United States v. Frith ( 1999 )


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  • UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff-Appellant,
    v.                                                  No. 98-4246
    EARL FRITH, a/k/a F. Earl Frith,
    Defendant-Appellee.
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.
    No. 98-4591
    JULIO ROBERTO CASTELLANOS, a/k/a
    J.R.,
    Defendant-Appellant.
    UNITED STATES OF AMERICA,
    Plaintiff-Appellant,
    v.
    No. 98-4653
    JULIO ROBERTO CASTELLANOS, a/k/a
    J.R.,
    Defendant-Appellee.
    Appeals from the United States District Court
    for the Western District of Virginia, at Roanoke.
    James C. Turk, District Judge.
    (CR-91-82-R)
    Argued: May 6, 1999
    Decided: June 14, 1999
    Before WIDENER, ERVIN, and WILKINS, Circuit Judges.
    _________________________________________________________________
    Affirmed in part, reversed in part, and remanded by unpublished per
    curiam opinion.
    _________________________________________________________________
    COUNSEL
    ARGUED: Thomas Ernest Booth, UNITED STATES DEPART-
    MENT OF JUSTICE, Washington, D.C., for Appellant. David Dennis
    Walker, DAVID C. WALKER, P.C., Salem, Virginia; Joaquin N.
    Fernandez, Coconut Grove, Florida, for Appellees. ON BRIEF: Rob-
    ert P. Crouch, Jr., United States Attorney, Joseph W. H. Mott, Assis-
    tant United States Attorney, UNITED STATES DEPARTMENT OF
    JUSTICE, Washington, D.C., for Appellant.
    _________________________________________________________________
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    _________________________________________________________________
    OPINION
    PER CURIAM:
    The United States appeals an order of the district court dismissing
    the indictment against Earl Frith on the basis that a seven-year delay
    between indictment and trial violated Frith's Sixth Amendment right
    to a speedy trial. Additionally, the Government appeals the sentence
    imposed on Frith's codefendant, Julio Roberto Castellanos, arguing
    that the district court erred in awarding Castellanos a downward
    adjustment for acceptance of responsibility. See U.S. Sentencing
    Guidelines Manual § 3E1.1 (1997). Castellanos cross appeals, raising
    several challenges to his convictions and sentence. For the reasons
    that follow, we reverse the dismissal of the indictment against Frith.
    2
    And, although we affirm Castellanos' convictions, we vacate his sen-
    tence and remand for resentencing.
    I.
    The facts, viewed in the light most favorable to the Government,
    are as follows. Beginning in the fall of 1988, Leonardo Rivera-Ruiz
    began importing and selling cocaine for the Cali Cartel, a narcotics
    syndicate based in Colombia, South America. The drugs were trans-
    ported to the United States in large quantities, and Rivera-Ruiz sold
    them in New York and Philadelphia. Approximately a year later,
    Rivera-Ruiz decided to retire from the drug trade and disbanded his
    distribution operations. Shortly thereafter, a member of the Cartel per-
    suaded him to sell additional cocaine. Lacking an outlet for the drugs,
    Rivera-Ruiz contacted Castellanos, who agreed to sell the narcotics in
    Houston. Attempts to deliver the proceeds of the sale of the cocaine
    to the Cartel were foiled by federal agents, who seized large sums of
    money from couriers. In order to satisfy the resulting debt to the Car-
    tel, Rivera-Ruiz returned to the business of selling cocaine with Cas-
    tellanos as a partner. At that point--in the fall of 1990--Rivera-Ruiz
    employed Javier Cruz to transport cocaine from Phoenix and Los
    Angeles to New York for sale.
    At approximately the same time as he began working for Rivera-
    Ruiz, Cruz moved to Salem, Virginia and opened a used automobile
    dealership. He contacted Frith, a local real estate agent, about pur-
    chasing a dairy farm. In addition to purchasing the property, Cruz
    bought 30 head of cattle, on which he made a cash deposit of $16,000
    in drug proceeds. Frith structured the deposit of the money in order
    to avoid federal reporting requirements, dividing it into two deposits
    of $8,000 and making each at a different branch of his bank.
    On May 12, 1991, a sealed indictment was returned naming, inter
    alia, Rivera-Ruiz, Cruz, and Frith. Frith was not aware of the indict-
    ment, but Cruz, who had been arrested in April 1991, immediately
    began cooperating with authorities. In August 1992, the Drug
    Enforcement Administration sent Cruz to Colombia in an undercover
    capacity, where he remained until February 1996. After further inves-
    tigation, the Government obtained a superseding sealed indictment in
    January 1997, which was unsealed as to Frith the following month.
    3
    The superseding indictment named 28 defendants, including Castel-
    lanos and Frith, both of whom were charged with conspiracy to pos-
    sess with the intent to distribute cocaine, see 
    21 U.S.C.A. § 846
     (West
    Supp. 1999), and conspiracy to import cocaine, see 
    21 U.S.C.A. § 963
    (West Supp. 1999). Additionally, Frith was charged with structuring
    a currency transaction with a domestic financial institution to evade
    a reporting requirement, see 
    31 U.S.C. § 5324
    (3) (1988), and money
    laundering, see 
    18 U.S.C. § 1956
    (a)(3)(B), (C) (1988 & Supp. III
    1992). Trial commenced in January 1998. Castellanos was convicted
    of both conspiracy counts. Frith was acquitted of the conspiracy
    charges but was convicted of structuring; the jury was unable to reach
    a verdict as to the charge of money laundering.
    A few days before trial, Frith moved to dismiss the indictment on
    the basis that the delay following the initial indictment violated his
    Sixth Amendment speedy trial right. The district court took this
    motion under advisement and after trial dismissed the indictment. In
    making this ruling, the court noted that the delay in prosecution was
    not due to the Government's negligence but rather was a product of
    its diligent efforts to investigate other members of the conspiracy.
    Additionally, the court found that any actual prejudice to Frith was
    minimal at best. Nevertheless, the court concluded that it was required
    to presume prejudice after such a lengthy delay and dismissed the
    indictment against Frith.
    At sentencing, the district court granted Castellanos a two-level
    downward adjustment for acceptance of responsibility, see U.S.S.G.
    § 3E1.1, over the Government's objection. The court noted that Cas-
    tellanos had appeared for trial even though he faced a potential life
    sentence and was a significant flight risk. The court also stated that
    it would "never ... punish anyone for taking a trial" and observed that
    Castellanos, who did not testify at trial, "didn't get on the stand and
    lie or ... [say he] didn't do it." J.A. 1030. It declined, however, to
    grant Castellanos a two-level reduction pursuant to U.S.S.G.
    § 2D1.1(b)(6).
    II.
    We first consider the Government's contention that the district
    court erred in dismissing the indictment against Frith on the basis that
    4
    the delay of almost seven years between the initial indictment and
    trial violated his Sixth Amendment right to a speedy trial. See U.S.
    Const. amend. VI (guaranteeing an accused "the right to a speedy ...
    trial"). The question of whether Frith's constitutional right was vio-
    lated is a legal one subject to de novo review, although we review the
    factual findings of the district court for clear error. See United States
    v. Brown, 
    169 F.3d 344
    , 348 (6th Cir. 1999); see also Doggett v.
    United States, 
    505 U.S. 647
    , 651-58 (1992) (conducting de novo
    review of Sixth Amendment speedy trial claim); United States v.
    Grimmond, 
    137 F.3d 823
    , 827-31 (4th Cir.) (same), cert. denied, 
    119 S. Ct. 124
     (1998).
    In determining whether a Sixth Amendment speedy trial violation
    has occurred, a court must balance four considerations: the "[l]ength
    of delay, the reason for the delay, the defendant's assertion of his
    right, and prejudice to the defendant." Barker v. Wingo, 
    407 U.S. 514
    ,
    530 (1972); see Doggett, 
    505 U.S. at 651
    . The length-of-delay factor
    serves two functions in the speedy trial inquiry. First, it operates as
    a preliminary requirement: It is unnecessary to conduct an analysis of
    a speedy trial claim unless the defendant first demonstrates "that the
    interval between accusation and trial has crossed the threshold divid-
    ing ordinary from ``presumptively prejudicial' delay." Doggett, 
    505 U.S. at 651-52
     (quoting Barker, 
    407 U.S. at 530
    ). Once this hurdle
    is overcome, the length of delay is relevant to the remainder of the
    speedy trial analysis because "the presumption that pretrial delay has
    prejudiced the accused intensifies over time." 
    Id. at 652
    .
    There is no question that the delay in this case is sufficiently long
    to require further inquiry into whether Frith's Sixth Amendment
    speedy trial right was violated. See 
    id.
     (concluding that an "extraordi-
    nary 8 1/2-year lag between ... indictment and arrest clearly suffices
    to trigger the speedy trial enquiry"); 
    id.
     at 652 n.1 (noting that "the
    lower courts have generally found postaccusation delay ``presump-
    tively prejudicial' at least as it approaches one year"); Grimmond, 
    137 F.3d at 828
     (determining that a delay of 35 months satisfied the
    threshold requirement). Accordingly, we must proceed to an analysis
    of all of the relevant considerations.
    We begin by addressing the reason for the delay. As the Supreme
    Court has noted, various reasons for a lag between indictment and
    5
    trial are accorded different weights in the speedy trial analysis. See
    Barker, 
    407 U.S. at 531
    . For example, "[a] deliberate attempt to delay
    the trial in order to hamper the defense should be weighted heavily
    against the government." 
    Id.
     More neutral reasons, such as govern-
    mental negligence or an overcrowded court docket, are still weighed
    against the Government (because it bears the ultimate responsibility
    for bringing a defendant to trial), but less heavily. See 
    id.
     Finally,
    valid reasons, such as the need to obtain a missing witness, are
    weighed in favor of the Government. See 
    id.
    Here, the district court found that the Government delayed prose-
    cuting Frith so that it could continue to investigate the wide-ranging
    conspiracy in which Frith was tangentially involved, a purpose the
    court termed "noble." J.A. 936. Prosecuting Frith shortly after the
    return of the original indictment could have jeopardized the ongoing
    investigation of the Cali Cartel, which involved some of the defen-
    dants named in the indictment. Moreover, Frith does not contend that
    the Government was dilatory in its investigation of the Cartel or in its
    pursuit of a superseding indictment once the investigation was con-
    cluded. Accordingly, we determine that the reason for the delay
    should be weighed in favor of the Government.
    We next consider whether Frith asserted his right to a speedy trial
    in a timely fashion. "The defendant's assertion of his speedy trial
    right ... is entitled to strong evidentiary weight in determining whether
    the defendant is being deprived of the right." Barker, 
    407 U.S. at
    531-
    32. Of course, a defendant who is unaware that he is under indictment
    cannot be held to account for failing to assert his right to a speedy
    trial. See Doggett, 
    505 U.S. at 653-54
    .
    The Government does not dispute that Frith was unaware that he
    had been indicted in 1991. And, he did not learn that he had been
    charged until after the superseding indictment was unsealed in late
    February 1997. Under Doggett, Frith is not responsible for failing to
    assert his speedy trial right during the six years that passed before he
    became aware that he had been indicted. However, we cannot ignore
    the fact that Frith waited nearly a year after the unsealing of the
    superseding indictment to assert his right to a speedy trial. Under the
    circumstances, we are inclined to give this factor little weight in our
    analysis.
    6
    Lastly, we must consider the prejudice suffered by Frith. The dis-
    trict court found this factor dispositive, reasoning that the seven-year
    delay between indictment and trial mandated an irrebuttable presump-
    tion that Frith had been prejudiced in his ability to defend against the
    charges.1 The court based its ruling on Doggett, in which the Supreme
    Court held that a delay of eight and one-half years between indict-
    ment and trial violated the Sixth Amendment despite the defendant's
    inability to establish actual prejudice. See 
    id. at 654-58
    .
    We conclude that the district court misunderstood the holding and
    rationale of Doggett. Although the court was correct that a showing
    of actual prejudice is not required in all speedy trial cases, see 
    id. at 655
     (stating that "affirmative proof of particularized prejudice is not
    essential to every speedy trial claim" because"impairment of one's
    defense is the most difficult form of speedy trial prejudice to prove"),
    Doggett specifically noted that "presumptive prejudice cannot alone
    carry a Sixth Amendment claim," but rather must be considered in the
    context of the other factors, particularly the reason for the delay, 
    id. at 656
    . When delay is justified by a legitimate governmental purpose,
    such as the need to obtain a missing witness, a speedy trial claim will
    fail absent a demonstration of actual prejudice. See 
    id.
     In contrast, a
    lengthy bad faith delay by the Government may "present an over-
    whelming case for dismissal" even without a showing of actual preju-
    dice. See 
    id.
     In Doggett, the Court concluded that a delay of eight and
    one-half years caused by the Government's negligence in locating the
    defendant mandated dismissal "when the presumption of prejudice,
    albeit unspecified, is neither extenuated, as by the defendant's acqui-
    escence, nor persuasively rebutted." 
    Id. at 658
     (footnote & citation
    omitted). Thus, Doggett did not hold, as the district court apparently
    believed, that a sufficiently lengthy delay may be dispositive of a
    speedy trial claim irrespective of the other criteria for evaluating such
    a claim.
    _________________________________________________________________
    1 The Supreme Court has identified three relevant forms of prejudice in
    speedy trial cases: "``oppressive pretrial incarceration,' ``anxiety and con-
    cern of the accused,' and ``the possibility that the [accused's] defense will
    be impaired' by dimming memories and loss of exculpatory evidence."
    Doggett, 
    505 U.S. at 654
     (quoting Barker, 
    407 U.S. at 532
    ) (alteration
    in original). The parties agree that since Frith was not incarcerated prior
    to trial and was unaware of the indictment for the majority of its pen-
    dency, only the third form of prejudice is relevant here. See 
    id.
    7
    Considering the prejudice factor in light of the reason for the delay
    as Doggett instructs, we conclude that the district court erred in
    weighing this factor in favor of Frith. Here, unlike in Doggett, the
    delay in bringing Frith to trial was justifiable. Thus, his speedy trial
    claim can succeed only if he makes a showing of actual prejudice. See
    
    id. at 656
    . And, the district court found that the prejudice to Frith
    resulting from the delay was minimal at best; indeed, the court specif-
    ically discredited Frith's trial testimony that he had forgotten the
    details of the transaction that was the subject of the structuring
    charge.
    In sum, our consideration of the factors relevant to an analysis of
    a speedy trial claim leads us to conclude that Frith's Sixth Amend-
    ment right was not violated by the seven-year delay between indict-
    ment and trial. Accordingly, we reverse the dismissal of the
    indictment against Frith.
    III.
    The Government next contends that the district court erred in
    awarding Castellanos a reduction in his offense level for acceptance
    of responsibility. See U.S.S.G. § 3E1.1. The determination by the dis-
    trict court concerning whether a defendant has accepted responsibility
    "``is entitled to great deference on review'" and will be overturned
    only if we conclude that the court committed clear error. United
    States v. Dickerson, 
    114 F.3d 464
    , 469 (4th Cir. 1997) (quoting
    U.S.S.G. § 3E1.1, comment. (n.5)).
    We have little difficulty in concluding that the district court clearly
    erred in finding that Castellanos accepted responsibility for his
    offense. The district court offered three reasons for awarding the
    reduction: that Castellanos, who faced a potential life sentence, had
    voluntarily appeared for trial in spite of being a significant flight risk;
    that the court would "never ... punish anyone for taking a trial"; and
    that Castellanos "didn't get on the stand and lie or ... [say he] didn't
    do it." J.A. 1030. None of these justifications provides any support for
    the factual conclusion that Castellanos accepted responsibility.
    The commentary to § 3E1.1 makes clear that the adjustment gener-
    ally is not available to those, like Castellanos, who contest factual
    8
    guilt at trial. See U.S.S.G. § 3E1.1, comment. (n.2).2 Furthermore,
    merely appearing for trial is a far cry from the affirmative acceptance
    of personal responsibility that is a prerequisite to an adjustment for
    acceptance of responsibility. See United States v. Nale, 
    101 F.3d 1000
    , 1005 (4th Cir. 1996) (explaining that "in order to receive a
    reduction under § 3E1.1 ... the defendant must prove by a preponder-
    ance of the evidence that he has clearly recognized and affirmatively
    accepted personal responsibility for his criminal conduct"); see also
    U.S.S.G. § 3E1.1(a) (stating that a defendant must "clearly demon-
    strate[ ] acceptance of responsibility for his offense" in order to
    receive a two-level reduction). Also, the denial of an adjustment for
    acceptance of responsibility does not constitute punishment for exer-
    cising the right to a trial. See United States v. Guadagno, 
    970 F.2d 214
    , 225-26 (7th Cir. 1992). Finally, the mere fact that a defendant
    does not testify--and thus does not testify falsely--at a trial during
    which he contests his factual guilt does not amount to an acceptance
    of responsibility. See United States v. Ivy, 
    83 F.3d 1266
    , 1293-94
    (10th Cir. 1996); see also United States v. Castner, 
    50 F.3d 1267
    ,
    1279 (4th Cir. 1995) (observing that "[a] defendant ... is not entitled
    to a reduction for acceptance of responsibility merely because he did
    not obstruct the administration of justice during his trial").3 Accord-
    _________________________________________________________________
    2 The guideline commentary does provide that "[i]n rare situations a
    defendant may clearly demonstrate an acceptance of responsibility for
    his criminal conduct even though he exercises his constitutional right to
    a trial," as when "a defendant goes to trial to assert and preserve issues
    that do not relate to factual guilt (e.g., to make a constitutional challenge
    to a statute or a challenge to the applicability of a statute to his conduct)."
    
    Id.
     This narrow exception does not apply here.
    3 The district court also noted that Castellanos acknowledged his guilt
    after the trial. However, post-trial remorse does not generally support a
    reduction for acceptance of responsibility. See United States v. Martinez,
    
    901 F.2d 374
    , 377-78 (4th Cir. 1990) (affirming denial of adjustment for
    acceptance of responsibility when defendant did not acknowledge his
    guilt until four days before sentencing). Moreover, we note that Castel-
    lanos' purported acceptance of responsibility consisted of a written state-
    ment that simply recited, almost verbatim, the portion of the presentence
    report that recounted the offense conduct; another statement in which
    Castellanos claimed to "fully accept responsibility for [his] conduct,"
    J.A. 1100; and testimony at the sentencing hearing. In both statements
    and in his testimony, Castellanos consistently attempted to minimize the
    extent of his participation in the conspiracy.
    9
    ingly, we conclude that the district court committed clear error in
    reducing Castellanos' offense level for acceptance of responsibility.
    IV.
    On cross appeal, Castellanos contends that the district court erred
    in refusing to impose a two-level downward adjustment pursuant to
    U.S.S.G. § 2D1.1(b)(6). The Government concedes, and we agree,
    that the district court erroneously refused to consider whether this
    adjustment was appropriate.
    Section 2D1.1(b)(6) directs a district court to apply a two-level
    downward adjustment when "the defendant meets the criteria set forth
    in subdivisions (1)-(5) of § 5C1.2 (Limitation on Applicability of
    Statutory Minimum Sentences in Certain Cases) and the offense level
    ... is level 26 or greater." The district court refused to grant this
    adjustment to Castellanos on the basis that the reduction was not
    available because the guideline range exceeded the statutory manda-
    tory minimum. In so ruling, the court appears to have confused
    § 2D1.1(b)(6) with U.S.S.G. § 5C1.2, which requires the court to "im-
    pose a sentence in accordance with the applicable guidelines without
    regard to any statutory minimum sentence[ ] if" certain criteria are
    met. The latter provision applies only when the applicable statutory
    mandatory minimum exceeds the defendant's guideline range. Sec-
    tion 2D1.1(b)(6), on the other hand, applies whenever a defendant
    meets the criteria enumerated in § 5C1.2 and his offense level is
    greater than 25. See United States v. Leonard , 
    157 F.3d 343
    , 345-46
    (5th Cir. 1998) (per curiam). We therefore reverse the ruling of the
    district court and remand for it to make findings regarding whether
    Castellanos satisfied the requirements of § 5C1.2.4
    _________________________________________________________________
    4 Castellanos raises several other issues, all of which we have carefully
    considered and have determined to be without merit. Of these, only his
    contention that the district court erred in refusing a request of the jury to
    review the 1991 indictment, which had been admitted into evidence dur-
    ing trial, warrants any discussion. "The transmittal of exhibits to the jury
    is ordinarily a matter within the discretion of the trial court and will not
    be reversed in the absence of clear prejudice to the defendant[ ]." United
    States v. De Hernandez, 
    745 F.2d 1305
    , 1308 (10th Cir. 1984). Castel-
    lanos has not specified any possible harm that may have resulted from
    the failure of the district to transmit the 1991 indictment to the jury, and
    our review of the record reveals none. Accordingly, we reject this argu-
    ment.
    10
    V.
    Because we conclude that the district court erred in conclusively
    presuming prejudice to Frith as a result of the seven-year delay
    between indictment and trial, we reverse the dismissal of the indict-
    ment as to Frith. We affirm Castellanos' convictions, but reverse the
    award of a downward adjustment for acceptance of responsibility. We
    further hold that the district court erred in refusing to consider
    whether Castellanos was entitled to a two-level reduction under
    § 2D1.1(b)(6).
    Accordingly, we reverse as to Frith. As to Castellanos, we affirm
    in part, reverse in part, and remand for resentencing.
    AFFIRMED IN PART, REVERSED IN PART,
    AND REMANDED
    11