.) In light of that recommendation, the Magistrate Judge declined to address Defendant’s claim of pre-indictment delay. (See id. at 16.) The Government objected [Doc. No. 47] and, on February 9, 2015, this Court sustained those objections, denied Defendant’s Motion to the extent that it sought dismissal of allegedly time-barred claims, and remanded the matter to the Magistrate Judge to consider Defendant’s allegations of pre-indictment delay. (See Mem. Op. and Order dated Feb. 9, 2015 [Doc. No. 49] at 11.)
On March 11, 2015, the Magistrate Judge issued a Report and Recommendation on the issue of whether the alleged pre-indictment delay in this case violates Defendant’s right to due process under the Fifth Amendment. (Report and Recommendation dated Mar. 11, 2015 [Doc. No. 52] (“R&R”) at 3.) The Magistrate Judge noted the parties’ agreement that Defendant must show that the alleged pre-indictment delay caused him “actual and substantial prejudice.” (See id. at 4.) The Magistrate Judge then analyzed the prejudice claimed by Defendant-i.e., inherent prejudice due to the passage of time, the loss of witness testimony, and the loss of the firearm believed to have been used by Defendant to commit murder-and concluded that Defendant failed to demonstrate the requisite prejudice. (See id. at 6–7.) First, the Magistrate Judge found that a presumption of prejudice based on the length of delay is recognized in the context of the Sixth Amendment right to a speedy trial but not in the context of a Fifth Amendment due process claim. (Seeid. at 7–8.) Second, the Magistrate Judge found that Defendant’s claims of prejudice relating to lost witness testimony (i.e., due to the mental illness of one police officer witness who responded to the crime scene, and the death of a possible eyewitness) are speculative because he failed to describe the substance of the testimony that would have been offered or to demonstrate that the testimony is not available through other sources. (See id. at 9–12.) Third, and similarly, the Magistrate Judge determined that Defendant’s claims of prejudice relating to the lost firearm are speculative because Defendant failed to show that an inspection of the weapon would likely provide rebuttal evidence. (See id. at 13–14.) The Magistrate Judge also noted that each of these claims of prejudice relates to Defendant’s expectation that the Government will try to prove that Defendant committed murder, but- given that murder is only one of ...