United States v. Green , 223 F. App'x 408 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 23, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-20581
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
KENNETH GREEN, also known as Sherrod Sylvester McClain
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas, Houston
No. 4:98-CR-311
Before BARKSDALE, DeMOSS, and PRADO, Circuit Judges.
PER CURIAM:*
In August 1998, the defendant-appellant, Kenneth Green, was
charged by indictment as “John Doe” with making a false statement
on a passport application in violation of 18 U.S.C. § 1542. The
indictment specifically alleged that the defendant “stated and
represented in the Form DSP-11, ‘Application for a United States
Passport,’ that he was in fact Sherrod Sylvester McClain when,
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
-1-
then and there, Defendant knew that he was not Sherrod Sylvester
McClain.” Along with the passport application, Green submitted
an application for a Texas identification card that bore right
and left thumbprints and a photograph, also purporting to be
those of McClain.
At the time of the indictment, Green was known to law
enforcement officials only by McClain, the alias he had used to
commit the underlying offense of making a false statement on a
passport application. Post-indictment, agents entered the
information they had on Green, including his physical
description, into the National Crime Information Center system.
Because agents suspected that the defendant was involved in drug
trafficking, copies of the warrant and photographs of the subject
were given to a Houston police sergeant involved with a drug task
force in December 1998, and to a Drug Enforcement Administration
agent in January 1999. On August 30, 2002, agents ran a records
check using the defendant’s alias, but the effort turned up no
new information.
In September 2002, agents used fingerprint technology to
match the unknown thumbprints from the Texas identification card
application with those of Green, whose thumbprints were on file
with the FBI. Agents also compared a photograph of Green with
the one on the application and determined they were the same
person. That same month, agents retrieved Green’s arrest records
from Waller County, Texas.
-2-
In October 2002, agents learned and verified that Green was
incarcerated in the Wisconsin Department of Corrections and had
been there since 2000. In October 2003, agents received Green’s
booking photograph and fingerprint card from Wisconsin
authorities. Thereafter, agents gathered the necessary
documentation and sent Green’s prints to the Immigration and
Customs Enforcement (“ICE”) forensic laboratory for comparison.
In August 2004, the agents received confirmation from ICE of
Green’s identity.
In September 2004, a detainer was placed on Green at the
Wisconsin facility where he was incarcerated. On November 16,
2004, the United States Attorney filed an application for writ of
habeas corpus ad prosequendum, requesting that Green be brought
before the United States District Court for the Southern District
of Texas. On January 4, 2005, Green made his initial appearance
in the district court.
On February 18, 2005, Green filed a motion to dismiss the
indictment, arguing that the post-indictment delay violated his
Sixth Amendment right to a speedy trial. On March 8, 2005, the
district court denied Green’s motion.
Following a stipulated bench trial in March 2005, Green was
convicted and sentenced to one month in prison, to be served
concurrently with an existing state court sentence and to be
followed by three years of supervised release.
Green now appeals his judgment of conviction and sentence,
-3-
arguing that the district court erred in denying his motion to
dismiss the indictment. Green contends that the post-indictment
delay, from the issuance of the indictment in August 1998 to the
filing of the detainer on Green in September 2004, violated his
Sixth Amendment right to a speedy trial.
Green’s speedy trial claim is controlled by the four-factor
balancing test in Barker v. Wingo, 407 U.S. 514 (1972). Under
that test, the court considers: (1) the length of the delay; (2)
the reason for the delay; (3) the defendant’s diligence in
asserting his Sixth Amendment right; and (4) the prejudice to the
defendant caused by the delay. United States v. Cardona, 302
F.3d 494, 496 (5th Cir. 2002) (citing Barker, 407 U.S. at 530-
33).
In Doggett v. United States, 505 U.S. 647 (1992), the
Supreme Court clarified how the four factors are to be weighed
and the burden each party carries. The threshold inquiry is
whether the delay is long enough to trigger a speedy trial
analysis. United States v. Bergfeld, 280 F.3d 486, 488 (5th Cir.
2002) (citing Doggett, 505 U.S. at 651-52). Generally, a post-
accusation delay approaching one year is sufficient. Id. (citing
Doggett, 505 U.S. at 652 n.1).
“If a court undertakes a full Barker-analysis, it evaluates
the first three factors (delay-length; reason for it; diligence
in asserting right) in order to determine whether prejudice will
be presumed or whether actual prejudice must be shown.” United
-4-
States v. Frye, 372 F.3d 729, 736 (5th Cir. 2004). “In all of
this, courts do not engage in a rigid analysis, but engage in the
‘functional analysis of the right in the particular context of
the case.’” Id. (quoting Barker, 407 U.S. at 522).
In analyzing Green’s Sixth Amendment claim, the district
court recognized that it was required to engage in a full Barker-
analysis because of the length of the post-indictment delay.
See Tr. of Mot. Hr’g at 43, United States v. Green, No. H-98-CR-
311 (S.D. Tex. Mar. 8, 2005). Green’s counsel told the district
court that Green was relying entirely on the presumption of
prejudice for his claim. See id. at 4. This statement, along
with the court’s finding that there was absolutely no evidence of
actual prejudice, required the court to balance the first three
factors under Barker and Doggett to determine if prejudice would
be presumed. See id. at 43-47.
In addressing the first two factors, the district court
found that “the Defendant contributed to the problems
significantly because he admittedly used false information and as
a result he was indicted as a John Doe. Clearly, his efforts to
prevent the Government from figuring out who he was contributed
to the delay in the Government’s figuring out who he was.” Id.
at 43. The court also found that “there were periods of time in
which the Government had available to it the means of resolving
that confusion that it did not avail itself of as early as it
-5-
might have done.” Id. The court concluded “that there was a
relatively short period of delay that is attributable to some
degree of governmental negligence[,]” but attributed the “much
longer period of delay . . . to a combination of the Defendant’s
efforts to hide his identity and the Government’s failure,
although they made attempts to find the Defendant, to locate
him.” Id. at 46. The court found that there was “certainly no
degree of culpability [by the Government] that is higher than a
low degree of negligence.” Id. Finally, in addressing the third
factor, the court found that Green had diligently asserted his
constitutional right. Based on these factors, the court
concluded that although “[a] combination of those factors makes
this a relatively close case” on whether it should presume
prejudice, it did not “see a basis for dismissing the
indictment.” Id. at 47.
Having reviewed the briefs, the district court’s oral
ruling, and the pertinent portions of the record, we find no
errors of law or fact warranting reversal. Essentially for the
reasons stated by the district court, we agree that the length of
the delay attributable to the government’s negligence, even when
considered in light of the defendant’s assertion of his right, is
not sufficient for a presumption of prejudice. Cf. United States
v. Serna-Villarreal, 352 F.3d 225, 232 & 233 n.5 (5th Cir. 2003),
cert. denied, 541 U.S. 981 (2004) (stating that “this Court and
-6-
others generally have found presumed prejudice only in cases in
which the post-indictment delay lasted at least five years” and
noting that “[t]he portion of the post-indictment delay
attributable to government negligence in Doggett, Bergfeld, and
Cardona, was six years, five years, and five years,
respectively”).1 Accordingly, because Green relied solely on
presumptive prejudice and because he cannot show actual
prejudice, the judgment of the district court is affirmed.
AFFIRMED.
1
Although Green argues that this circuit’s decision in
Serna-Villarreal conflicts with the Supreme Court’s decision in
Barker, it is a well-established rule that one panel of this
court may not overrule a prior panel’s decision, absent an en
banc or intervening Supreme Court decision. See United States v.
Treft, 447 F.3d 421, 425 (5th Cir.), cert. denied, 127 S. Ct. 555
(2006). We therefore decline to consider this argument any
further on appeal.
-7-