UNITED STATES OF AMERICA v. DAVID ANTHONY PALOS (2024)

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

Before the Court is David Palos's motion to dismiss on constitutional speedy trial grounds. ECF No. 103. After careful consideration, that motion is GRANTED.

I. BACKGROUND

A. Procedural history

Palos was charged by indictment with conspiracy to distribute and possess with intent to distribute methamphetamine (Count 1) and possession with intent to distribute methamphetamine (Count 3). ECF No. 17 1-2. Palos filed a motion to suppress, ECF No. 87, which was denied after an evidentiary hearing. ECF Nos. 99-100. Palos then filed a motion to dismiss on constitutional speedy trial grounds. ECF No. 103 at 1. The Court held an evidentiary hearing on Palos's motion on March 15, 2024. ECF No. 124.

B. Relevant facts

A Des Moines police officer stopped a vehicle driven by Palos on July 6, 2016. ECF No. 100 at 1. Palos explained to the officer during the traffic stop that he had flown in from California to post bail for his friend, Vincente Perez. Id. at 1-2. Palos was arrested for Failure to Obey a Traffic Control Device and released on bond. Id. at 2. Officers responded to a Motel 6 in Des Moines on July 14, 2016, after learning a guest had left behind a duffel bag of marijuana after checking out. Id. The duffel bag also contained methamphetamine and a large amount of cash. Id. at 2-3. The hotel manager identified Palos as the guest. ECF No. 100 at 3. The manager called Palos to tell him he left his duffel bag behind. Id. Police arrested Palos when he returned to the hotel to retrieve the duffel bag. Id.

The parties stipulated at the evidentiary hearing on Palos's motion to dismiss that Palos was charged with possessing the drugs in Polk County state court on July 15, 2016. Palos remained in jail until he posted bond on August 5, 2016. The State filed a motion to dismiss the state charges on August 15, 2016, indicating in its motion that Palos “will be prosecuted by the United States of America.” ECF No. 123-1. A Polk County judge granted the State's motion to dismiss the same day. ECF No. 123-2 at 1-2. The Government indicated at the March 15 evidentiary hearing that no detainer was placed on Palos at the Polk County Jail. Why no detainer was placed is unknown.¹ The Government indicted Palos on July 27, 2016. ECF No. 16. The federal indictment was filed under seal. The parties stipulated that a warrant was issued for Palos's arrest on the federal indictment at the time of indictment.

Luke Peters, a retired Deputy United States Marshal, testified at the evidentiary hearing that he reviewed Palos's file when he was still a Deputy Marshal. According to Peters, in December 2016, the DEA asked the Marshals to locate Palos. One of the Marshals' first steps was to enter the Palos warrant into NCIC—a searchable national database of arrest warrants. For reasons unknown, Palos's warrant was never added to NCIC by DEA. The Government presented no evidence at the March 15 hearing about the delayed entry of the warrant into NCIC nor any evidence about DEA's efforts, if any, to locate Palos before requesting assistance from the Marshals.

Peters testified that now-retired Homeland Security Investigations Agent Aaron Simon was assigned to locate Palos in 2016. The Government presented no evidence at the March 15 hearing regarding Simon's efforts to locate Palos and Peters did not know what Simons may have done.

Peters did not get involved in locating Palos until December of 2022, when he became bored before going on leave for a knee replacement. Peters started going through the “cold case drawer” and pulled a couple files that piqued his interest. One of them was Palos's. Peters ran Palos's name through the LexisNexis database, which contained information from driver's license and vehicle registration, utility information, and telephone information. The LexisNexis database provided Peters with multiple addresses for Palos. Peters sent out a lead to United States Marshals in central California on January 25, 2023. The California Marshals started surveilling several addresses Peters had given them, eventually locating Palos at 442 East Bonnie View Drive in Rialto, California. Records showed Palos had been using that address from November of 2020 to November of 2022. Palos was living there in a trailer. Officers observed Palos and arrested him at the trailer on February 13, 2023.

Palos testified he was living in Downey, California before he was arrested in July of 2016. Palos returned to Downey after posting bond. Palos then moved to 12051 Paramount Boulevard in Downey, where he lived for four years. He moved to the Rialto trailer in late 2020 and has lived there ever since. Between his arrest in July of 2016 and his arrest in February of 2023, he used these addresses on tax forms and at pawn shops. He obtained a ServSafe certification, received unemployment after being laid off during the pandemic, and received food stamps a few years later at these addresses. Palos also maintained a driver's license and vehicle registration using these addresses.

Palos's state attorney did not provide him with a copy of the order dismissing his state case, though Palos vaguely recalled his attorney mentioning the case had been dismissed because Palos was going to be federally prosecuted. Palos was aware there was a federal prosecution. He had at least some contact with Perez, his co-defendant, after his indictment. Palos knew that Perez had gone to prison on the same case in which he had been charged, but Palos had never seen the indictment until it was provided to him upon his arrest in 2023.

II. DISCUSSION

Palos argues “[t]he seven-year delay between the charges and arrest and trial is constitutionally excessive.” ECF No. 103 at 1 (citing U.S. Const. amend. VI). The Sixth Amendment right to a speedy trial “attaches at the time of arrest or indictment, whichever comes first, and continues until the trial commences.” United States v. Williams, 557 F.3d 943, 948 (8th Cir. 2009) (citation and quotation omitted). To determine whether a constitutional speedy trial violation occurred, the Court starts with whether “the delay between indictment and [defendant's] motion to dismiss was presumptively prejudicial.” United States v. Cooley, 63 F.4th 1173, 1177 (8th Cir. 2023) (citation and quotation omitted). If it is, the Court must “analyze the four factors governing the Sixth Amendment's speedy trial protections under Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).” Id. (citation omitted).

Palos was indicted July 27, 2016. ECF No. 16. He moved to dismiss on November 8, 2023. ECF No. 103. The approximately seven-year delay between Palos's indictment and his motion to dismiss was presumptively prejudicial. See, e.g., United States v. Rodriguez-Valencia, 753 F.3d 801, 805 (8th Cir. 2014) (finding that 6.5-year delay between indictment and arrest was presumptively prejudicial). The Government concedes as much. See ECF No. 109 at 3. The Court must now analyze the four factors under Barker. See Cooley, 63 F.4th at 1177. Those are: “Length of delay, the reason for the delay, the defendant's assertion of his [speedy trial] right, and prejudice to the defendant.” Barker, 407 U.S. at 530.

A. Length of delay

Consideration of the first factor—the length of the delay—“ ‘requires a double inquiry: (1) whether the length of delay was presumptively prejudicial such that it triggers the Barker analysis, and, if triggered, (2) the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim.’ ” United States v. Johnson, 990 F.3d 661, 670 (8th Cir. 2021) (quotation omitted). “This latter enquiry is significant to the speedy trial analysis because․ the presumption that pretrial delay has prejudiced the accused intensifies over time.” Doggett v. United States, 505 U.S. 647, 652 (1992).

The Court has already determined that the delay was presumptively prejudicial. Over six years and six months lapsed between Palos's indictment and his arrest. Compare ECF No. 16, with ECF No. 67. This is well beyond “the bare minimum needed to trigger judicial examination of the claim.” See Doggett, 505 U.S. at 652 (finding that “the extraordinary 81//21/2 year lag between Doggett's indictment and arrest clearly suffices to trigger the speedy trial enquiry․”). This factor weighs in Palos's favor. See, e.g., United States v. Erenas-Luna, 560 F.3d 772, 776 (8th Cir. 2009) (three-year time period between indictment and arrest weighed in favor of defendant).

B. Reason for delay

“The second Barker factor—reason for the delay—requires determining ‘whether the government or the criminal defendant is more to blame.’ ” Id. (citing Doggett, 505 U.S. at 651). “Courts accord ‘different weights ․ to different reasons.’ ” Id. (quotation omitted). The Court weighs “intentional delay by the government ‘heavily against it.’ ” Erenas-Luna, 560 F.3d at 777 (quotation omitted). The Court weighs “negligence by the government ‘less heavily’ but still regard[s] such negligence as ‘a considerable factor in the weighing process.’ ” Id. (quotation omitted). Delay caused by the defendant is weighed against the defendant. Id. (citation committed).

The Government correctly argues that it “made no deliberate attempts to delay the proceedings in order to hamper the Defense,” ECF No. 109 at 4, but the Government did not explain why it took so long to arrest Palos after it indicted him. The Government gave no explanation in its brief, see ECF No. 109 at 3-4, only offering that it “anticipates the evidence at the hearing will establish the Government was not negligent in apprehending the Defendant.” Id. 109. That evidence never came.

The Government indicted Palos on July 27, 2016, ECF No. 16—six weeks after Palos's state charges were dismissed. See ECF No. 123-2 at 1-2. Palos's federal arrest warrant was not entered into NCIC until December of 2016, when the DEA asked the Marshals to locate Palos. There is no evidence the Marshals made any effort to locate Palos until Peters became bored in December of 2022 and decided to open the cold case drawer. After a brief LexisNexis search and a couple emails, California Marshals looked for, located, and apprehended Palos at the home he had been living at since late 2020. It took approximately two months from pulling Palos's file out of the cold case drawer to arrest him. The information the Marshals used to locate Palos had been available to them through the LexisNexis database well before they began searching for Palos. They just failed to look.

The Government presented no evidence that it pursued Palos before December of 2022. Its failure to pursue Palos in the intervening six years since his indictment was negligent. See, e.g., Doggett, 505 U.S. at 652–53 (upholding a district court's finding of negligence when “[f]or six years, the Government's investigators made no serious effort to test their progressively more questionable assumption that Doggett was living abroad, and, had they done so, they could have found him within minutes. While the Government's lethargy may have reflected no more than Doggett's relative unimportance in the world of drug trafficking, it was still findable negligence, and the finding stands.”); Erenas-Luna, 560 F.3d at 777 (upholding finding of negligence “where the government readily admits that it ‘dropped the ball,’ let Ontiveros's case ‘slip through the cracks,’ made no efforts to locate and arrest Ontiveros over a three-year period, and missed multiple opportunities to apprehend Ontiveros in a timely manner.”).

This case is distinguishable from United States v. Walker, 92 F.3d 714, 718 (8th Cir. 1996), where the defendant fled the state after posting bond, disguised his identity, used a false name and identification, and where the FBI searched NCIC every six months to see if defendant had been apprehended, provided defendant's fingerprints to FBI headquarters, and did not know where defendant might be. Unlike here, there was no evidence in Walker that defendant “lived openly under his own name or that by running his name through a credit bureau the government would have discovered his whereabouts.” Id. Palos was living openly under his own name, interacting regularly with different state and local governments. Palos paid taxes, obtained a state food license, unemployment benefits, and food stamps, and maintained a driver's license and vehicle registration—information that Peters testified would be accessible from the LexisNexis database he searched.

In cases where the Court upheld a lower court's finding that the Government was not negligent in pursuing a defendant, the Government continuously sought the defendant. See, e.g., Rodriguez-Valencia, 753 F.3d at 807 (where “For six years, the government searched computer databases, public utilities, welfare benefits, insurance records, identification-cards, and driver's licenses; interviewed family, friends, and neighbors in Missouri and California; monitored phone records; requested fingerprints; prepared extradition paperwork; and coordinated with law enforcement in the United States and Mexico.”). The Government did not do that here. The Court finds the Government was negligent in its pursuit of Palos and that this factor weighs in Palos's favor.

C. Defendant's assertion of his speedy trial right

The third Barker factor considers “whether in due course the defendant asserted his right to a speedy trial.” Erenas-Luna, 560 F.3d at 778 (citing Walker, 92 F.3d at 718; Barker, 407 U.S. at 531-32 (explaining that the defendant's assertion of his constitutional speedy-trial right “is entitled to strong evidentiary weight in determining whether the defendant is being deprived of [the right]”). The Court disagrees with Palos that this factor “has little bearing on this inquiry.” ECF No. 103-1. It is true that this factor should not be given any weight when a defendant was unaware of his indictment, see Erenas-Luna, 560 F.3d at 778 (citing United States v. Richards, 707 F.2d 995, 997 (8th Cir. 1983)), but Palos testified that he was aware of his indictment, so this factor is not, as it was in Richards, inapplicable. The Court also disagrees with the Government that this factor “should be neutral, and not favor either Defendant or the Government.” ECF No. 109 at 4. This factor is not neutral. If Palos knew he had been indicted and wanted to demand his right to a speedy trial, he could have made that demand but chose not to. This factor weighs against Palos.

D. Prejudice to the defendant

“The final Barker factor—prejudice—considers ‘whether the defendant suffered prejudice as a result of the delay.’ ” Rodriguez-Valencia, 753 F.3d at 807 (quotation omitted). “Prejudice․ should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect ․ (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” United States v. Aldaco, 477 F.3d 1008, 1019 (8th Cir. 2007) (quotation omitted). “The extent to which a defendant must demonstrate prejudice under this factor depends on the particular circumstances.” Erenas-Luna, 560 F.3d at 778. “A showing of actual prejudice is required if the government exercised reasonable diligence in pursuing the defendant.” Id. at 778-79 (citation omitted). But “[w]here the government has been negligent․ prejudice can be presumed if there has been an excessive delay.” Id. at 779 (quotation omitted).

Palos cannot show actual prejudice here. Palos was not incarcerated in the six-plus years between his indictment and arrest. Palos did not testify he was living with anxiety or concern about the case before he was arrested. And there is little to no possibility that his defense will be impaired now. The drugs Palos is accused of possessing were located by two housekeepers in his hotel room. True, one of the housekeepers has since died and is unavailable for cross-examination, but the Government can make its case without her. Palos cannot point to any serious impediment to his defense other than the housekeeper's death and witnesses' fading memory. See ECF No. 103-1 at 12. These are insufficient to establish prejudice in a straightforward case where drugs were found in Palos's hotel room and he returned to the hotel room to retrieve them when contacted by hotel staff. See, e.g., United States v. Dowl, 394 F. Supp. 1250, 1256 (D. Minn. 1975) (“Although prejudice may sometimes be presumed to exist by mere passage of time because memories fade․ that factor does not bear heavily in this instance as the defendant is charged with a rather uncomplicated crime and the witnesses are still available.”) (internal and external citations omitted). If Palos had to show actual prejudice, this factor would weigh in favor of the Government.

But a defendant must show actual prejudice only “if the government exercised reasonable diligence in pursuing the defendant.” Erenas-Luna, 560 F.3d at 778-79. The Court has already determined that the Government was negligent in pursuing Palos. Thus, “prejudice can be presumed if there has been an excessive delay.” Id. at 779. Because the Court has also already determined that there has been an excessive delay, prejudice is presumed. But just because prejudice is presumed does not necessarily mean this factor weighs in Palos's favor. “The government can․ rebut the presumption by proving that the prejudice is ‘extenuated by the defendant's acquiescence.’ ” United States v. Duran-Gomez, 984 F.3d 366, 379 (5th Cir. 2020) (citing United States v. Cardona, 302 F.3d 494, 499 (5th Cir. 1994); Doggett, 505 U.S. at 658).

Palos arguably acquiesced in the delay of his trial by failing to invoke his right to a speedy trial after knowing he had been indicted. But “presuming waiver of a fundamental right from inaction․ is inconsistent with [the Supreme] Court's pronouncements on waiver of constitutional rights.” Barker, 407 U.S. at 525. Waiving a constitutional right involves “ ‘an intentional relinquishment or abandonment of a known right or privilege.’ ” Id. (quotation omitted). Palos's inaction in California is not such an affirmative act (like agreeing to a continuance of trial would be once a defendant appeared in court). Courts should “ ‘indulge every reasonable presumption against waiver,’ ” and should “ ‘not presume acquiescence in the loss of fundamental rights․’ ” Id. (quotation omitted). The Court will not presume that Palos acquiesced in the delay of his trial. The Government has not presented any evidence that he did. The Court therefore cannot find that the Government has rebutted the presumption of prejudice. This factor weighs in Palos's favor.

Under Doggett, “when the Government's negligence․ causes delay six times as long as that generally sufficient to trigger judicial review․ and when the presumption of prejudice, albeit unspecified, is neither extenuated, as by the defendant's acquiescence․ nor persuasively rebutted, the defendant is entitled to relief.” Doggett, 505 U.S. at 657 (footnotes omitted). The Government's negligence in apprehending Palos caused a delay that far exceeded what was necessary to trigger judicial review. The presumption of prejudice was neither extenuated nor persuasively rebutted. Palos, like the defendant in Doggett, is therefore entitled to relief.

III. CONCLUSION

The Court has “engage[d] in a difficult and sensitive balancing process.” Barker, 407 U.S. at 533. Three of the four Barker factors weigh in Palos's favor, suggesting a speedy trial violation. Palos has been accused of serious crimes, but the right to a speedy trial is “a fundamental right” that “is specifically affirmed in the Constitution.” Id. Barker acknowledges that the remedy for a speedy trial violation—dismissal of the indictment—is “unsatisfactorily severe․ but it is the only possible remedy.” Id. at 522. That is the only possible remedy here, as well. Defendant's Sixth Amendment right to a speedy trial was violated, and the Court is obligated to dismiss the indictment.

IT IS SO ORDERED that Palos's motion to dismiss, ECF No. 103, is GRANTED. The indictment, ECF No. 16, is DISMISSED.

Dated this 20th day of March, 2024.

FOOTNOTES

1.   The Court notes that the Assistant United States Attorney assigned to the Palos case in 2016 is no longer with the office, nor is the DEA agent who spearheaded the investigation.

STEPHANIE M. ROSE, Chief Judge UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF IOWA