The opinion of the court was delivered by: Barry Ted Moskowitz, Chief Judge United States District Court
ORDER ON DEFENDANT'S MOTION TO DISMISS INDICTMENT DUE TO POST-INDICTMENT DELAY
On November 21, 2011, Defendant Reynaldo Ixta (the "Defendant") filed a Motion to Dismiss Indictment due to Post-Indictment Delay (Dkt. No. 82), alleging that the 33-month delay between the filing of the Indictment in the above-captioned case (the "Indictment") and his arrest constituted a violation of his Sixth Amendment right to a speedy trial. For the reasons set forth herein, the Court DENIES the Defendant's motion to dismiss.
On May 17, 2007, the Defendant was arrested and charged with transportation and possession of a controlled substance in the Superior Court of California, County of San Diego. The state court case was dismissed at the Defendant's first appearance.
On April 2, 2008, the federal grand jury returned the Indictment, charging the Defendant and six other co-defendants on seven counts related to an alleged conspiracy to possess and distribute methamphetamine. The Defendant was named in counts one and seven of the Indictment. Count one alleges that the Defendant conspired to distribute methamphetamine in violation of 21 U.S.C. § 846, and specifically alleges that in furtherance of the conspiracy, the Defendant committed the overt act of receiving 532 grams of methamphetamine on or about May 17, 2007. Count seven alleges that on or about May 17, 2007, the Defendant knowingly and intentionally possessed, with intent to distribute, 532 grams of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The Indictment was filed under seal.
The Defendant was arrested on the federal charges and taken into custody on January 21, 2011--33 months after he was indicted and 44 months after the date of his alleged criminal conduct. The Defendant claims that up until his arrest on January 21, 2011, he was completely unaware that the federal government had indicted him or had any plans to prosecute him for the same criminal conduct underlying his state court case in 2007. The parties agree that the Defendant lived openly in the United States for the entire period between the filing of the Indictment and his arrest.
The two suspected suppliers in the alleged conspiracy, Miguel Tejada and Bernardo Nava, both lived in Mexico in 2008. Tejada and Nava were charged together in a separate indictment (Case No. 08cr00990), but were identified by name in the Indictment in the present case. The government claims that it deliberately sealed the Indictment and postponed the arrests of Defendant Ixta and his six co-defendants (Case No. 08cr00988), as well as the arrests of two defendants charged in a sealed indictment in a related case (Case No. 08cr00989), all of whom the government believed to be U.S. residents when they were indicted, for fear that the arrests would have tipped off Tejada and Nava, causing them to flee. Nava was arrested in Tijuana, Mexico on July 9, 2010. Tejada was arrested in Tijuana, Mexico, on November 24, 2010.
Between January 5, 2011, and February 15, 2011,the Drug Enforcement Administration ("DEA") arrested both U.S. resident defendants charged in Case Number 08cr00989, as well as two of the U.S. resident defendants charged in the present case (Ixta and Roberta Nielsen). Of the remaining five defendants in the present case, three were already in custody, one, Lucio Guzman, is facing state charges, and one, Fredy Flores-Garcia, remains at large.
The Sixth Amendment provides that criminal defendants "shall enjoy the right to a speedy public trial . . . ." U.S. Const. amend. VI. To determine whether a defendant's Sixth Amendment speedy trial right has been violated, the Court balances the following four factors: "[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." United States v. Mendoza, 530 F.3d 758, 762 (9th Cir. 2008) (citing Barker v. Wingo, 407 U.S. 514, 530 (1972)). The first factor, the length of delay, operates as a preliminary inquiry: "If the length of delay is long enough to be considered presumptively prejudicial, an inquiry into the other three factors is triggered. . . ." Mendoza, 530 F.3d at 765. In extreme cases, the length of delay also bears on the fourth factor (prejudice to the defendant), since "the presumption that pretrial delay has prejudiced the accused intensifies over time." Doggett v. United States, 505 U.S. 647, 652 (1992) (quoting Barker, 407 U.S. at 530).
As a threshold issue, the government argued at the December 19, 2011 hearing that when an indictment is sealed, the Sixth Amendment right to a speedy trial does not attach until the unsealing of the indictment or the arrest of the defendant.
To support this position, the government cited Justice O'Connor's dissenting opinion in Doggett, which reasons that the prevention of prejudice to the defense is not a fundamental and independent objective of the Sixth Amendment speedy trial right. Rather, "[t]he touchstone of the speedy trial right . . . is the substantial deprivation of liberty that typically accompanies an 'accusation,' not the accusation itself. . . . [That] explains why the lower courts consistently have held that, with respect to sealed (and hence secret) indictments, the protections of the Speedy Trial Clause are triggered not when the indictment is filed, but when it is unsealed." Doggett, 505 U.S. at 663-64 (O'Connor, J., dissenting) (citations omitted) (emphasis in original); see also United States v. Watson, 599 F.2d 1149, 1156 n.5 (2d Cir. 1979) ("Because neither the indicted defendant nor the public has notice of the charges, [a sealed] indictment does not bring about 'the major evils protected against by the speedy trial guarantee,' . . . namely, public obloquy and anxiety to the accused." (citations omitted)).
The majority opinion in Doggett, however, unseats this line of reasoning. Writing for the majority, Justice Souter stated that "the inability of a defendant adequately to prepare his case skews the fairness of the entire system[,]" and on that basis the majority held that the "most serious" form of prejudice caused to a criminal defendant by an unreasonable delay between formal accusation and trial is "'the possibility that the [accused's] defense will be impaired' by dimming memories and loss of exculpatory evidence." 505 U.S. at 654 (citing Barker, 407 U.S. at 532) (alterations in original). Unreasonable delay causes this form of prejudice, even if the defendant is not subject to pretrial incarceration and even if the indictment remains secret until the arrest of the defendant. See id. Because Doggett elevates prejudice to the accused's defense above the other forms of prejudice guarded against by the right to a speedy trial, lower courts can no longer ignore the delay occurring while a sealed indictment is pending on the grounds that such delay "does not bring about 'the major evils protected against by the speedy trial guarantee[.]'" See Watson, 599 F.2d at 1156 n.5.
Since the Supreme Court decided Doggett, the First and Fifth Circuits
have concluded that the length of delay relevant to the speedy trial
analysis begins upon the filing of a sealed indictment.*fn1
The Sixth, Seventh, Eighth, Ninth, Eleventh, and D.C.
Circuits have each assumed, without deciding, that the speedy trial
protection commences on the filing of a sealed indictment.*fn2
Moreover, the Ninth Circuit has stated in unqualified terms
that the time
period relevant for the speedy trial analysis "is measured from 'the
time of the indictment to the time of trial.'" Mendoza, 530 F.3d at
765. And while the Second Circuit has not expressly overruled United
States v. Watson (cited both by the government at the December 19,
2011 hearing and by Justice O'Connor in her Doggett dissent), that
case may no longer be authoritative. See United States v. Leaver, 358
F. Supp. 2d 255, 268 (S.D.N.Y. 2004) ("Watson is . . . incompatible
with the subsequent practice of this Circuit, and with more recent
Supreme Court authority. I therefore conclude that Watson is no longer
controlling authority, and that the Sixth Amendment speedy trial
guarantee attaches when an indictment is filed, regardless of whether
it is sealed.").
Based on the forgoing, the Court concludes that the 33-month period beginning with the filing of the sealed Indictment on April 2, 2008, and ending with the Defendant's arrest on January 21, 2010, constitutes the length of the delay relevant to the Defendant's speedy trial claim.*fn3 The 33-month delay at issue is "presumptively prejudicial" and triggers a full inquiry into the other three Barker factors. See Mendoza, 530 F.3d at 762 ("If the length of delay is long enough to be considered presumptively prejudicial, an inquiry into ...