Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 07 CR 857-John F. Grady, Judge.
The opinion of the court was delivered by: Sykes, Circuit Judge.
Before BAUER, SYKES, and TINDER, Circuit Judges.
In a trial he chose not to attend, Overtis Sykes was convicted of four counts of bank robbery in violation of 18 U.S.C. § 2113(a). On appeal he advances three reasons why we should reverse his convictions. First, he claims that the charges against him should have been dismissed with prejudice as a result of a Speedy Trial Act violation. The district court noted the violation but dismissed the charges without prejudice, which Sykes contends was an abuse of discretion. Second, Sykes argues he was deprived of his Fifth Amendment right to meaningful access to the courts under Bounds v. Smith, 430 U.S. 817 (1977), because for a five-week period before his trial, he was incarcerated in a state prison that had no law library. Third, Sykes challenges the district court's decision to permit jurors to directly question the witnesses.
We affirm. The district court did not abuse its discretion when it dismissed the charges against Sykes without prejudice. The judge thoroughly considered the relevant statutory factors, see 18 U.S.C. § 3162(a)(2), and reasonably concluded that on balance, those factors favored dismissal without prejudice. Nor does the record support Sykes's claim that his pretrial detention deprived him of meaningful access to the courts. When he complained to the court, the judge asked whether he wanted a continuance to have more time to prepare a defense, and he said he did not. Finally, although the district court should not have given jurors free rein to directly question the witnesses, Sykes has not established prejudice.
Over a 12-day period in June 2006, four banks were robbed on Chicago's North Side. In each robbery a heavy-set African-American man walked into the bank, presented a note to the teller, and left with cash. The note from the first robbery read: "This is a robbery[.] PUT THE 100s AND 50s on the counter[.] NO FUNNY MONEY[.] I HAVE A GUN[.] YOU HAVE 15SECONDS." The others used similar language. Security cameras captured images of the robber in three of the robberies, and the robber left a drink carton bearing his fingerprints at the scene of the third robbery.
On June 21, 2006, four days after the last robbery, Sykes and his wife, Laura Barkalow, were arrested at a*fn1 nearby motel. Officers recovered about $500 in cash and a demand note stating: "This is a robbery[.] Put all loose bills on the counter[.] I HAVE A GUN[.] YOU HAVE 15 SECONDS[.]" Sykes's fingerprints were on the notes from the second and third robberies, and the fingerprints on the drink carton left behind at the third robbery matched his. Barkalow's prints were found on the notes from three of the robberies. In addition, Sykes fit the physical description of the robber provided by witnesses, and tellers from the first and fourth robberies identified Sykes in a photo array.
Unfortunately, neither the pretrial proceedings nor the trial ran smoothly. Sykes was charged by criminal complaint in June 2006, and a month later a grand jury returned an indictment charging him with three of the four bank robberies. In early August Sykes was arraigned, entered a plea of not guilty on all counts, and exercised his right of self-representation. See Faretta v. California, 422 U.S. 806 (1975). The district court appointed Attorney Robert Korenkiewicz as standby counsel, and because Sykes was making some strange arguments to the court, ordered a psychiatric evaluation to determine if he was competent to stand trial.*fn2
In January 2007 the court found Sykes competent to stand trial and scheduled a mid-May trial. In early May 2007, the government requested a continuance pending receipt of fingerprint evidence linking Sykes to the then-uncharged robbery. The government also moved to sever the trials of Sykes and Barkalow under Bruton v. United States, 391 U.S. 123 (1968). On May 30 the government informed the court that it was seeking a superseding indictment for the remaining robbery; the indictment was later returned on July 24, 2007. The following day, Sykes pleaded not guilty to all counts, and the court scheduled trial for November 19, 2007.
On November 14, 2007, Sykes filed a motion to dismiss the superseding indictment for a violation of the Speedy Trial Act, 18 U.S.C. §§ 3161 et seq. Sykes pushed for a dismissal with prejudice in light of the length of the delay, which included 224 nonexcludable days. The*fn3 prosecutor said he had no objection to a dismissal as long as it was without prejudice. On December 20, 2007, the court dismissed the charges without prejudice and ordered Sykes released, which occurred on December 31.
The same day as the dismissal, a grand jury returned a new indictment charging the same four bank robberies. Sykes remained free from December 31 until his arraignment on January 16, 2008, where he again made some bizarre arguments and otherwise disrupted the proceedings. The judge held him in contempt and entered not-guilty pleas on his behalf. At a January 30 status hearing, Sykes asked to be released to prepare for trial. The judge initially granted his request and set trial for March 10. The following day, however, while Sykes was still in custody, the judge reconsidered this decision and vacated the release order, concluding that Sykes was too risky to be released and that the presence of standby counsel was sufficient to assist Sykes in preparing for trial.
At a status hearing on March 6, four days before the scheduled trial, Sykes moved to dismiss the charges based on alleged violations of his Fifth Amendment right to meaningful access to the courts and his Sixth Amendment right to a speedy trial. Sykes explained that since January 16, 2008, he had been incarcerated at a state prison in Kankakee, Illinois, and that the prison had no law library. Sykes was apparently relying on other inmates to assist him in mailing legal documents and telephoning potential alibi witnesses and his standby counsel. Sykes told the judge that his "numerous" calls to Korenkiewicz "would not go through." Korenkiewicz confirmed that he and Sykes had not spoken during the time Sykes was held in the Kankakee prison. Korenkiewicz explained that he initially thought Sykes was housed at the Metropolitan Correctional Center ("MCC") in Chicago and had delivered trial-preparation material there for Sykes. The MCC did not forward these materials to Sykes at Kankakee or return them to Korenkiewicz.
Sykes told the court he had three alibi witnesses who would help him establish a defense, but that the witnesses had gone missing in light of the long pretrial delay. Korenkiewicz said he had not heard of these potential witnesses until earlier on March 6 and that Sykes never asked him to try to contact these witnesses. The prosecutor hadn't heard of these witnesses, either, and noted the probable violation of Rule 12.1 ...