U.S. v. Doggett

• Decision Date: 19 July 1990
• Docket Number: No. 89-3298,89-3298
• Citation: 906 F.2d 573
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Marc Gilbert DOGGETT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 573

906 F.2d 573

UNITED STATES of America, Plaintiff-Appellee, v. Marc Gilbert DOGGETT, Defendant-Appellant.

No. 89-3298.

United States Court of Appeals Eleventh Circuit.

July 19, 1990.

William J. Sheppard, Elizabeth L. White, Sheppard and White, P.A., Jacksonville, Fla., for defendant-appellant.

Thomas E. Morris, Asst. U.S. Atty., Jacksonville, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before KRAVITCH and CLARK, Circuit Judges, and ATKINS ^*, Senior District Judge.

KRAVITCH, Circuit Judge:

Marc Doggett appeals his conviction on one count of conspiracy to import cocaine entered pursuant to a conditional plea agreement. Doggett contends that the eight and a half year delay between his indictment and arrest violated his sixth amendment right to a speedy trial. ¹ The district court adopted the recommendation of a magistrate that found no violation. We affirm.

STATEMENT OF FACTS

Marc Doggett was indicted on February 22, 1980, for conspiring to import cocaine in violation of 21 U.S.C. Sec. 963 and conspiracy to distribute cocaine in violation of 21 U.S.C. Sec. 846. A warrant for Doggett's arrest was issued the same day. In order to make simultaneous arrests of several individuals involved in the conspiracy, Douglas Driver, the Drug Enforcement Administration (DEA) agent who conducted the investigation of Doggett notified the United States Marshal's Service that the DEA would coordinate Doggett's arrest. It is uncontested that Doggett did not know at this or any other time prior to his arrest in 1988 that he had been indicted or that a warrant for his arrest had issued.

On March 18, 1980, agent Driver instructed two law enforcement officers to arrest Doggett at his parents' home. Doggett's mother informed them that her son had left for Bogota, Colombia four days earlier. Driver entered a notation in the Treasury Enforcement Communication System (TECS), ² alerting all U.S. Customs stations that Doggett was wanted pursuant to an arrest warrant. Driver also sent a teletype to all of the United States Customs stations, the El Paso Intelligence Center (EPIC), ³ and INTERPOL stating that Doggett was wanted by the DEA pursuant to an arrest warrant issued in Florida. The teletype provided a description of Doggett, the name of his travelling companion, Doggett's flight information relating to his trip to Colombia, and agent Driver's contact number. Driver did not place Doggett on the National Crime Information Center (NCIC) ⁴ computer system because he erroneously believed that the TECS notation and EPIC teletype would suffice to enter Doggett onto the system. Driver's TECS notation, unbeknownst to him, expired in September 1980 and was deleted from the system. On March 18, 1981, Driver realized that Doggett had not been placed on the NCIC computer and completed a fugitive declaration form which accomplished that purpose.

On September 21, 1981, Driver was informed by agent Williams, the official in charge of DEA operations in Panama, that Doggett had been arrested on drug charges by the Panamanian authorities. Driver requested Williams to initiate informal expulsion proceedings, but made no attempts to extradite Doggett formally. Driver testified that he did not try to initiate extradition proceedings because he was told by law enforcement officials in the United States embassy in Panama that the extradition treaty between the United States and Panama did not cover drug offenses. Additionally, Driver testified that expulsion proceedings had succeeded both before and after their attempted use on Doggett in expelling wanted individuals to the United States. On October 15, 1981, Williams received a letter from the attorney general of Panama agreeing to expel Doggett to the United States once the Panamanian prosecution was completed. Williams left Panama in July 1982 and reported to Driver that Doggett was still in Panamanian custody.

On July 15, 1982, however, Doggett was released by Panamanian authorities. Several cables from the United States embassy in Panama to the Department of State in Washington, D.C., indicate that the United States was notified both of Doggett's release and of his plans to return to Colombia. Doggett proceeded to Colombia where he lived with his aunt for nearly three months. On September 25, 1982, Doggett returned to the United States and was admitted by United States Customs at John F. Kennedy Airport in New York City.

From 1982 to 1985 Agent Driver continued to believe that Doggett was being held by the Panamanian authorities. During this period, Driver filed three DEA-6 status forms stating that Doggett was in custody in Panama and that a request for expulsion had been made. Driver testified that it was his understanding that American citizens serving time in Panamanian prisons for drug offenses usually were not released for five or ten years. Therefore, he assumed that Doggett had received a lengthy sentence from the Panamanians and did not communicate with Williams's successor concerning Doggett's status. Driver did not discover that Doggett had already been released until he was transferred to Panama in August 1985.

Nevertheless, Driver made no specific effort to locate Doggett after 1985 because he believed that the defendant was living in Colombia. Driver knew that Doggett had been living in Colombia before he came to Panama and had obtained documents from Panamanian law enforcement officials indicating that Doggett had an address in Bogota, Colombia, and that he was using his mother's maiden name as an alias. Driver testified that he did not attempt a fifty state driver's license or credit search because he did not believe the defendant was in the United States, the defendant had a history of using other names, and such investigative techniques were nearly always unsuccessful.

In September 1988, pursuant to WANT II, ⁵ a Marshal's office program that checks all outstanding warrants to see if they have been served, a credit check was made on Doggett. Within thirty minutes the government discovered Doggett's driver's license number, the make and tag of his car, his wife's name, his employer, and his address. Doggett was arrested on September 5, and arraigned on September 20, 1988.

It is undisputed that from the time Doggett returned to the United States to the present, he has led a normal, productive, and law-abiding life. He met his wife in October 1982 and married a year later. Doggett interacted openly and freely in the community using his real name and making no attempt to conceal his identity or whereabouts. He financed two houses through the bank, possessed credit cards, was a registered voter, filed income tax returns, obtained a driver's license, was issued three traffic tickets, obtained his associate degree at college, and was employed as a computer operations manager.

DISCUSSION

The facts in this case are essentially undisputed. The point of contention is the magistrate's application of the Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), sixth amendment speedy trial analysis to the facts. ⁶ The trial court's legal conclusion that Doggett failed to establish a violation of his constitutional right to a speedy trial is reviewable de novo. The factual findings underpinning this legal conclusion are reviewed for clear error. Mitchell, 769 F.2d at 1547; see United States v. Bagga, 782 F.2d 1541, 1544-45 (11th Cir.1986).

In Barker, the Court enumerated four factors that should be considered in assessing the assertion of a speedy trial violation. These factors are (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his right; and (4) prejudice to the defendant. Barker, 407 U.S. at 530-32, 92 S.Ct. at 2192-93; see Loud Hawk, 474 U.S. at 313-14, 106 S.Ct. at 655; Ringstaff v. Howard, 885 F.2d 1542, 1543 (11th Cir.1989) (en banc). These factors must be carefully balanced because none of them is "either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial." Barker, 407 U.S. at 533, 92 S.Ct. at 2193; Mitchell, 769 F.2d at 1546; United States v. Dennard, 722 F.2d 1510, 1512 (11th Cir.1984).

The Eleventh Circuit, en banc, recently revisited the speedy trial issue in Ringstaff v. Howard, 885 F.2d 1542 (11th Cir.1989). The court interpreted Barker as requiring the length of the delay to be "presumptively prejudicial" in order to trigger an inquiry into the other three factors. Id. at 1543; see Loud Hawk, 474 U.S. at 314, 106 S.Ct. at 655. The court noted that absent bad faith or a deliberate effort to hamper the defense, a defendant is required to show actual prejudice in order to prevail. Ringstaff, 885 F.2d at 1545. The defendant need not show actual prejudice, however, if the other three factors weigh heavily against the prosecution. Id. at 1543.

The government concedes that the eight and a half year delay is presumptively prejudicial, warranting an inquiry into the other three factors. The magistrate found that the other three factors did not weigh against the government sufficiently to dispense with the requirement of actual prejudice. The magistrate subsequently found that the defendant had failed to show actual prejudice and therefore concluded that his right to a speedy trial had not been violated. The district court adopted the magistrate's recommendation. The following analysis will address each of the Barker factors seriatim.

Length of Delay

This factor clearly weighs heavily in favor of the defendant. In Barker, the Supreme Court described a five year delay as "extraordinary." 407 U.S. at 533, 92 S.Ct. at 2193-94. Likewise, in Ringstaff, the Eleventh Circuit found a twenty-three month delay to be presumptively prejudicial. 885 F.2d at 1543; cf. Bagga, 782 F.2d at 1542 (thirty-six month delay presumptively prejudicial); Mitchell, 769 F.2d at 1546 (twenty-nine month delay...