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United States v. Medina

United States Court of Appeals, Tenth Circuit

March 12, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
DELANO MARCO MEDINA, a/k/a Michael David Allen Bell, a/k/a William Anders Bryant, Defendant-Appellant.

          Appeal from the United States District Court No. 1:14-CR-00396-PAB-1 for the District of Colorado

          Antony Noble, The Noble Law Firm, LLC, Lakewood, Colorado for the Defendant - Appellant.

          E. 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.

          Before HARTZ, MATHESON, and EID, Circuit Judges.


         A 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.


         The 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.

         A. Factual Background

         1. Mr. Medina's Indictment and Eventual First Appearance in Federal Court

         a. Initial indictment and first writ

         On 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.[1]

         On 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.

         b. Superseding indictment and second writ

         On June 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.

         Eric 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.

         c. Mr. Medina's request for speedy trial and third writ

         In 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 Colorado.

         On 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.

         2. Mr. Medina's Lost Cell Phone

         On 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.

         B. Legal Background-Speedy Trial Rights

         The 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.

         1. Sixth Amendment Right to a Speedy Trial

         The 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.

         In 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.

         (1) 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 (quotations omitted).

         (2) 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 appropriate delay.

Id. (footnote omitted).

         Deferring 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.").[2] 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." Id.

         Postponing 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. Id.

         (3) 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).

         A 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)).

         (4) 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.

         In 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.

         The 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 Barker prejudice.

         a. Impairment of defense

         Impairment 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.

         In 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.

         i. Specificity of prejudice

         Proving 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).

         In 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 733.

         ii. Causation and actual unavailability

         The defendant "must also present evidence that the delay caused the witness's unavailability." See Jackson, 390 F.3d at 1265.[3] 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").

         iii. Defendant's efforts to preserve the evidence

         The 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.

         b. The Speedy Trial Act and Barker prejudice

         The 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 trial." ...

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