KENNETH M. HOYT, District Judge.
Before the Court is Wilmar Rene Duran-Gomez's ["Duran-Gomez"], motion to dismiss the Second Superseding Indictment filed against him by the United States of America ["the Government"]
Duran-Gomez first came to the attention of the Immigration and Customs Enforcement Agency ["ICE"] after the bodies of two aliens, Abedlardo Sagastume and Hector LNU, were discovered in a field in Fort Bend County, Texas on November 15, 2006. ICE commenced an investigation along with local law enforcement agencies, the extent of which is not fully disclosed or necessary to the resolution of this case. ICE's investigation, nonetheless, was based on immigration violations and soon focused on Duran-Gomez.
On November 21, 2006, six days after the aliens' bodies were discovered, the FBI arrested Duran-Gomez at his home. He was mirandized
On or about November 29, ICE agents began listening to recorded calls made by and between Duran-Gomez, his mother, his former girlfriend and his sister. During the course of the telephone calls, he allegedly requested that his mother, girlfriend and sister they remove certain personal property from his home including cash and a computer monitor and CPU, and place the items in a storage unit. Based on information gathered from the telephone calls, Duran-Gomez, along with his mother, girlfriend and sister were charged with obstruction.
Approximately a month later, Duran-Gomez, his mother, sister and girlfriend were formally indicted for obstructing an ICE investigation. See [Cr Case No. 04-06-459, Dkt. No. 1]. In the meantime, the Government continued its immigration investigation against Duran-Gomez while he remained in custody. Subsequently, he entered a plea of guilty, pursuant to a plea agreement on May 25, 2007, to obstruction, where he agreed to cooperate with the Government in its ongoing investigation. When he entered his plea of guilty, he confessed to conduct that further implicated him in the deaths of the two aliens. The language contained in his plea agreement, states in relevant part the following:
A Pre-Sentence Investigation Report ("PSR") was completed in the obstruction case and was filed on March 3, 2008. Nevertheless, four years nearly passed before Duran-Gomez would be sentenced on January 6, 2011. The PSR included the Government's investigation materials that contributed to the probation officer's report and recommendation to the Court. The PSR calculations for punishment purposes were as follows:
See Case 4:06-CR-0459, [Dkt. No. 109 at 10-11, June 6, 2008]. Duran-Gomez was sentenced to the maximum term that the statute allowed notwithstanding his cooperation and the fact that the PSR included unindicted conduct. According to the Sentencing Guidelines applicable and/or those applied, Duran-Gomez's base Offense Level score for the offense of obstruction was 12 and a Criminal History Category of one. Assuming he had smuggled 1,700 aliens into the United States, as recorded, the Offense Level increases to 21. This scoring would result in a sentencing range of 37-46 months. However, once the investigation materials were considered, the sentencing range increased to 151 to 188 months. At the time of his sentencing, Duran-Gomez had been continuously detained in jail approximately 50 months.
The Original Indictment in the immigration case, filed on July 1, 2010, charged Duran-Gomez with intentionally engaging in a conspiracy to transport and harbor illegal aliens within the United States and engaging in conduct that caused the deaths of two aliens. Title 8 U.S.C. §§ 1324(a)(1)(A)(ii), 1324(a)(1)(A)(iii) and 1324(a)(1)(B)(i). See [Dkt. No. 1, Indictment]. The documents and statements obtained during the investigation supported the conclusion that the two murdered aliens, Abedlardo Sagastume and Hector LNU, among others, were being held at a warehouse controlled by Duran-Gomez where they "hatched" a scheme to escape.
The murdered aliens were accused by fellow aliens of setting fire to the warehouse in an attempt to escape. Duran-Gomez learned of the fire and, upon inquiry learned that the same two were "plot[ing] to kill" one of his "lieutenants", Jose Alberto Bolanos-Garza, as part of an escape attempt. Bolanos-Garza was not officially named as a codefendant in the 2010 Indictment. He was later named in the Superseding Indictment filed October 4, 2012, along with Efrain Rodriguez-Mendoza.
It is important to note that other codefendants named in the 2010 Indictment, were not charged with participating in the beatings and deaths of the two aliens. The 2012 Indictment made it clear that, in the Government's view, Balanos-Garza, Rodriguez-Mendoza, and Duran-Gomez were all responsible for the beatings and deaths of two aliens and, therefore, should receive the death penalty.
Shortly after the 2006 Indictment for obstruction, the Government announced publicly that, based on its preliminary investigation, it would be seeking the death penalty against Duran-Gomez and perhaps others. At that time, the State of Texas declined to pursue charges against him. Yet, the requisite formal "notice of intent" ["NOI"] to seek death as to Duran-Gomez was not sought until October 15, 2011, fifteen months after the 2010 Indictment was filed and after the case had been set for trial [Dkt. No. 137]
In September of 2012, the Government received authority to seek death against Duran-Gomez and filed its NOI and its Superseding Indictment [Dkt. No. 147]. Although the 2012 Indictment disclose, Rodriguez-Mendoza as a codefendant, he was a fugitive at the time. In spite of that fact, the Government announced ready for trial as to Duran-Gomez and the remaining codefendants. Six months later, on the eve of trial, Rodriguez-Mendoza was arrested in South Texas attempting to reenter the United States. At that time, the Government insisted that Duran-Gomez and Rodriguez-Mendoza be tried together because it intended to also seek an NOI against him.
Despite the government's announcement that it intended to seek an NOI against Rodriguez-Mendoza, it did not. Rather it engaged in plea negotiations with him. On August 5, 2015, after yet another passed trial date, the Court formally ordered the Government to "seek or not" an NOI as to Rodriguez-Mendoza. [Dkt. No. 251]. However, the Government sought another extension because the DOJ was considering the terms of the plea agreement that had been struck with Rodriguez-Mendoza [Dkt. No. 253]. In the meantime, Bolanos-Garza, along with the remaining codefendants, entered pleas of guilty to lesser crimes, thereby avoiding a trial.
The DOJ rejected Rodriguez-Mendoza's plea agreement. On January 10, 2017, approximately sixteen months after the Court's order, the Government filed an NOI as to Rodriguez-Mendoza, followed by a 2017 Second Superseding Indictment. Frustrated with unsuccessful trial settings, the Court held a telephone conference and directed the parties to agree on a scheduling order that would allow Rodriguez-Mendoza to "catch up" in his preparation for trial since the Government was still insisting on a single trial.
On September 4, 2017, Rodriguez-Mendoza filed a motion for severance. Duran-Gomez filed a separate motion to sever. After reviewing the motions and replies, the Court granted Rodriguez-Mendoza's motion in light of the anticipated extenuated lag necessary for trial preparation [Dkt. No. 425]. The Court entered the parties Agreed Scheduling Order as to Duran-Gomez, and his case is currently set for trial in March of 2021, [See Dkt. No. 450]. Duran-Gomez promptly filed a motion to dismiss the 2017 Indictment based on violations of his right to a speedy trial and "due process". [See Dkt. No. 454].
In five main points of contentions, Duran-Gomez asserts that his speedy trial and "due process" rights under the Speedy Trial Act ("Act"), the Fifth, Sixth and Eighth Amendments
In support of his motion, Duran-Gomez points to the fact that the Government's investigation commenced on or about November 15, 2006, when the FBI entered the case. On November 21, he was arrested on immigration charges, and was mirandized, but was not indicted. Instead, on December 27, 2006, he was charged with obstructing ICE's investigation. He entered a plea of guilty to the obstruction charge, pursuant to a plea agreement and agreed to cooperate in the ongoing immigration investigation. Regrettably, his cooperation, however, has been used by the Government to support the Indictments in the case at bar.
He further surmises that the Government's delay in seeking the 2010 Indictment was part of its trial strategy designed to gain some impermissible trial advantage, hamper his defense preparations and punish him. See United States v. Bishop, 629 F.3d 462, 467 (5th Cir. 2010). As a result, he was forced to either file motions for continuances or acquiesce in those filed by his codefendants. Hence, he argues, the Government's lackadaisical approach to this case has spanned some 13 years, resulting in the latest trial date in March of 2021. Therefore, and because this conduct appears to be part of the Government's strategy, he contends that all delays should be charged to the Government.
In support of his argument that all delays should be laid at the Government's feet, Duran-Gomez points out that the Government completed its investigation in large measure before March of 2008.
In further support of his claim concerning of other unconstitutional tactics, Duran-Gomez argues the Government used its immigration investigation materials to enhance the punishment in the obstruction case, and now uses the obstruction conviction as an enhancement in the Indictment.
Duran-Gomez admits that he does not have direct evidence, beyond the record, that the Government set out to violate his rights. Nevertheless, he argues, the delays were unconstitutionally strategic, hence the result is the same. Moreover, the manner that the Government has gone about preparing its case establishes bad faith. Therefore, he argues he has also suffered irreparable prejudice by the Government's unconstitutional posturing, indecisiveness and protracted delay.
Duran-Gomez also asserts evidentiary prejudice because of the absence and unavailability of witnesses that were interviewed by the Government during the 2006-2010 period. The identity and location of witnesses, who potentially had exculpatory evidence, are either missing, deported or deceased. And, while the Government argues that it has offered up its witnesses, Duran-Gomez contends that it has failed to make available the names and locations of other potential witnesses. See [Dkt. No. 499, Sealed Document, Duran-Gomez Reply].
He also points out that since 2016, discovery has been produced on a "rolling basis", a method that is confirmed by the Government. Specifically, at a 2019 hearing, defense counsel stated that DNA analysis needed for comparisons between the several items of evidence seized and the DNA of codefendants and aliens, had not been turned over. As well, Duran-Gomez's computer and phone, and the data extracted, have not been turned over. Other discovery, such as his immigration file, those of the Government's alien witnesses, witness contact information and alien witness statements who were interviewed by the Government, have not been produced.
In addition to discovery and evidentiary prejudice, Duran-Gomez asserts that his incarceration in jail has (1) hindered his ability to assist in preparing for his case, (2) impacted his mental health causing much anxiety; and (3) resulted in a diminished memory capacity. Therefore, he argues, the reliability of his memory and, for that matter, the memory of the Government's witnesses are unreliable.
Finally, Duran-Gomez asserts that he has been denied access to mitigation data that would obviate the Government's NOI. As a citizen of El Salvador, he could have relied on the El Salvadorian Government for assistance. Access to certain school and court records would have permitted more effective mitigation arguments. To illustrate his point, Duran-Gomez points out that until 2011, the El Salvadorian Government operated a program for El Salvadorian citizens charged with capital crimes in America — the El Salvador Capital Assistance Project. That program was terminated in 2011, after formal capital charges were announced against him, before an NOI was requested. Moreover, his 2006 request that the El Salvadorian Consulate be contacted was ignored. Because it appears that the Government intentionally ignored his request, his defense has been irreparably harmed and prejudiced.
The Government does not deny that Duran-Gomez was arrested on November 21, 2006, for immigration violations that also involved the deaths of two aliens. In fact, the Government stated as much in the plea agreement that it struck with him in his 2006 obstruction case, and in its proffer to the United States Probation Office in 2007-08. Nor does the Government dispute that it has treated the immigration case as a capital case since 2007. Instead, the Government disputes Duran-Gomez's take on when his speedy trial rights began to run and how the obstruction case should be viewed, for speedy trial purposes, against the backdrop of his arrest on immigration charges.
In this regard, the Government asserts that "[T]he fact that [Duran-Gomez] was charged, convicted and sentenced for crimes committed under a separate indictment has no bearing on his Speedy Trial right . . ." (citing to United States v. Bigler, 810 F.2d 1317, 1320-21 (5th Cir. 1987). The Government argues that, because the obstruction charge is a distinct charge, apart from the immigration case, the 2006 Indictment relieved it of any speedy trial concerns as to the immigration case. Moreover, it argues the Act did not begin to run on the immigration case until the 2010 Indictment was filed.
The Government also contends that the 2012 and 2017 Superseding Indictments, "reset" the timeline for speedy trial purposes under the Act and the Sixth Amendment and that it is Duran-Gomez's counsel's fault that the trial has been delayed. It maintains that by counsel conducting their own investigation for mitigation evidence, in an effort to persuade the DOJ not to issue an NOI against their client, Duran-Gomez's counsel unnecessarily delayed the trial.
The Government makes a similar argument concerning Duran-Gomez's contention that the Government delayed trial due to the fugitive and NOI statuses of Rodriguez-Mendoza. Its choice to try Duran-Gomez and Rodriguez-Mendoza in a single trial, is its prerogative, it maintains. It further argues that it is not uncommon for the Government's case to be delayed when the delay is due to plea bargaining or the arrest of other codefendants. Accordingly, such delay should not be counted against it because: (1) it had already announced ready for trial in 2011, prior to Rodriguez-Mendoza's arrest; and, (2) because the case was declared complex [Dkt. No. 43, codefendant, Fuentes' motion].
The Government concedes, however, that "the interval between accusation and trial [crosses] the threshold that separates ordinary delay from presumptively prejudicial delay". Nevertheless, it argues, even that delay is the fault of Duran-Gomez, based on the innumerable motions for continuance that he and his codefendants filed. Importantly, the Government notes, Duran-Gomez has not been prejudiced as is evidenced by his failure to vigorously seek a speedy trial.
In support of its position, the Government highlights the many continuances sought by Duran-Gomez and his codefendant:
See [Dkt. No. 458, Government's Response]. Hence, the Government asserts that, based on Duran-Gomez's innumerable motions for continuance, he cannot show "actual prejudice". Finally, the Government argues that Duran-Gomez's request that the Court strike the NOI filed in his case, based on alleged Fifth Amendment, due process violations is unsupported by statute or case law. Therefore, Duran-Gomez's request is beyond the authority of the Court and should be denied.
A defendant may seek dismissal of his case for violations of "due process" and the speedy trial rights under the Fifth and Sixth Amendments to the federal Constitution and Speedy Trial Act. Title 18 U.S.C. § 3161(c)(1)(2). The Sixth Amendment guarantees an accused the right to a speedy and public trial. See [U. S. Const. amend VI]. The Act, however, prescribes a framework for insuring a speedy trial after an indictment has been returned. Barring extenuating circumstances, a criminal defendant's trial must commence within 70 days after he is charged or makes an initial appearance, whichever is later. See 18 U.S.C. § 3161(c). Hence, a defendant may be entitled to dismissal of an indictment when that timeframe is not met and there are no extenuating circumstances that excuse delay. See 18 U.S.C. § 3162(a)(2); see also Bloate v. United States, 559 U.S. 196, 198-99, 130 S.Ct. 1345, 1349 (2010).
Where there are both pre-indictment and post-indictment claims of unconstitutional delay, a court must distinguish between the two on the issue of speedy trial delay. See United States v. Lovasco, 431 U.S. 783, (1977)(citing to United States v. Marion, 404 U.S. 307 (1971). Pre-indictment delay claims have traditionally been considered under the Fifth Amendment, as they relate to the deprivation of "due process" of the law by inordinate delay that was also prejudicial to his defense. But, where there is actual restraint imposed by an arrest and a holding to answer for criminal charges, the Due Process Clause is implicated. Lovasco, 431 U.S. at 788. Therefore, a court examining a pre-indictment speedy trial claim must look to determine whether the Government is moving "with the dispatch that is appropriate to assure [an accused] an early and proper disposition of the charges against him." Marion, 404 U.S. at 313. Similarly, a pre-indictment claim for an alleged "due process" violation requires a court to look to the Government's conduct, i.e., delay tactics or mischief, and determine whether such delay tactics or mischief was oppressive. Id., see also United States v. Bishop, 629 F.3d 462, 466 (5th Cir. 2010), (citing United States v. Byrd, 31 F.3d 1329, 1339 (5th Cir. 1994)).
Post-indictment claims of unconstitutional delay under the Sixth Amendment and the Act, are reviewed under the "balancing test" cited as the Barker test. See Barker v. Wingo, 407 U.S. 514 (1972). Barker dictates a four-part evaluation of the evidence focusing on: (a) the length of the delay; (b) the reason(s) for the delay; (c) the defendant's diligence in asserting his right to a speedy trial; and, (d) any prejudice to the defendant resulting from the delay. Id. at 530-33; see also United States v. Frye, 489 F.3d 201, 209 (5th Cir. 2007).
None of the factors is a "necessary or sufficient condition to the finding of a deprivation of the right to speedy trial". Nevertheless, "they are related factors and must be considered with such other circumstances as may be relevant" Barker v. Wingo, 407 U.S. 514, 533 (1972; see also United States v. Young, 657 F.3d 408, 414 (6th Cir. 2011, (citing to Barker, 407 U.S. at 530).
When considering a speedy trial claim, the length of the delay is a "triggering mechanism." Young, 657 F.2d at 414. It is measured from the earlier of the date of arrest and detention and the date of indictment. Id., (citing United States v. Bass, 460 F.3d 830, 836 (6th Cir. 2006)). When that delay is excessively protracted, it may be said that the length of delay is "presumptive prejudicial." United States v. Frye, 489 F.3d 201, 209 (5th Cir. 2007).
When delay is deemed to be "presumptively prejudicial", the burden of persuasion shifts to the Government to establish that the delay was justified or that the defendant's speedy trial rights were not prejudiced. Id. In other words, where the first three Barker factors weigh so heavily in favor of the defendant that prejudice is to be presumed . . . the Government [must] show that the presumption is extenuated . . ., or rebut the presumption with evidence. United States v. Serna-Villarreal, 352 F.3d 225, 231 (5th Cir. 2003); (citing to Doggett v. United States, 505 U.S. 647, 655 (1992)). If the Government fails to carry its burden, the proper remedy is dismissal of the indictment with prejudice. Bloate, 559 U.S. at 199; United States v. Molina-Solorio, 577 F.3d 300, 308 (5th Cir. 2009).
Concedes that the first Barker factor is satisfied in this case, the Government asserts that the Court must consider the remaining three factors to determine whether the delay "has crossed the threshold that separates ordinary delay from presumptively prejudicial delay". See Amos v. Thornton, 646 F.3d 199, 205 (5th Cir. 2011). In this wise, the Government asserts that Duran-Gomez' motion should be denied because he has filed numerous motions for continuance. This conduct, the Government suggests, constitutes a "pleading game" designed to "thwart" prosecution by "increasing the delay and cost" of the prosecution [Dkt. No. 458, Government's Response. pp. 8-9].
Next, the Government argues that Duran-Gomez has waived any claim of a violation of his right to a speedy trial. In this regard, the Government argues that the combination of numerous motions for continuance, coupled with his failure to conscientiously seek a speedy trial, waives the right. The Government points to Duran-Gomez and his attorney's waiver of a detention hearing, essentially "conced[ing] that defendant should be detained pending trial." See [Dkt. No. 39]. Finally, the Government asserts that the Court lacks the legal authority to strike the NOI, as a sanction and convert the case into a non-capital offense, based on alleged "due process" violations.
The Government has not offered testimonial or documentary evidence, beyond the plethora of motions for continuance in support of its arguments. Therefore, its arguments rest on an analysis of the three remaining Barker factors-whether Duran-Gomez can show that: (1) a speedy trial violation occurred, (2) he demanded a speedy trial, and (3) the "presumptive prejudicial" delay result in actual prejudice. See Frye, 489 F.3d at 209
The Court is of the opinion that the Government's pre-indictment conduct violated Duran-Gomez's Fifth Amendment right to "due process" of law and his Sixth Amendment right to a speedy trial. Duran-Gomez was arrested on November 21, 2006, for alleged immigration violations that involved the deaths of two aliens. Thirty days later, he was indicted for obstructing an ICE investigation. Of note is the fact that Duran-Gomez was not arrested for obstruction.
It is the Court's view that the Government's decision to charge Duran-Gomez with the offense of obstruction, after arresting him on immigration charges, does not relieve it of its duty to address Duran-Gomez's speedy trial rights under the Sixth Amendment. In a somewhat oblique argument, the Government contends that Duran-Gomez's conviction for obstruction "has no bearing on his Speedy Trial rights" in this case. That might be true, nevertheless, the Court disagrees with the Government's conclusion. The obstruction case was, in fact, a separate indictment and required separate attention, just as the immigration case for which he was arrested. Granted, the Act does not apply to pre-indictment circumstances but the Sixth Amendment does.
Relying on Biglar, the Government argues that the "timeline" chosen by Duran-Gomez does not aid him. United States v. Biglar, 810 F.2d 1317, 1320-21 (5th Cir. 1987). This argument is without logic or legal authority. The Government appears to argue that the conviction on the obstruction case works to exclude any claim of a speedy trial violation in the immigration case, citing to United States v. Montoya, 827 F.2d 143, 147-50 (7th Cir. 1987). Neither Biglar nor Montoya addressed a preindictment/detention issue as is presented here. Biglar addressed delay that occurs when the state and federal Governments are competing for the body of same accused based on jurisdiction and separate crimes. Montoya, on other hand, concerned delay caused when an accused is engaged in plea negotiations.
The Government does not assert that the trial was delayed due to separate governments competing for Duran-Gomez. Nor does the evidence suggest that the Government was engaged in plea negotiations with Duran-Gomez or others in the immigration case during the pre-indictment period. Instead, the evidence shows that the Government simply "sat on him" while they engaged in an unusually protracted investigation that, for all practical purposes, was completed in early 2008.
Had the Government argued that Duran-Gomez was also being detained for deportation proceedings, that argument would be inconsequential for speedy trial analysis. The argument overlooks the fact that the Government never sought to bring him before the appropriate judicial officer. Nor does the Government explain why it did not provide him with a "due process" hearing in the immigration courts regarding any alleged immigration infraction(s). Assuming further that Duran-Gomez could have been charged or held for immigration infractions, those charges would not defeat his right to a speedy trial on the immigration charges for which he was arrested and detained. Again, even assuming that Duran-Gomez could have been detained on the obstruction charge, that charge does not permit the Government to delay sentencing for years or swap the crimes and ignore the basis for his arrest and detention. The charge of obstruction arose after his arrest and detention on immigration charges.
A formal indictment, as well as actual restraint by an arrest and holding, i.e., preindictment, engages the protections of the Sixth Amendment. Marion, 404 U.S. at 320 (1971). Hence, while pre-indictment delay does not engage the Act, it does not escape the scrutiny of the Sixth Amendment. Id. Duran-Gomez's arrest and detention on the immigration charge and the failure to bring him before a magistrate judge on that matter, cannot be "swept under the rug" simply because of the Government's decision to file the subsequent obstruction charge. Therefore, the Court holds that Duran-Gomez's right to a speedy trial was invoked when the Government arrested and detained him on immigration charges. See Lovasco, 431 U.S. at 788.
Duran-Gomez's motion to dismiss is meritorious and should be granted because the Government deliberately delayed charging him with the capital offense for which he was initially arrested and detained. During the course of the pre-indictment delay, he was denied (1) capital qualified counsel, (2) a meaningful opportunity to investigate the immigration charges as they were being developed against him; (3) the opportunity to obtain evidence; and, (4) the benefits of serving his sentence in prison rather than the inferior confines of jail.
The same delay and conduct also violated Duran-Gomez's right to "due process" under the Fifth Amendment. The evidence shows that the delay was intentional and undertaken for the sole purpose of gaining some tactical advantage and to punish. Bloate, 559 U.S. at 198, 99. Such conduct is impermissible and reveals bad faith on the part of the Government. United States v. Crouch, 84 F.3d 1497, 1514 (5th Cir. 1996)(citing to Marion, 404 U.S. at 325). Because the delay was intentional and suppressive and lacked a plausible explanation, the Court infers prejudice. This inexplicable conduct denied Duran-Gomez "due process" of law and prejudiced his opportunity for a fair or just trial.
The Court does not reach its conclusion lightly. Rather it rests its determination, in part, on the fact that Duran-Gomez began cooperating with the Government long before he was indicted for obstruction and continued to do so afterward. Moreover, by all accounts, the investigation, although complex and protracted, was for all practicable purposes concluded in 2007-08.
This fact is established in the Government's investigation proffer, presented to the U. S. Probation Officer ("USPO") in early 2008, if not sooner,
See [Case 4:06-Cr-459, Document 109 at pp. 3-9, June 6, 2008)]. The PSR shows that the Government could have indicted Duran-Gomez in 2006 or 2007, and could have proceeded to trial as early as 2008. For reasons known only to the Government, it chose not to do so. And, while the Government has no duty to indict at any particular time, it has a legal and ethical obligation to prosecute prudently and efficiently while remaining cognizant of the liberty rights conferred on an accused. See Lovasco, 431 U.S. at 791 [Prosecutors are under no duty to file charges before they are satisfied that evidence is sufficient.] This duty does not extend to the government the right to investigate a citizen while detaining him in jail, essentially, holding him in "limbo" without charges for tactical advantage or to punish.
Duran-Gomez also contends that he has been denied a speedy trial under the Act and Sixth Amendment since the 2010 Indictment. Here, his claims under the Act and the Sixth Amendment merge into a single claim and are subject to a Barker analysis. However, the law, logic and facts that dictated the Court's determination in the pre-indictment discussion heretofore, also applies here. Therefore, that determination is incorporated in this section by reference.
The Government contends that the defense team [Duran-Gomez's counsel] "resort[ed] to a `pleading games' in an attempt to thwart prosecution . . . by increasing the delay and cost; and, on no less than 12 occasions has . . . requested continuance of the trial dates or pleading deadlines." For this argument, the Government relies only on Duran-Gomez's motions for continuance as proof that the delay occasioned, has not prejudice him.
The Court is of the opinion that the Government's reliance on the motions alone does not defeat Duran-Gomez's prejudice claim. The prejudice commenced during the pre-indictment phase and carried forward. Hence, the Court finds that the vast majority, if not all, of the continuances that Duran-Gomez sought were precipitated by the Government's trial strategy of intentional delay. Both the Government and the Court owe an "affirmative obligation" to a criminal defendant and to the public to bring matters to trial promptly. United States v. Black, 918 F.3d 243, 253 (2nd Cir. 2019). Here, the Government failed and, thereby, successfully frustrated the Court in its duty.
The Government admits that since 2010, the length of delay in the trial of this case is "presumptively prejudicial". See [Government's Response, Dkt. No. 458 at p.13]. By this admission, it concedes that delay has been excessively protracted. Nevertheless, it does not concede that the burden is on it to prove that the delay was justified and that Duran-Gomez suffered no prejudice. See Doggett, 505 U.S. at 656-58; see also Serna-Villarreal, 352 F.3d 231.
The Court is of the view that the Government has not satisfied its burden by simply pointing to continuances sought by Duran-Gomez. This argument does not satisfy the Barker or Serna-Villarreal, requirements. Case law dictates that the Government establish that the "presumption of prejudice" is extenuated, or is otherwise rebutted by evidence. The fact that continuances were sought and granted is simply not determinative. Something more is required of the Government. See Black, 918 F.3d at 254. What is required is evidence that shows that the Government's conduct did not artfully and strategically engineer Duran-Gomez into positions where he, of necessity, sought continues. See [Dkt. No. 499, Supplemental Memorandum]. The record shows that, in fact, it did. The Government cannot rely on its own mischief as a defense to Duran-Gomez's speedy trial rights while claiming no prejudice.
Indeed, the record shows that the Government did not obtain an NOI concerning Duran-Gomez until September 9, 2012, after the case had been set for trial on numerous occasions. Specifically, the Court had set the cases for trial on seven occasions: December 14, 2010, April 26, 2011, August 23, 2011, November 29, 2011, February 28, 2012, May 1, 2012, and November 13, 2012. The filing of an NOI appreciably changed the trial landscape in ways not previously contemplated. Those continuances were based on the fact that the Government had not provided discovery, even though it claimed an open file. It used those continuances to strike plea agreements with other defendants while withholding trial evidence that Duran-Gomez was due for trial preparation. As a result, the Court concludes that even though the Government announced in 2007 that it was going to seek the death penalty as to Duran-Gomez, and that it was ready for trial in 2013, it was not prepared to try the case. By 2013, the government had provided limited discovery to Duran-Gomez, most, if not all of which was delivered on or about April 20, 2011. This disclosure, however, amounted to less than 14% of its discovery obligation. Subsequent disclosures reveal that substantial documents and reports were in the Government's possession in 2011. While, it claimed to be operating under an "open file policy" and openly stated to the Court "everyone would be on the same page from a discovery perspective" it was not operating with candor or honesty.
This conduct did not go unnoticed by Duran-Gomez as suggested by the Government. At the time, counsel asserted that his client's ability to get a fair trial was being impacted by the Government's tactics. See [PH Conf. (10.11.12), pp. 6-12]. However, the Government's did not stop with its lack of candor with regard to discovery. After the case was again set for trial on April 23, 2013, notice of the arrest of Rodriguez-Mendoza was disclosed. His arrest ushered in a new and protracted period of delay at the behest of the Government. The Government's previous announcement that Duran-Gomez would be the only death penalty qualified defendant going to trial prompted the Court to set the case for trial. Nevertheless, the government changed its mind, insisting on one capital trial that would include Rodriguez-Mendoza. Learning of this fact, the Court encourage a severance of Rodriguez-Mendoza and all non-capital defendants from Duran-Gomez's trial. The Government rejected this opportunity and announced that it would be seeking an NOI as to Rodriguez-Mendoza in order that it could have a single trial. See [PH Conf. (5.28.13) pp. 7-13].
Although, the Government was insisting on a single trial, it did not seriously move forward to obtain an NOI as to Rodriguez-Mendoza. Instead it sought a four-week delay to decide how it did handle Rodriguez-Mendoza even though the government had made it clear that it was going to seek the death penalty against him. That four week delay lasted almost four years to February 10, 2017. In the meantime, the Government engaged in plea bargaining with Rodriguez-Mendoza and sought to resolve whether his intellectual IQ was too low be tried under the Death Penalty Act.
The government's dilemma is laid bare at the Court's July 29, 2015, conference. The Government announced that it was ". . . in somewhat of a limbo . . ." It had not obtained an NOI as to Rodriguez-Mendoza and was not ready to try the case. With little warning, the prosecution team was replaced on December 17, 2015. The new team promptly announced ready for trial. However, it had no NOI as to Rodriguez-Mendoza and continued to insist on a single trial. All the time, Duran-Gomez's counsel continued to complain about the ineffectiveness of the "open file" policy. According to counsel, critical evidence had not been disclosed.
This long delay by the Government has been prejudicial and cannot be articulated with specificity and precision. Nevertheless, the Court is of the opinion that Duran-Gomez cannot nor should he be required to do so since events between 2010 and 2017 were under the Government's control. Hence, the Court is left to conclude that, at the outset, the delay was intentional, designed to gain some tactical advantage, and not in the interest of justice. Marion, 404 U.S. at 325 (1971). The record of Court proceeding since 2006, speaks loudly and clearly that Duran-Gomez's speedy trial rights have been violated and that he has been irreparable prejudiced. The Government's prosecutorial policy has had a discriminatory impact. See United States v. Armstrong, 517 U.S. 456, 465 (1996).
The Government also asserts that Duran-Gomez failed to consciously seek a speedy trial. Therefore, he cannot now claim prejudice. In the Court's view, presuming waiver of a fundamental right based on "inaction is inconsistent with [the Supreme Court's] pronouncements on waiver of Constitutional rights." Barker, 407 U.S. at 525. In fact, the delays in this case up to January 30, 2017, must be attributed to the Government because it was then that the vast majority of discovery was finally delivered to Duran-Gomez. Even then, the Government acknowledged that other discovery would be forthcoming.
The effect of the Government's conduct has been to punish Duran-Gomez
The provision of the Act and the Sixth Amendment do not abide such conduct. The Court is of the opinion that the delay in this case is so excessive that it has presumptively "compromise[d] the reliability of a trial in a way that [Duran-Gomez] [cannot] prove, or for that matter, identify." Doggett, 505 U.S. at 655. This conclusion is necessary, in part, because the Government has not handled this case in a systematic and conventional manner, along the lines of "fair play and decency". By all accounts, the Government's delay has been and continues to be oppressive and unjustified. See Dickey v. Florida, 398 U.S. 30, 51-52 (1970).
The Court has thoroughly considered the Government's evidence and argument against dismissal of the Indictment and, accordingly, finds that the evidence and argument are lacking and disagreeable with regard to the Act, the Sixth Amendment and Fifth Amendment "due process" principles. Hence, the integrity, efficiency and centrality of the rule of law and good conscience dictates dismissal. In view of the analysis and discussion concerning both pre-indictment and post-indictment delay, the Court finds actual prejudice and HOLDS that the 2017 Superseding Indictment be, and it is hereby, DISMISSED with Prejudice. Barker, 407 U.S. at 522.
It is so ORDERED.
While the offense conduct in the case at bar is not the "same offense" conduct described in the obstruction case, the Government precipitously injected its immigration investigation materials into it. The result of this wanton conduct was to enhance Duran-Gomez's punishment far above that of the ordinary obstruction case. The effect was to punish him for unadjudicated conduct — conduct that is yet to be tried to a jury. The "Due Process" clause protects criminal defendants against conduct that punishes unadjudicated conduct, in particular, where the conduct alleged is the subject of an ongoing prosecution.
