169 F.3d 344 (6th Cir. 1999), 97-2295, United States v. Brown

Docket Nº:97-2295.
Citation:169 F.3d 344
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Brian BROWN, Defendant-Appellee.
Case Date:February 26, 1999
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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169 F.3d 344 (6th Cir. 1999)

UNITED STATES of America, Plaintiff-Appellant,

v.

Brian BROWN, Defendant-Appellee.

No. 97-2295.

United States Court of Appeals, Sixth Circuit

February 26, 1999

Argued Dec. 11, 1998.

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[Copyrighted Material Omitted]

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Jennifer J. Peregord (argued and briefed), Office of the U.S. Attorney, Detroit, Michigan, for Plaintiff-Appellant.

S. Allen Early, III (argued and briefed), Law Offices of S. Allen Early, Detroit, Michigan, for Defendant-Appellee.

Before: SUHRHEINRICH and CLAY, Circuit Judges; CARR, District Judge. [*]

CLAY, Circuit Judge.

The government appeals from the district court's order dismissing with prejudice an indictment against the defendant, Brian Brown, for conspiracy and attempted possession with intent to distribute cocaine on the grounds that the delay in prosecution violated his Sixth Amendment right to a speedy trial. The government contends that the criminal indictment against Brown should not have been dismissed on speedy trial grounds since most of the pretrial delay was caused by Brown's prolonged efforts to avoid arrest, and because Brown cannot prove that he has been substantially prejudiced by the delay. For the reasons stated herein, we AFFIRM the judgment of the district court.

I.

Brown and an accomplice, subjects of an FBI investigation, were arrested by the FBI on June 9, 1992, when they allegedly arranged to purchase twenty kilograms of cocaine from an undercover agent. Brown was arrested at the drug transfer site and had in his possession the keys to a car containing approximately $166,000 in cash. Later that day, the FBI released Brown to the custody of his attorney, John Royal, with the agreement that the FBI would contact Royal to surrender his client if criminal charges were filed. By letter dated June 22, 1992, Royal communicated to the United States Attorney's office that he represented Brown and requested specifically that "if an indictment or information is issued, please notify me immediately, and I will produce Mr. Brown for arraignment."

Due to the priority given by the United States Attorney's office to other FBI investigations, Brown and his accomplice were not charged by complaint for the drug offense until October 15, 1992. However, the government did not immediately present its case against Brown to the grand jury, although the FBI twice expressed concerns about the prosecution's delay to the Assistant United States Attorneys ("AUSAs") assigned to Brown's case. On December 1, 1992, a grand jury finally issued a two-count indictment charging Brown and his accomplice with conspiracy and attempted possession with intent to distribute cocaine in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1) and 846.

The indictment was unsealed and a new arrest warrant was issued for Brown on February 18, 1993. The government did not contact Royal, however, to surrender his client after the issuance of the indictment and arrest warrant. Instead, the FBI initiated independent attempts to arrest Brown between January 1993 and October 1993. Among other things, the FBI conducted surveillance

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of Brown's grandmother's home, where Brown occasionally resided. The government alleges that in January 1993, Brown recognized FBI agents in an unmarked car, and he hurried into the passenger side of a BMW automobile that sped away from his grandmother's home. The government asserts that Brown drove across residential lawns in an attempt to evade the FBI. During the next few months, when the FBI spoke to various members of Brown's family, they stated that they had not seen Brown recently and did not know how to contact him. Although Brown's grandmother suggested that the FBI call Royal and provided Royal's telephone number to the agents, the FBI did not contact Royal. The FBI concluded that Brown was evading arrest, designated the case "fugitive status," and assigned the case to an investigative squad in November 1993.

Brown's whereabouts became known to the government on October 5, 1996, when he was arrested by the Michigan State Police for carrying a concealed weapon. Although he used an alias, the police discovered Brown's true identity through fingerprints and visual comparison with a previous arrest photograph. Brown told authorities that Royal was his attorney. Royal avers that he first learned of the federal warrant for Brown's arrest when he went to the police station on October 6, 1996, to visit his client and inquire about his arrest on the state charges. 1

A federal detainer for Brown's custody was obtained on October 9, 1996. Brown posted bond on the state charges on October 20, 1996, and was at that point available for release to the government on the federal charges. Despite a call by local authorities to the United States Marshal's office confirming Brown's release from state custody, Brown remained in state jail pursuant to the detainer.

During this time, the FBI attempted to find out who was prosecuting Brown's case. When agents spoke to an AUSA once assigned to Brown's case, the AUSA said that he did not know who was in charge of the case and did not return later phone calls. Brown's federal case remained inactive until May 1997, when the FBI was informed that a third AUSA had been assigned to the case. However, since the AUSA was unfamiliar with the case, the AUSA did not meet with an agent of the FBI to discuss the case until July 1997.

Royal, on behalf of Brown, filed a demand for speedy trial under the Sixth Amendment and Fed.R.Crim.P. 48 in the district court on January 17, 1997. However, the demand made no mention of the fact that Brown remained incarcerated in jail pursuant to the federal detainer despite entitlement to release on the state charges. Brown received no response to this demand and remained in state prison for six more months, at which time Brown's new counsel filed a motion to dismiss the indictment on July 8, 1997. In response, the government filed a petition for a writ of habeas corpus ad prosequendum in the district court on July 8, 1997, to bring Brown into federal court for arraignment. 2 The district court issued the writ the following day. Brown was arraigned on July 17, 1997, and later ordered detained without bond by order of the magistrate judge entered on August 11, 1997.

In response to Brown's motion to dismiss the indictment, the district court held that

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Brown's Sixth Amendment right had been violated by the government's delay in bringing him to trial. The district court determined that the government did not present sufficient evidence that Brown knew that he had been indicted on the drug offense and had evaded arrest on the federal indictment by use of multiple aliases. The district court also determined that the FBI's attempts to arrest Brown were not entitled to great weight given the government's failure to call Royal. Finally, the district court concluded that it was unnecessary for Brown to prove substantial prejudice when, as here, the pretrial delay was so excessive. The district court entered an order on October 29, 1997, granting Brown's motion, dismissing the indictment with prejudice, and releasing Brown from custody that same day. The government now appeals.

II.

On appeal, the government challenges the district court's dismissal of the criminal indictment against Brown on speedy trial grounds. This Court examines de novo the constitutional question of whether a defendant has been denied a speedy trial in violation of the Sixth Amendment. See United States v. Smith, 94 F.3d 204, 208 (6th Cir.1996). However, we review the district court's factual findings for clear error. See id.

The Sixth Amendment to the United States Constitution guarantees, in pertinent part, that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." U.S. Const. amend VI. Accordingly, the Supreme Court has identified four factors that courts should consider in determining whether a defendant has been denied a speedy trial in violation of the Sixth Amendment. Courts must balance (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his right; and (4) the prejudice to the defendant. See Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Put differently, the Supreme Court has stated that it is necessary for courts to balance "whether [the] delay before trial was uncommonly long, whether the government or the criminal defendant is more to blame for that delay, whether, in due course, the defendant asserted his right to a speedy trial, and whether he suffered prejudice as the delay's result." Doggett v. United States, 505 U.S. 647, 651, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992) (citing Barker v. Wingo, 407 U.S. at 530, 92 S.Ct. 2182). None of the enumerated factors alone is sufficient to establish a violation of the Sixth Amendment; "[r]ather, they are related factors and must be considered together with such other circumstances as may be relevant." Barker, 407 U.S. at 533, 92 S.Ct. 2182. When a defendant's constitutional right to a speedy trial has been violated, dismissal of the indictment is the only available option even when it allows a defendant who may be guilty of a serious crime to go free. See id. at 522, 92 S.Ct. 2182.

Here, the government contends that the indictment was improperly dismissed because the majority of the pretrial delay was a result of Brown's evasive actions to avoid arrest. Specifically, the government argues that Brown intentionally fled the state and used multiple aliases for the purpose of avoiding arrest on the indictment. Significantly, the government also asserts that Brown did not establish the requisite "substantial prejudice" to entitle him to dismissal of the indictment on speedy trial grounds. We disagree. Our application of the four Barker factors leads us to conclude that Brown was...

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