Opinion
Case No. 1:18-cr-20166-KMM-1
2022-02-15
UNITED STATES of America, v. Alcides OROZCO CONTRERAS, Defendant.
Jessica Kahn Obenauf, US Attorney's Office, Miami, FL, for United States of America.
Jessica Kahn Obenauf, US Attorney's Office, Miami, FL, for United States of America.
ORDER
K. MICHAEL MOORE, UNITED STATES DISTRICT JUDGE
THIS CAUSE came before the Court upon Defendant Alcides Orozco Contreras's ("Defendant" or "Orozco Contreras") Motion to Dismiss Indictment for Violation of Sixth Amendment Right to Speedy Trial. ("Mot.") (ECF No. 26). Therein, Defendant requests that the Court dismiss the Indictment ("Indict.") (ECF No. 1). Id. at 10. The Government filed a response in opposition. ("Resp.") (ECF No. 31). Defendant filed a reply. ("Reply") (ECF No. 32). The matter was referred to the Honorable Lauren F. Louis, United States Magistrate Judge, who issued a Report and Recommendation, ("R&R") (ECF No. 36), recommending that Defendant's Motion be granted, and that the Indictment be dismissed. R&R at 8. The Government timely filed objections to the R&R. ("Objs.") (ECF No. 42). Defendant filed a response to the Government's objections. ("Objs. Resp.") (ECF No. 44). The Government did not file a reply, and the time to do so has passed. The matter is now ripe for review. As set forth below, the R&R is ADOPTED IN PART as set forth herein.
Magistrate Judge Louis notes that the Government's response was not supported by evidence and no evidentiary hearing was requested. R&R at 1. Thus, the record reflects that no evidentiary hearing was held.
The following facts are drawn from the Indictment, see generally Indict., Defendant's Motion, the Government's Response, and a corresponding review of the record.
According to the Government, on January 5, 2017, Defendant was returned to the Miami International Airport in Miami, Florida after he was denied entry to Colombia upon presenting an allegedly counterfeit Venezuelan passport. Resp. at 1. The Government contends that, when Customs and Border Patrol ("CBP") officers at the Miami International Airport inspected and seized the passport in question, they discovered it contained the photograph and biographical information for someone else when the top sheet of the passport was lifted, despite purporting to contain Defendant's photograph and biographical information, and listing Defendant's birthplace as Venezuela. Id. at 1–2. The Government also alleges that Defendant presented his legal permanent resident card to CBP officers; a records check revealed that Defendant was granted legal permanent resident status in 2006 under the Cuban Adjustment Act. Id. at 2. The Government asserts that Defendant's 2008 Application to Register Permanent Residence or Adjust Status stated he was born in Cuba and was admitted or paroled into the United States after January 1, 1959. Id. According to the Government, Defendant told the CBP officers that, in 2002, his mother told him he was born in Cuba and, upon finding out this information, Defendant paid someone named Iris to travel to Cuba to obtain his birth certificate. Id. CBP released Defendant without his legal permanent resident card or the passport in question. Id.
On March 8, 2018, a grand jury sitting in the Southern District of Florida returned an Indictment charging Defendant with two counts of fraud and misuse of visas, permits, and other documents, in violation of 18 U.S.C. § 1546(a) —the first count as to the use of the allegedly counterfeit Venezuelan passport, and the second count as to Defendant's allegedly fraudulent procurement of the U.S. permanent resident card. See generally Indict.
On March 29, 2021, Defendant was arrested at an airport in Houston, Texas; he made an initial appearance in the Southern District of Texas and was released on a personal surety bond. Mot. at 2; Resp. at 3. Defendant subsequently made an initial appearance in the Southern District of Florida on August 24, 2021 and was again released on a personal surety bond. (ECF Nos. 10, 12). Defendant's arraignment was also held on August 24, 2021. (ECF No. 10). Trial in this matter is currently set for the two-week trial period beginning February 28, 2022. (ECF No. 41).
On August 26, 2021, the Court set this case for trial during the two-week trial period beginning September 27, 2021. (ECF No. 15). The trial was continued first to December 6, 2021, (ECF No. 18), and again to January 3, 2022 (ECF No. 30). On December 28, 2021, the Court continued the trial to February 28, 2022 because the Court had granted the Government's request for an extension of time to file objections to the Report and Recommendation, as the deadline to file objections was after the scheduled start of trial in this matter. (ECF No. 41).
In his Motion, Defendant seeks to dismiss the Indictment on Sixth Amendment speedy trial grounds. See generally Mot. Addressing each of the four factors set forth in Barker v. Wingo , 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), Defendant argues: (1) the three year and eight-month delay between the return of the Indictment and the trial date is presumptively prejudicial, compounded by the fourteen (14) month pre-indictment delay between his arrest and the return of the Indictment, id. at 3–4; (2) the information the Government provided in discovery indicates that it made no effort to locate Defendant in the time between when he was indicted and when he was arrested, id. at 4–7; (3) Defendant timely asserted his Sixth Amendment right to a speedy trial when he filed the instant Motion, id. at 7–8; and (4) the Court must presume actual prejudice to Defendant given the nearly forty-four-month delay from Indictment to the then scheduled trial and, in any event, there is actual prejudice because (a) the memories of potential witnesses have faded and (b) there is social, political, and economic crises in Venezuela and Cuba where the allegedly forged documents are from. Id. at 8–9.
Trial was set for the two-week trial period beginning December 6, 2021 at the time Defendant's Motion was filed. (ECF No. 30).
In response, the Government concedes that the length of the post-indictment delay is presumptively prejudicial. Resp. at 3. The Government further "acknowledges that it was negligent in failing to locate and arrest the defendant between the return of the indictment in 2018 and his arrest in 2021." Id. at 4. Nonetheless, the Government asserts that its negligence is a neutral reason for the delay that should not weigh heavily against it because Defendant was free and residing in the Southern District of Ohio during the period of the delay. Id. at 4–5. According to the Government, "limited funding affected CBP officers’ ability to travel and operate outside their jurisdiction and effectuate an arrest of the defendant." Id. In addition, the Government proffers that some of the delay was due to the COVID-19 pandemic. Id. at 4. The Government does not contest that Defendant timely asserted his Sixth Amendment right to a speedy trial. Id. at 5. And, the Government argues that, even if the Court finds that the first three Barker factors weigh heavily against the Government, the Court should still consider and find that Defendant has not suffered any actual prejudice from the post-indictment delay. Id. at 5–7.
The Government asserts that the delay is three years and twenty-one days, Resp. at 3, which appears calculated based on the date between the return of the Indictment and Defendant's arrest.
In reply, Defendant argues that the Government's response does not rebut that the Government "took zero steps" to arrest, locate, and bring Defendant to trial in the three years after the Indictment was returned despite CBP having Defendant's cell phone number, knowing his address, and Defendant otherwise living openly and purchasing a new home under his own name. Reply at 1–5 (emphasis omitted). According to Defendant, despite knowing this information, the Government never called Defendant, sent a letter to his home, searched for him in public and law enforcement databases, or had a local CBP officer in Ohio (or any other law enforcement officers) visit his home. Id. at 5. Defendant also argues that the Government cites no authority to support or otherwise explain how COVID-19 hampered its ability to bring him to trial. Id. at 6. Last, Defendant argues in reply that, even if the Court finds that the first three Barker factors do not weigh heavily against the Government, the Indictment must still be dismissed because Defendant can establish actual prejudice—the person Defendant alleges he paid to travel to Cuba to locate his birth certificate cannot be located to corroborate this information, and Defendant's mother now suffers from senile dementia. Id. at 7–8.
As set forth in the R&R, Magistrate Judge Louis recommends that the Motion be granted, and that the Indictment be dismissed. See generally R&R.
II. LEGAL STANDARD
The Court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1) ; Fed. R. Crim. P. 59(b)(3). The Court "must consider de novo any objection to the magistrate judge's recommendation." Fed. R. Crim. P. 59(b)(3). A de novo review is therefore required if a party files "a proper, specific objection" to a factual finding contained in the report. Macort v. Prem, Inc. , 208 F. App'x 781, 784 (11th Cir. 2006). "It is critical that the objection be sufficiently specific and not a general objection to the report" to warrant de novo review. Id.
When the objecting party has not properly objected to the magistrate judge's findings, "the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." See Keaton v. United States , No. 14-21230-CIV, 2015 WL 12780912, at *1 (S.D. Fla. May 4, 2015) ; see also Lopez v. Berryhill , No. 17-CV-24263, 2019 WL 2254704, at *2 (S.D. Fla. Feb. 26, 2019) (stating that a district judge "evaluate[s] portions of the R & R not objected to under a clearly erroneous standard of review" (citing Davis v. Apfel , 93 F. Supp. 2d 1313, 1317 (M.D. Fla. 2000) )).
With respect to a magistrate judge's credibility findings, "a district court may not override essential, demeanor-intensive fact finding by a magistrate judge without hearing the evidence itself or citing an exceptional justification for discarding the magistrate judge's findings." Amlong & Amlong, P.A. v. Denny's, Inc. , 500 F.3d 1230, 1250 (11th Cir. 2007). "Rejecting credibility findings made by a magistrate judge without holding a new hearing is permissible only when there is an ‘articulable basis for rejecting the magistrate's original resolution of credibility.’ " Id. (citing United States v. Marshall , 609 F.2d 152, 155 (5th Cir. 1980) ).
III. DISCUSSION
In the R&R, Magistrate Judge Louis recommends that Defendant's Motion be granted, and that the Indictment be dismissed. R&R at 8. The Government objects to Magistrate Judge Louis's findings in two respects. First, the Government objects to Magistrate Judge Louis's finding that the reason for the post-indictment delay should weigh heavily against the Government. Objs. at 4–5. Second, the Government objects to Magistrate Judge Louis's finding that Defendant suffered actual prejudice. The Court first reviews principles of the Sixth Amendment right to speedy trial before addressing Magistrate Judge Louis's findings and the Government's objections to them.
A. Sixth Amendment Right to Speedy Trial.
The Sixth Amendment to the United States Constitution guarantees that, "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." U.S. Const. amend. VI. In assessing whether a particular criminal defendant's Sixth Amendment right to a speedy trial has been violated, courts conduct a balancing test in which they weigh four factors: the "[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Barker v. Wingo , 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). As the Supreme Court has explained, "none of the four factors identified above [is regarded] as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial." Id. at 533, 92 S.Ct. 2182. "Rather, they are related factors and must be considered together with such other circumstances as may be relevant." Id.
The first factor—the length of the delay—"is actually a double enquiry." Doggett v. United States , 505 U.S. 647, 651, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). For a criminal defendant to trigger a speedy trial analysis, they "must allege that the interval between accusation and trial has crossed the threshold dividing ordinary from ‘presumptively prejudicial’ delay." Id. at 651–52, 112 S.Ct. 2686. In the Eleventh Circuit, "[d]elays exceeding one year are generally found to be ‘presumptively prejudicial.’ " United States v. Ingram , 446 F.3d 1332, 1336 (11th Cir. 2006). "If, after the threshold inquiry is satisfied and the second and third factor are considered, all three of these factors weigh heavily against the Government, the defendant need not show actual prejudice (the fourth factor) to succeed in showing a violation of his right to a speedy trial." Id. Just because the length of the delay is sufficient to trigger the Barker analysis, however, "does not necessarily mean that factor weighs heavily against the Government; the two inquiries are separate." United States v. Oliva , 909 F.3d 1292, 1298 (11th Cir. 2018). Similarly, if a delay is not " ‘presumptively prejudicial’ under the first factor, a district court need not consider the other factors." United States v. Knight , 562 F.3d 1314, 1323 (11th Cir. 2009) (citing United States v. Register , 182 F.3d 820, 827 (11th Cir. 1999) ). Once a Sixth Amendment speedy trial analysis is triggered, however, "it is appropriate to consider inordinate pre-indictment delay in determining how heavily post-indictment delay weighs against the Government." Ingram , 446 F.3d at 1339. Courts are nevertheless mindful that "dismissing an indictment is an ‘extraordinary remedy’ " that "is not one to be given to defendants each time the Government's conduct unintentionally causes delay." Oliva , 909 F.3d at 1303 (citing United States v. Villarreal , 613 F.3d 1344, 1349 (11th Cir. 2010) ).
B. Whether the Reason for the Delay Should Weigh Heavily Against the Government.
In the R&R, Magistrate Judge Louis observes that the Government concedes that the more than three year post-indictment delay is presumptively prejudicial, and that the Government does not contest that Defendant timely asserted his Sixth Amendment right to a speedy trial. R&R at 3 (citing Resp. at 3, 5). Accordingly, Magistrate Judge Louis proceeded to analyze the reason for the post-indictment delay. On review, the Government does not object to Magistrate Judge Louis's findings as to the first and third Barker factors; this Court thus proceeds to de novo review of the second factor—the reason for the delay.
The R & R states that the post-indictment delay is three years and twenty-one days. R & R at 3. The length of the delay is calculated as "the time that elapsed between ‘when the Sixth Amendment right attached until trial (or, until the pretrial motion to dismiss on this ground is determined).’ " Villarreal , 613 F.3d at 1350 ; see also Oliva , 909 F.3d at 1304 n.15. At the time the instant Motion was filed, the length of the delay was three years and eight months based on a trial date of December 6, 2021, as argued in Defendant's Motion. The Court nonetheless adopts the R&R's conclusion that the length of the delay satisfies the first Barker factor.
As to the second factor—the reason for the delay—Magistrate Judge Louis notes that the Government concedes its own negligence in failing to arrest Defendant between early March of 2018, the date of Indictment, and late March of 2021, the date of Defendant's arrest. R&R at 4. However, Magistrate Judge Louis rejects the Government's argument that its negligence in this case is a "more neutral reason." Id. (quoting Resp. at 4). Rather, Magistrate Judge Louis observes that the caselaw the Government relies on— United States v. Spaulding , 322 F. App'x 942 (11th Cir. 2009) —does not stand for the proposition that the Government's negligence does not weigh against it as long as that negligence does not rise to the level of bad faith. Id. at 4–5. Looking at the Government's efforts to locate Defendant in this case, Magistrate Judge Louis observes that the Government's Response was
[U]tterly bereft of any explanation regarding good faith efforts (continuous or otherwise) taken to locate Defendant during the delay and instead travels on unsubstantiated remarks about [CBP] budgeting concerns and the global pandemic, none of which explain why [CBP] apparently took no efforts to conduct a search remotely and coordinate with local law enforcement to arrest Defendant, or why they apparently made no attempt to call Defendant on the phone number he provided during the 2017 detention at Miami International Airport, which he proffers is still his present number. Additionally, though the government avers that Defendant moved from the home address that he originally provided to [CBP] [officers], it makes no proffer that any efforts were made to find him at the address they did have for him.
Id. at 6 (footnotes omitted). Consequently, Magistrate Judge Louis notes that "[a]n absence of evidence of bad faith does not nudge the government's actions here any closer to diligence," and "[t]he only conclusion [Magistrate Judge Louis] c[ould] reach from the government's proffer is that it made no attempt to locate defendant in the period between his indictment and arrest." Id. at 6–7. When coupled with the length of the delay and Defendant's timely assertion of his Sixth Amendment right, Magistrate Judge Louis found that the first three Barker factors weigh heavily against the Government and that this Court may dismiss the Indictment on that basis, alone, without considering whether Defendant suffered actual prejudice. Id. at 7.
Now, in its Objections, the Government argues that its negligence "should not tip the scale in the defendant's favor because the defendant was free and residing outside the Southern District of Florida." Objs. at 4. Rather, the Government contends in its Objections—as it did in its Response—that "negligence is a ‘more neutral reason’ that counts less heavily against the government." Id. (quoting Spaulding , 322 F. App'x at 946 ). Further, the Government disputes Magistrate Judge Louis's finding that it made no attempt to locate Defendant. The Government now contends for the first time in the instant objections that CBP "did attempt to locate the defendant by placing the arrest warrant on NCIC," which ultimately led to Defendant's arrest. Id. at 4–5. And, the Government reiterates now, as it did in its Response, that budget constraints prevented CBP officers from traveling from the Southern District of Florida to Ohio to arrest Defendant. Id. at 5. For these reasons, the Government objects to Magistrate Judge Louis's finding that the reason for the delay should be weighed heavily against it. Id.
In response, Defendant argues that Magistrate Judge Louis correctly found that the Government took no good faith efforts to locate Defendant. Objs. Resp. at 2. Defendant also counters the Government's argument that it did attempt to locate Defendant by placing his warrant in NCIC—according to Defendant, such an effort is "so woefully inadequate it is akin to no good faith efforts at all." Id. And, Defendant argues that, in any event, Magistrate Judge Louis correctly found that the Government made no effort to explain its failure to conduct a remote search to locate Defendant, or otherwise coordinate with local law enforcement. Id.
It is well established that "[a] defendant has no duty to bring herself to trial." United States v. Bell , 546 F.Supp.3d 1136, 1140, No. 17-60029-CR (S.D. Fla. June 28, 2021) (citing Barker , 407 U.S. at 527, 92 S.Ct. 2182 ). Rather, the Government "has a ‘constitutional duty to make a diligent, good-faith effort’ to locate and apprehend a defendant and bring the defendant to trial"—although, the Government "is not required to exhaust all conceivable avenues" for locating a defendant. United States v. Bagga , 782 F.2d 1541, 1543 (11th Cir. 1986) (quoting Smith v. Hooey , 393 U.S. 374, 383, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969) ). Accordingly, as to the second Barker factor, "[t]he government bears the burden of establishing valid reasons for the delay." United States v. Villarreal , 613 F.3d 1344, 1351 (11th Cir. 2010) (citing Ingram , 446 F.3d at 1337 ).
A court will assign different weight to different reasons for a delay:
(1) "a deliberate attempt to delay the trial in order to hamper the defense is weighted heavily against the government"; (2) "a more neutral reason such as negligence or overcrowded courts is weighted less heavily against the government but nevertheless is considered since the ultimate responsibility for such circumstances must rest with the government rather than the defendant"; and (3) "a valid reason, such as a missing witness, ... serves to justify appropriate delay." Barker , 407 U.S. at 531, 92 S. Ct. 2182. A government's inability to arrest or try a defendant because of the defendant's own evasive tactics constitutes
a valid reason for delay. See Ingram , 446 F.3d at 1337. But the government's failure to pursue a defendant diligently will weigh against it, more or less heavily depending on if the government acted in good or bad faith. See id. at 1339–40.
Id. (alterations incorporated); see also Doggett , 505 U.S. at 656–57, 112 S.Ct. 2686 ("Between diligent prosecution and bad-faith delay, official negligence in bringing an accused to trial occupies the middle ground.").
To begin, the Court finds that the reason for the delay weighs against the Government. First, the Government was not diligent in its efforts to locate Defendant. The record before the Court indicates that, beyond entering the warrant for Defendant's arrest into a National Crime Information Center ("NCIC") database, the Government took no other actions to locate Defendant for over three years. Objs. at 3 ("Although the report and recommendation found that the government made no attempt to locate the defendant, CBP did attempt to locate the defendant by placing the arrest warrant on NCIC ...."). Here, Defendant proffers that he was living openly in Ohio under his own name, and that the Government knew his Ohio address and had his phone number since January of 2017. Reply at 3. There is no indication that Defendant was evading arrest or that he even knew he had been indicted. Nonetheless, the Government reiterates in its Objections that limited budgets prevented CBP officers from operating outside the Southern District of Florida. Yet, the Government still does not have an answer for why federal law enforcement officers in the Southern District of Florida did not or could not work with their federal, state, or local counterparts in Ohio to locate and arrest Defendant. In fact, it appears that the Government made no attempt whatsoever to contact Defendant between the return of the Indictment and his arrest, despite knowing his address and phone number. The Government's lack of diligence results in it being found negligent in its pursuit of Defendant. See Doggett , 505 U.S. at 652–53, 112 S.Ct. 2686 ("While the Government's lethargy may have reflected no more than Doggett's relative unimportance in the world of drug trafficking, it was still findable negligence, and the finding stands.").
This fact was proffered by the Government for the first time in its objections to the R&R, and thus could not have been considered in the R&R.
In its Response, the Government claims that one year of the three-year delay between the return of the Indictment and Defendant's arrest was due in part to COVID-19 without explaining how COVID-19 delayed Defendant's arrest, given that no action was taken to locate or arrest Defendant in any of the three years beyond entering Defendant's warrant into the NCIC. See generally Resp; Objs.
And, in both its Response and its Objections, the Government concedes that it was negligent. Resp. at 4; Objs. at 4. However, the Government argues that its negligence is a more neutral reason that does not necessarily tip the scale in Defendant's favor because he was residing outside the Southern District of Florida. Id. "[T]he conduct of the government must be weighed against the conduct of the defendant." United States v. Bagga , 782 F.2d 1541, 1543 (11th Cir. 1986). Here, there is no evidence in the record, nor does the Government proffer, that Defendant was evading arrest or taking steps to avoid capture, or otherwise knew that he had been indicted. Given that the Government's negligence "still falls on the wrong side of the divide between acceptable and unacceptable reasons for delaying a criminal prosecution once it has begun," Doggett , 505 U.S. at 657, 112 S.Ct. 2686, the Court finds that the second Barker factor weighs against the Government. Accordingly, the Court must determine how heavily to weigh the reason for the delay against the Government.
In its Response, the Government relies on United States v. Bagga , 782 F.2d 1541 for the proposition that, because Defendant was residing in Ohio rather than the Southern District of Florida, the Government's negligence does not tip the scale in Defendant's favor. While the State of Ohio is outside the jurisdiction of the Southern District of Florida, the defendant in Bagga was residing outside the United States entirely, in India. Bagga , 782 F.2d at 1542.
Cases in the Eleventh Circuit "contemplate that negligence alone can be, but not must be, weighed heavily against the Government depending upon the circumstances." Oliva , 909 F.3d at 1303. The Eleventh Circuit has explained that a district court's tolerance of the Government's negligence should vary inversely with the length of the delay. Id. at 1302 (quoting United States v. Clark , 83 F.3d 1350, 1353 (11th Cir. 1996) ). That is, the Government's negligence should weigh more heavily against it as the length of the delay increases. "Analyzing the second factor, therefore, overlaps some with the first." Id.
Two cases— United States v. Clark , 83 F.3d 1350 (11th Cir. 1996) and United States v. Ingram , 446 F.3d 1332, 1336 (11th Cir. 2006) —set the parameters for determining when the Government's negligence weighs heavily against it. Oliva , 909 F.3d at 1302.
In Clark , the post-indictment delay was seventeen months. Clark , 83 F.3d at 1352. There was no indication that the defendant knew he had been indicted or there was a warrant for his arrest, and there was only one attempt to locate the defendant prior to his arrest. Id. Although the Government was negligent in its efforts to locate the defendant—local law enforcement mistakenly believed that the U.S. Marshals had taken over the case, id. at 1353 —the seventeen-month delay and the Government's unintentionally causing the delay were not sufficient grounds to weigh its negligence against it heavily. Id.
In Ingram , the post-indictment delay was two years. Ingram , 446 F.3d at 1338. During those two years, the single agent assigned to the case "made some minimal efforts to contact [the defendant]." Ingram , 446 F.3d at 1335. These efforts included leaving telephone messages for the defendant to call the agent back, visiting the defendant's residence on at least one occasion, driving by the defendant's residence and place of work, calling the defendant at his place of work, and leaving a message at the defendant's new phone number. Id. Like this case, there was also no indication that the defendant knew he had been indicted or that there was a warrant for his arrest. Id. Ultimately, the Eleventh Circuit weighed the two-year post-indictment delay heavily against the Government upon consideration of an inordinate two-and-a-half-year pre-indictment delay in the investigation of that case. Ingram , 446 F.3d at 1339 ("[T]he record in this case does not support any reasonable explanation for the Government's neglect in executing the warrant. Considering the crime for which Ingram was indicted, the state of the proof against him on the date of the indictment, and the Government's knowledge of Ingram's whereabouts, we find the two-year post-indictment delay intolerable.").
In Ingram , the combined pre- and post-indictment delay was approximately four and a half years after consideration of the inordinate pre-indictment delay. Here, the pre-indictment delay is fourteen months, for a combined delay of more than four years. However, the R&R does not appear to consider the pre-indictment delay apart from observing that the Government does not rebut Defendant's assertion that the Court can consider pre-indictment delay as a compounding concern in this case. R&R at 3 n.3.
The Court finds that this case is closer to Ingram than it is to Clark . Even without considering the length of the pre-indictment delay in this case, the record before the Court, as described above, indicates that the Government was less diligent in the three years from Indictment to arrest in this case than the government was in the two-years post-indictment in Ingram .
Further, the Government's efforts to locate Defendant are weaker than the efforts undertaken in the case it cites for the proposition that its negligence is a more neutral reason that should not weigh so heavily against it. As Magistrate Judge Louis notes, the Government relies on United States v. Spaulding . R&R at 4; Objs. At 4; Resp. at 3–5. There, in affirming the denial of the defendant's motion to dismiss an indictment, the Eleventh Circuit upheld the district court's finding that the Government's negligence only weighed slightly in the defendant's favor. See generally United States v. Spaulding , 322 F. App'x 942 (11th Cir. 2009) (four-year and eight-month length of delay). In Spaulding , the Eleventh Circuit detailed the efforts the Government took to locate the defendant, which included the following: the undercover agent involved in the underlying offense twice called the fugitive defendant to see if he would return to Florida; agents attempted to locate the defendant at his last known residence, met with local law enforcement, and met with the defendant's father; agents tracked down the defendant's wife and searched her home, her mother's home, and her grandmother's home; agents investigated a residence in another town when they heard the defendant might be residing there; agents spent several months surveilling a home in Georgia and showed local residents the defendant's picture; agents also periodically drove by the defendant's home in Florida and shared the defendant's photograph with the local FBI office. Id. at 944.
In this case, the only conclusion that the Court can draw from the record before it is that, aside from entering an arrest warrant into a database, there was complete inactivity on the part of the Government for more than three years as to its efforts to locate and bring Defendant to trial. See Bell , 546 F.Supp.3d at 1143 ("The record indicates that the government did virtually nothing to locate the [d]efendant for a year following the indictment, and then again for 15 months between February, 2018 and May, 2019. As such, the Court does not conclude that the delay was unintentional."); id. (dismissing indictment where the amount of delay due to complete inactivity amounted to 27 months out of a 48-month delay).
The Court recognizes that entering Defendant's arrest warrant into the NCIC is a good faith effort on the part of the Government. But, where this was also the only effort taken at all in light of the information known to the Government and where Defendant was not evading law enforcement, the Court's finding that the Government was not diligent stands. This single effort is not enough to establish that the Government diligently pursued Defendant to locate him and bring him to trial. Villarreal , 613 F.3d 1344, 1351 (11th Cir. 2010) (citing Ingram , 446 F.3d at 1339–40 ) ("[T]he government's failure to pursue a defendant diligently will weigh against it, more or less heavily depending on if the government acted in good or bad faith."). Accordingly, based on the lengthy post-indictment delay, the Government's sheer lack of effort to locate Defendant, and the fact that Defendant was residing openly in Ohio and the Government knew his address and phone number, the Court concludes that Magistrate Judge Louis properly found that the second Barker factor—the reason for the delay—weighs heavily against the Government. The Government's objections on this point are overruled. The Court may dismiss the Indictment on this basis alone.
The Government neglects to proffer whether it even monitored the database for information related to Defendant after uploading the warrant. Cf. Villarreal , 613 F.3d at 1352 ("The agents monitored the National Crime Information Center database and the Auto Track database for any information that could lead to Villarreal's arrest. They checked these databases annually and also received alerts for any changes in the databases that could be connected to Villarreal.").
C. Whether Defendant Suffered Actual Prejudice.
The Court agrees that Defendant need not demonstrate actual prejudice. The law in the Eleventh Circuit is clear that a defendant need not demonstrate actual prejudice if the court finds that the first three Barker factors weigh heavily against the Government. See United States v. Dunn , 345 F.3d 1285, 1296 (11th Cir. 2003) ("In doing so, however, we are mindful that ‘[i]n this circuit, a defendant generally must show actual prejudice unless the first three factors ... all weigh heavily against the government.’ " (alterations in original)). As Magistrate Judge Louis observes, the Government cites to no authority suggesting why "even if, the first three factors weigh heavily against the government, the Court should still consider whether the defendant suffered prejudice," Resp. at 5, and presumably not dismiss the Indictment. Nor does the Government cite to any authority in its Objections to the R&R why this Court should abandon clear Eleventh Circuit precedent. See generally Objs.
This finding does not alter the Court's earlier conclusion that it can dismiss the Indictment without addressing the fourth Barker factor.
Nevertheless, the Court finds that Defendant can demonstrate actual prejudice, at least as to Count 2 of the Indictment. In the R&R, Magistrate Judge Louis concludes that Defendant suffered actual prejudice resulting from the delay because Defendant has proffered that at least two relevant witnesses are not available: (1) Iris, the woman who allegedly retrieved Defendant's birth certificate from Cuba, cannot be located, and (2) Defendant's mother, who allegedly told Defendant that he was born in Cuba, now suffers from senile dementia. R&R at 8. Further, Magistrate Judge Louis found that, for those witnesses that are available to testify, namely agents employed by the Government, the Government proffers no facts or information that would alleviate the concern that their recollections have not faded since the offense alleged in 2017 or the return of the Indictment in 2018. Id.
In its Objections, the Government reiterates that Defendant did not suffer actual prejudice from the post-indictment delay because: (1) the Government agents involved in the initial 2017 airport stop that gave rise to these proceedings still work for CBP; (2) all reports, expert findings, and photographs have been turned over to Defendant, (3) all physical evidence (i.e. , the passport and Defendant's U.S. permanent resident card) is still in CBP custody, and (4) Defendant will have the opportunity to cross-examine Government witnesses. Objs. at 6. The Government again urges the Court to consider actual prejudice even if the first three Barker factors weigh against the Government. Id. In response, Defendant reiterates that, under Eleventh Circuit precedent, he need not demonstrate actual prejudice when the first three Barker factors weigh heavily against the Government. Objs. Resp. at 3. And, even if the Court were to consider actual prejudice, Defendant argues that Magistrate Judge Louis correctly found that Defendant can demonstrate actual prejudice because of the unavailability of two relevant witnesses and the risk that recollections of available witnesses have faded since 2017. Id. at 4.
The Supreme Court has instructed courts to assess prejudice in light of the three interests that the Sixth Amendment right to a speedy trial protects: "(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, 92 S.Ct. 2182. The last interest is the most serious
because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown.
Id. Moreover, "[t]he longer the pretrial delay extend[s] beyond the ‘bare minimum’ necessary to show presumptive prejudice, the stronger the presumption that the pretrial delay prejudice[s] the defendant." Villarreal , 613 F.3d at 1350. Further, the "consideration of 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, 112 S.Ct. 2686 (citation omitted).
Here, the delay is somewhat substantial: more than five years have passed between the offense alleged and the trial date in this case. Moreover, the Court has found that the delay is a result of the Government's lack of diligence in executing Defendant's arrest, as opposed to Defendant's evasion. Cf. Villarreal , 613 F.3d at 1355 ("[T]he strength of [the presumption of prejudice] is severely undermined, if not completely eliminated, when the defendant himself causes the delay through evasive tactics and is aware of the charges against him but fails to assert his right to a speedy trial."). However, it is not clear to the Court how the unavailability of two exculpatory defense witnesses—the person Defendant paid to retrieve his birth certificate from Cuba, and Defendant's mother who told Defendant he was born in Cuba—actually prejudices the defense as to the first count of the Indictment, which charges him with using a forged Venezuelan passport. See Indict. Thus, the Court finds that Defendant can demonstrate actual prejudice as to Count 2 of the Indictment based on the unavailability of exculpatory defense witnesses, but not as to Count 1 of the Indictment.
In sum, on de novo review, the Court agrees with the recommendation of the R&R that Defendant's Motion be granted. Accordingly, the Court overrules Defendant's objections to Magistrate Judge Louis's findings in the R&R.
IV. CONCLUSION
UPON CONSIDERATION of the Motion, the Response, the Reply, the R&R, the Objections, the Response to the Objections, the pertinent portions of the record, and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED that Magistrate Judge Louis's R&R (ECF No. 36) is ADOPTED IN PART as set forth herein, and the Government's Objections (ECF No. 42) to Magistrate Judge Louis's Report and Recommendation are OVERRULED. Defendant's Motion (ECF No. 26) is GRANTED. The Indictment (ECF No. 1) is DISMISSED. The Clerk of Court is INSTRUCTED to CLOSE this case. All pending motions, if any, are DENIED AS MOOT.
DONE AND ORDERED in Chambers at Miami, Florida, this 15th day of February, 2022.