United States District Court, S.D. Indiana, Terre Haute Division
ENTRY ON DEFENDANT'S MOTION TO DISMISS THE
INDICTMENT OR STRIKE THE DEATH PENALTY FOR PRE-INDICTMENT
William T. Lawrence, Judge
cause is before the Court on Andrew Rogers' Motion to
Dismiss the Indictment or to Strike the Death Penalty for
Unjustified Pre-Indictment Delay (Dkt. No. 60). The motion is
fully briefed, and the Court, being duly advised,
DENIES the motion for the reasons set forth
December 26, 2013, at 1:37 a.m., Mr. Rogers told correctional
staff at USP Terre Haute that his cellmate, Thomas Sim, was
dead. Staff found Mr. Sim lying on the floor of the cell,
dead from multiple stab wounds to his chest and neck. Mr.
Rogers was immediately handcuffed and removed from the cell.
Within hours, Mr. Rogers confessed to the killing. Witness
interviews of all of the prisoners in the unit where the
homicide occurred were completed by December 27, 2013.
March 12, 2014, USP Terre Haute's warden indicated the
official Bureau of Prisons (BOP) position in support of the
death penalty for Mr. Rogers. On April 14, 2014, two of the
decedent's brothers stated their position in favor of the
death penalty and relayed that the entire family supported
such a decision. The indictment against Mr. Rogers was filed
on May 17, 2016, two and a half years after the homicide. The
Notice of Intent to Seek Death Penalty was filed on May 31,
2016. On June 3, 2016, Mr. Rogers was arrested on the murder
indictment, and he made his initial appearance in this court
on the same day.
Rogers argues that the Government unjustifiably delayed
charging him. He contends that the delay was prejudicial to
him because some witnesses have died and some documents have
been destroyed. Thus, Mr. Rogers argues, the Court should
dismiss the Indictment, or, in the alternative, strike the
death penalty. A district court may dismiss an indictment if
unnecessary delay occurred in presenting the charge to a
grand jury. Fed. R. Crim. P. 48(b)(1). The applicable statute
of limitations provides a defendant with his primary
safeguard against unreasonable prosecutorial delay.
United States v. McMutuary, 217 F.3d 477, 481 (7th
Cir. 2000). The Fifth Amendment's due process clause also
“plays a limited role in assuring that the government
does not subject a defendant to oppressive delay.”
United States v. Spears, 159 F.3d 1081, 1084 (7th
establish a due process violation based on pre-indictment
delay, a defendant “must demonstrate that the delay
caused actual and substantial prejudice to his right to a
fair trial.” McMutuary, 217 F.3d at 482.
“A defendant's burden to show actual and
substantial prejudice is an exacting one; the showing must
rest upon more than mere speculative harm.”
Id. “The defendant's allegations . . .
must be ‘specific, concrete, and supported by
evidence.'” Id. (quoting United States
v. Sowa, 34 F.3d 447, 450 (7th Cir. 1994)). The Seventh
Circuit has described the defendant's burden as a
“monumental hurdle.” Sowa, 34 F.3d at
respect to the potential witnesses who have died, “the
death of a witness alone is insufficient to establish actual
prejudice.” United States v. Valona, 834 F.2d
1334, 1338 (7th Cir. 1987). A court should “only
conclude that the death of a witness has prejudiced a
defendant where [it is] convinced that the witness would have
testified, that his testimony would have withstood
cross-examination, and that the jury would have found him a
credible witness.” United States v. Doerr, 886
F.2d 944, 964 (7th Cir. 1989) (quotation and citation
defendant succeeds in demonstrating actual and substantial
prejudice, “the burden shifts to the government to
‘show that the purpose of the delay was not to gain a
tactical advantage over the defendant or for some other
impermissible reason.'” McMutuary, 217
F.3d at 482 (quoting Spears, 159 F.3d at 1084-85).
The government's “reasons are then balanced against
the defendant's prejudice to determine whether the
defendant has been denied due process.” Sowa,
34 F.3d at 451. To constitute a due process violation, the
“actual prejudice to the defendant . . . must be so
substantial as to outweigh the preferable deference to
legitimate prosecutorial priorities and bureaucratic
realities.” United States v. Williams, 738
F.2d 172, 175 n.2 (7th Cir. 1984).
Rogers argues that he has been prejudiced by the
Government's delay in indicting him. Specifically, he
points to the release from prison of several inmate witnesses
and the death of at least two inmate witnesses. One witness
who died, Terry Ackroyd, was housed nearby Mr. Rogers in the
Special Housing Unit (SHU) on December 26, 2013, and had been
in a prior altercation with Mr. Rogers. This prior
altercation, Mr. Rogers explains, is what led Mr. Rogers to
seek protective custody, which Mr. Rogers argues is directly
tied to the homicide with which he is charged. Another inmate
who was housed nearby in the SHU, Ivin Darrel Wozencraft, has
also died. Mr. Rogers explains the importance of inmate
witnesses as follows:
Because there is no video evidence of the homicide itself,
inmate witnesses housed nearby are crucial to the
investigation of this case. Additionally, because Mr.
Rogers' mental health state prior to and after the
homicide will be central to the jury's determinations of
both guilt and sentence, the importance of a witness like Mr.
Ackroyd cannot be overstated. In his interview with BOP staff
after the homicide, Mr. Ackroyd reported that Mr. Rogers had
been involved in the prior assault on Mr. Ackroyd but that
the two of them were “cool now.” It was essential
that Mr. Rogers' counsel have an opportunity to further
investigate what Mr. Ackroyd had learned about Mr. Rogers
beyond the two of them being “cool now.” By
losing access to witnesses such as Mr. Ackroyd, Mr. Rogers
has lost the ability to present information vital to
countering the government's argument of future
dangerousness and to presenting evidence of mitigation.
Dkt. No. 60 at 5-6. A key source of mitigation evidence, Mr.
Rogers' paternal grandmother, has also passed away.
Rogers also points to the destruction of documents that he
asserts are necessary for him to prepare his defense.
Specifically, he points to photographs related to his
attempted suicide on September 29, 2014, which showed rope
marks on his neck the next day. By the time counsel was
appointed, the BOP was unable to locate the photographs.
These photographs, Mr. Rogers asserts, would have been
critical to use with experts and to explain Mr. Rogers'
state of mind to a jury. Likewise, Mr. Rogers points to the
likely destruction of unit officers' post ...