United States District Court, N.D. California, San Jose Division
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS INDICTMENT [RE ECF 288]
BETH LABSON FREEMAN, District Judge.
More than 15 years ago Martin Barragan was indicted for possession of methamphetamine with intent to distribute and conspiracy to possess methamphetamine with intent to distribute. He was arrested on January 13, 2013. Mr. Barragan now seeks to dismiss the indictment claiming a violation of his right to a speedy trial guaranteed by the Sixth Amendment.
On June 2, 2015, the Court heard argument on Defendant's Motion to Dismiss. The Court offered the parties the opportunity to have an evidentiary hearing on any factual issue in dispute. Further, the Court indicated that it was prepared to consider the motion in light of the Government's efforts to locate and arrest Mr. Barragan and Mr. Barragan's knowledge of the charges and conduct from the date of the indictment until 2004 separately from the evidence regarding the entire 15-years lapse of time.
The parties advised the Court that as to the period 1999 to 2004, the matter would be submitted on the papers and neither party requested an evidentiary hearing. The facts are not in dispute as to that period of time. As set forth in detail below, under Doggett v. United States, 505 U.S. 647 (1992), the Court determines that Mr. Barragan's Speedy Trial right was violated prior to the Government's efforts in 2004 to locate and arrest Mr. Barragan and thus the motion is GRANTED.
On August 31, 1999, Martin Barragan allegedly participated in an effort to sell methamphetamine to a confidential informant posing as an interested purchaser. Indict. of Barragan, ECF 293-1. Five others participated in this effort to sell methamphetamine, including Mr. Barragan's brother, Gilberto Barragan ("Gilberto"), and cousin, Efrain Barragan ("Efrain"). Id. Law enforcement agents attempted to locate Mr. Barragan on the day of the attempted sale at 2118 Addison Avenue in East Palo Alto, an address agents understood to be associated with Mr. Barragan. Rubino Decl. ¶ 7, ECF 293-2. There is no record that law enforcement agents conducted a DMV check to obtain this address, although the record shows that Mr. Barragan possessed a California Driver's License as of September 20, 1997. Mot. Exh. D, Cal. Driver's License, ECF 288-6. Mr. Barragan was not at the Addison address, but his brother, Gilberto, was. Rubino Decl. ¶ 7. Law enforcement arrested Gilberto after searching the home and finding methamphetamine. Id. Both Gilberto and Efrain were convicted of drug crimes and sentenced in 2001. Mot. Exh. A-2. Report of Invest., ECF 290-1. Mr. Barragan was aware that his brother and cousin were arrested in 1999 for unlawful drug related activity. Barragan Decl. ¶ 20, ECF 288-1.
On September 14, 1999, Mr. Barragan was charged with conspiring to possess methamphetamine with intent to distribute and possession of methamphetamine with intent to distribute. Indict., ECF 293-1. Following Mr. Barragan's indictment, an arrest warrant was issued and the Government entered the warrant into the National Crime Information Center ("NCIC"). Rubino Decl. ¶ 9. On September 27, 1999, the Drug Enforcement Agency ("DEA") transferred the search for Mr. Barragan to the United States Marshals Service ("USMS"). Id. The DEA continued to "monitor the case and intermittently conduct data base inquiries." Id. According to DEA Special Agent Rubino, the DEA conducted database checks with NCIC, California Law Enforcement Telecommunications System ("CLETS"), El Paso Intelligence Center ("EPIC"), and Lexis/Nexis. Id. at ¶ 10. Supervisory Deputy United States Marshal Harwell states that the USMS made annual database checks. Harwell Decl. ¶ 5, ECF 293-3. Between Mr. Barragan's indictment in September 1999 and March 2004, the Warrant Activity Sheet shows only two NCIC database checks regarding whether new information concerning Mr. Barragan's whereabouts had surfaced-one on February 7, 2002, and one on January 8, 2003. Mot. Exh. A-1., NCIC Check, ECF 290-1. During this time, Mr. Barragan worked in the Bay Area and received workers' compensation benefits in 2003. Barragan Decl. ¶ 6. He also lived at the same residence on Illinois Street in East Palo Alto between 1999 and 2003. Id. at ¶ 5. Mr. Barragan also maintained a driver's license or state identification card during this time. Id. at ¶ 19.
Commencing in April 2004, the Government initiated intense efforts to locate Mr. Barragan, including contact with his family at two known addresses, surveillance of those locations and contact with family members seeking his whereabouts and requesting that Mr. Barragan contact the officers. Caverly Decl. ¶¶5-6, ECF 293-4. In fact, Mr. Barragan admits that as of March 25, 2004, he became aware that law enforcement was looking for him. Barragan Decl. ¶11. Mr. Barragan further admits that he contacted an attorney regarding the law enforcement visits to his home. Barragan Decl. ¶12. In fact, Deputy Caverly received a phone call from attorney Anthony Gibbs in late April, 2004 wherein Mr. Gibbs indicated that he had not yet been retained, but if retained he would be willing to discuss Mr. Barragan's self-surrender. Caverly Decl. ¶7. Mr. Gibbs declined to provide contact information for Mr. Barragan. Id.
In August, 2004, the Government made further attempts to locate Defendant at his place of employment. Caverly Decl. ¶10. These efforts failed. Mr. Barragan had enlisted his brother to pick up his last paycheck through the use of a power of attorney. Caverly Decl. ¶¶9-10. In November, 2004, Deputy Caverly left the San Jose office. Thereafter, efforts to locate Mr. Barragan reverted to yearly records checks. Harwell Decl. ¶7. Mr. Barragan was ultimately arrested and taken into federal custody when the USMS learned that he was in state custody in January, 2013. Harwell Decl. ¶7.
II. LEGAL STANDARD
"The Sixth Amendment guarantees that, in all criminal prosecutions, the accused shall enjoy the right to a speedy trial." Doggett v. United States, 505 U.S. 647, 651 (1992). Not all delays violate the Sixth Amendment. To determine whether a delay does violate the right to a speedy trial, the court is required to balance four factors enunciated by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 530 (1972), including 1) length of delay, 2) the reason for the delay, 3) the defendant's assertion of his speedy trial right, and 4) prejudice to defendant.
A. Length of Delay
First, the Court must determine whether the delay was uncommonly long. The time is measured from the time of the indictment to the time of the trial. United States v. Gregory, 322 F.3d 1157, 1162 (9th Cir. 2003). In this case, the entire period is more than 15 years. For purposes of this motion, the Court first considers the period of time from indictment in September 1999 to ...