Court of Appeals for the Ninth Circuit

United States v. David Aguirre

1993 U.S. App. LEXIS 13193 · 1993 WL 188669 · 93 Cal. Daily Op. Serv. 4145 · 93 Daily Journal DAR 7051

June 7, 1993 · Docket 89-50265

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Opinion

OPINION

On Remand from the Supreme Court of the United States.

Before: PREGERSON, BEEZER and KOZINSKI, Circuit Judges. KOZINSKI, Circuit Judge:

This case was remanded to us for further consideration in light of Doggett v. United States, — U.S. -, 112 S.Ct. 2686, 120 L.Ed.2d 620 (1992). In our earlier disposition, we held there was no violation of defendant’s Sixth Amendment right to a speedy trial and affirmed the district court’s denial of his motion to dismiss the indictment. Our earlier decision concluded that the district court applied the proper legal standard, the test set out in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972),1 and that its underlying factual findings were not clearly erroneous. Following Barker, we counted factor (4), prejudice from the delay, against Aguirre because he didn’t show actual prejudice.

We must revisit our decision because Dog-gett modified the Barker test in one material respect: Under Doggett, factor (4) can weigh in the defendant’s favor even without a showing of actual prejudice. The Court observed that “excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify,” — U.S. at-, 112 S.Ct. at 2693, and held that, in some cases, the burden of proving prejudice could no longer be placed on the defendant. We must decide whether Aguirre’s is such a case.

Facts

In an indictment filed October 27, 1983, Aguirre was charged with conspiracy to possess government checks stolen from the mail. Agents charged with executing the warrant for his arrest learned he was in England when the indictment was filed. Because the agents could not find Aguirre, they entered “stops” on him in three federal law enforcement databases and one in California, Aguirre’s home state and the state where the charged crime was committed. Aguirre was finally arrested in October 1988 — five years after his indictment — when customs agents ran a computer check on him as he crossed the border from Mexico into Arizona.

This, however, wasn’t the first time that Aguirre had heard of the charges against him. Back in October 1983, while Aguirre was on business travel in England, he learned he had to make a court appearance in the Central District of California in connection with what he described as a “complaint” that had been filed against him. He responded by sending an affidavit from the U.S. Embassy asking for a continuance of the proceedings against him so that he could meet his work commitment overseas. In that affidavit Aguirre swore he could not return to the United States until January 1984. Despite this, Aguirre returned on November 2, 1983 — only nine days after he had stated under oath that business commitments would keep him in England until January.

When he returned to California, Aguirre didn’t inquire about the obligation to appeal’ in court, contrary to his earlier sworn statement that he would do so upon returning to the United States. Within a month, or perhaps sooner, Aguirre moved to Arizona. He lived and worked there until his arrest in October 1988. After an evidentiary hearing on Aguirre’s motion to dismiss the charges for violation of his right to a speedy trial, the district court found he was aware of the charges against him when the indictment was returned in October of 1983. R.T. 2/8/89 at 72-74.2

Discussion

Doggett holds that whether the defendant must show actual prejudice depends on whether it is he or the government who is responsible for the delay. —• U.S. at-, 112 S.Ct. at 2692-94. To demonstrate this new rule, Doggett described three situations and explained that the defendant must show a different level of prejudice under each. Where the government proceeds “with reasonable diligence,” the “speedy trial claim would fail ... as a matter of course however great the delay, so long as [the defendant] could not show specific prejudice to his defense.” Id., — U.S. at --, 112 S.Ct. at 2693.3 Where “the Government ... intentionally [holds] back in its prosecution of him to gain some impermissible advantage at trial, [such] official bad faith in causing delay will be weighed heavily against the government and [a lengthy] delay would present an overwhelming case for dismissal.” Id. (citations omitted). Where the government is negligent in pursuing a defendant, prejudice will be presumed and its weight in defendant’s favor will depend on the length of the delay. Id. Thus, we have to look at the length of the delay and the reasons for it independently under factors (1), (2) and (3) of Barker, we again look at those same factors collectively, as they bear upon our decision to presume prejudice under factor (4). “While such presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria, it is part of the mix of relevant facts, and its importance increases with the length of delay.” Doggett, — U.S. -, 112 S.Ct. at 2693.

To determine whether we should presume prejudice, we must consider the district court’s findings with respect to both the length and reason for the delay. Here, five years passed from the date of the indictment to the arrest. Though we “cannot definitely say how long is too long in a system where justice is supposed to be swift but deliberate,” Barker, 407 U.S. at 521, 92 S.Ct. at 2187, a five year delay is long enough to trigger a further look-. United States v. Williams, 782 F.2d 1462, 1465 (9th Cir.1986) (quoting Barker, 407 U.S. at 530, 92 S.Ct. at 2192).

Central to our analysis is the district court’s finding that the government’s search for Aguirre was diligent. R.T. 2/8/89 at 75. Because the finding on this point is essentially a determination that the government has not been negligent, we must review it “with considerable deference.” Doggett, — U.S. at -, 112 S.Ct. at 2691. Aguirre has pointed to nothing in the record to convince us this finding was clearly erroneous. Because the search was diligent, we weigh factor (2) — whether the government or the defendant is more to blame for the delay— against the defendant.

The government’s diligence also means that Aguirre must show prejudice to prevail. Indeed, Doggett specifically recog-' nized that delay such as occurred here is both unavoidable and permissible: “Our speedy trial standards recognize that pretrial delay is often both inevitable and justifiable. The government may need time to collect witnesses against the accused, oppose his pretrial motions, or, if he goes into hiding, track him down.” — U.S. at -, 112 S.Ct. at 2693 (emphasis added). Where the government searches “with reasonable diligence,” the “speedy trial claim would fail .. as a matter of course however great the delay, so long as [the defendant] could not show specific prejudice to his defense.” Id. Thus, this case is quite unlike Doggett and United States v. Shell, 974 F.2d 1035 (9th Cir.1992) (reversing in light of Doggett because defendant should not have been required to show prejudice), which applied a presumption of prejudice precisely because the government wasn’t diligent.

Under factor (3) of Barker, the district court’s finding that Aguirre knew of the charges against him, yet failed to answer them, R.T. 2/8/89 at 73-75, further undermines his speedy trial claim.4 The Speedy Trial Clause primarily protects those who assert their rights, not" those who acquiesce in the delay — perhaps hoping the government will change its mind or lose critical evidence. See Doggett, — U.S. at -, 112 S.Ct. at 2691 (acquiescence causes “Barkers third factor, concerning invocation of the right to a spéedy trial, [to be weighed] heavily against him”); Barker, 407 U.S. at 521, 92 S.Ct. at, 2187 (“Delay is not an uncommon defense tactic. As the time between the commission of the crime and trial lengthens, witnesses may become unavailable or their' memories may fade. If the witnesses support the prosecution, its case will be weakened, sometimes seriously so.”); id. at 532, 92 S.Ct. at 2193 (“We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.”).5.5

In addition to its independent significance under factor (3) of Barker, Aguirre’s failure to assert his right to a speedy trial also' bears on Doggett’s prejudice analysis. Doggett holds that we should presume prejudice only if'the defendant isn’t responsible for the delay.. .It follows that Aguirre’s acquiescence in the delay, despite his knowledge of the outstanding indictment, is a second reason to place the burden of proving prejudice on him — and place it more heavily. Aguirre could have, at any moment, ended the delay and avoided any prejudice caused by the passage of time. He only had to get in touch with federal authorities and tell them his whereabouts, as he promised to. Failing to assert his speedy trial right, Aguirre’s inaction contributed to the delay; accordingly, he is entitled to no presumption of prejudice.

Because we can’t presume prejudice, Aguirre must show he was actually prejudiced; we concluded in our earlier decision that he hadn’t done so. But even if Aguirre had shown actual prejudice, we would still have to balance the prejudice against the facts that he didn’t assert his speedy trial rights and that the government wasn’t to blame for the delay. Where, as here, the government diligently pursues the defendant and the defendant is aware the government is trying to find him, even severe prejudice would still not be enough to tip the balance in his favor.6 Here Aguirre knew his charges were pending, but didn’t advise • federal authorities of his return to the United States; the government, on the other hand, conducted a reasonably diligent investigation to find him. It’s true that prejudice can arise with time, but it’s equally true in situations like Aguirre’s that the defendant, not the government, is in the best position to stop the clock and avoid the damage.

AFFIRMED

.

. To determine whether a defendant's right to a speedy trial has been violated a court must weigh the following factors:

[1] whether delay before trial was uncommonly long, [2] whether the government or the defendant is more to blame for the delay, [3] whether, in due course, the defendant asserted his right to a speedy trial, and [4] whether he suffered prejudice as the delay’s result.

Doggett, - U.S. at -, 112 S.Ct. at 2690; see also Barker, 407 U.S. at 530, 92 S.Ct. at 2192.

Doggett, - U.S. at -, 112 S.Ct. at 2690 ; see also Barker, 407 U.S. at 530 , 92 S.Ct. at 2192 ..

. At the hearing, Aguirre admitted he was aware of the obligation to appear in court in October 1983. He explained his failure to appear by claiming that his lawyer had told him that everything had been taken care of. Yet when the court subpoenaed his lawyer, the lawyer testified he was not representing Aguirre at that time and, . therefore, didn’t discuss the charges with him— let alone tell him that a pending indictment had been taken care of. The lawyer's testimony struck a double blow to Aguirre's claim: It not only undermined the argument itself, it also shattered Aguirre's credibility. The district judge found that Aguirre knew of the charges against him.

He explained his failure to appear by claiming that his lawyer had told him that everything had been taken care of.Yet when the court subpoenaed his lawyer, the lawyer testified he was not representing Aguirre at that time and, . therefore, didn’t discuss the charges with him— let alone tell him that a pending indictment had been taken care of.The lawyer's testimony struck a double blow to Aguirre's claim: It not only undermined the argument itself, it also shattered Aguirre's credibility.The district judge found that Aguirre knew of the charges against him..

. This analysis assumes a defendant who, like Doggett himself, was not culpable in causing or extending the delay. If the defendant is culpable in causing the delay — such as when he actively evades prosecution — the prejudice growing from the delay he caused cannot be weighed in his favor. Because the district court here did not make a finding of culpability on Aguirre's part, we dispose of Aguirre’s case on other grounds rather than remanding for that determination.

If the defendant is culpable in causing the delay — such as when he actively evades prosecution — the prejudice growing from the delay he caused cannot be weighed in his favor.Because the district court here did not make a finding of culpability on Aguirre's part, we dispose of Aguirre’s case on other grounds rather than remanding for that determination..

. The greater part of two days of evidentiary hearings focussed on this point. Ultimately the district court’s finding rested on its determination that Aguirre was not credible. R.T. 2/8/89 at 73-74. This finding, which is entitled to special deference because it rests upon the district court's credibility determinations, see Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985), is not clearly erroneous.

Ultimately the district court’s finding rested on its determination that Aguirre was not credible.R.T. 2/8/89 at 73-74.This finding, which is entitled to special deference because it rests upon the district court's credibility determinations, see Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 , 105 S.Ct. 1504, 1511-12 , 84 L.Ed.2d 518 (1985), is not clearly erroneous..

. Here, we balance Aguirre's failure to assert his speedy trial right as one of four factors under Barker. However, this case is different than those where,, in the face of an indictment, a defendant takes .affirmative steps to elude law enforcement and thus causes the delay himself. In such cases, a finding of waiver is proper and courts needn't perform the Barker balancing test. See United States v. Sandoval, 990 F.2d 481 (9th Cir.1993) ("Therefore, when the defendant seeks to avoid detection by American authorities and any post-indictment delay can be attributed to him, he waives the right to a speedy trial.”) (internal quotation marks omitted).

However, this case is different than those where,, in the face of an indictment, a defendant takes .affirmative steps to elude law enforcement and thus causes the delay himself.In such cases, a finding of waiver is proper and courts needn't perform the Barker balancing test.See United States v. Sandoval, 990 F.2d 481 (9th Cir.1993) ("Therefore, when the defendant seeks to avoid detection by American authorities and any post-indictment delay can be attributed to him, he waives the right to a speedy trial.”)(internal quotation marks omitted)..

. See Doggett, - U.S. at -, 112 S.Ct. at 2690-91 (the government’s diligence and the defendant’s acquiescence in the delay weigh heavily in the balance against prejudice).