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United States v. Holland

United States District Court, N.D. Georgia, Atlanta Division

June 21, 2019

JOHN HOLLAND, et al., Defendants.



         I. BACKGROUND

         Defendants John Holland, William Moore and Edmundo Cota have been charged in a thirteen-count second superseding indictment (the Indictment), alleging that they took part in an illegal kickback scheme involving bribes for patient referrals. [Doc. 121].[1] The Government alleges that in exchange for payments, Cota's health clinic (“Clinica”) funneled pregnant Hispanic women in need of childbirth services to hospitals owned by Tenet Healthcare Corporation (“Tenet”) and run by Holland and Moore. Defendants allegedly accomplished this scheme by entering into sham contracts that disguised the kickbacks as payments for various services purportedly provided by Clinica to the hospitals, but those services were either unnecessary or not properly provided.

         There are a great many issues now pending before the undersigned, and this order is the beginning of an effort to resolve those issues. In this order, this Court will review the five Report and Recommendations that Magistrate Judge Catherine M. Salinas has submitted, which recommend that numerous motions filed by Defendants (except one) be denied.[2] This Court will also address Defendants' contentions that evidence of risk of harm to patients should be excluded and Defendants' motions seeking a James hearing.

         II. The Five R&Rs

         A. The First R&R

         In her First Report and Recommendation (R&R1), [Doc. 306], Judge Salinas recommends that Holland's Motion to Dismiss 4, [Doc. 183], which has been adopted by Moore and Cota [Docs. 201, 209], Holland's Motion to Dismiss 6 [Doc. 186], which has been adopted by Cota [Doc. 214], and Holland's Motion to Dismiss 7 [Doc. 187], which also has been adopted by Cota [Doc. 217] be denied. In those motions, Defendants argue that a portion of Count One should be dismissed, and that Counts Two through Four should be dismissed entirely. Holland's objections to the R&R [Doc. 324] have been adopted by Moore. [Doc. 325].

         In the R&R, Judge Salinas first correctly discusses the applicable legal standard and noted that

At this stage in the litigation, the Court's role is limited to determining whether the indictment is legally sufficient. A legally sufficient indictment must (1) present the essential elements of the charged offense, (2) notify the accused of the charges against him, and (3) enable the accused to rely upon a judgment under the indictment as a bar against double jeopardy for any subsequent prosecution for the same offense. See United States v. Jordan, 582 F.3d 1239, 1245 (11th Cir. 2009). The Eleventh Circuit has repeatedly made the point that unlike the procedural rules governing civil cases, the Federal Rules of Criminal Procedure contain no mechanism for a pre-trial determination of the sufficiency of the evidence, and motions seeking such relief in criminal cases are improper.

[Doc. 306 at 14].

         Judge Salinas then reviewed Counts One through Four of the Indictment and concluded those counts were legally sufficient. Holland, joined by Moore where relevant, objects to the R&R in its entirety.

         Count One of the Indictment alleges that Defendants conspired to defraud the United States and to pay and receive bribes in connection with a federal health care program, Counts Two through Four allege that Holland and Cota paid and/or received the bribes. Defendants contend that the allegations in those counts are subjective and “incapable of being proven by any standard in a criminal case.” [Doc. 324 at 5]. As mentioned above, the Government alleges that Holland and Moore paid bribes to Cota so that Cota's clinic, Clinica, would refer pregnant patients to Holland's and Moore's hospitals for delivery of their babies for which the hospitals could then bill Medicaid and Medicare. According to the Government, Defendants disguised the bribery payments by creating “pretextual contracts” for services, but the services were “(a) not needed and not justifiable; (b) duplicative of services already being provided; (c) substandard or problematic; (d) not rendered at all; and (e) rendered by persons who were not qualified to perform them.” Indictment at ¶ 48. It is this portion of Count One that Defendants argue is subjective and incapable of proof. They argue that the “Indictment does not allege that the cost of [the] services [purportedly delivered under the allegedly sham contracts] varied from fair market value or that payment was made for services that were not actually rendered. Instead, the government attacks the quality of the services provided . . . .” [Doc. 324 at 10].

         At the outset, this Court notes that while Defendants have quoted passages from the First R&R that they find objectionable, they have failed to specify how Judge Salinas erred. Instead, they raise the same arguments that Judge Salinas found unconvincing. Having reviewed the record, this Court finds that there is nothing remarkable about the fact that the Government intends to show that the contracts between the hospitals and Clinica were sham contracts. If Defendants were entitled to dismissal based on Defendants' argument, it would be impossible for the Government to prosecute individuals for bribery in many instances because individuals engaged in such behavior routinely attempt to cover their tracks with sham paperwork.

         Moreover, Defendants' assertions are simply wrong. The Government does, in fact, allege that services that were contracted for were not delivered. Indictment at ¶ 48(d). The remaining allegations-that the services were not needed, not justifiable, duplicative, substandard, or rendered by unqualified individuals-are all simply another way of saying that the value of the services rendered were worth less than fair market value. This Court further finds that, in making these allegations in the Indictment, the Government has clearly put Defendants on notice of what crimes they are accused of and the manner in which those crimes allegedly were committed.

         Finally, in response to Defendants' repeated argument that the allegations in the Indictment are simply the government's subjective opinions over the quality of the services rendered by Clinica, this Court agrees with Judge Salinas that this argument goes to the weight of the evidence and is for the jury to determine.

         Having reviewed the record in light of Defendants' objections, this Court now holds that Judge Salinas' findings and conclusions in the First R&R are correct.

         B. The Second R&R

         In the Second R&R, [Doc. 332], Judge Salinas recommends that Moore's motion, [Doc. 262], as adopted by Defendant Holland, [Doc. 263], to sever Defendant Cota be denied. Moore has objected, [Doc. 338], but Holland has not.

         Holland and Moore first argue that Cota's out-of-court statements may be admitted during the trial, and if Cota does not testify, Holland's and Moore's Sixth Amendment right to confront witnesses against them will be violated as described by the Supreme Court in Bruton v. United States, 391 U.S. 123 (1968). In concluding that Holland and Moore had failed to establish that severance is necessary under Bruton, Judge Salinas first found that

Holland and Moore have not identified any statement Cota may have made that even mentioned-much less directly implicated-either of them in the crimes charged. Rather, the motion refers generally to statements Cota allegedly made discussing the relationship between Clinica and Tenet hospitals and statements he made to Clinica patients telling them that they must deliver their babies at Tenet hospitals.

[Doc. 332 at 6-7].

         As explained at length by Judge Salinas, because Cota's statements do not directly implicate Holland and Moore, severance is not required under Bruton. See Richardson v. Marsh, 481 U.S. 200, 208 (1987).

         Judge Salinas next concluded that Moore and Holland have failed to demonstrate that their defenses are antagonistic to those of Cota. According to Judge Salinas, Moore's and Holland's arguments are entirely conclusory in that they have failed “to even identify any particular defense that Cota might raise.” [Doc. 332 at 8]. Judge Salinas further noted that, because Cota is charged with engaging in a conspiracy along with Holland and Moore, “it is highly unlikely that Cota would proclaim his innocence, while simultaneously condemning the actions of Moore and Holland.” [Id. at 9].

         Finally, Judge Salinas concluded that Holland's and Moore's arguments that severance is necessary because of potential spillover and cross-contamination of evidence are likewise conclusory and unconvincing because Moore and Holland “do not point to any particular piece of evidence that may be presented against Cota that they contend would unfairly prejudice them.” [Id.].

         Moore's objections mostly relate to the fact that Judge Salinas's schedule required that he file his motion to sever too early, and he argues that the Court should defer ruling on his motion until the Government has produced its exhibits and witness lists and Moore has had an opportunity to perfect his motion. This Court rejects that argument because a massive amount of discovery has been had in this matter, and the parties are sufficiently familiar with the allegations and evidence that could be presented at trial such that, if a compelling reason for severance exists, they would know about it. However, while keeping in mind that the default “is that defendants who are jointly indicted should be tried together, and this rule applies with particular force to conspiracy cases, ” United States v. Walker, 720 F.2d 1527, 1533 (11th Cir. 1983), this Court understands that circumstances change, and if a compelling reason for severance arises in the future, this Court may revisit the issue upon proper motion.

         Moore next argues that severance is necessary because of the complexity of the Anti-Kickback Statute (AKS). However, Moore's arguments are merely speculative. He contends, for example, that jurors will be confused, but other than raising complexity he does not present a plausible case for how confusion will arise that cannot be cured with limiting instructions. See Zafiro v. United States, 506 U.S. 534, 539 (1993) (noting that measures less dramatic than severance, “such as limiting instructions, often will suffice to cure any risk of prejudice”).

         Having reviewed the record in light of Defendants' objections, this Court now holds that Judge Salinas' findings and conclusions in the Second R&R are correct.

         C. The Third R&R

         In the Third R&R, [Doc. 339], Judge Salinas recommends that Moore's Motion to Dismiss Based on Pre-Indictment Delay, [Doc. 177], Holland's Motion to Dismiss for Violation of Due Process, [Doc. 181], which has been adopted by Moore and Cota, [Docs. 199, 205], Cota's Motion to Dismiss Based on Pre-Indictment Delay, [Doc. 261], and Holland's Motion to Dismiss for alleged violation of his constitutional right to a speedy trial, [Doc. 180], all be denied. Cota, [Doc. 353], Moore, [Doc. 354], and Holland, [Doc. 356], have all objected. In addition, Cota has adopted Moore's and Holland's objections. [Docs. 359, 360].

         1. Pre-Indictment Delay

         In their motions to dismiss based on pre-indictment delay, Defendants contend that they have been prejudiced by the fact that the Government waited so long to bring the indictment. Normally, compliance with the applicable statute of limitations suffices to defeat any claim of pre-indictment delay. However, in extraordinary circumstances a criminal defendant may establish a due process violation in the case of an “oppressive delay” even though the indictment was filed within the statute of limitations. United States v. Lovasco, 431 U.S. 783, 789 (1977). In concluding that Defendants had failed to establish that they are entitled to have the Indictment dismissed on this ground, Judge Salinas first identified the proper standard for evaluating Defendants' claim under Lovasco and correctly described the Defendants' burden as follows: “to succeed on their motions to dismiss for pre-indictment delay, each defendant must show: (1) that the pre-indictment delay was the result of a deliberate act by the Government designed to gain a tactical advantage; and (2) that the preindictment delay caused the defendant actual substantial prejudice.” [Doc. 339 at 14]. She then found that Defendants' assertions of prejudice are too speculative and that the Government's reasons for the delay were not in bad faith or to gain a tactical advantage against Defendants but in a reasonable effort to avoid jeopardizing its investigation in this matter and parallel proceedings against Tenet and others. Judge Salinas further determined that Defendants are not entitled to a hearing because they had “presented no more than generalized allegations of misconduct and have failed to make a showing that an evidentiary hearing is warranted.” [Id. at 26].

         In his objections, Cota first argues that the Magistrate Judge failed to consider his claim under an alternative standard mentioned in Lovasco. In a footnote in that opinion, the Supreme Court stated:

In [United States v. Marion, 404 U.S. 307 (1971)] we noted with approval that the Government conceded that a “tactical” delay would violate the Due Process Clause. The Government renews that concession here, Brief for United States 32, and expands it somewhat by stating: “A due process violation might also be made out upon a showing of prosecutorial delay incurred in reckless disregard of circumstances, known to the prosecution, suggesting that there existed an appreciable risk that delay would impair the ability to mount an effective defense, ” id., at 32-33, n. 25. As the Government notes, however, there is no evidence of recklessness here.

Lovasco, 431 U.S. at 795 n.17 (emphasis added).

         It is not at all clear from that dictum statement that the Supreme Court has adopted a “reckless disregard” standard for evaluating claims of pre-indictment delay. Moreover, even if this Court were to agree that Cota has raised plausible arguments as to how the delay has prejudiced him, he has not presented sufficient evidence that the Government was reckless in its disregard for his due process rights. In any event, this Court is unconvinced that Cota has established actual, substantial prejudice. He contends that (1) he cannot locate certain witnesses that the Government has identified and (2) some of the witnesses he can locate refuse to be interviewed because they are undocumented aliens and fear that they will be deported.

         This Court acknowledges that Cota as well as his co-Defendants may encounter significant difficulty in locating former Clinica patient witnesses. But most of those witnesses-especially those who may have concerns about their immigration status-would testify on the issue of harm to patients, and this Court's conclusion later in this Order that the evidence of risk of harm to patients is inadmissible, see infra discussion at § III, should substantially ameliorate Cota's (and his co-defendants') concerns. Even if this Court were to admit some evidence of harm to patients, this Court further concludes that the prejudice that Cota (and his co-defendants) claims, at least as presented at this juncture, is not sufficient to establish a due process violation. Cota's claim that he has experienced significant trouble locating witnesses or persuading those few located that they are safe to testify given the current immigration climate and dangers of deportation, does not establish a per se due process violation. “The standard of prejudice is fairly stringent.” Stoner v. Graddick, 751 F.2d 1535, 1544 (11th Cir. 1985) (citing Tiemens v. United States, 724 F.2d 928, 929 (11th Cir. 1984)). “In Marion, the Supreme Court made it clear that when pre-indictment delay is asserted, actual prejudice and not merely ‘the real possibility of prejudice inherent in any extended delay,' is a necessary element which must be shown before the restraints of the due process clause will be applied to bar a prosecution because of a delay.” United States v. McGough, 510 F.2d 598, 604 (5th Cir. 1975) (quoting United States v. Marion, 404 U.S. at 307). Here, Cota has not established that the witnesses he cannot find or cannot interview are central to his defense. Indeed, those witnesses would mostly testify regarding the peripheral issue of patient harm, which does not implicate Cota's actual guilt of the crimes charged in the Indictment.[3]

         In their objections, Moore and Holland argue more strenuously that the Government engaged in bad faith efforts to delay indicting them for tactical advantage. They argue that the record demonstrates that the Government had completed its investigation well before it brought charges against them. They further contend that the Government's decision to bring charges against Holland in Florida was also part of the Government's efforts to gain a tactical advantage against Defendants in this action.

         The Government's decision to indict Holland in Florida as well as the Government's purported bad faith in general are recurring themes in many of Defendants' motions. Defendants contend that the Government knew that venue was improper in Florida and that the Florida indictment clearly demonstrates the Government's bad faith efforts to gain a tactical advantage. Judge Salinas pointed out that the district court in Florida denied Holland's first motion to change venue after deciding that the factors announced in Platt v. Minnesota Min. & Mfg. Co., 376 U.S. 240 (1964), weighed in favor of the Government. [Doc. 30]. Only after Holland filed a motion for reconsideration did the Florida court transfer the action here after issuing a detailed opinion. [Doc. 56]. That transfer, however, was entirely discretionary, and the Florida court made no finding that the Government acted in bad faith in first bringing the case there.

         Having reviewed the record, including the orders of the Florida district court first refusing to, and then later agreeing to, transfer the case here, it appears that the Government had plausible, though not compelling, arguments in support of venue in Florida. Based on the Court's review of the Florida Magistrate Judge's extensive factual findings in its final transfer Order, [Doc. 56], as well as related record evidence, this Court concludes that the Government's decision to indict Holland in Florida does not appear to make much pragmatic sense. This, in turn, creates an inference that the Government sought to gain some tactical advantage in its choice of forum. In reaching this assessment, the Court points to several factors. First, most significantly, the Court considers the Florida Magistrate Judge's findings (upon review of supplemental submissions) that Holland and the great bulk of the witnesses, evidence, subject hospitals, and alleged sprawling criminal activity transpiring over many years are principally located in or occurred in Georgia. As Florida Magistrate Judge Jonathan Goodman further concluded, “The real meat and potatoes which will be served to the jury involve Georgia-based witnesses providing testimony about events occurring in Georgia.” [Doc. 56 at 3] In finding that almost all of the extensive nuts and bolts evidence in this case resides within Georgia, Magistrate Judge Goodman also contrasted this to the limited matters occurring in Florida that were “largely administrative events” subject to a streamlined presentation. [Doc. 56 at 3, 26]. The Court further notes that none of the Government's lead attorneys assigned to this matter were based in Florida. Finally, the Court takes note that two grand juries were empaneled in the Northern District of Georgia and heard evidence over a span of years, concluding apparently in or around mid 2016-all before the Florida indictment of Defendant Holland. These proceedings included the presentation of live testimony from dozens[4] of witnesses.[5] Guilty pleas were taken by this Court in three related cases.[6] The Government's sudden switch to proceeding in the Southern District of Florida seems to have occurred at the last moment in late 2016 or early 2017, and relied upon the condensed presentation to the Florida grand jury of summaries of witness testimony that had been given in person to the grand juries in Atlanta. The indictment in Florida was issued on January 24, 2017.[7] Similarly, when the case was later transferred to Atlanta and Moore and Cota were thereafter added as defendants in the governing second superseding indictment [Doc. 121, September 26, 2017], summaries of earlier witness testimony were relied upon by the grand jury.

         The Government, of course, has the discretion to choose among those forums where venue is proper, United States v. Bradley, 644 F.3d 1213, 1252-53 (11th Cir. 2011) (“So long as its choice does not create a constitutional hardship, the Government may choose, from among those districts, one where it is most convenient to pursue an indictment.”), and in making that choice, tactical advantage is likely a consideration. Everything else being equal, the Government is permitted to choose the forum where it believes that its chances for success are better. To the degree that Holland contends that the tactical advantage that the Government sought in bringing the criminal action in Florida was unfair, that unfairness was largely cured by the transfer here. Though the Court recognizes that the Government's Florida excursion may have been driven by questionable tactics, these tactics have not been shown to reflect a deliberate Government effort to cause pre-indictment delay as opposed to gain some form of strategic trial advantage. Despite the concerns the Court has noted, it agrees with Judge Salinas that there is not sufficient evidence to rise to the level of demonstrating bad faith by the Government and a constitutional due process violation. That said, the Court notes its strong concern that the Government attempted to prosecute Holland in Florida when the Northern District of Georgia was the most obvious forum and that this course of action left a bitter professional trail.

         More generally, while this Court is willing to accept Defendants' argument that the Government could have indicted them sooner, the reason for the delay is not as clear or as dispute-free as Defendants make out. Defendants level various post hoc accusations that the Government delayed indicting them for tactical reasons, but they have failed to point to “facts or evidence from which the Court could infer that the Government's delay was a deliberate act to gain a tactical advantage” causing a prejudice to the defendants “which the government anticipates will flow from the delay.” United States v. Foxman, 87 F.3d 1220, 1223, n. 2 (11th Cir. 1996). As further stated by Judge Salinas,

the Government states that to the extent there was a delay, it was due to the sheer breadth and multiple moving parts inherent in this investigation, which involved both criminal and civil investigations; receiving and reviewing voluminous documents and data from Tenet and other third parties; hundreds of witness interviews and testimony before the grand jury; guilty pleas by two individuals to a conspiracy to pay and receive health care bribes; a global resolution by and between the United States, the states of Georgia and South Carolina, Tenet, Tenet HealthSystem Medical, Inc. and their subsidiary hospitals to resolve their criminal, civil, and administrative liability; and a continued investigation to assess the viability of charges against other individuals and entities.

[Doc. 339 at 18].

         Defendants have not disputed that the multiple investigations in this case have been extraordinarily complex and wide-ranging, involving multi-million dollar schemes, multiple hospitals, multiple governmental agencies, a series of grand juries, parallel civil and criminal lawsuits, hundreds of witnesses, and millions of pages of documents. Given the high level of complexity and challenges of proof, this Court finds that the Government's rationale for its extended investigation is reasonable and believable - and that the Government's pursuit of its investigation on multiple fronts prior to proceeding with an indictment is consistent with the Supreme Court's guidance in Lovasco, 431 U.S. at 789-794 (recognizing that prosecution's delay for investigative purposes should generally be treated differently than delay for other purposes). While Defendants present legitimate concerns with regard to the prosecution's Southern District excursion and associated bad faith contentions, their presentation is not sufficient to disprove the Government's overarching rationale for the time expended in the years prior to the running of the statute of limitations or alternatively, given this Court a reasonable basis to believe their version of events over that of the Government.[8] As Defendants clearly bear this burden, this failure is fatal to their motion at this juncture.

         2. Fed. R. Crim. P. 6(e)

         In the Third R&R, Judge Salinas also concludes that Defendants' arguments that the Indictment should be dismissed under Fed. R. Crim. P. 6(e) because of the Government's alleged breaches of grand jury secrecy requirements are without merit. According to Judge Salinas,

Rule 6(e) of the Federal Rules of Criminal Procedure requires that attorneys for the Government not disclose matters occurring before the grand jury except in specified circumstances. In Holland's Motion to Dismiss-2 (as adopted by Moore and Cota), Holland asserts that in January 2015, a former prosecutor involved in the Government's investigation improperly discussed aspects of the ongoing grand jury investigation of Tenet with another passenger during a conversation on a commercial airline flight. [Doc. 181 at 11-12]. The other passenger turned out to be the former chief of staff to Tenet Healthcare Corporation's Chief Executive Officer. [Id. at 12]. Holland argues that this disclosure of information “had the potential of infecting the testimony of potential witnesses even at the highest level of the company.” [Id. at 13].
Holland further asserts that on another occasion in 2015, a different prosecutor involved in the Government's investigation improperly discussed aspects of the investigation with the employer of a former employee of the Atlanta Medical Center, possibly in an attempt to intimidate that witness. [Doc. 181 at 13-16]. Such disclosures, according to Defendant Holland, somehow “damaged his ability to receive a fair trial.” [Id. at 16].

[Doc. 339 at 28-29].

         Relying on Midland Asphalt Corp. v. United States, 489 U.S. 794, 802 (1989) (“Only a defect so fundamental that it causes the grand jury no longer to be a grand jury, or the indictment no longer to be an indictment, gives rise to the constitutional right not to be tried. An isolated breach of the traditional secrecy requirements does not do so.”), Judge Salinas concluded that Defendants had “failed to articulate any basis upon which the Court could find that the isolated breaches . . . in any way damaged [their] ability to receive a fair trial or give rise to a constitutional right not to be tried.” [Doc. 339 at 30].

         In his objections, Holland argues that Judge Salinas erred because the Midland case that she relies on discusses a “right not to be tried, ” but Holland seeks dismissal of the indictment which, he contends, is fundamentally different. Holland further repeats his argument from his Motion to Dismiss that dismissal is warranted to deter prosecutorial misconduct and because the allegedly improper disclosures by Government attorneys caused him prejudice.

         This Court first notes that it has reviewed Holland's allegations that prosecutors divulged secret grand jury material, [Doc. 181 at 11-16], and finds that the purported disclosures, while strange, were not major-at worst, the prosecutors divulged only that the grand jury was investigating Tenet and its officials and that the Government possessed strong evidence in the case.

         More important to this Court's conclusion that he is not entitled to dismissal under Rule 6(e), Holland has failed to demonstrate that he was unfairly prejudiced by the Government's supposed disclosures. As Holland points out, the Supreme Court in Bank of Nova Scotia v. United States, 487 U.S. 250, 254 (1988) held that “a district court may not dismiss an indictment for errors in grand jury proceedings unless such errors prejudiced the defendants.” Here, while Holland asserts in conclusory form that the Government's disclosures “damaged [his] ability to receive a fair trial, ” [Doc. 181 at 11], he has made no showing of prejudice.[9]

         3. Post-Indictment Delay/Speedy Trial

         Finally in the Third R&R, Judge Salinas concludes that Holland's claim of post-indictment delay or denial of his right to a speedy trial is unavailing. Judge Salinas properly identified the four-factor test to determine whether a post-indictment delay has caused a speedy trial violation under Barker v. Wingo, 407 U.S. 514 (1972): (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of the speedy trial right; and (4) the prejudice to the defendant. See id. at 530. She then determined that, as of the time that he filed his motion, the delay-then less than a year-was not presumptively prejudicial. [Doc. 339 at 33 (citing United States v. Knight, 562 F.3d 1314, 1323 (11th Cir. 2009))].

         Judge Salinas further found that under the second Barker factor-the reason for the delay-does not weigh against the Government. In the undersigned's analysis, this is the most salient factor in this case. As Judge Salinas pointed out, the second factor weighs “whether the government or the criminal defendant is more to blame for th[e] delay, ” Vermont v. Brillon, 556 U.S. 81, 90 (2009), and it is clear that Defendants bear the blame for much, if not most, of the post-indictment delay in this matter. Defendants have sought numerous extensions in this matter, and they have filed a large volume of pretrial motions, some of them meritless.

         In addition, Judge Salinas noted that Barker differentiated between “an ordinary street crime” and “a serious, complex conspiracy charge, ” noting that what may be considered a lengthy delay for the former may not be considered a lengthy delay for the latter. Barker, 407 U.S. at 530-31. This Court agrees that any delay in this matter is validly based upon the case's significant complexity-which necessarily influences the volume of work, the amount of time in which it is to be accomplished, and the number of individuals involved-rather than due to unwarranted, deliberate delay by the Government.

         Judge Salinas also found that the third Barker factor-whether Holland adequately asserted his speedy trial rights-does not weigh against the Government because Holland waited almost a year before raising the issue and he has repeatedly sought extensions. Finally, Judge Salinas found that Holland had failed to demonstrate sufficient prejudice to establish a speedy trial violation.

         In his objections, Holland (and his co-defendants) contends that Judge Salinas erred with respect to her evaluation of each of the four Barker factors. His argument regarding the first factor is irrelevant because that factor-the length of the delay-merely determines whether the court must consider the other three factors. The defendant must show that the period of delay is “presumptively prejudicial, ” and, if not, court need not consider the other factors. United States v. Knight, 562 F.3d 1314, 1323 (11th Cir. 2009). While Judge Salinas found no presumptively prejudicial delay, she nonetheless considered the other factors as well, which is all that a finding of a presumptively prejudicial delay requires.

         As to the second factor, Holland contends that the Magistrate Judge erred in finding that the Government has not acted in bad faith. As mentioned above, this Court does have concerns regarding the Government's actions in relation to this case. However, this Court has reviewed the record and deems Judge Salinas' finding that there is no evidence of bad faith on the part of the Government to be correct. This Court further finds that neither was the Government grossly negligent in its handling of this matter in response to Holland's objection to that effect. [See Doc. 356 at 28]. Because the remainder of Holland's objections regarding the third Barker factor are premised on the Government's bad faith, and because this Court has not found bad faith of a constitutional or significant dimension here, those remaining objections are unavailing.

         This Court also notes that Holland is incorrect in claiming that Judge Salinas “impermissibly requir[ed]” a finding of bad faith in order to find that the third factor weighed against the Government. [See id. at 29]. Rather, as discussed above, Judge Salinas determined that Holland's own extensive pretrial motions practice was to blame for much of the delay in this matter.

         Regarding the third Barker factor, Holland contends that Judge Salinas erred in finding that this factor favored the Government because Holland waited almost a year to file his motion. According to Holland, Judge Salinas “inexplicably found” that the delay was not presumptively prejudicial while at the same time determining that he waited too long to file his speedy trial motion to satisfy the third Barker factor. [Doc. 356 at 30]. Holland, however, has oversimplified the analysis. In weighing the third factor, courts consider whether there has been an indication that the defendant was concerned about his speedy trial rights over the course of the proceeding. For example, in United States v. Register, 182 F.3d 820 (11th Cir. 1999), the Eleventh Circuit concluded that the third factor did not weigh against the Government even though the defendant had filed two motions for a speedy trial because he had also moved for a continuance on four occasions. Id. at 828. Here, up until Holland filed his motion, he gave no indication that he sought a speedy trial. His extensive motions practice further indicates that he is in no particular hurry, although the Court recognizes that Holland and his co-defendants have all expressed strong concerns regarding the availability and disappearance of witnesses over time. Moreover, because this Court has determined that the second factor (the reason for the delay) does not weigh against the Government in connection with defendant's post-indictment speedy trial claim, Holland must demonstrate prejudice regardless of whether the third factor weighs in his favor, Register, 182 F.3d at 827, and this Court agrees with the Magistrate Judge that Holland has not established prejudice.

         In objecting to Judge Salinas' determination that he had not demonstrated prejudice, Holland argues that she erred in not granting a hearing at which he could establish prejudice. “Prejudice to the defendant is evaluated in view of the three interests the right to a speedy trial was designed to protect: ‘(1) to prevent oppressive pretrial incarceration; (2) to minimize anxiety and concern of the accused; and (3) to limit the possibility that the defense will be impaired.'” United States v. Schlei, 122 F.3d 944, 988 (11th Cir. 1997) (quoting Barker, 407 U.S. at 532). Of these three interests, the third is the most significant. Ringstaff v. Howard, 885 F.2d 1542, 1545 (11th Cir. 1989).

         As Holland is not incarcerated, the first factor does not apply. Regarding the second factor, Holland contends that he

has been gravely concerned and anxious about this matter now for years, and has had to seek medical and professional services for anxiety and other stress-related symptoms he has suffered as a result of these proceedings. Despite this being one of the prejudice factors that courts consider for speedy trial claims, the Third R&R minimized it, finding that “[a]nxiety and stress . . . are inherent in any prosecution.” (Doc. 339 at 42.) Mr. Holland explained that he would present evidence of his treatment at an evidentiary hearing if necessary, as such evidence includes his private medical information, but the Third R&R denied his request and ...

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