ORDER

JAMES C. MAHAN, District Judge.

Presently before the court is Magistrate Judge Foley's report and recommendation ("R&R"), recommending that defendant Maria Larkin's motion to dismiss (ECF No. 146) the second superseding indictment (ECF No. 135) be denied. (ECF No. 167). Defendant filed an objection (ECF No. 176), to which the government responded (ECF No. 193).

I. Facts & Background

A. Indictments & Continuances

Three indictments have been filed: an original indictment (ECF No. 1); a superseding indictment (ECF No. 46); and a second superseding indictment (ECF No. 135).

On September 4, 2012, the original indictment was filed charging defendant with structuring transactions to evade reporting requirements in violation of 31 U.S.C. § 5324(a)(3) and (d)(1)-(2) and 31 C.F.R. § 103.11. (ECF No. 1). Defendant was arraigned on the original indictment on October 5, 2012, at which time trial was set for December 3, 2012. (ECF No. 9).

Between the filing of the original indictment and the filing of the superseding indictment, the parties filed nine stipulations to continue the trial date:

On August 6, 2014, the government filed a superseding indictment, which added a charge of evasion of payment in violation of 21 U.S.C. § 7201. (ECF No. 46). On August 14, 2014, defendant was arraigned and trial was reset for September 15, 2014. (ECF No. 51). Between the filing of the superseding indictment and the filing of the second superseding indictment, the parties filed six more stipulations to continue the trial date, as well as two motions to compel:

On November 16, 2016, the government filed a second superseding indictment, which eliminated the charge of structuring transactions to evade reporting requirements and retitled the evasion of payment charge as "Tax Evasion." (ECF No. 135).

On November 30, 2016, defendant filed a motion to continue trial date, stating that additional time was need to prepare for trial because the second superseding indictment contained new allegations relating to the tax evasion charge. (ECF No. 140). The government did not oppose, but requested that trial not be continued more than 60 days. (ECF No. 141). On December 16, 2016, the court granted defendant's motion, resetting trial for the currently scheduled date of March 13, 2017. (ECF No. 142).

B. R&R (ECF No. 167)

On December 22, 2016, defendant filed a motion to dismiss (ECF No. 146) the second superseding indictment (ECF No. 135). On January 5, 2017, the government filed an opposition (ECF No. 151), to which defendant replied (ECF No. 153) on January 12, 2017.

In the underlying motion, defendant argues that dismissal is proper based on violations of her Sixth Amendment right to a speedy trial, Federal Rule of Criminal Procedure 48(b)(3), and her Fifth Amendment right to due process of law. (ECF No. 146). On January 20, 2017, the magistrate judge held a hearing on various motions including defendant's motion to dismiss. (ECF No. 158).

In the instant R&R, the magistrate judge recommends defendant's motion to dismiss be denied, finding that defendant's Sixth Amendment right to a speedy trial was not violated as a result of the pretrial delay in this matter, that dismissal was not warranted based on Rule 48(b)(3), and that defendant's Fifth Amendment due process right was not violated. (ECF No. 167). Defendant objects to various findings in the R&R and the R&R's overall recommendation that her motion to dismiss be denied. (ECF No. 176). The court will address each in turn.

II. Legal Standard

A party may file specific written objections to the findings and recommendations of a United States magistrate judge made pursuant to Local Rule IB 1-4. 28 U.S.C. § 636(b)(1)(B); LR IB 3-2. Where a party timely objects to a magistrate judge's report and recommendation, the court is required to "make a de novo determination of those portions of the [report and recommendation] to which objection is made." 28 U.S.C. § 636(b)(1). The court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." Id.

Pursuant to Local Rule IB 3-2(a), a party may object to the report and recommendation of a magistrate judge within fourteen (14) days from the date of service of the findings and recommendations. Similarly, Local Rule 7-2 provides that a party must file an opposition to a motion within fourteen (14) days after service of the motion.

III. Discussion

A. Sixth Amendment — Right to a Speedy Trial

The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." U.S. Const. amend. VI. In determining whether a defendant has been denied the right to a speedy trial, courts consider four factors: "(1) the length of the delay, (2) the reason for the delay, (3) the defendant's prior assertion of the right, and (4) the prejudice resulting from the delay." United States v. Alexander, 817 F.3d 1178, 1181 (9th Cir. 2016) (citing Barker v. Wingo, 407 U.S. 514, 530 (1972)).

1. Length of Delay

"The length of the delay is a `threshold' factor, and a sufficiently lengthy delay `necessitates an examination of the other three factors.'" Id. (quoting United States v. Sears, Roebuck & Co., Inc., 877 F.2d 734, 739 (9th Cir. 1989)).

In the instant case, trial is presently set for March 13, 2017—four years and six months from the date the original indictment was filed. As the magistrate judge correctly found (ECF No. 167 at 8), the delay is sufficiently lengthy to trigger inquiry into the other factors. See United States v. Gregory, 322 F.3d 1157, 1161-62 (9th Cir. 2003) ("[D]elays approaching one year are presumptively prejudicial.").

2. Reason for Delay

The second factor, the reason for delay, is "the focal inquiry." Alexander, 817 F.3d at 1182 (citing Sears, 877 F.2d at 739). "If the government can show that the delay was wholly justifiable because it proceeded with reasonable diligence, the defendant's speedy trial claim generally cannot succeed in the absence of a showing of actual prejudice resulting from the delay." Id. (citing Doggett v. United States, 505 U.S. 647, 656 (1992)). By contrast, "[i]f the government intentionally delayed or negligently pursued the proceedings," the court may presume prejudice, "and its weight in the defendant's favor depends on the reason for the delay and the length of the delay." Id. (citing Doggett, 505 U.S. at 656-57; United States v. Aguirre, 994 F.2d 1454, 1456 (9th Cir. 1993)).

Upon a detailed consideration of each delay, the magistrate judge attributed 30 months of the delay to the defendant, 20 months of the delay to the government, and the remainder of the delay equally to both parties. (ECF No. 167 at 8-10). Magistrate Foley found that "while the overall length of delay weighs in favor of the [d]efendant, the delay caused by the [g]overnment was approximately only one year and ten months and there is no showing that this delay resulted from the [g]overnment's bad faith or negligence." (ECF No. 167 at 11).

In her objection, defendant contends that "bad faith [and] negligence are not the only pertinent types of governmental actions that can cause delay." (ECF No. 176 at 4). In particular, defendant argues that the government's intentional filling of the superseding and second superseding indictment caused delay and that the government intentionally used the delay to its advantage. (ECF No. 176 at 4-5).

The record, however, does not support defendant's contention. Further, the magistrate judge considered the delay caused by the subsequently filed indictments in his analysis, as well as the record, and found no bad faith or negligence by the government. (ECF No. 167 at 11). After reviewing the record, the court agrees.

3. Defendant's Assertion of the Right to a Speedy Trial

Factor three is the defendant's responsibility to assert the right to a speedy trial. Barker, 407 U.S. at 531. The Barker Court held, in relevant part:

Id. at 531-32.

The magistrate judge found that defendant did not specifically invoke her right to a speedy trial until April 2016, when she opposed the government's motion to continue. (ECF No. 167 at 11). In finding that defendant stipulated to all but one of the trial continuances, the magistrate judge held that the third factor did not weigh significantly in defendant's favor. (ECF No. 167 at 11-12).

In her objection, defendant argues that the magistrate judge's finding failed to consider "the full explanation of [her] invocation of her speedy trial rights, including that the government forced a continuance in March 2015 by filing a motion to compel . . ., in March 2016 by moving the trial date based on the unavailability of the case agent, and most recently by filing a second superseding indictment." (ECF No. 176 at 5). Defendant contends that the government forced her to choose between invoking her speed trial rights and receiving effective assistance of counsel. (ECF No. 176 at 5).

While defendant maintains that she asserted her speedy trial rights as promptly and vigorously as possible given her circumstances, she does not dispute that she did not invoke her right until April 2016. As the Barker Court emphasized, the "failure to assert the right will make it difficult for a defendant to prove that [s]he was denied a speedy trial." Id. at 532. Thus, as the magistrate judge correctly held, the third factor does not weigh significantly in defendant's favor.

4. Prejudice to Defendant

The magistrate judge found defendant has failed to set forth any evidence to show that she suffered actual prejudice as a result of the delay. (ECF No. 167 at 12). Defendant objects to the magistrate judge's finding that she failed to prove actual prejudice, arguing that she established that "she has been prejudiced by the four and a half year delay in the prosecution of this case." (ECF No. 176 at 5). The court disagrees as defendant has, again, failed to establish any particularized prejudice.

"The amount of prejudice a defendant must show is inversely proportional to the length and reason for the delay." Alexander, 817 F.3d at 1183 (citing Doggett, 505 U.S. at 655-56). As the Gregory Court held, a violation of the constitutional right to a speedy trial did not occur in the absence of a showing of particularized prejudice when the government's negligence caused a 22-month delay. See 322 F.3d at 1162.

Defendant has failed to meet her burden of showing particularized prejudice. Defendant has not shown any prejudice to her ability to adequately defend her case at trial or any uncertainty resulting from the delay, nor has she been subject to pretrial detention.

In light of the foregoing and after weighing the factors, the court agrees with the R&R and finds that defendant was not deprived of her right to a speedy trial.

B. Rule 48(b)(3) & Fifth Amendment — Due Process

Defendant fails to set forth a specific objection or argument under Rule 48 and the Fifth Amendment. In her objection, defendant merely asserts that "[f]or the reasons stated above, at the hearing, and in the motion and reply, this [c]ourt should dismiss the underlying second superseding indictment" pursuant to Rule 48 and the government's violation of her due process rights. (ECF No. 176 at 6).

The magistrate judge found that dismissal pursuant to Rule 48(b) was not warranted because the record did not support a finding of prosecutorial misconduct and demonstrable prejudice or substantial evidence of prejudice to defendant. (ECF No. 167 at 14). The magistrate further found that defendant failed to demonstrate a violation of her substantive or procedural due process rights. (ECF No. 167 at 14-15).

Based on the foregoing and upon reviewing the R&R, as well as the underlying briefs, the court finds that good cause appears to ADOPT the magistrate judge's R&R in its entirety.

IV. Conclusion

Accordingly,

IT IS HEREBY ORDERED, ADJUDGED, and DECREED that Magistrate Judge Foley's R&R (ECF No. 167) be, and the same hereby is, ADOPTED in its entirety.

IT IS FURTHER ORDERED that defendant's motion to dismiss (ECF No. 146) be, and the same hereby is, DENIED.