United States v. Angel Figueroa ( 2007 )


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  •                       NONPRECEDENTIAL DISPOSITION
    To be cited only in accordance with
    Fed. R. App. P. 32.1
    United States Court of Appeals
    For the Seventh Circuit
    Chicago, Illinois 60604
    Submitted April 17, 2007*
    Decided April 19, 2007
    Before
    Hon. FRANK H. EASTERBROOK, Chief Judge
    Hon. WILLIAM J. BAUER, Circuit Judge
    Hon. ILANA DIAMOND ROVNER, Circuit Judge
    No. 06-3022
    UNITED STATES OF AMERICA,                      Appeal from the United States District
    Plaintiff-Appellee,                        Court for the Northern District of
    Illinois, Eastern Division.
    v.
    No. 02 CR 416
    ANGEL FIGUEROA,
    Defendant-Appellant.                       Wayne R. Andersen,
    Judge.
    ORDER
    Angel Figueroa was arrested and charged by complaint with conspiracy to
    possess heroin with intent to distribute. 21 U.S.C. §§ 846, 841(a)(1). Five months
    later, the Grand Jury indicted Figueroa for the conspiracy along with a substantive
    possession count, 
    id. § 841(a)(1),
    and one count of possessing a firearm during the
    drug offenses, 18 U.S.C. § 924(c)(1). Eighteen months after indictment Figueroa
    proceeded to trial with his third appointed lawyer. The jury found him guilty on the
    conspiracy count but acquitted on the firearm count and could not reach a verdict
    *
    After an examination of the briefs and the record, we have concluded that oral
    argument is unnecessary. Thus, the appeal is submitted on the briefs and the record.
    See Fed. R. App. P. 34(a)(2).
    No. 06-3022                                                                       Page 2
    on the drug-possession count. After nearly two-and-a-half more years and four
    more changes of counsel (Figueroa demanded the withdrawal of the first successor
    to his trial lawyer, and the following three lawyers moved to withdraw citing
    irreconcilable differences), the district court finally sentenced Figueroa to a total of
    240 months’ imprisonment. In the interim, Figueroa had filed an unsuccessful
    motion in which he argued for the first time that his statutory and constitutional
    rights to a speedy trial had been denied. He presses the same contentions in this
    pro se appeal.
    Figueroa argues that because he was not indicted within 30 days from his
    arrest, and was not tried within 70 days from his indictment (excluding time
    exempted by statute), his indictment must be dismissed under the Speedy Trial Act.
    See 18 U.S.C. §§ 3161(b), (c)(1), 3162(a). Figueroa, however, waived his rights
    under the Speedy Trial Act because he did not move to dismiss his indictment
    before trial. See § 3162(a)(2); United States v. Morgan, 
    384 F.3d 439
    , 442-43 (7th
    Cir. 2004). Figueroa’s contention that he could not have acted before trial because
    he was not aware of the purported statutory violations is frivolous.
    Figueroa also argues that the delay before his trial violated his Sixth
    Amendment right to a speedy trial. This argument was not waived by its untimely
    assertion, so we consider it. See Barker v. Wingo, 
    407 U.S. 514
    , 524-29 (1972)
    (stating that constitutional right to speedy trial must be waived knowingly and
    intelligently, not by omission); United States v. Alvarez, 
    860 F.2d 801
    , 821-22 (7th
    Cir. 1988) (considering constitutional speedy trial claim not raised before trial);
    United States v. Kinberlin, 
    805 F.2d 210
    , 225-26 (7th Cir. 1986) (same). The two-
    year delay between Figueroa’s arrest and trial was long enough to be presumptively
    prejudicial, and thus the delay triggers the need for constitutional analysis. See
    Doggett v. United States, 
    505 U.S. 647
    , 651-52 (1992); United States v. White, 
    443 F.3d 582
    , 589-90 (7th Cir. 2006); see also United States v. MacDonald, 
    456 U.S. 1
    , 7
    (1982) (explaining that right to speedy trial under Sixth Amendment commences
    with the earlier of arrest or formal accusation). Courts examine four factors in
    assessing a constitutional claim: (1) whether the delay before trial was uncommonly
    long; (2) whether the government or defendant is more to blame for the delay;
    (3) whether the defendant asserted his right to a speedy trial; and (4) whether the
    defendant suffered any prejudice in the form of oppressive pretrial incarceration,
    anxiety and concern, or the impairment of his defense. See 
    Doggett, 505 U.S. at 651-52
    ; Barker v. Wingo, 
    407 U.S. 514
    , 530 (1972); 
    White, 443 F.3d at 589
    .
    The factors reveal that there was no constitutional violation in this case.
    First, though two years is a significant delay, it does not nearly approach the
    excessive nine years condemned by the Supreme Court in Doggett or even the
    acceptable five years in Barker. Second, the record shows that the government
    dealt with pretrial matters in a diligent and timely way, and that Figueroa changed
    No. 06-3022                                                                     Page 3
    counsel several times. Figueroa has not shown that there was any stalling by the
    government or anything other than “neutral” delay due to ordinary procedures and
    scheduling conflicts. See 
    Barker, 407 U.S. at 531
    ; 
    White, 443 F.3d at 590
    . Third,
    Figueroa did not raise any speedy-trial objection prior to trial; that decision weighs
    heavily against him because it suggests his assent to the delays and the absence of
    any resulting prejudice. 
    Barker, 407 U.S. at 531
    ; 
    White, 443 F.3d at 591
    . Fourth,
    Figueroa points to no “tangible impairment” caused by the delays. See 
    White, 443 F.3d at 591
    . He makes a vague assertion that “memories faded,” but he introduced
    no evidence at trial and does not identify any evidence that was tainted by time.
    Additionally, he was detained only two-and-a-half months between arrest and
    conviction.
    Lastly, Figueroa argues for the first time here that the delay between his
    arrest and indictment violated his right to due process under the Fifth Amendment.
    The Due Process Clause protects against delay before formal accusation; it has no
    relevance to the period after Figueroa was arrested and charged by complaint with
    conspiracy. 
    MacDonald, 456 U.S. at 7
    ; United States v. Wallace, 
    326 F.3d 881
    , 885-
    86 (7th Cir. 2003); United States v. Dickerson, 
    975 F.2d 1245
    , 1252 (7th Cir. 1992).
    AFFIRMED.
    

Document Info

Docket Number: 06-3022

Judges: Hon, Easterbrook, Bauer, Rovner

Filed Date: 4/19/2007

Precedential Status: Non-Precedential

Modified Date: 11/5/2024