Unpublished Disposition, 935 F.2d 276 (9th Cir. 1989)

MEMORANDUM^* 

Determining whether a defendant's sixth amendment right to a speedy trial has been violated involves an ad hoc balancing of the conduct of the government and the defendant. Barker v. Wingo, 407 U.S. 514, 530 (1972). Under Barker, the court must consider (1) the length of the delay; (2) the reason for the delay; (3) whether the defendant asserted his right to a speedy trial; and (4) whether the defendant suffered prejudice as a result of the delay. Barker, 407 U.S. at 530.

The five-year delay here between indictment and trial presumptively prejudiced defendant. See Barker, 407 U.S. at 533-34. The trial court found, however, that the delay resulted from the government's inability, through diligent efforts, to locate the defendant, Red Brief at 12, 22 (citing R.T. 2/8/89:75; G.E.R. 63 (re denial of bail)); that the defendant failed to assert his right to a speedy trial, despite the fact he knew of the charges pending against him, Red Brief at 12 (citing R.T. 2/8/89:73-75); and that the defendant made no specific showing of actual prejudice due to the delay Red Brief at 12 (citing R.T. 2/8/89:75-76). These findings are not clearly erroneous. The trial court therefore properly denied the defendant's motion to dismiss the indictment for violation of his right to a speedy trial.

B. Prosecutorial Misconduct Before the Grand Jury

As we read United States v. Mechanik, 475 U.S. 66, 73 (1986), defendant's conviction rendered harmless any error which may have occurred in the grand jury proceeding. Even if Mechanik does not govern this case, we do not see how the prosecution's conduct could have " 'substantially influenced the grand jury's decision to indict,' " or given rise to " 'grave doubt' that the decision to indict was free from ... substantial influence" warranting dismissal. See Bank of Nova Scotia v. United States, 487 U.S. 250, 256 (1988) (quoting United States v. Mechanik, 475 U.S. 66, 78 (1986) (O'Connor, J., concurring)), quoted in United States v. Spillone, 879 F.2d 514, 521 (9th Cir. 1989), cert. denied, 111 S. Ct. 210 (1990). Nor can it be said that the conduct at issue impacted the fundamental fairness of the grand jury proceeding as a whole. See Spillone, 879 F.2d at 521 (citing United States v. Howard, 867 F.2d 548, 550-51 (9th Cir. 1989)). The district court properly denied defendant's motion to dismiss based on prosecutorial misconduct, and did not abuse its discretion in denying defendant's motion for further disclosure of grand jury transcripts, see United States v. DeTar, 832 F.2d 1110, 1113 (9th Cir. 1987).

AFFIRMED.

PREGERSON, Circuit Judge, dissenting.

Because I believe the five year delay in this case between indictment and trial violated defendant Aguirre's constitutional right to a speedy trial, I would reverse his conviction.

To determine whether a defendant's right to a speedy trial has been violated, we must consider: (1) the length of the delay, (2) the reason for the delay, (3) whether defendant asserted his right to a speedy trial, and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530 (1972). Applying those factors here, it becomes apparent that defendant's right to a speedy trial was violated.

As the majority recognizes, the five-year delay between indictment and trial in this case presumptively prejudiced the defendant. It is, in fact, "extraordinary." Barker, 407 U.S. at 534, 92 S. Ct. at 2194.

Although the government argues that defendant Aguirre's own actions caused the delay in prosecution, the record suggests no such thing. What the record does suggest is that the government made virtually no attempt to locate or apprehend the man they now claim was a fugitive.

When Aguirre was in Europe and learned that a complaint was pending against him in the U.S., he went to the American Embassy in London and followed the U.S. Consul's advice. He attempted to make his whereabouts known by filing the affidavit, which his father told him had been taken to the proper authorities. He returned to the U.S. shortly thereafter and lived an open lifestyle. He never assumed a false identification. He held several jobs in Arizona, including one with the state's department of revenue. The jobs required finger prints, background checks, and the filing of information with the Arizona government. During the five years between his indictment and arrest, this alleged "fugitive" was licensed, bonded, and security-cleared.

The government's attempts to locate Aguirre while he was living this open lifestyle were feeble, at best. Although Aguirre had produced fingerprints and a handwriting exemplar less than a year earlier, there is no evidence that authorities checked to see what other information, such as an address, had been given at that time. After the indictment was issued, the government never contacted Aguirre's lawyer or anyone in his family, even though they resided in the Los Angeles area. Instead, the government merely placed "stops" in various computer systems and then forgot about the matter for the next five years.

In short, the government's failure to make anything more than a perfunctory effort to locate Aguirre amounted to a breach of its duty to exercise due diligence in attempting to apprehend the defendant. See United States v. Williams, 782 F.2d 1462 (9th Cir. 1985); Rayborn v. Scully, 858 F.2d 84, 90 (2d Cir. 1988), cert. denied, 488 U.S. 1032 (1989) (citing United States v. Diacolios, 837 F.2d 79, 82 (2d Cir. 1988)); United States v. DeLeon, 710 F.2d 1218, 1221 (7th Cir. 1983); United States v. Bagga, 782 F.2d 1541, 1543 (11th Cir. 1986)). The "extraordinary" five-year delay in this case was plainly a result of that breach.

The waiver of the right to a speedy trial, like any fundamental right, must be knowing and intelligent. Barker, 407 U.S. at 529. Where, as here, the defendant is unaware of the charge pending against him, it is unfair to require that he demand a speedy trial Id. at 528 n. 28. Because the government has not shown that Aguirre had knowledge of any formal indictment against him, it has failed to meet its burden of proving that Aguirre knowingly and intelligently waived his right to a speedy trial.

The speedy trial right was designed: "(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired." Barker, 407 U.S. at 532, 92 S. Ct. at 2193. Aguirre's challenges go to the third interest, which the Supreme Court has called the "most serious." Id.

Immunized witness Vasquez was the key to the government's case. He stated twice that he was having trouble remembering events of over six years ago. Moreover, Aguirre no longer had access to statements he made to his lawyer when events were still fresh in his memory, nor to business records which might have undermined Vasquez' credibility.

I believe Aguirre has arguably shown actual prejudice rather than merely the possibility of prejudice. But even if this fourth factor did not favor Aguirre, that is not enough to skew the balance where the other three Baker factors weigh against the government. See United States v. Doggett, 906 F.2d 573, 580 (11th Cir. 1990). I therefore dissent.