United States v. Jesus Gallarzo, Jr.

NOT FOR PUBLICATION FILED
AUG 18 2017
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50415
Plaintiff-Appellee, D.C. No.
2:14-cr-00666-DDP-1
v.
JESUS GALLARZO, Jr., AKA Jesse MEMORANDUM*
Lopez, AKA Wino,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Argued and Submitted August 7, 2017
Pasadena, California
Before: REINHARDT, KOZINSKI, and CHRISTEN, Circuit Judges.
1. “Outrageous government conduct is not a defense, but rather a claim
that government conduct in securing an indictment was so shocking to due process
values that the indictment must be dismissed.” United States v. Williams, 547 F.3d
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1
1187, 1199 (9th Cir. 2008) (citation omitted). Dismissal is “limited to extreme
cases in which the government’s conduct violates fundamental fairness.” United
States v. Gurolla, 333 F.3d 944, 950 (9th Cir. 2003). Outrageousness is an
“extremely high standard” that can only be met by conduct “so grossly shocking
and so outrageous as to violate the universal sense of justice.” United States v.
Hullaby, 736 F.3d 1260, 1262 (9th Cir. 2013) (citation omitted). The government
conduct in this case did not reach that level.
2. A district court may exercise its supervisory powers “to remedy a
constitutional or statutory violation; to protect judicial integrity by ensuring that a
conviction rests on appropriate considerations validly before a jury; or to deter
future illegal conduct.” United States v. Stinson, 647 F.3d 1196, 1210 (9th Cir.
2011) (citation omitted). In this case, the district court had no grounds for
exercising its supervisory powers of dismissal and thus properly declined to do so.
3. “Generally, any delay between the commission of a crime and an
indictment is limited by the statute of limitations.” United States v. Corona-
Verbera, 509 F.3d 1105, 1112 (9th Cir. 2007). The pre-indictment delay here was
28 months, well within the five-year statute of limitations. To demonstrate that due
process nevertheless requires dismissal due to delay within the statute of
limitations, a defendant must first “prove that he suffered actual, non-speculative
prejudice from the delay, meaning proof that demonstrates exactly how the loss of
evidence or witnesses was prejudicial.” United States v. Barken, 412 F.3d 1131,
1134 (9th Cir. 2005) (citation omitted). This burden “is heavy and is rarely met.”
Id. “Generalized assertions of the loss of memory, witnesses, or evidence are
insufficient to establish actual prejudice.” United States v. Manning, 56 F.3d 1188,
1194 (9th Cir. 1995). The district court correctly found that Gallarzo did not make
an adequate offer of proof that he suffered prejudice.
4. The district court did not err in declining to reconsider these pretrial
rulings.
AFFIRMED.