Filed: Jun. 29, 2005
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS June 29, 2005 FOR THE FIFTH CIRCUIT _ Charles R. Fulbruge III Clerk No. 02-21225 _ UNITED STATES OF AMERICA, Plaintiff - Appellee, versus JULIO CESAR VALENCIA-QUINTANA, Defendant - Appellant. _ Appeal from the United States District Court for the Southern District of Texas, Houston USDC No. 4:92-CR-270-2 _ Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges. E. GRADY JOLLY, Circuit Judge:1 The appellan
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS June 29, 2005 FOR THE FIFTH CIRCUIT _ Charles R. Fulbruge III Clerk No. 02-21225 _ UNITED STATES OF AMERICA, Plaintiff - Appellee, versus JULIO CESAR VALENCIA-QUINTANA, Defendant - Appellant. _ Appeal from the United States District Court for the Southern District of Texas, Houston USDC No. 4:92-CR-270-2 _ Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges. E. GRADY JOLLY, Circuit Judge:1 The appellant..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
June 29, 2005
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 02-21225
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JULIO CESAR VALENCIA-QUINTANA,
Defendant - Appellant.
__________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas, Houston
USDC No. 4:92-CR-270-2
_________________________________________________________________
Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:1
The appellant, Julio Cesar Valencia-Quintana (“Valencia”), a
citizen of Colombia, was convicted and sentenced to life
imprisonment for his role (a major role, to be sure) in a
conspiracy to import approximately 400 kilograms of cocaine into
the United States. Valencia was indicted after an undercover
investigation by DEA agents. At trial, the agents and a paid
informant testified that Valencia actively solicited them as drug
couriers, procured the cocaine, arranged the pick-up, and provided
1
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
their compensation. Finding no reversible error, we AFFIRM
Valencia’s conviction and sentence.
I
Of the eight points of error Valencia raises, only one –- his
Sixth Amendment speedy trial argument –- warrants discussion.
Thus, we set forth in some detail the facts relevant to that issue.
In 1991, the DEA was engaged in an undercover investigation of
an international drug smuggling operation. As part of that
investigation, DEA agents posed as drug smugglers capable of
transporting large quantities of narcotics into the United States.
The agents were introduced to Valencia, who indicated that he was
interested in procuring their services.
After several months of negotiations, Valencia and the
undercover agents agreed upon a plan to transport several hundred
kilograms of cocaine into the United States. In May 1991, the
officers flew to an airstrip in Guatemala using coordinates
provided by Valencia, picked up 410 kilograms of cocaine, and
returned to Corpus Christi. Four days later, as the cocaine was
being driven to Houston, law enforcement officers seized it in a
staged traffic stop.
In 1992, Valencia was indicted and charged with conspiracy to
import narcotics into the United States, in violation of 21 U.S.C.
§§ 952(a), 960(b)(1)(B)(ii), and 963. During the investigation
following the indictment, however, it was learned that Valencia had
been arrested in July 1991 by authorities in the Dominican Republic
2
on charges relating to the importation of cocaine into that
country. Dominican authorities denied the DEA’s request to have
Valencia released into United States custody, but informally agreed
to notify the DEA prior to his release. After this agreement was
reached, DEA officials began inquiring into Valencia's status every
six to nine months, but no formal extradition request was ever
filed.
In January 2000, the DEA began attempts to locate Valencia in
the Dominican prison system using marshals stationed in the
Dominican Republic. The search was slowed by the fact that
prisoners could only be identified by physically entering the
prisons and reading handwritten notes placed on cards assigned to
each prisoner. In October 2001, DEA officials learned that
Valencia had received a presidential pardon and had been released
and deported to Colombia in December 1999. It was also learned
that Valencia had been held as a non-sentenced prisoner, meaning
that he was never convicted of a crime.
In October 2001, the DEA discovered that Valencia recently had
been re-arrested by Dominican authorities for attempting to deposit
counterfeit money into a bank account that he controlled in that
country. The DEA secured an agreement from Dominican officials
that they would expel Valencia from the country as an
"undesirable." He was placed on a flight to Colombia with a
stopover in Miami, Florida. Upon arrival in Miami on October 18,
2001, Valencia was taken into United States custody.
3
Valencia received appointed counsel on November 29, 2001, and
filed a motion to dismiss the indictment for violation of the Sixth
Amendment right to a speedy trial on December 21, 2001. After a
hearing on this motion, the district court found that Valencia's
Sixth Amendment right had not been violated by the delay between
his initial indictment and his arrest by United States authorities.
The case proceeded to trial and a jury found Valencia guilty
in May 2002. The district court sentenced Valencia to life
imprisonment on each count, to be served concurrently.
II
Valencia contends that the nearly nine-year delay between his
indictment in 1992 and his arrest in 2001 violated his Sixth
Amendment right to a speedy trial. We review the district court’s
determinations regarding speedy trial violations for clear error.
See United States v. Cardona, 302 F.3d 494, 497 (5th Cir. 2002).
To determine whether a defendant’s right to a speedy trial has
been denied, we apply a four-factor test derived from the Supreme
Court’s opinion in Barker v. Wingo, 407 U.S. 514 (1972). The
relevant factors are “(1) the length of the delay, (2) the reason
for the delay, (3) the defendant’s diligence in asserting his Sixth
Amendment right, and (4) prejudice to the defendant resulting from
the delay”. United States v. Cardona,
302 F.3d 494, 496 (5th Cir.
2002) (citing
Barker, 407 U.S. at 530-33).
The first factor, length of delay, is a “triggering mechanism”
for determining whether the court is required to balance the
4
remaining three factors. We previously have held that a one-year
delay is sufficient to warrant judicial examination of a speedy
trial claim. See United States v. Bergfeld, 280 F.3d 486, 488 (5th
Cir. 2002); see also Doggett v. United States,
505 U.S. 647, 652 n.
1 (1992). In this case, the parties agree that the overall delay
runs from Valencia’s indictment in 1992 until his arrest in 2001.
Accordingly, we must analyze the remaining three Barker factors.
Our analysis hinges, to a large extent, on the second factor:
the reason for the government’s delay in prosecuting Valencia. As
explained supra, the first seven years of the delay in this case
resulted from Valencia’s arrest and incarceration in the Dominican
Republic. As such, Valencia acknowledges that only the remaining
two years –- i.e., the period beginning with his release from
Dominican custody in December 1999 and ending with his arrest in
October 2001 –- are even arguably attributable to a lack of
diligence on the part of the government.
Nonetheless, Valencia contends that the remaining two-year
delay was the product of government negligence. Valencia argues
that the government was negligent in failing to file a formal
request for extradition, which ostensibly would have permitted
United States authorities to apprehend Valencia immediately upon
his release from Dominican custody. We do not agree.
Although the government did not formally request extradition,
the United States did procure an agreement from Dominican officials
to notify the DEA prior to Valencia’s release. Not content to rely
5
exclusively on this agreement, the DEA made regular inquiries into
Valencia’s status throughout his incarceration, a task made
significantly more difficult by the Dominican Republic's antiquated
and unreliable record-keeping system. In October 2001, the DEA
learned that Valencia had obtained release via a presidential
pardon, and that the Dominican authorities had failed to provide
the promised notice. Later that month, upon receiving information
that Valencia had again been arrested in the Dominican Republic,
the DEA secured an agreement with Dominican authorities by which he
would be expelled and subsequently arrested.
In sum, the final two years of delay in this case cannot be
attributed to negligence on the part of the government. Although
it may be arguable –- but by no means certain1 –- that the
government could have pursued a more aggressive means of securing
Valencia for trial, its efforts to that end were reasonably
diligent. As such, we conclude that the second Barker factor
weighs heavily against a finding that Valencia’s right to a speedy
trial has been violated.
We need not dwell long on the third Barker factor –- i.e., the
defendant’s diligence in asserting his Sixth Amendment right. The
record contains no evidence that Valencia was aware of the charges
1
As the government notes, given (1) the Dominican Republic’s
failure to comply with the informal notification agreement, and (2)
the poor record-keeping practices of Dominican prisons, there is no
reason to assume that Dominican authorities would have successfully
carried out their obligations under a formal extradition agreement.
6
pending against him in the United States prior to his arrest in
Miami. Thus, his failure to assert his right to a speedy trial
until roughly one month after his capture by United States
authorities, and nine years after his initial indictment, is not
taxed against him.
As to the final factor in the Barker analysis –- whether the
delay has prejudiced the defendant –- Valencia concedes that he can
identify no specific instance of prejudice flowing from the delay.
He argues, however, that the length of the delay in this case
entitles him to a presumption of prejudice.
When evaluating a defendant's claim that prejudice should be
presumed,
the Supreme Court has held that if the
government diligently pursues a defendant from
indictment to arrest, prejudice will never be
presumed. In contrast, if the government acts
in bad faith, i.e., intentionally holds back
in its prosecution of the defendant to gain
some impermissible advantage at trial, the
delay will weigh heavily in favor of the
defendant. If a case involves neither
diligent prosecution nor bad faith delay but
instead official negligence, the case occupies
a "middle ground" where the weight assigned to
the factor increases as the length of the
delay increases. A court's toleration of such
negligence varies inversely with its
protractedness.
United States v. Serna-Villareal, 352 F.3d 225, 232 (5th Cir.
2003)(internal quotations omitted). In this case, although the two
years of delay not directly attributable to Valencia’s
incarceration in the Dominican Republic are not insignificant, the
7
government’s diligence in pursuing Valencia and the lack of any
evidence of bad faith preclude a presumption of prejudice.
In sum, although the nine-year delay between Valencia’s
indictment and arrest was indeed substantial, the causes of that
delay –- i.e., Valencia’s incarceration and the unpredictable
nature of the Dominican penal system –- weigh heavily against a
finding that Valencia’s right to a speedy trial has been violated.
We therefore hold that the district court did not clearly err in
denying Valencia’s motion to dismiss for violation of his Sixth
Amendment right.
III
With respect to the other issues raised in Valencia’s appeal,
we have reviewed the briefs and the record, and have concluded that
the district court committed no reversible error.2 Accordingly,
the judgment of the district court is, in all respects,
AFFIRMED.
2
Valencia contends that the district court erred in (1)
admitting two telephone calls and a facsimile into evidence without
proper authentication; (2) failing to overrule an objection to the
prosecutor’s remarks in closing argument regarding the credibility
of a witness; (3) assessing a two-level upward departure in his
sentence for the use of a non-commercial aircraft in the
importation of the cocaine; and (4) relying upon information in the
pre-sentencing report as a basis for assessing a three-level upward
departure for Valencia’s managerial role in the importation
operation. Valencia also raises two issues for the first time on
appeal: an objection to his sentence under United States v. Booker,
U.S. , 125 S. Ct. 738 (2005), and a Fifth Amendment
challenge based on “outrageous government conduct”.
8
