ORDER

ELIZABETH A. KOVACHEVICH, District Judge.

This cause is before the Court on:

Defendant Rodolpho Cruz, a/k/a "Angel Villegas," a/k/a "Kilo," moves for an order dismissing the indictment based on a violation of Defendant's constitutional right to a speedy trial pursuant to the Sixth Amendment of the United States Constitution.

The Government opposes Defendant's Motion to Dismiss.

The Court conducted an evidentiary hearing on July 29, 2015.

I. FINDINGS OF FACT

A defendant's assertion of the violation of a defendant's constitutional right to a speedy trial pursuant to the Sixth Amendment is decided on the particular facts of the case. The Court applies a "balancing test rooted in functional considerations to ascertain whether a delay in a defendant's trial deprived him of his constitutional right to a speedy trial." Barker v. Wingo, 407 U.S. 514, 522, 530 (1972). The Court has considered the documents filed by the Parties, as well as the testimony at the evidentiary hearing on July 29, 2015. The documents include the Affidavit of Special Agent Daniel Gordon in support of a search warrant to install a tracking device on a 2003 Range Rover used by Defendant Cruz in 2004, and the Florida Highway Patrol Offense Incident Report on the currency seizure on November 22, 2004 (Defendant's Exhibit 2).

At the evidentiary hearing on July 29, 2015, Derek Pollock, Special Agent for the Drug Enforcement Administration, and DUSM Jeff Lavallee testified for the Government. Sofia Valencia, the step-daughter of Defendant Cruz, testified on behalf of Defendant Cruz.

CHRONOLOGY OF EVENTS:

II. CONCLUSIONS OF LAW

In Barker v. Wingo, 407 U.S. 514 (1972), the Supreme Court established a four-factor test to determine when a defendant's Sixth Amendment right to a speedy trial has been violated. The four factors are: 1) the length of the delay; 2) the reason for the delay; 3) the defendant's assertion of the speedy trial right; and 4) the prejudice to the defendant. The Eleventh Circuit Court of Appeals explains the Barker test:

United States v. Ingram, 446 F.3d 1332, 1336 (11thCir. 2006).

None of the four Barker factors is a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. The four factors are related, and must considered together with such other circumstances as may be relevant. Barker at 533. If prejudice is presumed, the Government can overcome that presumption by showing that the presumption is extenuated, as by the defendant's acquiescence, or by persuasive rebuttal.

A. Threshold Determination

The length of the delay serves as a threshold inquiry that the defendant must satisfy in order for the Court to weigh the remaining three factors.

A delay is considered presumptively prejudicial as it approaches one year. United States v. Davenport, 935 F.2d 1223, 1239 (11th Cir. 1991). In this case, the Indictment was returned on September 25, 2007 (Dkt. 1). Defendant Cruz was arrested on March 24, 2015 in California. This case was originally set for trial in June, 2015, and is now set for trial in November, 2015. The length of the post-indictment delay is eight years.

The Court finds, and the Government concedes, that the length of the post-indictment delay is sufficient for the Court to consider the other Barker factors.

B. Length of Delay

This factor also examines "the extent to which the delay stretches beyond the bare minimum needed" to satisfy the threshold showing of presumptive prejudice. Doggett, 505 U.S. at 652, 12 S.Ct. 2686, 120 L.Ed.2d 520. The longer the pretrial delay extends beyond the "bare minimum" necessary to show presumptive prejudice, the stronger the presumption that the pretrial delay prejudiced the defendant. Id. at 652, 655-57, 505 U.S. 647, 112 S.Ct. 2686, 120 L.Ed.2d 520. The length of the delay itself weighs against the government incrementally, increasing in weight as the delay becomes increasingly protracted, and a particularly lengthy delay may also affect [the Court's] analysis of the fourth Barker factor. United States v. Villareal, 613 F.3d 1344, 1350 (11th Cir. 2010). Pre-indictment delay may cause post-indictment delay to weigh more heavily. United States v. Ingram, 446 F.3d 1332, 1339 (11th Cir. 2006). Defendant Cruz argues that the pre-indictment delay from 2004 to 2007 compounds the post-indictment delay. (Dkt. 51, p. 8).

The length of post-indictment delay extends significantly beyond the minimum necessary to show presumptive prejudice. Doggett v. U.S., 505 U.S. 647, 652 (1992). The Government concedes that the length of the delay in this case is presumptively prejudicial (Dkt. 50, p. 4).

After consideration, the Court weighs this factor against the Government.

C. Reason for the Delay

Defendant Cruz argues that the reason for the delay should be weighed heavily against the Government, as the Government's efforts to locate Defendant Cruz prior to his arrest in 2015 were neither continuous nor diligent. Defendant Cruz contends that the information within the NCIC report on Defendant was sufficient to enable Defendant Cruz to be located. Defendant Cruz points out that the Government knew in 2007 that Defendant Rodolpho Cruz was also known as "Angel Villegas" and "Kilo," and that, in 2009, arrest records concerning "Angel Villegas" were provided to the Department of Justice. Defendant Cruz also points out that California arrest records of "Angel Villegas" contain photographs.

The Government argues that the delay should be weighed heavily against Defendant Cruz, who caused it by providing false identifying information at the time of the traffic stop in 2004. The Government argues that, prior to Defendant's arrest, the NCIC report was not available to the Government; the Government did not know Defendant's true identity or specific identifiers necessary to obtain the criminal history report on which Defendant relies. The only identifying information secured at the time of the 2004 encounter, aside from photographs of Defendant Cruz, was false information provided by Defendant Cruz, via the fraudulent California driver's license which identified Defendant as "Rodolpho Cruz," with a date of birth of September 14, 1970, and an address in Los Angeles, California (an address different from the address given by Maria Uriarte). The Government argues that the Government did not have an accurate date of birth, social security number, FBI number, fingerprints, or other identifying information. What the Government did have was a name associated to an individual other than Defendant, that individual's date of birth, an address which was not Defendant's address, Defendant's photograph, and other names for Defendant provided by coconspirators.

The Government also argues that efforts were made to locate Defendant. The indictment was unsealed in order that Defendant's arrest warrant could be entered into national data bases. During Defendant's fugitive status, the system produced hits regarding arrests and border crossings concerning Rudy or Rodolpho Cruz, which were investigated and determined to be false leads. Following the return of the indictment, the United States Drug Enforcement Administration (DEA) turned the fugitive investigation over to the United States Marshals Service (USMS). DEA monitored the case, receiving the false positive reports, produced annual reports summarizing the fugitive status of Defendant, and maintained contact with the USMS regarding the status of the outstanding warrant. The USMS maintained the active warrant, and examined any false positive hits. At least one of the false positive reports resulted in the arrest of a Rodolpho Cruz, who was held until the USMS confirmed that the subject was not Defendant. In 2008, wage and hour and financial inquiries produced no useful results. In 2009, the FBI number in the file was removed as it pertained to a Rodolpho Cruz who was not the Defendant. In 2013, the matter was re-assigned to DUSM, who examined the file for potential leads. That DUSM, upon learning that the Rodolpho Cruz who was the subject of false alerts was in custody in California, sent a collateral request for an interview to see if that individual knew who had falsely used his name and date of birth. That Rodolpho Cruz was not interviewed prior to his release. The assigned DUSM further determined to look beyond Defendant and sought information on Maria Uriarte, Defendant's companion in the 2004 traffic stop. In early 2015, the DUSM discovered the Donovan Street address and sent a collateral request to California; however, Defendant Cruz was arrested before that request was acted upon.

The Government further argues that Defendant Cruz was arrested as a result of investigative activity in an unrelated matter. The Government explains that Maria Uriarte came to the attention of California authorities during an encounter at her residence. California agents entered her name in a data base which linked her to the Middle District of Florida investigation. An agent in Tampa was alerted, and the agent inquired whether Rodolpho Cruz or Angel Villegas was present during the encounter. While awaiting a response, Defendant's photograph was sent to the California authorities, who confirmed that Defendant Cruz was present during the encounter. Law enforcement returned to the residence at 8525 Donovan Street, Downey, California. Defendant confirmed that his name was Angel Villegas, and was arrested.

The Government bears the burden of establishing valid reasons for the delay. The Government has an affirmative constitutional obligation to try the defendant in a timely manner. United States v. Ingram, 446 F.3d 1332, 1337 (11th Cir. 2006). However, a defendant who intentionally evades the Government's efforts to bring him to trial is culpable in causing the delay. Id. (citing Rayborn v. Scully, 858 F.2d 84, 90 (2d Cir. (1988)(court need not ignore a defendant's fugitivity in considering whether there has been a violation of his sixth amendment right to speedy trial)).

The Government's failure to pursue a defendant diligently will weigh against it, more or less heavily depending on if the Government acted in good or bad faith. See Ingram at 1339-1340. The Court should accord different weights to different reasons for delay. A deliberate attempt to delay for the purpose of obtaining a tactical advantage should be weighed more heavily against the Government; negligence or overcrowded courts are weighed less heavily. A valid reason, such as a missing witness, may justify appropriate delay. U.S. v. Villareal, 613 F.3d 1344, 1351 (11th Cir. 2010).

It is undisputed that the Government did not intentionally delay bringing Defendant Cruz to trial in order to obtain a tactical advantage. Defendant Cruz was a fugitive from justice from the time the indictment was returned in 2007 until Defendant's arrest in 2015. A "fugitive from justice" means that, having committed an act in one state which, by the law of the state, constitutes a crime, [a fugitive] has afterwards departed from its jurisdiction and when sought to be prosecuted, is found within the territory of another state. Hogan v. O'Neill, 255 U.S. 52, 56 (1921). The Government did not know where Defendant Cruz was between 2004 and 2015, beyond the suspicion that Defendant Cruz was in California. Because Defendant Cruz did not provide his "real name" and other accurate identifying information, such as Defendant's accurate date of birth and an accurate social security number, but instead provided a name and date of birth for a real person who was not the defendant, Defendant Cruz intentionally inhibited the Government's efforts to apprehend Defendant Cruz. The Government attempted to learn of Defendant Cruz' whereabouts from other family members, but that information was not provided. The Government's knowledge of Defendant Cruz' real name, Angel Villegas, in the absence of other accurate identifying information, did not substantially improve the Government's ability to apprehend Defendant. The investigatory record pointed in more than one direction; the Government followed leads that did not pan out.

This case is distinguishable from Doggett, in which the defendant lived openly under his own name and a credit check located the defendant within minutes, Ingram, in which the defendant lived openly under his own name and the Government knew where the defendant lived and worked, or U.S. v. Black, 416 F.Supp. 59 (M.D. Fla. 1976)(Customs Service had billfold containing id cards and other identifying information; the documents were not brought to the attention of the USM; defendant was not a fugitive; defendant was enrolled in school under same name as in indictment). There are some troubling aspects to this case; the DEA had information that the USMS did not have, including knowledge of accurate driver's license information for Maria Uriarte and knowledge of the husband/wife relationship of Maria Uriarte and Defendant Cruz. The Court nevertheless concludes that the Government acted with reasonable diligence under the circumstances. The Court must focus on the Government's knowledge at the time, in light of the limited facts then known, and will not evaluate the facts with the clarity of hindsight.

After consideration, the Court weighs this factor heavily against Defendant Cruz. The false identifying information provided by Defendant was the primary cause of the delay. The inaccurate information was intentionally provided to law enforcement to obscure Defendant Cruz' connection to the crime charged in the indictment, and to make it more difficult to apprehend Defendant Cruz. The delay caused by Defendant Cruz plainly outweighs any delay caused by the Government's investigation.

C. Defendant's Assertion of Speedy Trial Right

Defendant Cruz asserts that Defendant was not aware of the indictment or arrest warrant before his arrest in 2015.

The Government concedes that the Government has no information that Defendant Cruz was aware of the indictment or arrest warrant.

After consideration, this factor weighs against the Government.

D. Prejudice

Defendant Cruz relies on the presumption of prejudice arising from the length of the delay. The Government argues that Defendant Cruz has not demonstrated actual prejudice caused by the delay.

The Court must view prejudice in light of the interests underlying the right to speedy trial: 1) to prevent oppressive pretrial incarceration; 2) to minimize anxiety and concern of the accused; and 3) to limit the possibility that the defense will be impaired. Barker v. Wingo, 407 U.S. 514, 532 (1972). The third interest is the most serious, because the inability of a defendant to adequately prepare his case skews the fairness of the entire system. Id.

Because Defendant Cruz was not arrested until 2015, and because Defendant Cruz asserts he did not know of the indictment until his arrest, the first two interests are not implicated in this case. Defendant Cruz has not identified actual prejudice to Defendant's defense.

The Court has found that this case is not an extreme case of governmental negligence such as that found in Doggett, in which the defendant was relieved of the need to show actual prejudice, given the cause and the extent of the delay. The Court has found that delay in this case was primarily caused by Defendant Cruz. The Government has therefore overcome the presumption of prejudice.

After consideration, the Court denies Defendant's Motion to Dismiss Based on a Violation of Defendant's Constitutional Right to Speedy Trial. While the length of the delay, and Defendant's assertion of his right to speedy trial weigh against the Government, the reason for the delay weighs heavily against Defendant Cruz. Defendant Cruz has not identified actual prejudice caused by the length of the delay. Accordingly, it is

ORDERED that Defendant's Motion to Dismiss Based on a Violation of Defendant's Constitutional Right to a Speedy Trial (Dkt. 49) is denied.

DONE and ORDERED.