UNITED STATES v. NUNEZ (2022)

ORDER ON MOTION TO DISMISS

Defendant Francisco Nunez was sentenced by an Iowa state district court to a two-year prison term for domestic abuse assault. About three months later, he was paroled by the Iowa Department of Corrections (IDOC) and transferred to the Muscatine County Jail pursuant to a federal detainer order. Defendant remained in county jail for months before his initial appearance. He now moves to dismiss the indictment against him, arguing the delay violated his constitutional right to a speedy trial right.

I. BACKGROUND

On January 12, 2021, a grand jury indicted Defendant on two firearms charges—felon in possession and possession of stolen firearms. [ECF No. 2]. At the time, he was in custody at the Johnson County Jail facing state criminal charges. [ECF No. 24-1] (Gov't Ex. 1). On February 22, 2021, Defendant was transferred from the Johnson County Jail to the IDOC. Id. The following day, the IDOC transferred custody of Defendant to the United States Marshals Service (USMS) pursuant to a federal detainer order. [ECF No. 20-3] (Def. Ex. B). The IDOC provided Defendant with a copy of the detainer order, arrest warrant and indictment, and a detainer action letter. [ECF Nos. 20-3; 24-2–24-4]. On May 28, 2021, the State of Iowa paroled Defendant so he could be transferred to the custody of USMS. [ECF No. 20-2]. At the time of his parole, he signed a “Parole Instructions” form which informed him he would be transferred from IDOC custody to federal custody pursuant to the detainer. [ECF No. 24-5] (Gov't Ex. 5).

The record does not reflect why, but neither the United States Attorney's Office nor the Court were notified that Defendant was in the custody of USMS.¹ He remained at the Muscatine County Jail without receiving an initial appearance until November 30, 2021, when an inquiry about the status of the case led the Government to realize he was in USMS custody. His initial appearance was finally held on December 1, 2021. [ECF No. 6]. Defendant agreed to waive his detention hearing and remain in custody pending disposition of the case, with a trial date set for January 31, 2022.² [ECF No. 11].

On January 11, 2022, Defendant filed this Motion alleging the delay between his indictment and trial violated his right to a speedy trial guaranteed by the Sixth Amendment to the United States Constitution. [ECF No. 20]. The Government resists. [ECF No. 24]. An evidentiary hearing on the Motion was held on March 2, 2022. [ECF No. 31]. In addition to a submission of jointly stipulated facts, the Court heard testimony from William Hurt, investigator for Federal Public Defender's Officer, and Defendant's sister Veronica Garcia. The Government and Defendant presented argument and the Court took the Motion under advisement. For the reasons described below, Defendant's Motion to Dismiss is GRANTED. [ECF No. 20].

II. ANALYSIS

The Sixth Amendment to the United States Constitution provides, “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial ․” U.S. Const. amend. VI. It is “one of the most basic rights preserved by our Constitution.” Klopfer v. North Carolina, 386 U.S. 213, 226, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). The 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. Sprouts, 282 F.3d 1037, 1042 (8th Cir. 2002). The seminal case on the Sixth Amendment speedy trial right is Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). In that case, the Supreme Court noted, “the right to speedy trial is a more vague concept than other procedural rights” making it “impossible to determine with precision when the right has been denied.” Barker, 407 U.S. at 521, 92 S.Ct. 2182. Thus, the Supreme Court held there is “no constitutional basis for holding that the speedy trial right can be quantified into a specific number of days or months.” Id. at 523, 92 S.Ct. 2182. Ultimately, the Court crafted a four-factor balancing test to determine whether the right to speedy trial has been violated: (1) length of delay; (2) reason for the delay; (3) defendant's assertion of the right; and (4) prejudice. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The four factors are to “be considered together with such other circumstances.” Id. at 533, 92 S.Ct. 2182.

A. Length of Delay

Assessing the length of a 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, 671 (8th Cir. 2021) (citation omitted). The length of delay necessary to invite further judicial scrutiny is “dependent upon the peculiar circumstances of the case.” Barker, 407 U.S. at 530–31, 92 S.Ct. 2182. However, “[a] delay approaching a year may meet the threshold for presumptively prejudicial delay requiring application of the Barker factors.” United States v. Titlbach, 339 F.3d 692, 699 (8th Cir. 2003).

Defendant was indicted on January 12, 2021, so the delay here exceeds 12 months and both parties agree it is sufficient to be presumptively prejudicial and require further analysis under the Barker factors.

B. Reason for Delay

Next, courts should consider the reason for delay and evaluate “whether the government or the criminal defendant is more to blame.” Doggett v. United States, 505 U.S. 647, 651, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). If it is the government's fault, which is indisputably the case here, the reason provided by the Government for delay should be weighed differently depending on the explanation. Unsurprisingly, intentional delay for tactical advantage “should be weighed heavily against the government.” Barker, 407 U.S. at 531, 92 S.Ct. 2182. Negligence or overcrowded courts are weighed “less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.” Id.

Defendant does not contend the Government deliberately delayed his trial but asserts it was “clearly negligent” for its failure to bring him to trial in an orderly timeframe. [ECF No. 20-1 at 3]. The Government responds that the reason for delay was Defendant's prior incarceration on state criminal charges and the failure of communication to notify either the United States Attorney's Office or the Court about the custody transfer. Given there is no accusation, or evidence of, deliberate delay the Government asks the Court to weigh this factor less heavily.

Although there is no assertion there was any intent or malice in the delay here, the reason for the delay falls squarely on the United States government. Defendant contributed nothing to the delay. This factor weighs against the Government.

C. Defendant's Assertion of the Right

Although Barker rejected a clear rule that “a defendant who fails to demand a speedy trial forever waives his right,” a defendant still maintains some responsibility to do so and “[w]hether and how” the right is asserted is pertinent. Barker, 407 U.S. at 528, 531, 92 S.Ct. 2182.

The Government requests that this factor weigh against Defendant because he received a copy of the indictment against him, which included a notice of the federal detainer, evidenced by Government Exhibit 4 which is a letter from a clerk at the Iowa Medical Classification Center noting documents he received upon transfer to the federal detainer. [ECF No. 24-4]. Government Exhibit 5 is a signed and initialed copy of Defendant's Parole to Detainer Order. [ECF No. 24-5]. Defendant does not dispute that he received these documents.

At the evidentiary hearing, Defendant presented evidence regarding his education and literacy. Investigator Hurt testified about the primary school education records he obtained regarding Defendant. The records show Defendant struggled significantly in school. Defendant has a full-scale IQ of 79. He was enrolled in special education classes throughout his schooling which exempted him from certain standardized tests. Defendant's language and reading scores were very low. The only grade level he formally passed during his school years was kindergarten. Furthermore, he missed numerous days of school, around 30 or 40 per year, with his records showing he was absent from school 151 days in the 1989–1990 school year. Defendant's school health records describe extensive issues with his hygiene, described his home as a shed next to a house, and outlined evidence of physical abuse and neglect.

Defendant's sister Veronica Garcia testified about the causes of his difficulties reflected in his school records. She told the Court about her family's struggles during Defendant's childhood. Defendant was one of eight siblings born to alcoholic and absent parents. Veronica Garcia was the eldest of these children. She married and left the home at age 14. At the time she left home, Defendant was eight years of age. During her time in the home, she functioned as the parent for her younger siblings and was frequently forced to beg for food from neighbors and stores. The family home was often without running water, electricity, and plumbing. Veronica testified that Defendant could not read or write and needed assistance with those tasks, and was unable to spell his own name without prompting. Veronica noted that she also struggled with reading and writing, as did several of the other siblings. Her testimony illustrated an incredibly difficult and trying childhood for Defendant in which he did not benefit from his education and endured a harsh home life.

The relevance of this biographical testimony was to show that, even though Defendant was provided with his indictment, arrest warrant, and federal detainer upon his parole from state to federal custody, he understood little to nothing about the next steps in his litigation. His sister testified that she spoke with him often while he was at the Muscatine County Jail, but he did not know why he was in the jail, nor any steps he needed to take. She said he was waiting for a lawyer or someone else to contact him.

The evidence is clear that although, strictly speaking, Defendant did not “assert his right” to a speedy trial, it was very unrealistic for Defendant, in particular, to do so. He is either illiterate or barely literate, was enrolled in special education classes in school, and does not have any meaningful understanding of the legal system. Although he has experience in the state judicial system, this is his first appearance in the federal judicial system. Complicating matters further, Defendant was previously incarcerated in state custody before he was paroled on the federal detainer. It cannot be said that Defendant's failure to understand the intricacies of state and federal criminal jurisdiction should weigh against him under Barker. Moreover, the case law regarding a defendant's assertion of their right to speedy trial primarily pertains to defendants during active litigation and represented by counsel or prior to their arrest altogether, not under the circumstances presented here. See, e.g., Johnson, 990 F.3d at 671 (defendant did not assert speedy trial right after failing to oppose four continuances); United States v. Rodriguez-Valencia, 753 F.3d 801, 807 (8th Cir. 2014) (no evidence defendant knew of pending charges); United States v. Erenas-Luna, 560 F.3d 772, 775 (8th Cir. 2009) (defendant's arrest warrant “slipped through the cracks” so police were not actively searching for him).

D. Prejudice

The fourth factor in the analysis is prejudice to the Defendant. Barker recognized three ways a violation of the speedy trial right can prejudice a defendant: (a) oppressive pretrial incarceration; (b) anxiety and concern of the accused; and (c) possibility that the defense will be impaired.” Barker, 407 U.S. at 532, 92 S.Ct. 2182. “Anxiety, without concurrent prejudice to the defendant's ability to mount a defense, is likely the weakest interest.” United States v. Shepard, 462 F.3d 847, 865 (8th Cir. 2006).

Anxiety from his prolonged detention is the prejudice offered by Defendant. Although the case law does not typically find anxiety to be sufficient to find for a defendant on this factor, this is a unique case. Unlike most cases, where defendants are aware of the status of their case due to active legal representation, Defendant had no notice on the status of his case nor did he have representation. In addition to any anxiety caused by these issues, Defendant has a very limited, and potentially no understanding of the allegations against him. Simply put, the circumstances of Defendant's detention, where he is held and maintains little understanding of what is happening, would certainly cause an anxiety that is much different than the anxiety defendants traditionally experience while awaiting court proceedings. Thus, the extended period in jail without ever meeting with an attorney given Defendant's cognitive deficiencies is enough to weigh this factor in Defendant's favor.

E. Conclusion

The Court has “engage[d] in a difficult and sensitive balancing process.” Barker 407 U.S. at 533, 92 S.Ct. 2182. Defendant 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. at 533, 92 S.Ct. 2182. 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, 92 S.Ct. 2182. That is the only possible remedy here as well. Defendant's Sixth Amendment right to speedy trial was violated and the Court is obligated to dismiss the indictment. Defendant's Motion to Dismiss, [ECF No. 20], is GRANTED. The Indictment is DISMISSED WITHOUT PREJUDICE. [ECF No. 2].

IT IS SO ORDERED.

FOOTNOTES

1.   The Court is aware of a confluence of factors that likely contributed to this lapse. The Supervising Deputy United States Marshal for Davenport had recently retired. Another longtime Davenport-based Deputy United States Marshal was absent following an emergency medical event. Due to the global Covid-19 pandemic, budget issues, retirements and absences, the Davenport office was operating with a 50% staffing vacancy. In addition to these personnel challenges, the district's United States Marshals Service was in the midst of transitioning to a new prisoner information management system at the time Defendant's detainer was activated. The new system captured and populated data differently than the system that had been used for 20 years, contributing to confusion for staff trying to cover newly assigned and unfamiliar duties.

2.   The trial was re-scheduled for March 7, 2022, after the Court granted an unresisted motion to continue. [ECF No. 25]. At the evidentiary hearing, the parties agreed to continue the trial until resolution of this Motion. [ECF No. 31].

STEPHANIE M. ROSE, CHIEF JUDGE