from the United States District Court No. 1:14-CR-00396-PAB-1
for the District of Colorado
Noble, The Noble Law Firm, LLC, Lakewood, Colorado for the
Defendant - Appellant.
Garreth Winstead, Assistant United States Attorney (Robert C.
Troyer, United States Attorney, J. Bishop Grewell Assistant
U.S. Attorney, Andrea Surratt, Assistant U.S. Attorney, on
the brief), Denver, Colorado for Plaintiff - Appellee.
HARTZ, MATHESON, and EID, Circuit Judges.
MATHESON, CIRCUIT JUDGE.
federal grand jury indicted Delano Medina on October 7, 2014.
He appeared for the first time in federal court 27 months
later on January 11, 2017. During that time, Mr. Medina was
transferred between various state authorities in three
different states on at least 10 different sets of charges and
was tried in two different state courts. He moved to dismiss
the federal indictment, arguing that the delay violated his
Sixth Amendment right to a speedy trial. He contended that
the pretrial delay impaired his defense because his cell
phone containing alibi evidence was lost before he was
brought to federal court. He also argued the delay prevented
him from invoking his rights under the Speedy Trial Act, 18
U.S.C. § 3161 et seq., at an earlier date. The district
court denied the motion because Mr. Medina had not adequately
shown he suffered prejudice from the delay. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
following discusses (A) the circumstances that caused the
delay in Mr. Medina's initial appearance, (B) the
constitutional and statutory speedy-trial guarantees, and (C)
the district court proceedings.
Medina's Indictment and Eventual First Appearance in
Initial indictment and first writ
October 7, 2014, a federal grand jury indicted Mr. Medina on
one count of being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). In December 2014, he
was arrested on unrelated state charges in Colorado. In state
court, the federal government placed him under a detainer
that ordered state authorities to hold him in light of the
pending federal charges.
April 9, 2015, federal prosecutors sought a writ of habeas
corpus to bring Mr. Medina into federal custody. The writ was
returned unexecuted because Mr. Medina had been transferred
to another state jurisdiction.
Superseding indictment and second writ
9, 2015, the grand jury issued a superseding indictment
against Mr. Medina charging 14 additional counts, including
bank fraud, mail theft, identity theft, and possession of a
firearm by a felon. On June 12, 2015, federal prosecutors
again sought a writ to bring Mr. Medina into federal custody.
That writ was returned unexecuted because Mr. Medina had been
transferred to yet another jurisdiction.
Manuel, a United States Postal Inspector, investigated the
case leading to the indictments against Mr. Medina. According
to records Inspector Manuel compiled, state authorities
transferred Mr. Medina 46 times between his December 2014
arrest on state charges and his January 2017 appearance in
federal court. He remained in continuous custody on state
charges during the 27 months from his arrest until his first
appearance in federal court. He shuffled between six counties
in Colorado and spent more than 300 days of those 27 months
in custody in Kansas and Nevada on charges from those
jurisdictions. He was held for at least 10 distinct state
matters. The record provides little information about the
charges, but they included being a felon in possession of a
firearm. Mr. Medina stood trial in Colorado twice in the
latter half of 2015.
Mr. Medina's request for speedy trial and third
early 2015, Mr. Medina wrote to several state officials
seeking information about his federal charges and invoking
his right to a speedy trial. In October 2015, his Colorado
Department of Corrections ("DOC") case manager,
Rodney Achen, erroneously told him he was not subject to a
federal detainer, and Mr. Medina assumed any federal charges
against him had been dismissed. But in October 2016, Mr.
Achen informed him that he was, in fact, subject to a
detainer on pending federal charges. In December 2016, Mr.
Medina sent a "Motion for Entry of Appearance and Speedy
Trial Request" to the United States District Court and
the United States Attorney's Office for the District of
January 3, 2017, federal prosecutors sought a third writ of
habeas corpus for Mr. Medina, nearly 19 months after the
second writ. He finally appeared before a federal judge for
the first time on January 11, 2017.
Mr. Medina's Lost Cell Phone
April 4, 2015, Carmen Quintana, Mr. Medina's grandmother,
retrieved his belongings, including his cell phone, from a
detention facility in Jefferson County, Colorado. Exactly
what happened to the cell phone after April 4 is unclear. As
Ms. Quintana testified at the hearing described below,
"[W]e had it for a few months and then I kept it. And
then my other grandson got it and he kind of used it and then
lost it." ROA, Vol. 3 at 70. She stated that the
grandson had kept the phone in a safe. When asked whether the
safe was locked, Ms. Quintana responded that unknown
individuals "took the safe." Id. at 71.
She estimated that the phone went missing in October or
November of 2015.
Legal Background-Speedy Trial Rights
Sixth Amendment and the Speedy Trial Act guarantee a federal
criminal defendant the right to a speedy trial. Courts employ
a four-factor balancing test to determine whether a delay
violates the Sixth Amendment's Speedy Trial Clause. The
Speedy Trial Act requires federal prosecutions to comply with
statutory deadlines. This appeal concerns the constitutional
protection. But because Mr. Medina argues that a delay in his
ability to invoke his Speedy Trial Act rights prejudiced him
and thereby contributed to his Sixth Amendment violation, we
provide a brief summary of the Act.
Sixth Amendment Right to a Speedy Trial
Sixth Amendment guarantees that "[i]n all criminal
prosecutions, the accused shall enjoy the right to a speedy
and public trial." U.S. Const. amend. VI. "This
right attaches when the defendant is arrested or indicted,
whichever comes first." United States v.
Larson, 627 F.3d 1198, 1207 (10th Cir. 2010) (quotations
omitted). "[A]lthough the right is somewhat amorphous,
the remedy is severe: dismissal of the indictment."
United States v. Seltzer, 595 F.3d 1170, 1175 (10th
Cir. 2010). "[I]t is the prosecution's burden (and
ultimately the court's) and not the defendant's
responsibility to assure that cases are brought to trial in a
timely manner." Id. at 1175-76.
Barker v. Wingo, 407 U.S. 514, 530-32 (1972), the
Supreme Court established a four-part balancing test to
determine whether a delay in post-indictment proceedings
violates a defendant's constitutional right to a speedy
trial. The four factors are: "(1) the length of delay;
(2) the reason for the delay; (3) the defendant's
assertion of his right; and (4) prejudice to the
defendant." United States v. Yehling, 456 F.3d
1236, 1243 (10th Cir. 2006) (citing id. at 530).
"[N]o single factor is determinative or
necessary"-instead, "all four are considered to
determine whether a violation has occurred."
Seltzer, 595 F.3d at 1176. Barker's
balancing test thus "compels courts to approach speedy
trial cases on an ad hoc basis." Barker, 407
U.S. at 530. We address the factors in turn.
Length of delay-The first Barker factor
involves a "double inquiry." Seltzer, 595
F.3d at 1176. First, "[s]imply to 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." Id. (quoting
Doggett v. United States, 505 U.S. 647, 651-52
(1992)). "Delays approaching one year generally satisfy
the requirement of presumptive prejudice" under
Barker's first factor. United States v.
Batie, 433 F.3d 1287, 1290 (10th Cir. 2006). Second, if
the defendant establishes presumptive prejudice, "the
court must then consider, as one factor among several,"
the length of the delay. Seltzer, 595 F.3d at 1176
Reason for delay-The government has the burden
"to present acceptable reasons for the delay."
United States v. Margheim, 770 F.3d 1312, 1326 (10th
Cir. 2014). In evaluating Barker's second
factor, "different weights should be assigned to
different reasons." Barker, 407 U.S. at 531. As
the Supreme Court explained,
A deliberate attempt to delay the trial in order to hamper
the defense should be weighted heavily against the
government. A more neutral reason such as negligence or
overcrowded courts should be weighted less heavily but
nevertheless should be considered since the ultimate
responsibility for such circumstances must rest with the
government rather than with the defendant. Finally, a valid
reason, such as a missing witness, should serve to justify
Id. (footnote omitted).
a defendant's federal arraignment to allow another
sovereign to conclude its prosecution is a permissible reason
for delay. See Seltzer, 595 F.3d at 1178 ("We
agree with our sister circuits that awaiting the completion
of another sovereign's prosecution may be a plausible
reason for delay in some circumstances."). But waiting for
another sovereign to complete its prosecution does not
justify every delay, and "[t]he mere fact that the
defendant was incarcerated on a previous charge for a portion
of the delay does not by itself excuse the delay."
a defendant's appearance in federal court to allow state
proceedings to conclude is more likely to tip the second
Barker factor in favor of the government where (1)
there is "overlap in the charges or proceedings,"
(2) "concurrent proceedings would . . . be logistically
cumbersome," or (3) the charges at issue are complex.
Assertion of right-"[W]e assign strong weight
to the defendant's assertion of his constitutional
speedy-trial right, but we may weigh the frequency and force
of his objections to the delay." Margheim, 770
F.3d at 1328 (quotations omitted).
defendant's early and persistent assertion of his right
to a speedy trial will tip the third factor in his favor, but
efforts to stall the proceedings, such as "moving for
many continuances," will "tip the balance of this
factor 'heavily against the defendant.'"
Id. (quoting United States v. Gould, 672
F.3d 930, 938 (10th Cir. 2012) (brackets omitted)).
Prejudice-"The individual claiming the Sixth
Amendment violation has the burden of showing
prejudice." Seltzer, 595 F.3d at 1179
(quotations omitted). "[I]n most circumstances, failure
to specify prejudice will eviscerate the defendant's
claim." Margheim, 770 F.3d at 1329.
cases of "extreme" delay, the defendant need not
present specific evidence of prejudice, but can rely on a
"presumption of prejudice" resulting from the
prolonged delay. United States v. Frater, 495
Fed.Appx. 878, 882 (10th Cir. 2012) (unpublished) (citing
United States v. Toombs, 574 F.3d 1262, 1275 (10th
Cir. 2009)). But "[g]enerally, the court requires a
delay of six years before allowing the delay itself to
constitute prejudice." Seltzer, 595 F.3d at
1180 n.3. Absent such an "extreme" delay, the
defendant must provide specific evidence of how the delay was
prejudicial. Margheim, 770 F.3d at 329.
Supreme Court has identified three interests that might be
prejudiced by a delay in bringing a defendant to trial:
"(i) the prevention of oppressive pretrial
incarceration; (ii) the minimization of anxiety and concern
of the accused; and (iii) minimization of the possibility
that the defense will be impaired." Seltzer,
595 F.3d at 1179 (citing Toombs, 574 F.3d at 1275).
Mr. Medina's arguments center on "the most important
of these interests," the impairment of the defense.
Toombs, 574 F.3d at 1275. We discuss that interest
below and also address the Speedy Trial Act in the context of
Impairment of defense
of the defense can come in several forms, including lost
witnesses, Barker, 407 U.S. at 532; lost evidence,
United States v. Vaughan, 643 Fed.Appx. 726, 732-33
(10th Cir. 2016) (unpublished) (cited for persuasive value
under Fed. R. App. P. 32.1, 10th Cir. R. 32.1); or denial of
counsel, Seltzer, 595 F.3d at 1180.
evaluating whether the loss of evidence during a delay
amounts to prejudice, we have analyzed (1) the
defendant's ability to demonstrate with specificity how
the evidence would have aided his defense; (2) whether the
government's delay in bringing the defendant to trial
caused the evidence to be actually lost; and (3) whether the
defendant took appropriate steps to preserve the evidence.
See Jackson v. Ray, 390 F.3d 1254, 1264-66 (10th
Cir. 2004). We address each of these considerations further.
Specificity of prejudice
that delay caused an impaired defense requires the defendant
to "show definite and not speculative prejudice, and in
what specific manner missing witnesses would have aided the
defense." Margheim, 770 F.3d at 1331 ("We
have looked with disfavor on defendants' hazy
descriptions of prejudice."). Thus, "[i]n arguing
that the unavailability of a witness impaired the defense, a
defendant must state with particularity what exculpatory
testimony would have been offered." Jackson,
390 F.3d at 1265 (quotations omitted).
Vaughan, 643 Fed.Appx. at 732-33 (unpublished), we
rejected a defendant's attempt to show that the delay in
bringing him to trial prejudiced his defense by causing the
loss of alibi evidence. The defendant's assertion that
fellow employees and neighbors could attest to the
defendant's location "days prior to the
robbery" was not a meaningful alibi. Id. at
Causation and actual unavailability
defendant "must also present evidence that the delay
caused the witness's unavailability." See
Jackson, 390 F.3d at 1265. We have interpreted this
consideration to contain two parts. First, the defendant must
show the government's delay caused evidence to be
unavailable. Id. at 1266 (finding that the defendant
"could have used [the deceased witness's] testimony
if his trial had proceeded in a timely manner"). Second,
the defendant must show the evidence was actually
irretrievable for trial. See Vaughan, 643 Fed.Appx.
at 732 ("Vaughan did not present any evidence
establishing that . . . [records showing he was working on
the day of the crime] were, in fact, lost."). This
showing can include the defendant's efforts to locate the
evidence and why those efforts were unsuccessful. See
id. at 733 ("Vaughan does not state what effort, if
any, was made to locate these witnesses . . . or specifically
why [they] could not be located."); United States v.
Love, No. 97-6360, 1999 WL 115523 at *8 (6th Cir. Feb.
8, 1999) (unpublished) (finding no prejudice in part because
the defendant "ha[d] not shown that [alibi witnesses]
could not have been located with reasonable diligence").
Defendant's efforts to preserve the evidence
defendant must also "take steps, when possible, to
preserve testimony." Jackson, 390 F.3d at 1265;
see also United States v. Tranakos, 911 F.2d 1422,
1429 (10th Cir. 1990) (declining to find prejudice where the
defendants knew of criminal charges before key witness's
death and took no steps to preserve witness's testimony);
Robinson v. Whitley, 2 F.3d 562, 571 (5th Cir. 1993)
("Even assuming these individuals could have and would
have provided exculpatory testimony, either Robinson or his
attorney should have taken adequate steps to preserve their
testimony for trial."). But when a defendant is not
"on notice of the need to preserve testimony," or
has no "realistic opportunity to do so," we have
declined to view the failure to preserve testimony as fatal
to a defendant's claim of prejudice. Jackson,
390 F.3d at 1265.
The Speedy Trial Act and Barker prejudice
Speedy Trial Act, 18 U.S.C. § 3161 et seq., sets
deadlines for criminal prosecutions. A federal criminal trial
must start within 70 days of the indictment or the
defendant's first court appearance, whichever occurs
later. 18 U.S.C. § 3161(c)(1). The Act excludes from
this 70-day period certain delays caused by pending motions
or continuances. The latter include "ends of
justice" continuances, which a court can grant "on
the basis of [the court's] findings that the ends of
justice served by taking such action outweigh the best
interest of the public and the defendant in a speedy