United States v. Luis Erenas-Luna ( 2009 )


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  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 08-1855
    ___________
    United States of America,             *
    *
    Appellee,                 *
    * Appeal from the United States
    v.                              * District Court for the
    * District of Nebraska.
    Luis Alberto Erenas-Luna, also known *
    as Miguel Ontiveros-Murrillo,         *
    *
    Appellant.                *
    ___________
    Submitted: September 25, 2008
    Filed: March 23, 2009
    ___________
    Before RILEY, BRIGHT, and MELLOY, Circuit Judges.
    ___________
    MELLOY, Circuit Judge.
    Miguel Ontiveros,1 a.k.a. Luis Alberto Erenas-Luna, a.k.a. Miguel Ontiveros-
    Murillo, appeals his conviction for conspiring to distribute methamphetamine. The
    sole issue is whether the district court erred by denying Ontiveros’s motion to dismiss
    for unconstitutional post-indictment delay. We vacate the district court’s order
    denying Ontiveros’s motion to dismiss and remand for further proceedings consistent
    with this opinion.
    1
    The appellant refers to himself as Miguel Ontiveros. We respect appellant’s
    preference and refer to him as Ontiveros throughout this opinion.
    I.
    In April 2003, police in Grand Island, Nebraska, arrested Ontiveros on an
    outstanding warrant. Police searched Ontiveros’s home and found evidence related
    to a drug conspiracy. Because Ontiveros, a Mexican citizen, was an undocumented
    alien, police contacted federal immigration authorities. Immigration authorities took
    custody of Ontiveros and, on April 21, 2003, had him deported. In early June 2003,
    a confidential informant notified a Grand Island police officer that Ontiveros had
    returned to the United States and was in Lincoln, Nebraska. The officer contacted
    authorities in Lincoln who verified seeing someone matching Ontiveros’s description
    at the home where the informant reported that Ontiveros was staying.
    On July 24, 2003, approximately three months after his arrest and deportation,
    a federal grand jury indicted Ontiveros for conspiring to distribute methamphetamine.
    For wider-investigation purposes, the government sealed the indictment. U.S.
    Marshals sent a copy of Ontiveros’s federal arrest warrant to the Grand Island Police
    Department. They also informed FBI agents in the Grand Island area that a warrant
    had been issued for Ontiveros’s arrest.
    Pursuant to a thirty-day waiting policy, the Grand Island police did not
    immediately forward Ontiveros’s arrest-warrant information to the FBI to enter into
    the National Crime Information Center (“NCIC”) database.2 According to the
    evidence, FBI agents and U.S. Marshals aware of the warrant also made no effort to
    enter the data. Moreover, despite the arrest warrant, knowledge of Ontiveros’s
    contacts in Nebraska, Arizona, and Mexico, and a late-September 2003 tip from an
    informant stating that Ontiveros had been in Grand Island within the previous month,
    2
    The NCIC database is an FBI-controlled national database that contains
    information for recent and outstanding arrest warrants. Both federal and state law-
    enforcement officers, including immigration authorities, can access the system to
    determine whether a person has outstanding arrest warrants.
    -2-
    it appears no federal or state authorities made any attempt to locate and arrest
    Ontiveros.
    According to police testimony, by the end of 2003, Ontiveros’s case had
    inexplicably “slipped through the cracks” such that no one actively searched for
    Ontiveros or realized his information was not in the NCIC database. As a result, when
    immigration and border-control officials apprehended Ontiveros on multiple occasions
    in 2004, they remained unaware of Ontiveros’s arrest warrant and did not take him
    into custody.
    In February 2006, an FBI agent reviewing fugitive listings in Grand Island
    discovered Ontiveros’s omission from the NCIC database and entered Ontiveros’s
    arrest-warrant information. Approximately four months later, in June 2006, Arizona
    police arrested Ontiveros on separate drug charges and discovered Ontiveros’s
    outstanding arrest warrant on the NCIC. The Arizona police then notified Nebraska
    officials of Ontiveros’s whereabouts. Nebraska FBI agents arranged for Arizona FBI
    agents to detain Ontiveros at a court appearance and, in July 2006, pursuant to a court
    order, had him transported to Nebraska. According to the district court’s findings,
    Ontiveros first learned of the pending Nebraska drug charge when the Arizona FBI
    detained him.
    After Ontiveros returned to Nebraska, the district court arraigned Ontiveros and
    unsealed the July 2003 indictment. Ontiveros moved to dismiss the charge for
    unconstitutional post-indictment delay. A magistrate judge held a hearing on the
    matter and filed a report and recommendation that the district court deny the motion.
    Over Ontiveros’s objections to the report and recommendation, the district court
    adopted the magistrate judge’s findings and denied Ontiveros’s motion.
    In August 2007, Ontiveros proceeded to trial. A jury found Ontiveros guilty.
    Following his sentencing, Ontiveros filed a timely notice of appeal.
    -3-
    II.
    Ontiveros argues that the district court erred in rejecting his claim that the
    government violated his Sixth Amendment right to a speedy trial. U.S. Const. amend.
    VI. “We review the district court’s findings of fact on whether a defendant’s right to
    a speedy trial was violated for clear error but review its legal conclusions de novo.”
    United States v. Aldaco, 
    477 F.3d 1008
    , 1016 (8th Cir. 2007).
    The government concedes that the delay in this case was presumptively
    prejudicial such that we must apply the four-factor-balancing test set forth in Barker
    v. Wingo to evaluate Ontiveros’s claim. Barker v. Wingo, 
    407 U.S. 514
    , 530 (1972);
    see United States v. Jeanetta, 
    533 F.3d 651
    , 656 (8th Cir.), cert. denied, 
    129 S. Ct. 747
    (2008) (“A delay approaching one year may meet the threshold for presumptively
    prejudicial delay requiring application of the Barker factors.”). Accordingly, in
    analyzing Ontiveros’s claim, we consider: “1) the length of delay; 2) the reason for
    delay; 3) whether the defendant asserted the right to a speedy trial; and 4) whether the
    defendant suffered any prejudice.” 
    Jeanetta, 533 F.3d at 656
    (citing 
    Barker, 407 U.S. at 530
    ).
    A.
    Under the first Barker factor, we consider the length of delay. This factor
    requires a “double inquiry”: (1) whether the length of delay was presumptively
    prejudicial such that it triggers the Barker analysis, and, if triggered, (2) “the extent
    to which the delay stretches beyond the bare minimum needed to trigger judicial
    examination of the claim.” United States v. McGhee, 
    532 F.3d 733
    , 739 (8th Cir.
    2008) (quotation omitted). As to the latter inquiry, “the presumption that pretrial
    delay has prejudiced the accused intensifies over time.” United States v. Walker, 
    92 F.3d 714
    , 717 (8th Cir. 1996) (quotation omitted). Because the government concedes
    the first inquiry, we proceed to the second.
    -4-
    The Sixth Amendment right to a speedy trial “attaches at the time of arrest or
    indictment, whichever comes first, and continues until the trial commences.” 
    McGhee, 532 F.3d at 739
    (quotation omitted). Relying on our decision in Walker, the district
    court found that “[t]he three-year time period between indictment and arrest weigh[ed]
    in favor of [Ontiveros].” We agree.
    In Walker, a drug-conspiracy case, we applied Barker and held under the first
    factor that a 37-month post-indictment delay between indictment and arraignment
    weighed in the defendant’s favor. 
    Walker, 92 F.3d at 717
    ; see also 
    Aldaco, 477 F.3d at 1019
    (holding that a three-and-a-half-year delay between arrest and trial was
    “uncommonly long”). Here, the delay between Ontiveros’s indictment and
    arraignment was approximately three years and the delay between his indictment and
    trial was approximately four years. We therefore see no reason to reach a different
    conclusion than the district court regarding the weight of this factor.
    In attempt to distinguish Walker, however, the government notes that the
    district court suggested that the delay in this case might be calculated more accurately
    as only 17 to 28 months, measuring from the times when immigration officials had
    Ontiveros in custody in March 2004 and December 20043 to the time when Ontiveros
    was arraigned in July 2006. According to the court, those measurements may have
    been more accurate because authorities likely would not have been successful in
    locating Ontiveros prior to that time, even if they had tried. We reject that conclusion
    because it is speculative at best. It also considers responsibility for the delay, which
    is a matter we consider in the second Barker factor. For these reasons, we agree with
    the district court that the first Barker factor weighs in Ontiveros’s favor.
    3
    We note that the correct measurement from December 2004 to July 2006
    would be 19 months, not 17.
    -5-
    B.
    Under the second Barker factor, we consider the reasons for the delay and
    evaluate “whether the government or the criminal defendant is more to blame.”
    Doggett v. United States, 
    505 U.S. 647
    , 651 (1992). We accord “‘different weights
    . . . to different reasons.’” Vermont v. Brillon, No. 08–88, slip op. 1, 7 (U.S. 2009).
    We weigh an intentional delay by the government “heavily against it.” 
    Walker, 92 F.3d at 717
    (citing 
    Barker, 407 U.S. at 531
    ). We weigh negligence by the government
    “less heavily” but still regard such negligence as “a considerable factor in the
    weighing process.” Id. (citing 
    Barker, 407 U.S. at 531
    , and 
    Doggett, 507 U.S. at 652
    –53). We weigh “delay caused by the defense . . . against the defendant.” Brillon,
    No. 08–88, slip op. at 7. The Supreme Court has called this Barker factor “[t]he flag
    all litigants seek to capture.” United States v. Loud Hawk, 
    474 U.S. 302
    , 315 (1986).
    Here, the district court found no evidence that the government intentionally
    delayed Ontiveros’s trial. It concluded, however, that the government was “clearly
    seriously negligent” for failing to take appropriate actions to attempt to apprehend
    Ontiveros in a timely manner. Conversely, the district court found no evidence that
    Ontiveros knew of the indictment prior to July 2006 and, accordingly, that Ontiveros
    was not responsible for the delay in his arrest. The district court ultimately found that
    this Barker factor “weigh[ed] decidedly against the government.”
    In Doggett, the Supreme Court instructed us to accord “‘special deference’ [to
    a] district court’s determination concerning whether the government was negligent.”
    
    Walker, 92 F.3d at 718
    (quoting 
    Doggett, 505 U.S. at 652
    ). “[U]nder this very
    deferential standard of review,” 
    id., we therefore
    see no reason to disagree with the
    district court where the government readily admits that it “dropped the ball,” let
    Ontiveros’s case “slip through the cracks,” made no efforts to locate and arrest
    Ontiveros over a three-year period, and missed multiple opportunities to apprehend
    Ontiveros in a timely manner. See 
    Doggett, 505 U.S. at 652
    –53 (upholding a district
    -6-
    court’s finding of government negligence when the government’s investigators “made
    no serious effort” to locate a defendant who it assumed was abroad and stating that
    the government’s “lethargy” was “findable negligence”).
    We also find no reason to disagree with the district court’s conclusion that
    Ontiveros was unaware of the indictment prior to July 2006 and, thus, deserved no
    blame for the delay before that point. It is undisputed that the indictment in question
    was sealed until July 2006. Moreover, as the government notes, Ontiveros told
    Arizona FBI agents when he was arrested that he would not have appeared in Arizona
    court had he known of the Nebraska indictment. Ontiveros did, however, appear in
    Arizona court and, over the three-year delay, placed himself in multiple situations that
    could have led to his arrest on the Nebraska drug charge. Under a clear-error
    standard, this lends sufficient support to the district court’s factual conclusion that
    Ontiveros was unaware of the pending indictment and had no responsibility for the
    three-year delay between his indictment and arrest.
    Finally, as to the time between Ontiveros’s arrest and trial, that delay was
    largely due to Ontiveros’s own motions. Thus, we cannot attribute this delay to
    government negligence. See 
    McGhee, 532 F.3d at 739
    . Nevertheless, because
    government negligence resulted in the three-year delay between Ontiveros’s
    indictment and arraignment, we agree with the district court that the second Barker
    factor weighs decidedly in Ontiveros’s favor.
    C.
    The third Barker factor considers “whether in due course the defendant asserted
    his right to a speedy trial.” 
    Walker, 92 F.3d at 718
    ; see 
    Barker, 407 U.S. at 531
    –32
    (explaining that the defendant’s assertion of his constitutional speedy-trial right “is
    entitled to strong evidentiary weight in determining whether the defendant is being
    deprived of [the right]”).
    -7-
    Focusing its analysis on the three-year delay between Ontiveros’s indictment
    and arraignment, the district court found this factor to be neutral because “[t]here
    [was] no evidence [Ontiveros] knew, should have known, or could have known of the
    indictment filed against him on July 24, 2003.” While the government agrees with
    this finding, Ontiveros argues that this factor should weigh in his favor because he
    raised his claim after his arrest. We disagree with Ontiveros’s position.
    Because the delay in this case for which the government was responsible
    predated Ontiveros’s arrest, Ontiveros’s post-arrest assertion of his speedy-trial right
    has little bearing on his claim. Under similar circumstances in Doggett, the Supreme
    Court did not weigh a defendant’s post-arrest assertion of his speedy-trial rights in
    the defendant’s favor. Instead, the Court stated only that the defendant “[was] not to
    be taxed for invoking his speedy trial right only after his arrest.” 
    Doggett, 505 U.S. at 654
    . In United States v. Richards, where the defendant was unaware of his
    indictment until his arrest but later raised a speedy-trial claim, we similarly held that
    the third Barker factor had no application and merely “[could] not be weighed against
    [the defendant].” United States v. Richards, 
    707 F.2d 995
    , 997 (8th Cir. 1983).
    Applying this precedent, we agree with the district court that the third Barker weighs
    in neither party’s favor.
    D.
    The final Barker factor considers “whether the defendant suffered prejudice as
    a result of the delay.” 
    Walker, 92 F.3d at 719
    . We assess this prejudice “‘in the light
    of the interests of defendants which the speedy trial right was designed to
    protect. . . . (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety
    and concern of the accused; and (iii) to limit the possibility that the defense will be
    impaired.’” 
    Aldaco, 477 F.3d at 1019
    (quoting 
    Barker, 407 U.S. at 532
    ). Of these
    interests, prejudice to the last “‘is the most serious . . . because the inability of a
    defendant adequately to prepare his case skews the fairness of the entire system.’”
    -8-
    
    Walker, 92 F.3d at 719
    (quoting 
    Barker, 407 U.S. at 532
    ). Because Ontiveros was not
    incarcerated or aware of his indictment prior to his arrest, he claims only that the delay
    at issue prejudiced his defense.
    The extent to which a defendant must demonstrate prejudice under this factor
    depends on the particular circumstances. A showing of actual prejudice is required
    if the government exercised reasonable diligence in pursuing the defendant. 
    Doggett, 505 U.S. at 656
    ; United States v. Brown, 
    325 F.3d 1032
    , 1035 (8th Cir. 2003). Where
    the government has been negligent, however, prejudice can be presumed if there has
    been an excessive delay. 
    Doggett, 505 U.S. at 656
    –58. Ontiveros claims his defense
    suffered both actual and presumed prejudice.
    As to actual prejudice, we agree with the district court that Ontiveros’s vague
    claims regarding witness memory loss and lost opportunities to cooperate with the
    government are insufficient, without more, to satisfy his burden. See 
    Doggett, 505 U.S. at 655
    (agreeing with the government that actual prejudice would not be present
    where the defendant “failed to make any affirmative showing that the delay weakened
    his ability to raise specific defenses, elicit specific testimony, or produce specific
    items of evidence”); cf. United States v. Sprouts, 
    282 F.3d 1037
    , 1041 (8th Cir. 2002)
    (stating, in the Fifth Amendment context, that “[t]o prove actual prejudice [from pre-
    indictment delay], the defendant must identify witnesses or documents lost during the
    period of delay, and not merely make speculative or conclusory claims of possible
    prejudice caused by the passage of time”).
    We disagree, however, with the district court’s finding that it could not presume
    prejudice. In Doggett, the Supreme Court held that, under the Sixth Amendment,
    “prejudice is not limited to the specifically demonstrable, and . . . affirmative proof
    of particularized prejudice is not essential to every speedy trial claim.” 
    Doggett, 505 U.S. at 655
    (citations omitted). “Thus, we generally have to recognize that excessive
    delay presumptively compromises the reliability of a trial in ways that neither party
    -9-
    can prove or, for that matter, identify” and that negligence is not “automatically
    tolerable simply because the accused cannot demonstrate exactly how [the delay] has
    prejudiced him.” 
    Id. at 655,
    657. Accordingly, under the fourth Barker factor, when
    the delay is excessive, “the weight we assign to official negligence compounds over
    time as the presumption of evidentiary prejudice grows,” and our “toleration of . . .
    negligence varies inversely with its protractedness and its consequent threat to the
    fairness of the accused’s trial.” 
    Id. at 657
    (internal citation omitted).
    Citing a Fifth Circuit case, the district court refused to presume prejudice
    because it found “courts have generally found presumed prejudice . . . only in cases
    in which the post-indictment delay lasted at least five years.” See United States v.
    Serna-Villarreal, 
    352 F.3d 225
    , 232 (5th Cir. 2003) (collecting cases). As a result, the
    district court concluded that the three-year delay in this case was “insufficient to
    justify a presumption that the defendant’s right to a fair trial has been jeopardized.”
    With respect to the Fifth Circuit’s conclusion, we have not held that a bright line
    exists for presuming prejudice for speedy-trial claims, and we refuse to do so here.
    As Barker states, “the right to speedy trial is a more vague concept than other
    procedural rights.” 
    Barker, 407 U.S. at 521
    ; see also Brillon, No. 08–88, slip op. at 6
    (“The speedy-trial right is ‘amorphous,’ ‘slippery,’ and ‘necessarily relative.’”
    (quoting 
    Barker, 407 U.S. at 522
    )). “We cannot definitely say how long is too long,”
    and there is “no constitutional basis for holding that the speedy trial right can be
    quantified into a specified number of days or months.” 
    Barker, 407 U.S. at 521
    , 523.
    As a result, “any inquiry into a speedy trial claim necessitates a functional analysis of
    the right in the particular context of the case.” 
    Id. at 522;
    see also Brillon, No. 08–88,
    slip op. at 6–7 (“[The speedy-trial right] is ‘consistent with delays and depend[ent]
    upon circumstances’” (quoting 
    Barker, 407 U.S. at 522
    )).
    Here, due to the serious negligence of the government, there was a three-year
    delay between Ontiveros’s indictment and arraignment. Three years is a time well in
    excess of that required to trigger a Barker review. See 
    Doggett, 505 U.S. at 657
    –58
    -10-
    (presuming prejudice where “the delay attributable to the Government’s negligence
    far exceed[ed] the threshold needed to state a speedy trial claim” and noting it had
    “called shorter delays ‘extraordinary’” (quoting 
    Barker, 407 U.S. at 533
    )); United
    States v. Ingram, 
    446 F.3d 1332
    , 1339 (11th Cir. 2006) (finding a “two-year post-
    indictment delay intolerable” and presuming prejudice where the first three Barker
    factors weighed in the defendant’s favor); see also 
    Aldaco, 477 F.3d at 1019
    (holding
    that a three-and-a-half year delay between arrest and trial was “uncommonly long”).
    Although the delay in this case is shorter than the delay at issue in Doggett, we
    believe Doggett’s instruction to vary the weight assigned to the presumption
    according to the government’s negligence and the length of delay sufficiently
    contemplates this difference. See United States v. Smith, 
    94 F.3d 204
    , 212 (6th Cir.
    1996) (“[A]ny delay triggering the Barker analysis . . . will generally give rise to a
    presumption of prejudice, and the only question is how much ‘importance’ to assign
    to that prejudice”). We hold, then, that the district court erred in its application of the
    fourth Barker factor because it applied no presumption in Ontiveros’s favor.
    III.
    Because the district court failed to apply any presumption of prejudice under
    the fourth Barker factor, we remand the case for further proceedings with orders to
    apply an appropriate presumption in Ontiveros’s favor. The district court should then
    allow the government an opportunity to rebut the presumption. See 
    Doggett, 505 U.S. at 658
    ; United States v. Reynolds, 231 F. App’x 629, 631–32 (9th Cir. 2007)
    (unpublished). If the government is able to do so, the district court should balance the
    Barker factors appropriately “with full recognition that the accused’s interest in a
    speedy trial is specifically affirmed in the Constitution.” 
    Barker, 407 U.S. at 533
    . If,
    however, the government is unable to rebut the presumption, the Barker factors will
    weigh in Ontiveros’s favor, necessitating the “severe remedy of dismissal,” which is
    -11-
    “the only possible remedy” when a defendant’s speedy-trial right has been denied. 
    Id. at 522.
    For the foregoing reasons, we vacate the district court’s order denying
    Ontiveros’s motion to dismiss and remand for further proceedings consistent with
    this opinion.
    ______________________________
    -12-