The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
Defendant has filed a motion to dismiss the charges against him, alleging his right to a speedy trial has been violated. An evidentiary hearing regarding Defendant's motion was held on April 28, 2011. At the conclusion of the hearing, the Court took the matter under submission. Having fully considered the submissions of the parties and the evidence presented at the hearing, the Court will grant Defendant's motion.
On November 7, 2003, Defendant was indicted, along with others, on charges that he conspired to distribute heroin in violation of 21 U.S.C. § 846 and 841(a)(1) and that he distributed heroin in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. A federal arrest warrant was issued for Defendant and a search warrant was issued for his residence at 1144 44th Avenue, San Diego, California. According to the testimony of Agent Chris Felan, law enforcement agents served the search warrant at Defendant's residence on November 13, 2003.
Defendant was not present at the time, however his wife was. The agents searched the house and seized items including an I-91 Card in Defendant's name and $8,000 in cash. The agents informed Defendant's wife that they were looking for him and left a card with their contact information. Defendant never contacted the agents.
Subsequently, the United States Marshals Service (USMS) was notified that Defendant was a wanted fugitive, and on an unknown date, the national criminal databases were updated to reflect that Defendant had an active federal warrant for his arrest.
Agent David Sparks testified that on May 31, 2005, he conducted a law enforcement database check for the first time to determine if there had been any contact with Defendant. Agent Sparks conducted a total of nine database checks between May 2005 and October 2009. During one of the checks, in March 2006, he discovered that someone had renewed Defendant's California Driver's License and had registered a vehicle under his name, and listed an address in San Diego. Agent Sparks notified the USMS of this information. The USMS checked the address, but did not locate Defendant. The circumstances of the attempted contact are unknown.
According to Defendant's motion, he was aware that federal agents were looking for him in November of 2003, however he decided against contacting them. He contends that he did not know he had been indicted or charged. Defendant states he remained living at the residence at 1144 44th Avenue until December of 2004. Thereafter, Defendant and his family moved to several different residences in San Diego. Around 2008, Defendant and his family moved to Winton, California. Defendant states that from November 2003 until his arrest in 2010, he lived openly in California, and at least four of those years he was in San Diego. He notes that during that period, he worked, filed income taxes, renewed his driver's license, registered vehicles, and registered and paid utilities under his own name. He also filed a relative visa petition for his wife and reported a change of address to the INS in connection with the petition.
Ultimately, Defendant was arrested on the warrant on September 2, 2010 when he appeared for a scheduled interview on his application for Section 8 housing.
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. A defendant's Sixth Amendment right to a speedy trial attaches when he is indicted. United States v. Mills, 810 F.2d 907, 909 (9th Cir. 1987). To determine whether post-indictment delay violates a defendant's speedy trial rights under the Sixth Amendment, the Court weighs the following four factors: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his rights; and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530 (1972); Doggett v. United States, 505 U.S. 647 (1992).
1. The Length of the Delay
The length of the delay is a threshold issue. Barker, 407 U.S. at 530. Delay is measured from "the time of the indictment to the time of trial." United States v. Sears, Roebuck & Co., 877 F.2d 734, 739 (9th Cir. 1989). "Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance." Barker, 407 U.S. at 530. Generally, delays approaching one year are considered presumptively prejudicial. Id.; United States v. Gregory, 322 F.3d 1157, 1161-62 (9th Cir. 2003). Here, Defendant was first indicted on November 7, 2003. He ...