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finding that government did not act with reasonable diligence where it "failed to follow-up on obvious leads that could have led them to the defendant"
Summary of this case from United States v. Gonzalez-MartinezOpinion
Case No.: CR 02-00788-CJC
2020-05-12
UNITED STATES of America, Plaintiff, v. Jose HERNANDEZ and Fernando Ezequiel Lopez, Defendants.
Christopher M. Brunwin, U.S. Attorneys, Los Angeles, CA, for Plaintiff. Manuel Lopez, Manuel Lopez Law Offices, Los Angeles, CA, for Defendants.
Christopher M. Brunwin, U.S. Attorneys, Los Angeles, CA, for Plaintiff.
Manuel Lopez, Manuel Lopez Law Offices, Los Angeles, CA, for Defendants.
ORDER GRANTING DEFENDANT FERNANDO LOPEZ'S MOTION TO DISMISS THE INDICTMENT [Dkt. 104]
CORMAC J. CARNEY, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
In July 2002, an indictment was returned against Defendant Fernando Ezequiel Lopez for one count of conspiracy to distribute heroin in violation of 21 U.S.C. § 846, and two counts of distribution of heroin in violation of 21 U.S.C. § 841(a). (Dkt. 15 [hereinafter "Ind."].) Nearly seventeen years later, in May 2019, the government arrested Mr. Lopez on these charges. (Dkt. 98.) Now before the Court is Mr. Lopez's motion to dismiss the indictment for violation of his Sixth Amendment right to a speedy trial. (Dkt. 104 [hereinafter "Mot."].) The Court held a hearing on this motion on May 12, 2020. Having considered the evidence and arguments submitted by the parties, Mr. Lopez's motion is GRANTED .
II. BACKGROUND
A. The DEA's Initial Investigation, Complaint, and Indictment
In 2000, the Drug Enforcement Administration ("DEA") began investigating Mr. Lopez and his alleged co-conspirator, Jose Hernandez (collectively "Defendants"), for distributing heroin. (Ind. at 1–2.) According to the indictment, Mr. Lopez, Mr. Hernandez, and a confidential source ("CS") reached an agreement for the sale and delivery of black tar heroin. (Id. ) On June 30, 2000, Mr. Lopez delivered a "sample" of heroin to the CS in Corona, California. (Id. at 3.) One week later, Mr. Lopez delivered approximately 125 grams of heroin to the CS. (Id. ) Later that month, Defendants arranged to sell the CS seventy ounces of heroin for $800 per ounce. (Id. ) In August 2000, Mr. Lopez delivered approximately 367 grams of heroin to the CS and received $13,500 as payment. (Id. )
B. The DEA's Initial Attempt to Arrest Mr. Lopez in July 2002
On July 15, 2002, a criminal complaint and arrest warrants were issued for Defendants, (Dkt. 1–2), and on July 26, 2002, an indictment was returned by a grand jury, (Ind.). On July 17, 2002, DEA agents and local law enforcement attempted to arrest Mr. Lopez and Mr. Hernandez at their respective residences. (Dkt. 118-1 [Declaration of DEA Special Agent Casey Rettig, hereinafter "Rettig Decl."]; Dkt. 118-2 [Declaration of Retired DEA Special Agent Dan Fugett, hereinafter "Fugett Decl."].) Mr. Hernandez was arrested and taken into custody. (Dkt. 84.) In February 2004, he pleaded guilty to one count of distributing heroin and was sentenced to 37 months of incarceration. (Dkt. 47–48.)
The Government's briefing does not address why there was a two-year gap between the alleged drug sales and the filing of the criminal complaint. (See Dkt. 118 [Government's Opposition to Motion to Dismiss the Indictment, hereinafter "Opp."] at 1–3.)
However, the government's July 17, 2002 attempt to arrest Mr. Lopez was not successful. According to the DEA's investigation report, DEA agents and Riverside County Sherriff's Department officers attempted to arrest Mr. Lopez at his last known address, 1717 West Tichenor Street, in Compton, California. (Dkt. 118-1 Ex. A [August 2002 DEA Investigation Report, hereinafter "Aug. 2002 DEA Inv. Report"] ¶ 2.) The officers spoke to Mr. Lopez's "uncle"—not named or otherwise identified in the report—who also lived at that address. (Id. ) Mr. Lopez's "uncle" told the officers that Mr. Lopez had stolen some of his belongings and left, that Mr. Lopez no longer lived there, that he had not seen Mr. Lopez for almost one year, and that he "thought [Mr. Lopez] might be in Mexico." (Id. ) According to the report, Mr. Lopez "could not be located and no additional information of [his] current whereabouts was provided." (Id. )
This apparently was the government's first and only attempt to arrest Mr. Lopez. On August 2, 2002, DEA Special Agent Casey McEntry prepared a "Fugitive Establishment Package" or "fugitive packet"—consisting of a Fugitive Declaration (DEA Form 202), NADDIS records, a photograph, and the indictment and arrest warrant for Mr. Lopez—and submitted it to nationwide law enforcement databases. (Aug. 2002 DEA Inv. Report ¶ 3.) The DEA then "delegated" authority to apprehend Mr. Lopez to the United States Marshalls Service ("USMS"). (Fugett Decl. ¶ 2.)
A second arrest warrant was issued for Mr. Lopez on July 26, 2002, (Dkt. 84), but was "returned unexecuted," (Dkt. 20).
C. The DEA's Efforts to Apprehend Mr. Lopez
After delegating "fugitive authority" to the USMS, the DEA's efforts to apprehend Mr. Lopez consisted of communicating with other agencies and searching online databases. In December 2003, Special Agent Dan Fugett contacted the DEA's El Paso Intelligence Center ("EPIC"), conducted a National Crime Information Center ("NCIC") check, and "continued to conduct local law enforcement checks and check credit and financial databases for information about Lopez." (Id. ¶ 5.) These efforts were unsuccessful. According to the government's materials, the DEA periodically conducted similar "case status checks" until Mr. Lopez's arrest in 2019. (See id. ¶¶ 6–11; Dkt. 118-4 [Declaration of DEA Task Force Officer Edgar Perez, hereinafter "Perez Decl."].) Specifically, agency records show that the DEA conducted case status checks in February and December 2003; August, October, and November 2004; March, June, September, and December 2005; December 2007; June, September, and December 2008; March, June, September, and December 2009; September and December 2010; March, June, September, and December 2011; March, June, and September 2012; January, June, and September 2013; January and September 2014; September 2015; September 2016; September 2017; and September 2018. (Perez Decl. ¶ 2.) The government has not offered any explanation for the two-year gap between December 2005 and December 2007. (See id. )
D. The USMS's Efforts to Apprehend Mr. Lopez
Although the USMS assumed "fugitive authority" in 2002, its efforts to locate Mr. Lopez primarily involved searching online databases. According to the declaration of Deputy United States Marshal Luis Flores, the USMS conducted regular database queries, including in December 2006, January 2007, October 2007, November 2012, February 2015, December 2015, and February 2017. (See Dkt. 118-3 [hereinafter "Flores Decl."].) These included searches of available databases for "regularly entered activity"—including vehicle registration, driver's license, and public utility records—and may have also included searches for credit bureau, Social Security, and DMV records. (Id. ¶ 3.) Because USMS records have been "purged," "additional reports and other notes by deputies concerning their efforts to locate Lopez are not available." (Id. )
Deputy Flores only started to participate in the search for Mr. Lopez in November 2011, and does not offer any details about the USMS's investigation before 2006. (See Flores Decl.)
DEA Special Agent Fugett describes a conversation he had with USMS Deputy Joe Exner in December 2003, who apparently told him that the USMS "was continuing to attempt to locate Defendant Lopez and that those efforts included talking to previous employers for Lopez, prior residences, and family members." (Fugett Decl. ¶ 5.) The Court cannot rely on this evidence—both because it is inadmissible hearsay, Fed. R. Evid. 801, and because it contains no details about what employers, residences, or family members the USMS contacted; when they were contacted; and what information was shared or received.
Other than these searches, Deputy Flores only describes two specific attempts to investigate Mr. Lopez's whereabouts—both of which took place in 2013, more than a decade after the indictment. First, USMS deputies in the District of Arizona attempted to interview unspecified "family members" about Mr. Lopez's location. (Id. ¶ 4.) Deputy Flores's declaration does not identify these family members, their relationship to Mr. Lopez, or the basis for the USMS's belief that they might have useful information. (See id. ) Nor does he specify whether the Arizona deputies were able to contact the "identified relatives." (See id. ) Instead, he testifies vaguely that "[d]eputies reported contact on January 11, 2013 with two persons who did not appear to know Lopez. The reporting deputy ... reported his belief that the son of the persons interviewed knew Lopez." (Id. )
Finally, in February 2013, USMS Deputy Scott Williams interviewed two other family members, Jesus Lopez-Beltran and Arellanes De Lopez, in the Western District of Texas. (Id. ¶ 5.) Arellanes De Lopez told the Deputy that Mr. Lopez had "lived with them in Compton in 1997, but that they had kicked Lopez out in 1998." (Id. ) Jesus Lopez-Beltran informed the Deputy that Lopez's father was his cousin, that Lopez's father lived in Zapotes, Mexico, and that "Lopez had a brother named Raul, who still lived in Los Angeles." (Id. ) Based on the government's evidence, the USMS made no attempt to follow-up on this information. It is also unclear what information Deputy Williams shared during this interview. (See id. ) Notably, Deputy Flores does not specify whether Deputy Williams told the family members that there was a pending indictment against Mr. Lopez. (See id. ) Finally, the government has not attempted to address whether Jesus Lopez-Beltran is the unidentified "uncle" interviewed by the DEA in 2002.
Deputy Williams also reported an unsuccessful attempt to interview Fernando Ceja Lopez and Monica Lopez. (Flores Decl. ¶ 5.)
E. Evidence That Mr. Lopez Lived Openly After His Indictment
Mr. Lopez has presented substantial—and essentially undisputed—evidence that he lived openly in Compton from the time of the indictment until his arrest. (See Dkt. 116, 122-1 [Exhibits to Declaration of Michael Chernis, hereinafter "Def. Ex."].) Since at least 2009, Mr. Lopez's true name, residential address, and/or date of birth have appeared in numerous public records, including the following:
• W2 and IRS forms, (Def. Ex. B [2009]; Def. Ex. E [2012]);
• Claims before the California Workers Compensation Board, (Def. Ex. J [2012]);
• Birth certificates, (Def. Ex. K [2004]; Def. Ex. L [2013]; Def. Ex. M [2015]);
• Traffic tickets, (Def. Ex. D, H, QQ [2014–2017]);
• Investigation Report from the Los Angeles County Sherriff's Department, (Def. Ex. G [2015]);
• Identification card and passport from the Mexican consulate, (Def. Ex. P–Q [January 2016]);
• Marriage certificate, (Def. Ex. R [February 2016]);
• California Driver License, (Def. Ex. S [July 2017]);
• Visa application to the Department of Homeland Security, (Def. Ex. X [2017]);
The government does not attempt to rebut this evidence and does not argue that Mr. Lopez ever lived outside of Compton during the relevant period.
F. May 2019 Arrest
In December 2018, the Glendale Police Department contacted the USMS and notified Deputy Flores that Mr. Lopez had been taken into state custody. (Flores Decl. ¶ 6.) Mr. Lopez had been stopped for a moving violation and arrested on a state warrant, apparently from a 2017 domestic violence incident. (Dkt. 118-5 [Declaration of Glendale Police Department Officer Eric Meyer]; Dkt. 118-5 Ex. A [November 2018 Glendale Police Department Report, hereinafter "Glendale PD Report"]; Dkt. 112 [Declaration of Fernando Lopez, hereinafter "F. Lopez Decl."] ¶¶ 42–43.) Mr. Lopez eventually pleaded guilty to the domestic violence charge and served 364 days in the Los Angeles County Jail. (F. Lopez Decl. ¶¶ 42–43.) On May 2, 2019, the day of his scheduled release, Mr. Lopez was taken into federal custody. (Id. ¶ 44; Dkt. 85–86.) On May 3, 2019, Mr. Lopez was arraigned and pleaded not guilty to the instant charges. (Dkt. 88.) Since then, Mr. Lopez has been detained in federal custody without bail. (See Dkt. 94 [Detention Order].)
III. LEGAL STANDARD
"The Sixth Amendment guarantees that, in all criminal prosecutions, the accused shall enjoy the right to a speedy trial." Doggett v. United States , 505 U.S. 647, 651, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). Not all post-indictment delays violate the Sixth Amendment. To determine whether a delay violates a defendant's right to a speedy trial, the court must balance four factors articulated by the Supreme Court in Barker v. Wingo : (1) the length of delay, (2) the reason for the delay, (3) the defendant's assertion of his speedy trial right, and (4) prejudice to the defendant. 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The Barker test "prescribes flexible standards based on practical considerations." Strunk v. United States , 412 U.S. 434, 438, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973) (internal quotation omitted). But there is no such flexibility as to the appropriate remedy. Although "it means that a defendant who may be guilty of a serious crime will go free," if a court finds that a speedy trial has been denied, "the only possible remedy" is to dismiss the indictment. See Barker , 407 U.S. at 522, 92 S.Ct. 2182 ; Strunk , 412 U.S. at 438–39, 93 S.Ct. 2260.
IV. ANALYSIS
A. Length of Delay
In Barker , the Supreme Court described the length of delay as both a substantive factor in the speedy trial analysis and "a triggering mechanism." 407 U.S. at 530–31, 92 S.Ct. 2182. "Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance." Id. "[T]he length of the delay is measured from the time of the indictment to the time of trial" and, "[g]enerally, a delay of more than one year is presumptively prejudicial." United States v. Mendoza , 530 F.3d 758, 762 (9th Cir. 2008) (internal citations and quotations omitted). In this case, the indictment was returned on July 26, 2002, and Mr. Lopez was not arraigned until May 3, 2019. The Court finds that this almost seventeen-year delay creates a presumption of prejudice and triggers an inquiry into the other three Barker factors. See id. (finding the same for a ten-year delay). The Court's next step is to consider this delay in light of the government's efforts to apprehend Mr. Lopez and Mr. Lopez's conduct. See id. B. Reason for the Delay
The delay in this case also implicates Mr. Lopez's due process rights under the Fifth Amendment. When Mr. Lopez allegedly sold heroin to the CS, he was twenty-four years old. He is forty-four today. This twenty-year gap pushes the limit of those "fundamental conceptions of justice which lie at the base of our civil and political institutions." See Mooney v. Holohan , 294 U.S. 103, 112, 55 S.Ct. 340, 79 L.Ed. 791 (1935).
The second Barker factor requires the Court to consider the reason for the challenged delay. "A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government." Barker , 407 U.S. at 531, 92 S.Ct. 2182. However, even "a more neutral reason such as negligence or overcrowded courts" also weighs against the government, "since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant." Id. By contrast, "a valid reason, such as a missing witness, should serve to justify appropriate delay." Id.
"The government has ‘some obligation’ to pursue a defendant and bring him to trial." Mendoza , 530 F.3d at 762–63 (quoting United States v. Sandoval , 990 F.2d 481, 485 (9th Cir. 1993) ). "If the government fulfills that obligation by pursuing a defendant with reasonable diligence, the defendant does not have a speedy trial claim." Id. at 763 (citing Doggett , 505 U.S. at 656, 112 S.Ct. 2686 ). Indeed, the government is not required to "make heroic efforts to apprehend a defendant who is purposefully avoiding apprehension." Sandoval , 990 F.2d at 482 (internal quotations omitted). "However, if the defendant is not attempting to avoid detection and the government makes no serious effort to find him, the government is considered negligent in its pursuit." Mendoza , 530 F.3d at 763 (citing Doggett , 505 U.S. at 653, 112 S.Ct. 2686 ).
Mr. Lopez asserts that the government was negligent in its attempts to locate and arrest him. The government responds that its efforts to arrest Mr. Lopez were sufficient and that Mr. Lopez actively evaded detection. The Court agrees with Mr. Lopez.
1. The Government Was Negligent in Its Efforts to Apprehend Mr. Lopez.
The government was not reasonably diligent in its efforts to apprehend Mr. Lopez. While he was under investigation in 2000, 2001, and part of 2002, Mr. Lopez lived with his cousin, Jesus Lopez, at 1717 West Tichenor Street, Compton, California, but often stayed at the home of his then-girlfriend (now his wife), Jania, at 2137 East Piru Street, Compton, California. (F. Lopez Decl. ¶¶ 6–7; Dkt. 113 [Declaration of Jania Pinto Lopez, hereinafter "J. Lopez Decl."] ¶¶ 5–6; Dkt. 115 [Declaration of Nubia Pinto, hereinafter "Pinto Decl."] ¶¶ 3–4.) The DEA had this information, but made no attempt to use it. In a DEA report from August 2000, 2137 East Piru Street is listed as Mr. Lopez's address, and Jania's landline at that address is listed as Mr. Lopez's phone number. (Def. Ex. A; F. Lopez Decl. ¶ 8.) The report also shows that Mr. Lopez used this number for phone calls with the CS. (Def. Ex. A; see F. Lopez Decl. ¶ 8.) Nevertheless, after the DEA's sole attempt to arrest Mr. Lopez at Tichenor Street on July 17, 2002, the government never tried to locate him at the East Piru Street address.
In fact, Mr. Lopez moved in with Jania permanently sometime in 2002, and lived with her and her sister in a different house on the same block of East Piru Street—which they rented from the same landlord as the previous address, Mr. Baca—until June 2004. (See F. Lopez Decl. ¶¶ 8–12; J. Lopez Decl. ¶¶ 7–10; Pinto Decl. ¶¶ 5–8.) They also transferred the same landline phone number—which the government had in its files—from the first East Piru Street address to the second. (See id. ) In June 2004, Mr. Lopez and Jania moved to a house on East Lucien Street—less than five blocks away—and, once again, transferred the same home phone number. (F. Lopez Decl. ¶¶ 12–13.) The East Lucien Street house was purchased by one of Jania's sisters from Mr. Baca, their landlord at East Piru Street. (Id. ) Jania and Mr. Lopez lived on East Lucien Street until May 2015. (Id. ¶ 15.) All told, for thirteen years, Mr. Lopez lived within half a mile of an address listed as his residence in the DEA's records and continued using a phone number linked to that residence by the government.
The government also failed to pursue another obvious lead after the indictment—Mr. Lopez's place of employment. Mr. Lopez worked at T&J Liquor Store in Compton from approximately 2001 through 2004. (See F. Lopez Decl. ¶ 17.) In a February 2001 DEA investigation report, Mr. Lopez paged the CS from the T&J Liquor Store phone number and told the CS to meet him at the store. (See Def. Ex. I.) However, the government never attempted to locate Mr. Lopez at the store or to otherwise use this information.
Similarly, in March 2003, Special Agent Fugett interviewed Mr. Hernandez and asked for information about Mr. Lopez's whereabouts. (Fugett Decl. ¶ 4.) Mr. Hernandez apparently explained that "he did not know where Lopez was residing," but offered information about two of Mr. Lopez's relatives—Jesus Lopez and Fidel Chaidez. (Id. ) Mr. Hernandez also gave Special Agent Fugett the name of a bar that Mr. Lopez used to frequent. (Id. ) Based on the evidence in the record, the DEA made no attempt to contact these relatives, visit the bar, share these leads with the USMS, or otherwise use this information. (See id. ) Nor did the government follow-up on its initial arrest attempt at the Tichenor Street Address by making a second visit or surveilling the area. Instead, its efforts after July 2002 consisted almost entirely of intermittent and selective database searches.
But even these passive efforts to locate Mr. Lopez suffered from glaring deficiencies. Although the DEA claims to have conducted regular case status checks to locate Mr. Lopez, it failed to conduct a single check between December 2005 and December 2007. (See Perez Decl. ¶ 2.) Similarly, the fugitive packet prepared by the DEA in 2002 was missing key materials. It should have included a photograph or mugshot of Mr. Lopez. (See Aug. 2002 DEA Inv. Report ¶ 3.) However, in a December 2006 USMS Investigation Report, a USMS deputy reviewing Mr. Lopez's file discovered that "[t]here is no photo for subject, no photo was provided by DEA." (Def. Ex. PP.) According to the report, "[USMS] Deputy Exner's attempts to obtain photo [were] unsuccessful" and calls to the DEA's Riverside office went unanswered. (Id. )
The government contends that—despite these failures—it acted with reasonable diligence based on its initial attempt to arrest Mr. Lopez in July 2002. The Court disagrees. The government's investigation revealed two different residential addresses associated with Mr. Lopez. At the very least, basic due diligence required the government to make some attempt to locate him at both addresses. See Sandoval , 990 F.2d at 482. Because the two residences were only a few miles apart, such an investigation would not have required "heroic efforts." See id. If a defendant has not fled the country, relying solely on online searches and the entry of an arrest warrant into government databases is not considered "diligent." See United States v. Vasquez , 15 F. Supp. 3d 1000, 1003 (E.D. Cal. 2014) (citing Mendoza , 530 F.3d at 763 ); United States v. Beamon , 992 F.2d 1009, 1013 (9th Cir. 1993). Moreover, even if these passive efforts could satisfy a reasonable diligence standard, the government executed them negligently. It failed to conduct case status checks for two years and neglected to include Mr. Lopez's photograph in the fugitive packet. The government points out that, in certain analogous Ninth Circuit cases, courts have found efforts to apprehend a defendant negligent because the government failed to make any attempt to locate the accused. See, e.g., United States v. Barragan , 2015 WL 3548532, at *3 (N.D. Cal. June 5, 2015) ("Missing from the Government's activity was any follow-up at known addresses for Mr. Barragan."). The government points out that its efforts here cleared this low bar—the DEA did, in fact, make at least one attempt to locate Mr. Lopez. The Court is not persuaded. The relevant question is not whether the government made any effort to locate him, but whether it acted with "reasonable diligence." See Mendoza , 530 F.3d at 762–63. The Court finds that it did not. Like in Mendoza , the government failed to follow-up on obvious leads that could have led them to the defendant. See id. (noting that the government "had Mendoza's wife's telephone number and the telephone number of Mendoza's relatives in the Philippines" but failed to use them); see also Barragan , 2015 WL 3548532, at *3 (noting that the government could have learned defendant's address if it ran a DMV check).
Several courts in this circuit have found the government's efforts negligent on similar facts. For example, in United States v. Vasquez , the government surveyed the defendant's last known address approximately ten times over a six-month period, but then ended its surveillance and relied exclusively on database searches. See 15 F. Supp. 3d at 1004. The district court held that the government did not act with sufficient diligence, mainly because the defendant had a job that the government could have easily discovered through a thorough investigation. Id. at 1004, n.2. Here, the government's investigation had already produced the name and location of Mr. Lopez's employer, but the government simply failed to act on that information. And, like in Vasquez , the evidence suggests that Mr. Lopez continued to live and work openly after the indictment. Finally, in this case, unlike Vasquez , the government's initial attempt to arrest Mr. Lopez did not involve any surveillance, but only a single visit to one of his last-known residences. See id. ; United States v. Serrano , 829 F. Supp. 2d 910, 913 (S.D. Cal. 2011) (finding the government's efforts negligent because it failed to follow-up on a single attempted contact and took no action to apprehend the defendant for several years).
The Court is similarly unpersuaded by the government's reference to cases where passive efforts to apprehend a defendant using online tools were found to be reasonably diligent. In these cases, the defendant had fled the country, so law enforcement had few options but to rely on these passive tools. See, e.g., Sandoval , 990 F.2d at 485 ; United States v. Aguirre , 994 F.2d 1454, 1457 (9th Cir. 1993) ; United States v. Corona-Verbera , 509 F.3d 1105 (9th Cir. 2007) ; see also Serrano , 829 F. Supp. 2d at 913 ("While periodic database checks may suffice in a case like Corona-Verbera , where the defendant fled to Mexico and it was highly unlikely he could be extradited, the Court finds they fall short in this case.").
It is no mystery why the government devoted limited resources to locating Mr. Lopez. As the DEA noted in Mr. Lopez's fugitive packet, he was not a "priority target." (Def. Ex. SS.) "The court would have to be blind to reality not to recognize that law enforcement agencies must often make choices, based on limited resources, to investigate some matters less thoroughly than others and search less diligently for some individuals than for others," and "[i]t is not for the court to fully understand or second-guess those decisions." Vasquez , 15 F. Supp. 3d at 1003. However, "when law enforcement decides not to diligently search for a particular defendant, the government may have to bear the responsibility for any prejudice the defendant suffers as a result of that decision." Id. The government must now bear that responsibility in this case.
2. The Government Has Not Presented Evidence that Mr. Lopez Evaded Arrest.
The government claims that Mr. Lopez was actively attempting to avoid detection and, therefore, its efforts to locate and arrest him were sufficient. As the government correctly points out, "[i]f 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." United States v. Aguirre , 994 F.2d 1454, 1456 n.3 (9th Cir. 1993). However, the record in this case reveals that Mr. Lopez never attempted to evade arrest.
The government relies heavily on the statements of Mr. Lopez's "uncle" that he had not seen Mr. Lopez for a year and that Mr. Lopez might be in Mexico. According to the government, these statements "could have been an effort to deter agents in their arrest effort." (Opp. at 11.) As an initial matter, the Court is reluctant to hold Mr. Lopez responsible for comments made by an unidentified family member. Regardless, Mr. Lopez has presented evidence that he moved in with Jania around this time, so his "uncle" could have correctly told the officers that he was no longer living at Tichenor Street. Any confusion about the exact timeline of this move—Mr. Lopez contends that he moved in "mid-2002," while his "uncle" apparently said that he had not seen Lopez for a year—does not show evasive conduct.
The government also argues that the timing of Mr. Lopez's move to East Piru Street is suspicious. (Opp. at 8.) Maybe so. But this argument carries little weight given that the government failed to act on information that would have led them directly to the East Piru address and to Mr. Lopez's place of employment. Again, it would not have required "heroic efforts" for the government to use this information. See Sandoval , 990 F.2d at 482. Absent other evidence of evasion, the timing of Mr. Lopez's decision to move in with the woman he would eventually marry and raise a family with does not show that he evaded arrest—especially in light of the countervailing evidence that he lived openly in the same neighborhood for the next fifteen years.
Finally, the government argues that "it is not credible" for Mr. Lopez to claim that he did not know about the arrest attempt at Tichenor Street. (Opp. at 8.) The Court finds this argument misplaced. The question is whether Mr. Lopez actively evaded arrest, not whether he knew that the government was looking for him. See Barker , 407 U.S. at 527, 92 S.Ct. 2182 ("A defendant has no duty to bring himself to trial; the State has that duty as well as the duty of insuring that the trial is consistent with due process.") (footnotes omitted). The possibility that Mr. Vasquez knew he was being sought, but did not turn himself in, does not establish that he actively evaded arrest.
Mr. Lopez has presented overwhelming evidence that he was living openly in Compton, especially during the second half of the sixteen-year period between the indictment and his arraignment. In March 2012, Mr. Lopez received a Taxpayer Identification Number from the Internal Revenue Service using his true residential address, full name, and date of birth. (Def. Ex. E.) In October 2015, Mr. Lopez was assaulted by a neighbor and reported the incident to the Los Angeles County Sherriff's Department. (Def. Ex. G.) The Sherriff's Department report lists Mr. Lopez's home address and phone number. (Id. ) According to the Sherriff's Department, Mr. Lopez's "continued cooperation led to the arrest and felony conviction of the suspect in the case," (see Def. Ex. W), and Mr. Lopez declares that he worked with the District Attorney and gave testimony in open court, (F. Lopez Decl. ¶ 31.)
The government argues that Mr. Lopez was using a "false name" at the time of his arrest: "Fernando Ezequiel Lopez Rodriguez." (Opp. at 4–5.) However, Mr. Lopez has shown that this is his full legal name. (See Def. Ex. P–Q, S–T, OO.) The fact that Mr. Lopez used both of his surnames in some contexts but not others does not show evasive conduct—especially given that he used his true date of birth in these same records. (See Def. Ex. B, D, E, P–T, OO.)
After a fight with Jania in 2017, Mr. Lopez appeared in Los Angeles County Superior Court for a child custody case filed by the California Department of Child and Family Services. (Id. ¶ 36; Def. Ex. T–V.) This led to a restraining order against him, (Def. Ex. V), which was lifted after he completed counseling, family therapy, and domestic violence classes, (Def. Ex. U; see also Lopez Decl. ¶¶ 36–37). Finally, in November 2017, Mr. Lopez applied for a U-visa from the Department of Homeland Security and was fingerprinted by U.S. Citizenship and Immigration Services. (Def. Ex. X; Lopez Decl. ¶¶ 38–39.) This evidence is impossible to square with the government's theory that Mr. Lopez was evading arrest during this time.
The government contends that, when Mr. Lopez was arrested by the Glendale Police Department in 2018, he was a "fugitive" from the state warrant for domestic violence. (Opp. at 5.) Mr. Lopez responds that he did not know about the state warrant. (Lopez Decl. ¶ 42.) This is strongly corroborated by the fact that he made several appearances in a civil case related to the same charges and completed court-ordered counseling and training. (See Def. Ex. T–V.) The government also emphasizes that, when he was arrested in Glendale, Mr. Lopez was "transporting bricks of counterfeit $100 bills." (See Opp. at 5.) According to the arresting officer's report, Mr. Lopez claimed that it was fake money for movie sets that he planned to give his children to play with. (Glendale PD Report.)
Simply stated, Mr. Lopez was "not attempting to avoid detection," the government was negligent in its efforts to apprehend him, and, therefore, the government is responsible for the lengthy delay between Mr. Lopez's indictment and arraignment. See Mendoza , 530 F.3d at 763.
C. Timely Assertion of Right
The third Barker factor requires the Court to consider whether and how Mr. Lopez asserted his speedy trial right, and whether his failure to assert that right contributed to the delay. See Barker , 407 U.S. at 531, 92 S.Ct. 2182. However, "[a] defendant has no duty to bring himself to trial." See id. at 527, 92 S.Ct. 2182. Accordingly, a defendant's obligation to assert his speedy trial right only arises after he knows that he has been indicted. See Mendoza , 530 F.3d at 764 ; United States v. Asiegbu , 2009 WL 413132, at *5 (C.D. Cal. Feb. 17, 2009) ("[T]he third factor does not weigh against a defendant who fails to assert his right to a speedy trial because he is ignorant that an indictment has been returned against him."); cf. Sandoval , 990 F.2d at 485 (holding that the defendant had no speedy trial claim because he was "well aware of the indictment against him [and] skipped bail and became a fugitive to avoid prosecution").
Mr. Lopez stated under oath that he had no knowledge of the indictment in this case until he was taken into federal custody in May 2019. (F. Lopez Decl. ¶ 44.) The government argues that this proclaimed ignorance is not credible in light of the July 2002 arrest attempt and Mr. Hernandez's conviction. (Opp. at 11–12.) Again, the Court is not persuaded by the government's argument.
First, the DEA's report from the attempted arrest does not detail what information the officers shared with Mr. Lopez's "uncle." (See Aug. 2002 DEA Inv. Report at 1.) Notably, it does not specify whether they told the "uncle" that they had an arrest warrant. (See id. ) Regardless, it would have been impossible for the officers to tell Mr. Lopez's family about the indictment at this time, because it was not issued until nine days later, on July 26, 2002. (Compare id. with Ind.) Indeed, other than the USMS's efforts to interview out-of-state family members in 2013, the government has not presented any evidence of any communications with Mr. Lopez or his family after the indictment was returned. Accordingly, the government's theory—that Mr. Lopez must have learned about the indictment from his family—has no evidentiary support in the record and is pure speculation.
Nor has the government explained why the prosecution of Mr. Hernandez would have notified Mr. Lopez of an indictment against him. Even if the government's evidence suggests that Mr. Lopez may have known he was under investigation, the government has presented no evidence that he knew about the indictment. And Mr. Lopez's testimony that he knew nothing about the indictment is corroborated by several family members. (See F. Lopez Decl. ¶ 44; Pinto Decl. ¶ 6; J. Lopez Decl. ¶ 4.)
After learning about the indictment in May 2019, Mr. Lopez timely asserted his speedy trial right through counsel. Although the instant motion was not filed until February 2020, counsel for Mr. Lopez spent the intervening months attempting to conduct discovery and gathering evidence to support this motion. (See Dkt. 111 [Declaration of Michael Chernis].) The Court finds that counsel prepared this fact-intensive motion in a timely and diligent manner and did not contribute to the challenged delay. Cf. Mendoza , 530 F.3d at 762 (defendant failed to assert his right to a speedy trial until after numerous continuances that delayed trial for over a year).
D. Prejudice
The fourth and final Barker factor requires the Court to consider whether Mr. Lopez suffered prejudice as a result of the post-indictment delay. Barker , 407 U.S. at 532, 92 S.Ct. 2182. The most serious form of prejudice is "the possibility that the defense will be impaired" because "the inability of a defendant adequately to prepare his case skews the fairness of the entire system." Id. Under binding Ninth Circuit precedent, "no showing of prejudice is required when the delay is great and attributable to the government." United States v. Shell , 974 F.2d 1035, 1036 (9th Cir. 1992) (citing Doggett , 505 U.S. at 657–58, 112 S.Ct. 2686 ); see Mendoza , 530 F.3d at 764 (quoting this rule). Moreover, "[t]he presumption that pretrial delay has prejudiced the accused intensifies over time." McNeely v. Blanas , 336 F.3d 822, 831 (9th Cir. 2003).
Because the Court finds that the Government was negligent in pursing Mr. Lopez, and that this negligence caused the lengthy delay between his indictment and arraignment, Mr. Lopez is not required to make a specific showing of prejudice. See Shell , 974 F.2d at 1036 ; Serrano , 829 F. Supp. 2d at 914 (finding the same). The government has not rebutted the presumption that Mr. Lopez suffered prejudice because of this delay—instead, it rests entirely on the argument that he is responsible for causing it. (See Opp. at 14); Mendoza , 530 F.3d at 764 (holding that where "the government did not exercise due diligence," there is "a strong presumption that [defendant] suffered prejudice").
V. CONCLUSION
After balancing the Barker factors, the Court finds that the almost seventeen-year delay between Mr. Lopez's indictment and arraignment violated his Sixth Amendment right to a speedy trial. The Government made no serious effort to apprehend Mr. Lopez, who was living, working, and raising a family openly during this period. Accordingly, Mr. Lopez's Motion to Dismiss the Indictment is GRANTED .
The Court HEREBY ORDERS that this case, 2:02-cr-00788-CJC, be dismissed.
The Court FURTHER ORDERS that Mr. Lopez be released from the custody of the United States Marshals Service solely with respect to this case, 2:02-cr-00788-CJC.