No. 97-2295United States Court of Appeals, Sixth Circuit.Argued: December 11, 1998
Decided and Filed: February 26, 1999 Pursuant to Sixth Circuit Rule 206
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Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 92-80940 — Horace W. Gilmore, District Judge.
ARGUED: Jennifer J. Peregord, OFFICE OF THE U.S. ATTORNEY, Detroit, Michigan, for Appellant. S. Allen Early, III, LAW OFFICES OF S. ALLEN EARLY, Detroit, Michigan, for Appellee.
ON BRIEF: Jennifer J. Peregord, OFFICE OF THE U.S. ATTORNEY, Detroit, Michigan, for Appellant. S. Allen Early, III, LAW OFFICES OF S. ALLEN EARLY, Detroit, Michigan, for Appellee.
Before: SUHRHEINRICH and CLAY, Circuit Judges; CARR, District Judge.[*]
CLAY, Circuit Judge.
[1] The government appeals from the district court’s order dismissing with prejudice an indictment against the defendant, Brian Brown, for conspiracy and attempted possession with intent to distribute cocaine on the grounds that the delay in prosecution violated his Sixth Amendment right to a speedy trial. The government contends that the criminal indictment against Brown should not have been dismissed on speedy trial grounds since most of the pretrial delay was caused by Brown’s prolonged efforts to avoid arrest, and because Brown cannot prove that he has been substantially prejudiced by the delay. For the reasons stated herein, we AFFIRM the judgment of the district court.I.
[2] Brown and an accomplice, subjects of an FBI investigation, were arrested by the FBI on June 9, 1992, when they allegedly arranged to purchase twenty kilograms of cocaine from an undercover agent. Brown was arrested at the drug transfer site and had in his possession the keys to a car containing approximately $166,000 in cash. Later that day, the FBI released Brown to the custody of his attorney, John Royal, with the agreement that the FBI would contact Royal to surrender his client if criminal charges were filed. By letter dated June 22, 1992, Royal communicated to the United States Attorney’s office that he represented Brown and requested specifically that “if an indictment or information is issued, please notify me immediately, and I will produce Mr. Brown for arraignment.”
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of Brown’s grandmother’s home, where Brown occasionally resided. The government alleges that in January 1993, Brown recognized FBI agents in an unmarked car, and he hurried into the passenger side of a BMW automobile that sped away from his grandmother’s home. The government asserts that Brown drove across residential lawns in an attempt to evade the FBI. During the next few months, when the FBI spoke to various members of Brown’s family, they stated that they had not seen Brown recently and did not know how to contact him. Although Brown’s grandmother suggested that the FBI call Royal and provided Royal’s telephone number to the agents, the FBI did not contact Royal. The FBI concluded that Brown was evading arrest, designated the case “fugitive status,” and assigned the case to an investigative squad in November 1993.
[5] Brown’s whereabouts became known to the government on October 5, 1996, when he was arrested by the Michigan State Police for carrying a concealed weapon. Although he used an alias, the police discovered Brown’s true identity through fingerprints and visual comparison with a previous arrest photograph. Brown told authorities that Royal was his attorney. Royal avers that he first learned of the federal warrant for Brown’s arrest when he went to the police station on October 6, 1996, to visit his client and inquire about his arrest on the state charges.[1] [6] A federal detainer for Brown’s custody was obtained on October 9, 1996. Brown posted bond on the state charges on October 20, 1996, and was at that point available for release to the government on the federal charges. Despite a call by local authorities to the United States Marshal’s office confirming Brown’s release from state custody, Brown remained in state jail pursuant to the detainer. [7] During this time, the FBI attempted to find out who was prosecuting Brown’s case. When agents spoke to an AUSA once assigned to Brown’s case, the AUSA said that he did not know who was in charge of the case and did not return later phone calls. Brown’s federal case remained inactive until May 1997, when the FBI was informed that a third AUSA had been assigned to the case. However, since the AUSA was unfamiliar with the case, the AUSA did not meet with an agent of the FBI to discuss the case until July 1997. [8] Royal, on behalf of Brown, filed a demand for speedy trial under the Sixth Amendment and Fed.R.Crim.P. 48 in the district court on January 17, 1997. However, the demand made no mention of the fact that Brown remained incarcerated in jail pursuant to the federal detainer despite entitlement to release on the state charges. Brown received no response to this demand and remained in state prison for six more months, at which time Brown’s new counsel filed a motion to dismiss the indictment on July 8, 1997. In response, the government filed a petition for a writ of habeas corpus ad prosequendum in the district court on July 8, 1997, to bring Brown into federal court for arraignment.[2] The district court issued the writ the following day. Brown was arraigned on July 17, 1997, and later ordered detained without bond by order of the magistrate judge entered on August 11, 1997. [9] In response to Brown’s motion to dismiss the indictment, the district court held thatPage 348
Brown’s Sixth Amendment right had been violated by the government’s delay in bringing him to trial. The district court determined that the government did not present sufficient evidence that Brown knew that he had been indicted on the drug offense and had evaded arrest on the federal indictment by use of multiple aliases. The district court also determined that the FBI’s attempts to arrest Brown were not entitled to great weight given the government’s failure to call Royal. Finally, the district court concluded that it was unnecessary for Brown to prove substantial prejudice when, as here, the pretrial delay was so excessive. The district court entered an order on October 29, 1997, granting Brown’s motion, dismissing the indictment with prejudice, and releasing Brown from custody that same day. The government now appeals.
II.
[10] On appeal, the government challenges the district court’s dismissal of the criminal indictment against Brown on speedy trial grounds. This Court examines de novo the constitutional question of whether a defendant has been denied a speedy trial in violation of the Sixth Amendment. See United States v. Smith, 94 F.3d 204, 208 (6th Cir. 1996). However, we review the district court’s factual findings for clear error. See id.
A. Length of Delay
[13] “[T]o trigger a speedy trial analysis, an accused must allege that the interval between accusation and trial has crossed the threshold dividing ordinary from `presumptively prejudicial’ delay.” Doggett, 505 U.S. at 651-52. That is, if a delay is not presumptively prejudicial, a defendant’s Sixth Amendment right is not deemed violated and the remaining factors need not be considered. See Redd v. Sowders, 809 F.2d 1266, 1269 (6th Cir. 1987) (stating that “[u]ntil there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors” relevant to whether a pretrial delay prejudiced a defendant).
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The government concedes that the five-and-one-half years delay in this case meets the threshold requirement.[3] See Doggett, 505 U.S. at 652 n. 1 (recognizing that a delay that approaches one year is considered presumptively prejudicial, depending on the nature and seriousness of the charges); United States v. White, 985 F.2d 271, 275 (6th Cir. 1993) (noting that “the presumption that pretrial delay has prejudiced the accused intensifies over time”).
B. Reason for the Delay
[14] As for the second Barker criterion, the government asserts that length of the delay cannot weigh in favor of Brown since he was culpable in causing the delay. The government claims that it sought Brown with diligence and therefore the district court reached the erroneous legal conclusion that the government bears primary responsibility for the extraordinary delay. Because “the prosecutor and the court have an affirmative constitutional obligation to try the defendant in a timely manner . . . the burden is on the prosecution to explain the cause of the pre-trial delay.” United States v. Graham, 128 F.3d 372, 374
(6th Cir. 1997) (citation and internal quotation marks omitted).
(noting that trial court determinations of negligence are reviewed
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with considerable deference). Reasonable diligence in this case would have started with contacting Brown’s attorney, pursuant to the agreement made between the attorney and the FBI, so that he could surrender his client to the authorities. The FBI’s indirect attempts to apprehend Brown caused the case to languish on fugitive status for years. Accordingly, we accord deference to the district court’s conclusion that the government is entirely responsible for the five-and-one-half years delay in bringing Brown to trial, and that such extraordinary delay in this case weighs in favor of dismissal of his indictment.
C. Defendant’s Assertion of his Right
[17] The third factor, the defendant’s assertion of his right to a speedy trial, “is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right.” Barker, 407 U.S. at 531-32. Although a defendant does not waive the right to a speedy trial by failing to assert it, the degree to which the defendant has asserted the right is one of the factors to be considered in the balance. See id.
D. Prejudice to the Defendant
[20] The last factor to consider is prejudice to the defendant. When the delay is lengthy and attributable to bad faith by the government, no showing of prejudice is required. See Doggett, 505 U.S. at 657. However, when the government has used reasonable diligence to pursue a defendant, the defendant must show that the delay caused “actual prejudice” to his defense. Actual prejudice is determined by examining whether the defendant has suffered (1) oppressive pretrial incarceration; (2) anxiety and concern; and (3) impairment to his defense. See Barker, 407 U.S. at 532. The last factor is afforded substantial weight since the inability of a defendant to adequately prepare his case skews the fairness of the entire system. See id. Finally, when the government’s
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negligence caused the delay, the need to prove prejudice diminishes as the delay increases. See Doggett, 505 U.S. at 657.
[21] The Supreme Court has recognized that in some cases, however, “excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify.” Id. at 655. As a result, it is not always necessary for a defendant to pinpoint with specificity how the delay prejudiced his defense. See id. at 648 (finding that an affirmative showing of actual prejudice was not necessary given that the length of delay was six years, which is six times as long as that generally sufficient to trigger judicial review). The amount of prejudice that the defendant must show depends on the reasons for the delay. “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 the delay.” Id. at 655-56. [22] Similarly, this Court has stated that “[i]f the government has been diligent in its pursuit of a defendant and delay was `inevitable and wholly justifiable,’ a speedy trial claim will generally fail.” United States v. Mundt, 29 F.3d 233, 236 (6th Cir. 1994) (citation omitted). But if the government has been intentionally dilatory for the purpose of impairing the defendant’s defense, a violation will most surely be found. See id. However, negligence lies between these two extremes. “While not compelling relief in every case where bad-faith delay would make relief virtually automatic, neither is negligence automatically tolerable simply because the accused cannot demonstrate exactly how it has prejudiced him.” Id. at 236-37 (citation omitted). If the government can persuasively rebut the presumed prejudice, the defendant is not entitled to relief. See Doggett, 505 U.S. at 658. [23] The government relies upon United States v. White, 985 F.2d at 276, for the proposition that a delay caused by the government’s negligence, as here, is not sufficient to excuse a defendant from demonstrating substantial or actual prejudice. The government also points out that Brown did not clearly assert how the delay prejudiced his defense. Brown stated in his motion to dismiss for lack of speedy trial that he had suffered actual prejudice “because his stepbrother, now dead, is unavailable to give exculpatory testimony,” but he did not explain precisely what exculpatory evidence his stepbrother could provide. [24] As to Brown’s failure to articulate the specific evidence his stepbrother could have provided were it not for the delay, we adopt the district court’s stance that “such a failure does not preclude finding prejudice given the inordinate delay in this case.” Doggett, 505 U.S. at 655 (finding that the “impairment of one’s defense is the most difficult form of speedy trial prejudice to prove because time’s erosion of exculpatory evidence and testimony `can rarely be shown'”). Indeed, while the delay in White was only six-and-one-half months, the government in this case is responsible for a pretrial delay of more than sixty months. Given the extraordinary delay in this case combined with the fact that the delay was attributable to the government’s negligence in pursuing Brown, we conclude that the government did not sufficiently rebut the presumption that its delay did not prejudice Brown’s case. See Mundt, 29 F.3d at 236 (stating that when a defendant is unable to articulate the harm caused by the delay, the reason for the delay will be used to determine whether the defendant was presumptively prejudiced).III.
[25] We conclude that a balancing of the four Barker factors weigh in favor of dismissal of the indictment against Brown on the grounds that he has been denied the right to a speedy trial. There is sufficient proof that the five-and-one-half years delay in bringing Brown to trial is extraordinarily long, that the government is to blame for the delay, that Brown asserted his right to a speedy trial, and that he suffered prejudice as a result of the delay. For these reasons, we AFFIRM the judgment of the district court.
“[D]elay is measured from the date of indictment or the date of arrest, whichever is earlier, to the date of the trial.” United States v. Love, 125 F.3d 856, 1997 WL 618831, at *3 (6th Cir. Oct. 6, 1997) (unpublished disposition) (citing Redd, 809 F.2d at 1269); see also United States v. MacDonald, 456 U.S. 1, 6-7
(1982) (noting that a defendant’s right to a speedy trial attaches on the date of federal accusation, which is the date of indictment or arrest, whichever first occurs). Here, Brown was not accused for purposes of the speedy trial clause until his arrest on June 9, 1992, and the violation of his constitutional right ended on October 28, 1997, the date of the dismissal of the indictment.
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