Opinion
Case No. 19-cr-00653-JD-1
2021-05-18
UNITED STATES of America, Plaintiff, v. Leonidas MARADIAGA, Defendant.
Alexis Jane Loeb, Assistant US Attorney, United States Department of Justice U.S. Attorney's Office, San Francisco, CA, for Plaintiff. David W. Rizk, Office of the Federal Public Defender, San Francisco, CA, Defendant.
Alexis Jane Loeb, Assistant US Attorney, United States Department of Justice U.S. Attorney's Office, San Francisco, CA, for Plaintiff.
David W. Rizk, Office of the Federal Public Defender, San Francisco, CA, Defendant.
ORDER RE MOTION TO DISMISS
Re: Dkt. No. 70
JAMES DONATO, United States District Judge
Counsel for defendant Maradiaga has filed a motion to dismiss the indictment in this case. Dkt. No. 70. Maradiaga himself was removed from the United States by Immigration and Customs Enforcement (ICE), and cannot be located. The indictment is dismissed without prejudice.
In February 2020, Maradiaga pleaded guilty to one count of possession with intent to distribute and distribution of cocaine base in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C). Dkt. No. 17. As discussed in more detail in the Order re Discovery, Dkt. No. 60, Maradiaga was ordered released from custody in April 2020 pending his sentencing later that month. Immediately after he was released, ICE agents took him into custody at the Yuba County Jail pursuant to an immigration detainer. ICE reinstated an October 2012 order of removal against Maradiaga.
Maradiaga's detention by ICE happened in the early stage of the COVID-19 pandemic, and his counsel could not readily communicate with him. See, e.g. , Dkt. Nos. 32, 56-1. After Maradiaga's counsel raised concerns about his inability to access his client, see Dkt. No. 32, the Court permitted Maradiaga to withdraw a prior waiver of his right to be present at sentencing, Dkt. No. 33. The Court asked whether the government intended to pursue a sentencing hearing, and if so, when. Dkt. No. 33. In light of the immigration developments, the Court ended up continuing a sentencing date pending further order. Dkt. No. 40.
While all of this was happening, a magistrate judge granted defendant's request to conduct discovery into the circumstances surrounding his immediate detention by ICE after being released from custody in this case. Dkt. No. 29. The Court vacated the discovery order because the government was not barred from electing to pursue immigration issues rather than a criminal prosecution. Dkt. No. 60.
In May 2020, the government advised the Court that Maradiaga's removal was imminent and asked that he be sentenced immediately via telephone or video conference. Dkt. No. 62. The Court denied that request in light of Maradiaga's right to be present, which he did not waive. Dkt. No. 63 (citing Fed. R. Crim. P. 43(a)(3) ). Maradiaga was removed to Honduras on May 22, 2020. Dkt. No. 65.
Since removal, Maradiaga has not been locatable by his lawyer. See Dkt. No. 70 at 4-5 n.3. The government does not know where Maradiaga is or how to contact him.
After the case languished in limbo for almost six months, Maradiaga's counsel filed on his behalf a motion to dismiss the indictment with prejudice. Dkt. No. 70. The motion is based mainly on the argument that Maradiaga's right to be present at his sentencing and pursue an appeal will be violated if this case remains open indefinitely, or if the Court sentences him in absentia. The motion also revisits the due-process concerns about the government's overall conduct, which the Court definitively addressed in the discovery order and will not re-open here. See Dkt. No. 60.
Dismissal of the indictment is amply warranted. The Court has the inherent power to dismiss an indictment when that would serve the ends of justice. See United States v. Bundy , 968 F.3d 1019, 1030 (9th Cir. 2020). The Court declines to ignore Maradiaga's right of participation and impose a sentence in absentia. Maradiaga has a legal right to be present at his sentencing. Fed. R. Crim. P. 43(a)(3) ; United States v. Ornelas , 828 F.3d 1018, 1021 (9th Cir. 2016) (Constitution protects "right to be present at one's trial and sentencing," and Rule 43 offers "broader" protection of this right than "the Constitution alone"); see also Fed. R. Crim. P. 32(b)(1).
The government suggests that an in absentia sentence is warranted because Maradiaga has in effect waived his right to be present. See Dkt. No. 72 at 1, 11. This is an odd thing to say. Maradiaga is not present for sentencing because the government removed him from the United States. This is not at all a case where the defendant fled a jurisdiction of his own volition or simply failed to show up at his sentencing. Cf. Ornelas , 828 F.3d at 1021-22 (trial court reasonably found that defendant had waived right to be present at sentencing because he failed to appear and his counsel gave no explanation for his absence).
Letting this case dangle for even longer is not an acceptable outcome. Federal Rule of Criminal Procedure 32(b)(1) requires the Court to sentence Maradiaga "without unnecessary delay." The Supreme Court has signaled, without necessarily deciding, that an "undue delay" before sentencing violates constitutional due process. Betterman v. Montana , ––– U.S. ––––, 136 S. Ct. 1609, 1617-18, 194 L.Ed.2d 723 (2016). While the Supreme Court has not stated a specific test for analyzing a claim of undue delay in sentencing, it has offered the non-binding comment that "[r]elevant considerations may include the length of and reasons for delay, the defendant's diligence in requesting expeditious sentencing, and prejudice." Id. at 1619 n.12.
In other contexts where a person's rights have been impacted by a delay in proceedings, courts have applied the same substantive factors, as discussed in Barker v. Wingo , 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), to analyze whether a due process violation has occurred. Betterman , 136 S. Ct. at 1619 (Sotomayor, J., concurring) (citing United States v. $8,850 , 461 U.S. 555, 564, 103 S.Ct. 2005, 76 L.Ed.2d 143 (1983) and United States v. Sanders , 452 F.3d 572, 577 (6th Cir. 2006) (collecting cases)); see also Doggett v. United States , 505 U.S. 647, 651-58, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). The factors are: (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of his rights, and (4) prejudice from the delay. Barker , 407 U.S. at 530, 92 S.Ct. 2182 (applying this test to asserted deprivation of speedy trial right under Sixth Amendment). The parties applied this test in their briefs, see Dkt. No. 70 at 5-6; Dkt. No. 72 at 4-5, and the Court will do the same.
The Barker factors weigh in favor of dismissal. The salient delay now looks to be indefinite. Nearly a year has passed since Maradiaga's removal, and the parties have no idea where he is or how to reach him. This supports dismissal.
So too for the reason for the delay. The government doubles down on its rather doubtful suggestion that Maradiaga is to blame for his absence to add that he brought this situation on himself by entering the United States illegally in the first place. See Dkt. No. 72 at 7. That has nothing do with why he is not available today for sentencing. As discussed, it was the government, not Maradiaga, who created this situation. The government points to nothing showing that Maradiaga had meaningful input into the decision to remove him before his sentencing could be completed. For this reason, the government is incorrect to rely on cases where a defendant impliedly consented to a long period of delay before sentencing by simply failing to object, or candidly admitted to having no interest in speedy proceedings. See Dkt. No. 72 at 7 (citing Miller v. Aderhold , 288 U.S. 206, 210, 53 S.Ct. 325, 77 L.Ed. 702 (1933) ; United States v. Martinez , 837 F.2d 861, 867 (9th Cir. 1988) ).
The government's effort to cast doubt on Maradiaga's lawyer is also wholly unpersuasive. It suggests that Maradiaga's counsel contributed to the delay in his sentencing by asking for discovery relating to his detention by ICE, but nothing in the record indicates that this is true, or that defense counsel acted in bad faith. To the contrary, while the Court concluded that discovery was not warranted, Dkt. No. 60, it was not unreasonable for Maradiaga's counsel to be concerned about an immediate ICE detention right after his client's release from custody in this case. It was also not unreasonable for Maradiaga's counsel to insist on having "more than 12 hours" to meaningfully consult with his client and immigration counsel instead of acquiescing to the government's last-minute request for an immediate sentencing. Dkt. No. 62 at 2.
Because Maradiaga is faced with an indefinite sentencing delay that he did not create, it hardly seems necessary to discuss the other Barker factors. Even so, the Court finds that the third factor does not help the government. Maradiaga's counsel asserted his client's right to be sentenced in person by asking to withdraw his appearance waiver. Dkt. No. 32. For the fourth factor, the Supreme Court has recognized that long delays in criminal proceedings have adverse effects on defendants, and impair their ability to mount a defense. See Betterman , 136 S. Ct. at 1614. Maradiaga pleaded guilty pursuant to Federal Rule of Criminal Procedure 11(c)(1)(A) and (c)(1)(B). Dkt. No. 15. Although the parties recommended a sentence of time served, the Court was certainly not bound by that proposal. Maradiaga would necessarily have had a keen interest in being present before the Court to advocate for a specific sentence.
Overall, the circumstances here amply warrant a dismissal of the indictment. The remaining question is whether it should be with or without prejudice. Dismissal with prejudice is a severe sanction, and the Court may order it only if it finds that a lesser remedy would be inadequate. Bundy , 968 F.3d at 1043. This is generally true only when the government has engaged in "flagrant" misconduct. E.g., United States v. Chapman , 524 F.3d 1073, 1085 (9th Cir. 2008) (quoting United States v. Simpson , 927 F.2d 1088, 1091 (9th Cir. 1991) ).
The motion to dismiss seeks to argue that the government's conduct here was just that in light of the ICE detention, see Dkt. No. 70 at 8, but that goes too far. The Court explained why in the discovery order.
The indictment is dismissed without prejudice.