United States v. Jose Neda ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-17063
Non-Argument Calendar
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D.C. Docket No. 1:10-cr-20614-MGC-6
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSE NEDA,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(September 27, 2017)
Before HULL, WILSON and JILL PRYOR, Circuit Judges.
PER CURIAM:
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Jose Neda appeals his convictions stemming from a multi-defendant drug
smuggling conspiracy. He argues that the district court erred in denying his
motion to dismiss the indictment based on a violation of his Sixth Amendment
right to a speedy trial. Although five years passed between the indictment and
Neda’s arrest, the district court concluded that Neda’s knowledge of the criminal
charges and his failure to demonstrate actual prejudice precluded the indictment’s
dismissal. After careful review, we affirm.
I. BACKGROUND
A. Factual History
In August 2010, Neda and his codefendants were indicted for multiple
charges stemming from an attempt to smuggle cocaine into the United States and
launder the sales proceeds. Neda’s purported role in the conspiracy was to ensure
the cocaine was loaded onto the plane in Maiquetia, Venezuela.1 Because an
informant indicated that Neda, a Venezuelan national, was living in Venezuela, the
government’s efforts to locate Neda were limited to a yearly check of his name in
the Treasury Enforcement Communication System (“TECS”) database, which
tracks individuals entering and exiting the United States.
The government failed to check other available databases, such as the
Florida Driver and Vehicle Information Database (“DAVID”), or contact Customs
1
It is unclear if Neda followed through on his part of the conspiracy. The drugs
intercepted in Miami arrived from Maracaibo, Venezuela, not Maiquetia.
2
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and Border Protection. Had it performed these extra steps, it might have located
Neda, who moved to the United States in June 2010.
From 2010 to 2015, Neda lived openly under his real name in the Miami
area. He married, received traffic tickets, applied for credit, filed an adjustment of
status application with the United States Citizenship and Immigration Services, and
even requested a copy of his criminal history report from the police department—a
report that indicated Neda had no local criminal record. In 2011, an attorney
entered an appearance on Neda’s behalf in the federal case in which he had been
indicted. The appearance occurred months after the charges against one of Neda’s
codefendants were dismissed. Nevertheless, no progress was made on Neda’s
case. Officers did not arrest Neda until December 2015, more than five years after
the indictment was issued, when by chance they encountered him at the airport
picking up his brother and codefendant, Luis Neda.
B. Procedural History
After his arrest, Neda moved to dismiss the indictment, claiming that the
five-year post-indictment delay violated his Sixth Amendment right to a speedy
trial. The district court held a hearing on the issue.
At the hearing, the government admitted that the five-year delay was
presumptively prejudicial. But it claimed to have reasonably believed that Neda
was in Venezuela, which it argued justified its performing only an annual check on
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a single database to see if Neda had entered the United States. The government
argued that Neda’s retention of an attorney demonstrated his early knowledge of
the criminal proceedings. The government also suggested that Neda had
purposefully evaded law enforcement, pointing to traffic tickets with different
addresses, variations of his name on those tickets, and his receipt of three failure-
to-appear notices for those tickets. Finally, the government questioned Neda’s
ability to demonstrate any actual prejudice caused by the delay.
Neda presented evidence to rebut the government’s argument that he had
purposefully evaded law enforcement: multiple papers with his name on them
(including car insurance documents, a marriage record, and mail from U.S.
Customs and Immigration Services) and testimony from his wife that they had
taken his traffic tickets to a legal clinic to be resolved.
The district court asked Neda to identify any actual prejudice he suffered. In
response, Neda asserted that prejudice should be presumed and suggested that
because “five years is just over the top . . . . [T]he indictment should be dismissed.”
Doc. 134 at 61.2
The district court denied Neda’s motion. On the one hand, the court found
that the government was “at best” negligent because Neda “was living open[ly]
and notoriously in the United States, . . . making [no] effort to hide at all,” and
2
Unless otherwise specified, all citations in the form “Doc. __” refer to the district court
docket entries.
4
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“law enforcement sort of dropped the ball.” Id. at 72. On the other hand, the court
found that Neda was aware of a criminal proceeding against him, citing his
retention of an attorney in 2011, after his codefendant’s charges were dropped.
Because the court concluded that Neda was aware of the case against him, Neda
was required to demonstrate actual prejudice. He failed to do so, and the district
court denied his motion.
After a jury trial, Neda was convicted on two counts—conspiracy to import
five kilograms or more of cocaine into the United States, in violation of 21 U.S.C.
§ 963, and conspiracy to possess with intent to distribute five kilograms or more of
cocaine, in violation of 21 U.S.C. § 846—and acquitted on the remaining charges.
He was sentenced to 150 months’ imprisonment. This is his appeal.
II. STANDARD OF REVIEW
Whether a defendant’s constitutional right to a speedy trial has been violated
is a mixed question of law and fact. United States v. Ingram, 446 F.3d 1332, 1336
(11th Cir. 2006). We review de novo questions of law; we review findings of fact
for clear error. Id. “A factual finding is clearly erroneous only if, after we review
the evidence, we are left with the definite and firm conviction that a mistake has
been committed.” United States v. Villarreal, 613 F.3d 1344, 1349 (11th Cir.
2010) (internal quotation marks omitted).
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III. DISCUSSION
Neda argues that the delay between his indictment and arrest deprived him
of his Sixth Amendment “right to a speedy and public trial.” 3 U.S. Const. amend.
VI. We apply a balancing test to determine whether Neda’s speedy trial right has
been violated, considering four factors: 1) the length of the delay, 2) the reason for
the delay, 3) Neda’s assertion of his right, and 4) prejudice to Neda. Barker v.
Wingo, 407 U.S. 514, 530-31 (1972). “In this circuit, a defendant generally must
show actual prejudice unless the first three factors in Barker all weigh heavily
against the government.” United States v. Davenport, 935 F.2d 1223, 1239 (11th
Cir. 1991). Although the delay—due, at best for the government, to its own
negligence—lasted over five years, the district court found that Neda knew of the
charges but waited to assert his speedy trial right until after his arrest. We cannot
say this finding was clearly erroneous. Further, the district court correctly
concluded that Neda failed to demonstrate actual prejudice. Thus, we must reject
3
In his brief on appeal, Neda also asserts that the trial court erred in permitting the
government to introduce at his criminal trial evidence of a 2007 drug importation scheme. Neda
argues this evidence “made the speedy trial violation [ ] more egregious since it made the post
trial delay almost 9 years.” Appellant’s Br. at 20. To the extent Neda intends to challenge the
admission of this evidence at trial, his passing reference to it is insufficient; he therefore has
abandoned any such challenge. See United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th
Cir. 2003) (“Under our caselaw, a party seeking to raise a claim or issue on appeal must plainly
and prominently so indicate. Otherwise, the issue—even if properly preserved at trial—will be
considered abandoned.”).
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Neda’s argument that the district court erred in denying his motion to dismiss the
indictment. We will look to each factor in turn before balancing. 4
A. The Barker Factors
1. Length of the Delay
The first Barker factor requires that we undertake a dual inquiry. First, we
must determine if the length of the delay is presumptively prejudicial, which acts
as a triggering mechanism to proceed with the speedy-trial analysis. “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. Neda’s
speedy trial clock began ticking in August 2010, when he was indicted. It ran for
over five years, until officers arrested Neda in December 2015 and Neda filed his
speedy trial motion in early 2016. The government concedes that this five-year
delay was presumptively prejudicial, and we agree. See Ingram, 446 F.3d at 1336(explaining that a delay of more than 12 months is presumptively prejudicial).
Second, since the length of delay was presumptively prejudicial, we must
consider “the extent to which the delay stretches beyond the bare minimum needed
to trigger judicial examination of the claim.” Doggett v. United States, 505 U.S.
647, 652 (1992). “[T]he presumption that pretrial delay has prejudiced the
accused intensifies over time.” Id. Thus, the longer the delay, the more heavily it
4
The district court did not clearly separate its factual findings for each factor, but it
provided a sufficient record for our review to proceed.
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weighs against the government. We previously have found that delays lasting
close to five years weigh heavily against the government. See Ingram, 446 F.3d at
1338-39 (reasoning that a 2 year post-indictment delay, coupled with a 2.5 year
pre-indictment delay, weighed heavily against the government). So too here.
Neda’s pretrial delay was more than five times the length of the threshold required
to establish presumptive prejudice; therefore, this factor weighs heavily against the
government.
2. Reason for the Delay
The second Barker factor we must consider is the government’s reason for
the delay. Here, the reason for the delay primarily stemmed from the
government’s negligence in searching for Neda, who lived openly in Miami from
his indictment until his arrest.
We assign different weights to this second factor, depending on the reason
for the delay:
A deliberate attempt to delay the trial in order to hamper the defense
should be weighted heavily against the government. A more neutral
reason such as negligence . . . should be weighted less heavily but
nevertheless should be considered since the ultimate responsibility for
such circumstances must rest with the government rather than with the
defendant.
Barker, 407 U.S. at 531 (footnote omitted). Indeed, the longer the delay, the
heavier the government’s negligence must be weighted. See Doggett, 505 U.S. at
8
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657 (“[T]he weight we assign to official negligence compounds over time as the
presumption of evidentiary prejudice grows.”).
The district court concluded that the government was “at best” negligent. 5
Doc. 134 at 72. We agree. The government has the duty to bring a defendant to
trial, Barker, 407 U.S. at 527, a duty it appears to have taken rather lightly in
Neda’s case. The government checked the TECS database once a year to see if
Neda had entered the United States. Although other databases, such as DAVID,
were available, the government failed to check those. Neda was listed as a fugitive
from justice, but the warrant apparently was not relayed to other law enforcement
offices, because Neda received traffic tickets under his own name and obtained his
criminal history report directly from a police station. As the district court noted,
the government seems to have failed to perform “law enforcement 101” in Neda’s
case. Doc. 134 at 53-54.
The government argues that Neda purposefully evaded law enforcement,
thus contributing to the delay. The district court rejected this argument, finding
instead that Neda made “[no] effort to hide at all.” Id. at 72. In support of its
argument, the government points to records indicating that Neda provided
variations of his full name to state officers and thrice failed to appear on traffic
summonses.
5
Neda does not argue that the government acted in bad faith.
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The government has failed to show that the court’s finding of fact was
clearly erroneous. First, the records in DAVID refer to Neda as both “Jose Rafael
Neda Boza” (his full name) and “Jose Rafael Boza,” (no great stretch from his full
name). Second, Neda’s wife testified that they had taken Neda’s traffic tickets to a
legal clinic and believed they had been resolved. Third, Neda provided documents
such as car insurance, a marriage record, and mail from U.S. Customs and
Immigration Services, all with his full name. On these facts, the district court did
not clearly err in finding that Neda made no effort to hide.
Although the district court determined that Neda was living openly and not
as a fugitive, it also suggested that Neda might have contributed to the delay by
being difficult to locate. The court found that Neda’s attorney—who was retained
in 2011 and withdrew in 2013—withdrew not because he lacked “the physical or
mental capacity to perform as a lawyer because of illness,” but rather because he
was “having trouble finding” Neda. Id. at 62-63.
This finding was clearly erroneous. Neda’s attorney’s motion to withdraw
indicated that he sought to withdraw because he would be receiving long-term
treatment for health problems and was unable to continue to practice law. To be
fair, the motion also stated that his office was attempting to reach Neda to inform
him of his attorney’s status but had not yet been successful, but that was not
provided as the reason for the withdrawal. Still, the district court clearly erred in
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its finding that Neda’s attorney withdrew because Neda was missing, rather than
because of a long-term illness; we therefore will not consider this evidence when
weighing the Barker factors. 6
In sum, because the reason for the delay between indictment and arrest was
caused by the government’s negligence, this factor weighs against the government.
Though not weighted as heavily as a deliberate and bad faith delay, the
government’s negligence in this case spanned years and must be counted against
the government.
3. Assertion of Right
The third Barker factor requires us to consider when and how often Neda
asserted his speedy trial right. The district court found that Neda first raised his
right in February 2016, two months after his December 2015 arrest, but years after
learning about his pending case. If a defendant asserts his right in a timely manner,
then he raises an “inference that [he] was not at fault for the delay and that the
delay prejudiced [him].” Villarreal, 613 F.3d at 1354. A defendant who is
unaware that charges were pending against him cannot be faulted for a failure to
make a demand. Id. But if a defendant knows of the charges and does not assert
6
At the hearing the district court relied on the government’s proffer of the motion to
withdraw. It appears that the government may have misled the court by relaying only the portion
of the motion that mentioned the efforts to notify Neda, omitting the portion about counsel’s
illness, and staying silent when the district court made the finding above.
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his right, it will be “difficult . . . to prove that he was denied a speedy trial.”
Barker, 407 U.S. at 532.
For example, in Villarreal, the defendant argued that he had timely asserted
his speedy trial right because he raised it shortly after arrest. We rejected his
argument, however, because the district court had found he had known for years
that the government was seeking to prosecute him, as evidenced by his taking steps
to evade the police to avoid detection. Thus, we found that this factor weighed
heavily against the defendant. Villarreal, 613 F.3d at 1354-55.
Like the defendant in Villarreal, Neda argues that this factor should weigh in
his favor because he asserted his right shortly after arrest. His argument similarly
fails, however, because the district court found that Neda was aware much earlier
of his case—if not of the actual indictment, of some sort of “criminal action against
him.” Doc. 134 at 73. The court based its finding on the fact that an attorney
made an appearance on Neda’s behalf in 2011. We cannot say this finding was
clearly erroneous. Thus, even though Neda did not intentionally evade law
enforcement, his failure to assert his speedy trial right earlier—despite knowledge
of the criminal proceeding—weighs heavily against him. See Doggett, 505 U.S. at
653 (noting that if the defendant had known of his indictment years before he was
arrested, the third factor would weigh heavily against him).
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Neda argues that the trial court erred in weighing his hiring of counsel
against him, noting that the burden is on the government to bring the defendant to
trial. He is correct: the right to a speedy trial “places the primary burden on the
courts and the prosecutors to assure that cases are brought to trial.” Barker, 407
U.S. at 529. Nevertheless, a defendant who is aware of the charges against him but
does not assert his speedy trial right will find that this factor weighs against him.
Id. at 531-32.
Because there is evidence that Neda knew about the charges as early as
2011, but did not raise his speedy trial right until February 2016, factor three
weighs heavily against Neda.
4. Prejudice
The fourth Barker factor requires us to examine what prejudice, if any, Neda
suffered as a result of the delay. The Supreme Court has identified three interests
that may be prejudiced by a pretrial delay: 1) preventing pretrial incarceration, 2)
minimizing the accused’s anxiety and concern, and 3) limiting the possibility of the
defense’s impairment. Id. at 532. As to the first interest, Neda was not
incarcerated during the five years between indictment and arrest. As regards the
second, he does not allege that he suffered anxiety or concern (indeed, his
argument necessarily rests on the premise that he was unaware his case had not
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been resolved). Our focus, then, will be on the third interest: the potential
impairment of Neda’s defense.
We recognize that “impairment of one’s defense is the most difficult form
of speedy trial prejudice to prove because time’s erosion of exculpatory evidence
and testimony ‘can rarely be shown.’” Doggett, 505 U.S. at 656 (quoting Barker,
407 U.S. at 532). Nevertheless, our precedent requires Neda to show actual
prejudice because the first three Barker factors do not all weigh heavily against the
government. See Villarreal, 613 F.3d at 1355 (“If . . . the first three factors do not
weigh heavily against the government, the defendant generally must demonstrate
actual prejudice to succeed on his speedy trial claim.”). Unfortunately, Neda has
failed to meet this burden.
In his motion to dismiss the indictment, Neda asserted that the delay
“weakened [his] ability to see and hear the original evidence, raise specific
defenses and elicit specific testimony.” Doc. 77 at 5. Such conclusory allegations
are insufficient to establish actual prejudice, however. United States v. Clark, 83
F.3d 1350, 1354 (11th Cir. 1996). At the hearing on the motion, the district court
gave Neda a chance to elaborate, asking directly: “[W]hat is your actual
prejudice?” Doc. 134 at 59. Neda failed to respond to the question, instead
returning to his argument that a five-year delay should result in presumed
prejudice. Without any evidence of actual prejudice before it, the district court was
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bound to conclude that Neda suffered none. Thus, this factor weighs heavily
against Neda.7
B. Balancing the Factors
Having considered each Barker factor, we now balance them. In this case,
factor one weighs heavily against the government. Factor two weighs against the
government, but less heavily. Factors three and four weigh heavily against Neda.
Additionally, because the first three factors do not all weigh heavily against the
government, Neda must show actual prejudice. See Davenport, 935 F.2d at 1239.
As explained above, Neda has failed to do so. The district court thus committed no
error in concluding that Neda’s Sixth Amendment right to a speedy trial was not
violated.
7
On appeal, Neda provides for the first time details indicating that the delay actually
prejudiced his defense, pointing to the destruction of original recordings and his inability to
locate alibi witnesses due to the worsening political situation in Venezuela. The district court
lacked an opportunity to pass on these specific theories, so we cannot do so now. See Access
Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1332-35 (11th Cir. 2004) (explaining that
absent exceptional circumstances, we will not consider arguments that are raised for the first
time on appeal). In the alternative, we may review for plain error issues not raised before the
district court. See Fed. R. Crim. P. 52(b) (“A plain error that affects substantial rights may be
considered even though it was not brought to the court’s attention.”). “[Neda] can succeed [on
plain error review] only if he can show that there was error, that the error was plain, and that it
affected his substantial rights, i.e., the error affected the outcome of the district court
proceedings.” United States v. Hayes, 40 F.3d 362, 364 (11th Cir. 1994). Neda does not identify
how access to original recordings would have benefitted him (indeed, he argued at the closing of
his criminal trial that the absence of recordings cast doubt on the government’s case), nor does
he provide the names of his missing witnesses or what their testimony would have shown.
Therefore, we find no plain error.
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IV. CONCLUSION
For the foregoing reasons, we affirm the district court’s order denying the
motion to dismiss Neda’s indictment for a violation of his Sixth Amendment
speedy trial right.
AFFIRMED.
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