United States v. Udara Wanigasinghe

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1426
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
U DARA A. W ANIGASINGHE,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 95-CR-73—Barbara B. Crabb, Chief Judge.
A RGUED S EPTEMBER 25, 2008—D ECIDED N OVEMBER 3, 2008
Before P OSNER, FLAUM, and E VANS, Circuit Judges.
E VANS, Circuit Judge. In 1995, a grand jury sitting in
the Western District of Wisconsin returned an indictment
charging Udara A. Wanigasinghe with six counts of bank
fraud. A warrant for his arrest was entered into the Na-
tional Crime Information Center database on the day after
the indictment was returned. Over 11 years later, on St.
Patrick’s Day in 2007, Wanigasinghe was arrested. He
entered a guilty plea, was sentenced to four months of
2 No. 08-1426
imprisonment, and was ordered to pay $20,327 in restitu-
tion. He reserved his right to appeal the denial of his
motion to dismiss the indictment, and his appeal is now
before us. As could be predicted from the dates we have
just mentioned, Wanigasinghe contends that the indict-
ment should have been dismissed because his constitu-
tional right to a speedy trial was violated.
But there’s much more to this story than just the dates.
Here, as Paul Harvey would say, is the rest of the story.
Wanigasinghe grew up in Sri Lanka and came to the
United States in 1990 to attend college at the University
of Wisconsin-Eau Claire. He graduated in the spring
of 1994 with a Bachelor of Arts degree in economics and
marketing. He stayed in Eau Claire for nearly a year after
graduation. But as the time for him to leave the United
States neared, he executed a scheme to defraud six Wis-
consin banks. The details of the scheme are unimportant to
the issue before us. We will simply say that he deposited
some $26,000 in forged checks into a series of bank ac-
counts that he opened in his own name. He then withdrew
as much of the money as the banks would allow. His plan
was to skip the country before the fraud was discovered.
To do that, he deceived several people about where
he was going. He told his girlfriend of four years that he
had a job in Cincinnati and that he would send her
his address once he got settled there. He wrote to his
landlord that he had to leave immediately to take an
internship in Singapore. He left separate checks for his
April and May rent; one was returned for insufficient
funds and the other because the account had been closed.
No. 08-1426 3
UW-Eau Claire had two addresses for Wanigasinghe—one
in Eau Claire and the other at “778 Quarray Road, Jakarta,
Singapore,” a geographically challenged address what
with Jakarta being the capitol of Indonesia, the fourth
most heavily populated country on earth (its 2008 popula-
tion is estimated to be over 235,000,000) and Singapore
being a small (267 square mile) separate nation inhabited
by fewer people than Wisconsin. Wanigasinghe also told
Charter Bank that his address was Bloomer, a town
of 92 residents in northern Minnesota, for which
Wanigasinghe provided a Chicago zip code. His plan to
escape prosecution worked until he returned to
Wisconsin in 2007 and was arrested soon thereafter.
As we said, the district court denied Wanigasinghe’s
motion to dismiss the indictment. That determination
involves a mixed question of law and fact. We review
the legal conclusions de novo and the factual findings for
clear error. United States v. Stark, 507 F.3d 512 (7th Cir.
2007).
Although common sense might indicate that a person
who leaves the country to avoid prosecution should not
be allowed to complain that he was not prosecuted
quickly enough, the law, unfortunately, is not quite
that simple. The government, though, argues that it is
precisely that simple; that United States v. Verdugo-
Urquidez, 494 U.S. 259 (1990), makes clear that constitu-
tional rights apply to persons found within the United
States and do not extend to noncitizens beyond its borders.
That is an oversimplification. Verdugo-Urquidez held that
Fourth Amendment rights did not apply to a search and
seizure by United States agents of property owned by a
4 No. 08-1426
nonresident alien and located in a foreign country. Other
cases as well limit the reach of constitutional protections.
For instance, Johnson v. Eisentrager, 339 U.S. 763 (1950),
rejected the extension of the Fifth and Sixth Amend-
ments to aliens beyond the borders of the Unites States.
But recently, in Boumediene v. Bush, 128 S. Ct. 2229 (2008),
the Court found that Guantanamo Bay prisoners retained
the constitutional privilege of seeking relief via habeas
corpus. In reaching that conclusion, the Court traced the
history of the Constitution’s extraterritorial application, a
history which we will not repeat but which cautions
against broad pronouncements about whether the right
to a speedy trial exists in Wanigasinghe’s case.
In Barker v. Wingo, 407 U.S. 514, 522 (1972), the Court
recognized the “amorphous quality” of the speedy trial
right—or, put otherwise by the Court, that “the speedy
trial right is . . . slippery.” Consequently, the Court rejected
bright line rules, one that would require a defendant to be
brought to trial within a specified time period and another
that would restrict consideration of the right to cases where
a defendant had actually demanded a speedy trial.
Rather, in determining whether a defendant’s speedy
trial rights have been violated, we must balance a
number of factors, including (1) the length of the delay,
(2) whether “the government or the criminal defendant
is more to blame for that delay,” (3) the defendant’s
assertion of his speedy trial right, and (4) whether the
defendant suffered prejudice as a result of the delay.
Doggett v. United States, 505 U.S. 647, 651 (1992).
As we noted in United States v. Oriedo, 498 F.3d 593 (7th
Cir. 2007), the length of the delay is the “triggering mecha-
No. 08-1426 5
nism”; that is, unless a presumptively prejudicial
amount of time elapsed, it is unnecessary to conduct a
searching analysis of all the factors. It goes without
saying that the delay in this case—over 11 years—was
indeed lengthy. So we must move on to the other steps.
The first question, then, is what was the reason for the
delay and who was more to blame. At its most basic level,
the reason for the delay is that Wanigasinghe left the
country. But he contends that the government is at
fault because it did not find him when he easily could
have been found. He was living at his parental home
in Columbo, Sri Lanka. He argues that UW-Eau Claire
knew where he was so it would have been easy for the
government to find him. This was a claim originally
credited in the district court. Prior to the decision of the
district judge (which we are reviewing) the magistrate
judge had recommended granting Wanigasinghe’s
motion to dismiss the indictment based largely on his
finding that the university, in fact, did know
Wanigasinghe’s whereabouts. To test that finding, the
district judge reopened an evidentiary hearing, a pro-
cedure to which Wanigasinghe also objects, an objection
we reject. It was not an abuse of discretion to reopen
the hearing nor to admit evidence Wanigasinghe sought
to have excluded.1
At the hearing, the claim that the university knew where
Wanigasinghe was living was undermined. Wanigasinghe
1
The evidence included certified, sworn grand jury testimony
and exhibits identified in connection with that grand jury
testimony.
6 No. 08-1426
claimed that “at some time” the university sent him a
transcript. It was explained, however, that a transcript
can be sent to any designated address—a work address, a
home address, etc., not necessarily the address in the
university’s computer system. The testimony was that the
only address in the university system for Wanigasinghe
between September 1994 and May 2006 was the false
“Jakarta, Singapore” address. After reviewing the evi-
dence, the district judge rejected the notion that the
university knew where Wanigasinghe was and that
therefore the government could easily have found him.
The finding is not clearly erroneous and favors a con-
clusion that Wanigasinghe is more responsible for the
delay than the government.
As for the government’s role during the time
Wanigasinghe was out of the country, a warrant for his
arrest remained active in the National Crime Informa-
tion Center until he was arrested soon after arriving here
in 2007. That fact distinguishes his case from Doggett in
an important respect. Doggett was out of the country for
two of the eight and one-half years between his indict-
ment and his arrest. The remaining time he was in
Virginia; he married, earned a college degree, had a steady
job as a computer operations manager, and lived under
his own name. The Court—although counting the two
and one-half years Doggett was out of the country as part
of the “triggering” delay—said that he could have been
brought to trial six years earlier but for the government’s
“inexcusable oversights.” Presumably, those six years are
the years he lived in Virginia after his return to this
country and during which the government did not find
No. 08-1426 7
him. In contrast, Wanigasinghe was brought to court
almost immediately upon his arrival back in the country.
In addition, there is absolutely no hint that the govern-
ment was delaying its case to gain any sort of tactical
advantage over Wanigasinghe. In short, it is
Wanigasinghe himself who bears the responsibility for
the delay. Delay is pretty clearly what he wanted. See
also United States v. Arceo, 535 F.3d 679 (7th Cir. 2008).
We next consider prejudice to Wanigasinghe caused by
the delay. Prejudice includes, as we noted in Oriedo,
difficulties in defending a stale case, but also interference
during the delay with a defendant’s liberty, disruption to
his employment, public humiliation, and the creation of
anxiety for him, his family, and his friends. Wanigasinghe,
of course, did not endure any loss of liberty or employ-
ment. We have no evidence that he suffered anxiety
because of the charges hanging over his head, and if he
did, he could easily have turned himself in to resolve the
matter. As to the difficulties in defending a case, a long
delay can give rise to a presumption of prejudice. But
here, the district court’s findings on the point are not
erroneous. The judge found that the evidence in the case
would in all likelihood be documentary, including the
cards used to open bank accounts, the checks he wrote and
deposited, and the bank records. The judge also cor-
rectly surmised that Wanigasinghe’s best defense would
be that the handwriting was not his. The passage of time
would not impair his ability to find a handwriting expert.
As to the remaining factor, Wanigasinghe did not
request a speedy trial during the time he was out of the
8 No. 08-1426
country. We agree with the district court’s finding that
he likely knew he had been charged with a crime but
nevertheless did nothing to take care of the charges;
quite the opposite. His failure to request a speedy trial
is also a factor which weighs against him.
In short, the denial of Wanigasinghe’s speedy trial
claim is supported by the law and the evidence.
For all of these reasons, the judgment of the district
court is A FFIRMED.
11-3-08