United States v. Frias , 893 F.3d 1268 ( 2018 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS June 28, 2018
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-1242
JULIA MONIQUE FRIAS,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:14-CR-00502-RM-1)
_________________________________
John Arceci, Assistant Federal Public Defender (and Virginia L. Grady, Federal Public
Defender, on the briefs), Denver, Colorado, for Defendant – Appellant.
James Murphy, Assistant United States Attorney (and Robert C. Troyer, United States
Attorney, on the brief), Denver, Colorado, for Plaintiff – Appellee.
_________________________________
Before BACHARACH, KELLY, and MORITZ, Circuit Judges.
_________________________________
KELLY, Circuit Judge.
_________________________________
Defendant-Appellant Julia Frias was convicted by a jury of being a felon in
possession of a firearm or ammunition, 18 U.S.C. § 922(g)(1), and sentenced to 45
months’ imprisonment and three years’ supervised release, consecutive to a state
sentence. On appeal, Ms. Frias contends that she was denied her constitutional right to a
speedy trial and that the district court abused its discretion in instructing the jury on the
government’s burden of proof and responding to a jury inquiry. Our jurisdiction arises
under 28 U.S.C. § 1291, and we affirm.
Background
On October 13, 2014, Ms. Frias was arrested by the Denver police on a warrant in
connection with a murder. Officers located Ms. Frias at her residence and observed her
driving away in a vehicle. The officers attempted to block the vehicle’s path, but when
this failed, a four-minute chase ensued. The chase concluded when her vehicle crashed
into a fence after being hit by an officer’s vehicle. Ms. Frias was arrested when she ran
out of her vehicle. Although officers claimed not to have seen another passenger, a
friend of Ms. Frias, Melinda Tafoya, testified that she was in Ms. Frias’s vehicle during
the chase. According to Ms. Tafoya, she went unnoticed by the officers because she
slipped out of the vehicle and over a fence while the officers grabbed Ms. Frias.
The officers later noticed a revolver on the passenger side floorboard of Ms.
Frias’s vehicle in addition to two purses. One of the purses contained items belonging to
Ms. Frias and bullets that fit the revolver. Ms. Frias was arrested for vehicular eluding,
possession of a controlled substance, and possession of a weapon, and she was placed in
the Denver County Jail.
On December 15, 2014, while still in state custody, Ms. Frias was indicted by a
federal grand jury for being a felon in possession of a firearm. At this point, Ms. Frias
was not aware of the federal indictment, which was sealed pending her federal court
2
appearance. Thereafter, she was transferred from the Denver County Jail to the custody
of Jefferson County, where she was charged with first degree murder and conspiracy to
commit first degree murder. Ms. Frias cooperated with state authorities and testified
against her state codefendants, and on September 24, 2015, she pled guilty to one count
of accessory to murder. See Colo. Rev. Stat. § 18-8-105(4). Her plea agreement
provided that her state sentence should run concurrently with any “potential fed[eral]
indictment stemming from [her] arrest in Denver.” 1 R. 35. It also stated that the district
attorney would “agree to reconsider if other jurisdictions impose[d] [a] consecutive
sentence to this case.” Id. at 36.1 The state court imposed a four-year sentence.
On December 19, 2016, two years after the federal indictment and nine months
after her state-court sentencing, the federal government took custody of Ms. Frias and she
made her initial court appearance. Ms. Frias filed a motion to dismiss the federal
indictment, arguing that the delay violated her Sixth Amendment right to a speedy trial.
The district court held a hearing on the motion on February 3, 2017. Although the court
found three of the four factors under Barker v. Wingo, 407 U.S. 514 (1972), weighed in
favor of a constitutional violation, it denied the motion to dismiss because it found a lack
of prejudice. Prior to and during trial, Ms. Frias filed renewed motions to dismiss for
substantially the same reasons, contending that a witness to the events, Ms. Tafoya, did
not remember certain details of the incident because of the delay. After hearing Ms.
Tafoya testify at trial, the district court again denied the motion for lack of prejudice.
1
This was due to a unique Colorado rule that allows for reconsideration of a sentence
within 18 weeks of sentencing. See Colo. R. Crim. P. 35(b).
3
During the trial, the only important and contested factual issue was whether Ms.
Frias possessed the firearm or ammunition found in her vehicle. During deliberations,
the jury asked whether a defendant’s knowledge of the gun and ammunition were
sufficient to violate § 922. The court answered by referring the jury back to the original
instructions, which contained the correct guidance. The jury ultimately found Ms. Frias
guilty.
Ms. Frias now appeals. She contends that (1) her constitutional right to a speedy
trial was violated, (2) the district court abused its discretion in failing to adequately
respond to the jury’s question during deliberations, and (3) the district court abused its
discretion in instructing the jury on the government’s burden of proof.
Discussion
I. Constitutional Right to a Speedy Trial
Ms. Frias contends that the delay in bringing her to federal court violated her Sixth
Amendment right to a speedy trial. We review the legal question of whether there was a
Sixth Amendment violation de novo and any underlying district court factual findings for
clear error. United States v. Black, 830 F.3d 1099, 1111 (10th Cir. 2016). The Sixth
Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the
right to a speedy . . . trial.” U.S. Const. amend. VI. “The general rule is that the speedy
trial right attaches when the defendant is arrested or indicted, whichever comes first.”
Jackson v. Ray, 390 F.3d 1254, 1261 (10th Cir. 2004).
4
In Barker, the Supreme Court provided a framework for analyzing Sixth
Amendment speedy trial claims. Barker listed four factors courts must balance: (1)
length of delay; (2) reason for the delay; (3) defendant’s assertion of the right to a speedy
trial; and (4) whether the defendant was prejudiced by the delay. 407 U.S. at 530. The
Court stated that these factors “must be considered together with such other
circumstances as may be relevant” and that no single factor is determinative. Id. at 530–
33. The district court in the instant case held that, although the first three factors favored
Ms. Frias, the delay did not prejudice her. It thus found no violation of Ms. Frias’s Sixth
Amendment rights. We find no legal error in the district court’s ruling.
a. Length of Delay
The first factor, length of the delay, typically serves as a gatekeeper. We examine
the other factors only when the delay is presumptively prejudicial, satisfied by “[d]elays
approaching one year.” United States v. Batie, 433 F.3d 1287, 1290 (10th Cir. 2006).
The government concedes that the delay here triggers the other factors. Aplee. Br. at 10–
11. We therefore proceed to the remaining three factors.
b. Reasons for the Delay
It is the government’s burden to establish an acceptable reason for its delay.
Jackson, 390 F.3d at 1261. “Purposeful delay or delay to gain advantage weighs heavily
against the government, while ‘[a] more neutral reason such as negligence or
overcrowded courts [is] weighted less heavily.’” United States v. Gould, 672 F.3d 930,
937 (10th Cir. 2012) (alterations in original) (quoting Barker, 407 U.S. at 531). The
government argues its delay was intentional, but not in bad faith, with the objective that
5
the state prosecution could efficiently prosecute the individuals in the state murder case.
The district court found that the government’s initial delay in deferring to the state
murder prosecution was warranted, but the nine month delay after the state sentence was
imposed was not. We agree.
This court has held that “[a]waiting the completion of another sovereign’s
prosecution may be a plausible reason for delay in some circumstances, but that does not
necessarily mean it is a justifiable excuse in every case. Rather, it is the government’s
burden to explain why such a wait was necessary in a particular case.” United States v.
Seltzer, 595 F.3d 1170, 1175 (10th Cir. 2010). The government has failed to provide
sufficient justification for the nine month delay following Ms. Frias’s state sentencing.
Therefore, this factor favors her.
c. Assertion of Speedy Trial Rights
The third factor considers whether the defendant asserted her right to a speedy
trial. Barker, 407 U.S. at 531. Ms. Frias contends that because she did not learn about
the indictment until after she was taken into federal custody, this factor could only favor
her. She maintains that the government never provided her the opportunity to assert her
speedy trial rights. The government argues that Ms. Frias knew the federal charge was
“looming out there” because counsel in the state criminal matter conversed with an
AUSA while state proceedings were pending. Ms. Frias has the better of the argument —
even if she had general knowledge that charges were looming, the government never
actually made her aware that charges existed. It is doubtful that she could assert her
6
speedy trial rights on such a slender reed. As a result, this factor slightly favors Ms.
Frias.
d. Prejudice to the Defendant
The last factor is whether the delay prejudiced Ms. Frias. “[A] showing of
prejudice may not be absolutely necessary in order to find a Sixth Amendment violation,
[but] we have great reluctance to find a speedy trial deprivation where there is no
prejudice.” Gould, 672 F.3d at 939 (quoting Perez v. Sullivan, 793 F.2d 249, 256 (10th
Cir. 1986). The Supreme Court has identified three interests to guide courts’ inquiries
concerning prejudice: “(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.” Barker, 407 U.S. at 532. The Court noted that the last interest — the
ability of the defendant to prepare her defense — is the most important. Id. The district
court found that the delay did not prejudice Ms. Frias because she failed “to explain the
impact of anything on the presented defense or on an alternative defense.” 1. R. 122. We
agree.
On the first interest, there was no oppressive pretrial incarceration because Ms.
Frias still would have been in custody on the state murder charge and thereafter when she
was sentenced by the state court. See 6 R. 126–28. As to the second interest, anxiety and
concern of the accused, this also favors the government. Under our precedent, Ms. Frias
must show some “some special harm which distinguishes [her] case.” United States v.
Hicks, 779 F.3d 1163, 1169 (10th Cir. 2015) (quoting Gould, 672 F.3d at 939). This
harm must be different than “any other arrestee awaiting trial.” United States v. Dirden,
7
38 F.3d 1131, 1138 (10th Cir. 1994). Ms. Frias fails to identify such harm, so this
interest also weighs in favor of the government.
The final interest is the most important: whether the delay impaired Ms. Frias’s
defense. On this interest, we have held that a defendant should show “that the delay
resulted in the loss of specific evidence or the unavailability of certain witnesses.” Hicks,
779 F.3d at 1169. We find that this interest also favors the government.
Ms. Frias first contends that the delay affected the reliability of Ms. Tafoya’s
recollection of events. Ms. Frias maintains that Ms. Tafoya, her only witness, did not
remember seeing the purses or a gun in the car on the day in question. However, Ms.
Frias’s counsel never asked Ms. Tafoya any relevant questions at trial to inquire whether
Ms. Tafoya’s memory was truly impaired, let alone on a material issue. In Barker, in
finding against a speedy trial violation, the Court stated that “[t]he trial transcript
indicates only two very minor lapses of memory . . . which were in no way significant to
the outcome.” 407 U.S. at 534. In this case, the same conclusion is warranted. Nothing
in the trial transcript indicates that Ms. Tafoya lacked memory as to the pertinent facts —
she was not asked about the gun or purses, and no proffer was offered to procure such
testimony outside the jury. In fact, the transcript shows the opposite: her memory was
clear as to the events of that day. See 5 R. 234–46.2
2
Following trial, however, in a supplemental renewed motion to dismiss, Ms. Frias
attached the sworn statement of an investigator stating many additional matters that Ms.
Tafoya does not now remember. Yet, these matters do not necessarily demonstrate an
impairment of the defense, and they contradict Ms. Tafoya’s seemingly clear memory at
trial. More importantly, counsel did not inquire about these particular matters at trial
through Ms. Tafoya’s testimony or through a proffer.
8
Ms. Frias also argues that her defense was impaired because the delay prevented
her from receiving counsel closer in time to the charged offense. Ms. Frias is correct that
in United States v. Seltzer, 595 F.3d 1170, 1180 (10th Cir. 2010), this court found that
when a defendant went six months without counsel, the delay may suggest prejudice.
However, Ms. Frias’s case is different because she is not able to establish how additional
time with counsel would have changed her defense. See id.;3 Jackson, 390 F.3d at
1264 (stating that “the mere ‘possibility of prejudice is not sufficient to support [the]
position that . . . speedy trial rights [are] violated’” (alterations in original)
(quoting United States v. Loud Hawk, 474 U.S. 302, 315 (1986))).
Finally, Ms. Frias makes two additional points concerning prejudice. First, she
contends that she was prejudiced from the delay because she missed her 18-week window
to ask the Colorado state court to modify or reduce her state sentence so as to mitigate the
effect of a consecutive federal sentence and effectuate the state court’s intent of a
concurrent sentence. See Colo. R. Crim. P. 35(b); Aplt. Br. at 35. Although true, this
argument misses the mark. While courts have held that an accused has a general interest
in being tried promptly, see Strunk v. United States, 412 U.S. 434, 437, 439 (1973), they
have not held that a federal proceeding must proceed promptly so that a state court can
potentially modify a sentence. Ms. Frias also reminds us that she lost out on an earlier
3
In Seltzer, the court found that the defendant established an “impairment of his ability to
defend and prepare his case.” 595 F.3d at 1180. “During the time [Mr. Seltzer] was
denied his right to counsel, the government appeared ex parte before the magistrate
judge.” Id. Moreover, Mr. Seltzer’s alleged accomplice was promptly brought to court
and cooperated against him — an opportunity that Mr. Seltzer was never afforded
because of the delay. Id. at 1174.
9
opportunity for parole in the state case because she was in federal custody awaiting
sentencing in this case. See Moore v. Arizona, 414 U.S. 25, 27 (1973). But given the
resolution in the federal case, we see little, if any, prejudice.
Second, Ms. Frias argues that the delay affected the start of her statutory speedy
trial clock. See Seltzer, 595 F.3d at 1180. But as the district court observed, a wait to
assert such a right is implicit in any delay and therefore fails to establish the requisite
prejudice necessary to trigger a constitutional violation, especially when Ms. Frias
(unlike the defendant in Seltzer) has shown no lost opportunities from the delay.
e. Balancing the Speedy Trial Factors
“Speedy trial claims require applying a balancing test.” Jackson, 390 F.3d at
1266. None of the four factors is “a necessary or sufficient condition to the finding of a
deprivation of the right of speedy trial.” Batie, 433 F.3d at 1290 (quoting Barker, 407
U.S. at 533). However, we are generally reluctant to find a speedy trial violation without
prejudice. See Gould, 672 F.3d at 939 (“[F]ailure to show prejudice is nearly fatal to a
speedy trial claim.”).
Although the first three factors slightly favor Ms. Frias, the most important factor,
prejudice, does not. Ms. Frias fails to point to trial evidence suggesting that Ms. Tafoya
did not recall relevant facts because of the delay. Nor did she provide any other evidence
that her defense was prejudiced because of loss of evidence, a witness no longer
available, or lack of memory of other witnesses. Accordingly, after balancing the factors,
we agree with the district court that that there was no constitutional violation.
10
II. Jury Question
Ms. Frias next contends that the district court abused its discretion in failing to
accurately respond to a jury question. This court reviews the district court’s decision for
an abuse of discretion. See United States v. Taylor, 828 F.2d 630, 634–35 (10th Cir.
1987). Here, the jury asked whether Ms. Frias would violate § 922(g)(1) if she only had
knowledge that the firearm or ammunition were in the vehicle. The court responded:
“The elements of a violation of 18 U.S.C. § 922(g)(1) are as set forth in Instruction No.
20. Please refer to that instruction along with all other definitional instructions.” 1 R. 85.
Ms. Frias argues that the court provided an incorrect answer based on United
States v. Little, 829 F.3d 1177 (10th Cir. 2016). There, the court stated that constructive
possession exists “when a person not in actual possession knowingly has the power and
intent at a given time to exercise dominion or control over an object.” Id. at 1182. Under
this precedent, Ms. Frias argues the district court abused its discretion by not responding
“No” to the jury’s question. We disagree. Although answering “No” would not have
been an abuse of discretion, neither was the district court’s decision to refer the jury back
to the instructions.
For one, a district court abuses its discretion only when its decision is “arbitrary,
capricious, whimsical, or manifestly unreasonable.” United States v. Munoz-Nava, 524
F.3d 1137, 1146 (10th Cir. 2008) (quoting United States v. Byrne, 171 F.3d 1231, 1235–
36 (10th Cir. 1999)). Unlike the cases cited by Ms. Frias, the jury instructions did not
include a deficient or misleading instruction. See, e.g., United States v. Duran, 133 F.3d
1324, 1334 (10th Cir. 1998); United States v. Zimmerman, 943 F.2d 1204, 1213 (10th
11
Cir. 1991). This court considers the instructions as a whole in determining whether the
jury was provided with sufficient understanding of the applicable standards.
Zimmerman, 943 F.2d at 1213. Instructions 20–22 clearly articulated the correct
standards necessary to answer the jury’s question, defining the crime, the term
knowingly, and what constitutes constructive possession. 1 R. 109–11. For these
reasons, the district court did not abuse its discretion in directing the jury back to the
correct instructions. See United States v. Alcorn, 329 F.3d 759, 766 (10th Cir. 2003)
(finding that “[g]iven the adequacy of the instructions, the district court did not err in
referring the jury to them”).
III. Burden of Proof
Finally, Ms. Frias argues that the district court abused its discretion in instructing
the jury on the government’s burden of proof. However, Ms. Frias acknowledges that
this court is bound by its decision in United States v. Petty, 856 F.3d 1306 (10th Cir.
2017), and raises this issue only to preserve it for review at the Supreme Court. We
reject this argument because we are bound by Petty. See United States v. Brooks, 751
F.3d 1204, 1209 (10th Cir. 2014).
AFFIRMED.
12