U.S. v. Arceo

• Decision Date: 28 July 2008
• Docket Number: No. 07-3296.,07-3296.
• Citation: 535 F.3d 679
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Edgar ARCEO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

535 F.3d 679

UNITED STATES of America, Plaintiff-Appellee, v. Edgar ARCEO, Defendant-Appellant.

No. 07-3296.

United States Court of Appeals, Seventh Circuit.

Argued April 14, 2008.

Decided July 28, 2008.

Thomas D. Shakeshaft (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Pablo DeCastro (argued), Rascia & DeCastro Chicago, IL for Defendant-Appellant.

Before FLAUM, EVANS, and TINDER, Circuit Judges.

TINDER, Circuit Judge.

Edgar Arceo and a co-defendant were charged with a conspiracy to possess with intent to distribute and to distribute a controlled substance in violation of 21 U.S.C. § 846. More than six years later Arceo was arrested. He moved to dismiss the indictment based on an alleged violation of his constitutional right to a speedy trial. His motion was denied. Arceo then pled guilty to the conspiracy charge, conditioning his plea on the right to appeal the denial of his motion to dismiss. The district court sentenced Arceo to 108 months' imprisonment followed by a term of supervised release. Arceo appeals. While he raises three issues, his main argument is that his right to a speedy trial was violated. He also challenges his sentence arguing that the obstruction of justice adjustment under U.S.S.G. § 3C1.1 was not appropriate and that the district court did not adequately consider his cooperation with the government. After a brief presentation of the facts, we turn to Arceo's arguments.

I. Background

On August 11, 1999, Arceo was arrested in a parking lot in Aurora, Illinois, after delivering approximately 5 kilograms of cocaine to a confidential informant who was working with the Drug Enforcement Agency ("DEA"). Immediately after his arrest, Arceo was interviewed by agents. He waived his Miranda rights and agreed to cooperate with law enforcement. He identified his source of supply of cocaine, Jose Salazar-Felix, and agreed to show the agents where he got the cocaine. The agents accompanied Arceo to a residence in Palatine, resulting in Salazar-Felix's arrest and eventual prosecution. Arceo subsequently was transported to the Palatine, Illinois, Police Department for processing.

Both at the time of his arrest in the parking lot and again while at the Palatine Police Department, Arceo was advised by the DEA Task Force Officer Lou Dominguez and other agents that they did not know when he would be charged, but that he would, in fact, be charged at a later time after his cooperation ended.¹ Arceo was released from custody in order to continue his cooperation. He identified his source of marijuana, Jesus Rodriguez-Medina, and arrangements were made for a meeting. Law enforcement and Arceo agreed to contact each other the next day.

For two days Arceo cooperated with law enforcement. He arranged for a marijuana transaction on August 12 with Rodriguez-Medina. Arceo did meet with Rodriguez-Medina, who was arrested. Law enforcement and Arceo agreed to meet the next day. On August 13, however, when Officer Dominguez called Arceo to arrange to meet, he was unable to reach him. Other agents likewise tried to contact Arceo but did not succeed. As a result the agents went looking for Arceo at his residence. They were unable to find him and determined he had moved out. After the usual law-enforcement checks in the Northern District of Illinois, Arceo still did not turn up.

On November 4, 1999, Arceo and Rodriguez-Medina were charged in a one-count indictment with a cocaine and marijuana conspiracy. A minute order was entered that day, stating: "The government will seek to have the defendant detained without bond ... as to Edgar Arceo, granted. Enter order." An arraignment notice was entered the next day. The docket does not show that an arrest warrant was issued for Arceo. Between November 1999 and July 2000, there were a number of court proceedings involving Rodriguez-Medina but no docket entries reflect any activity as to Arceo. On July 27, 2000, Arceo's case was reassigned to the fugitive calendar.

In early 2001, Officer Dominguez discovered that no arrest warrant had been issued for Arceo. So on April 4, 2001, he contacted the Assistant United States Attorney ("AUSA") assigned to the case in an effort to obtain an arrest warrant. No warrant was issued, so Officer Dominguez contacted the AUSA once again in 2001 and still later in 2002, before he stopped working as a DEA task officer. The agent who took over this case made two attempts in 2003 to have an arrest warrant issued for Arceo. None was issued until December 15, 2005, however. On December 20, that warrant, along with a second warrant issued December 19, were quashed for reasons not indicated in the record, and a third bench warrant was issued.

On April 4, 2006, Arceo was arrested in the Middle District of Pennsylvania. He was living there under the assumed identity of Rowdy Sepulvida, which he admitted he purchased from a friend.

A detention hearing was held on April 5, 2006, in Pennsylvania, at which Arceo's wife of twelve years, Maria Arceo, testified. She stated that in August 1999 she and her husband left Chicago for Mexico "because of the problem" in Chicago (without any details about the nature of the problem) and that they lived in Mexico for about three years. According to Maria, it was her husband's idea to go to Mexico. She testified that she believed her husband knew he was wanted in Chicago. Maria said that they returned to the United States in 2002 and lived in Spring Grove, Pennsylvania, near her family. She also said it was about that time that Arceo began using the Rowdy Sepulvida name. She explained that Arceo could not use his own name because of the problem he had in Chicago.²

Prior to trial Arceo moved to dismiss the indictment. The district court held a hearing on the motion. The court considered the transcript of Maria's testimony at the detention hearing and the testimony of former Task Force Officer Dominguez about Arceo's arrest, cooperation, and flight, and then denied the motion to dismiss. The court found that Arceo was aware he had been arrested and that criminal charges would be filed, yet chose to remove himself from the United States, later returning to another jurisdiction under an assumed name until his arrest. The court indicated that the government may not have done "as much as it could have" but concluded that Arceo's attempt to avoid arrest and prosecution outweighed any negligence by the government.

On April 2, 2007, Arceo pled guilty pursuant to a plea agreement to a conspiracy to possess with intent to distribute and to distribute a controlled substance, in violation of 21 U.S.C. § 846. His plea was conditioned on his right to appeal the denial of his motion to dismiss. The district court accepted his conditional plea and entered a judgment against him.

At sentencing the district court heard arguments relating to adjustments for obstruction of justice under U.S.S.G. § 3C1.1 and acceptance of responsibility, and considered the 18 U.S.C. § 3553(a) sentencing factors, specifically including Arceo's family history and circumstances, his lack of criminal history since 1999, and his cooperation with the government immediately following his arrest. The court sentenced him to 108 months' imprisonment, at the bottom of the guidelines range. Arceo appeals.

II. Sixth Amendment Right to A Speedy Trial

Arceo's first and principal argument is that the district court erred in denying his motion to dismiss because he was deprived of his Sixth Amendment right to a speedy trial. The government responds that there was no error because Arceo's own conduct in evading law enforcement outweighs any government conduct contributing to the six-year and eight-month delay following his initial arrest. We review a speedy trial claim de novo and review the district court's factual findings for clear error. See United States v. King, 338 F.3d 794, 797 (7th Cir.2003) (stating explicitly the standard of review for a Speedy Trial Act claim and applying the same standard to a Sixth Amendment speedy trial claim); see also United States v. Sutcliffe, 505 F.3d 944, 956 (9th Cir. 2007) (stating explicitly the standard of review for a constitutional speedy trial claim); United States v. Brown, 498 F.3d 523, 530 (6th Cir.) (same), cert. denied, ___ U.S. ___, 128 S.Ct. 674, 169 L.Ed.2d 528 (2007).

The Sixth Amendment right to a speedy trial is triggered by an arrest, indictment, or some other official accusation. Doggett v. United States, 505 U.S. 647, 655, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992); United States v. White, 443 F.3d 582, 589 (7th Cir.2006). In determining whether a defendant has been deprived of this speedy trial right, we consider and weigh the conduct of the government and the defendant. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). In doing so we assess "whether 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, 505 U.S. at 651, 112 S.Ct. 2686; see also White, 443 F.3d at 589.

The length of the delay acts as a triggering mechanism. Unless the delay is presumptively prejudicial, we need not consider the other factors. Barker, 407 U.S. at 530, 92 S.Ct. 2182; White, 443 F.3d at 589. A delay approaching one year is presumptively prejudicial. United States v. Oriedo, 498 F.3d 593, 597 (7th Cir.2007); White, 443 F.3d at 589-90. Here, more than six and one-half years passed from the time of Arceo's arrest in August 1999 to his plea in April 2007. This extraordinary delay stretches well beyond the minimum needed to trigger a further speedy trial analysis. See Doggett, 505 U.S. at 652, 112 S.Ct. 2686. This lengthy delay weighs in favor of Arceo.

The second factor is the reason for the delay, and it is this factor that is at the heart of Arceo's...