U.S. v. Hernandez

• Decision Date: 19 July 2006
• Docket Number: No. 05-50191.,05-50191.
• Citation: 457 F.3d 416
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Maria HERNANDEZ; Rutilio Hernandez, also known as Rudy, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

457 F.3d 416

UNITED STATES of America, Plaintiff-Appellee, v. Maria HERNANDEZ; Rutilio Hernandez, also known as Rudy, Defendants-Appellants.

No. 05-50191.

United States Court of Appeals, Fifth Circuit.

July 19, 2006.

Joseph H. Gay, Jr., Asst. U.S. Atty. (argued), San Antonio, TX, for U.S.

George Paul Trejo, Jr. (argued), Trejo Law Offices, Yakima, WA, for Maria Hernandez.

Federico Castelan Sayre (argued), Santa Ana, CA, for Rutilio Hernandez.

Appeals from the United States District Court for the Western District of Texas.

Before DeMOSS, BENAVIDES and PRADO, Circuit Judges.

BENAVIDES, Circuit Judge:

Maria and Rutilio Hernandez ("Appellants") jointly appeal their convictions and sentences for six counts of conspiracy, each arising out of illegal drug activity. For the reasons below, we affirm each of Appellants' convictions and sentences.

I. BACKGROUND

The Government charged Appellants by indictment with the following counts: (1) conspiracy to possess with intent to distribute more than 1000 kilograms of marijuana, (2) conspiracy to import more than 1000 kilograms marijuana, (3, 4, 5) three counts of conspiracy to launder monetary instruments, and (6) conspiracy to possess a firearm in furtherance of a drug trafficking crime. The charges arose out of the elaborate drug trafficking operation of Robert W. Fansler. According to the Government, Appellants and Fansler orchestrated and financed a multi-million dollar marijuana distribution enterprise. The indictment alleged, inter alia, that Appellants' coconspirators smuggled marijuana, currency, and firearms between Mexico and the United States. The jury convicted on all counts. After the verdict, Appellants moved to dismiss and for a new trial on grounds of speedy trial right violations and ineffective assistance of counsel. The district court denied the motions.

As to sentencing, the court adopted the presentence reports' guideline applications. Appellant Maria Hernandez's Guideline range was 235 to 293 months imprisonment. Appellant Rutilio Hernandez's Guideline range was 360 months to life imprisonment. However, the court indicated that it would impose sentences "below the guideline range" based on the "Court's own departure." It sentenced Maria Hernandez to six concurrent terms of 204 months imprisonment and Appellant Rutilio Hernandez to six concurrent terms of 240 months imprisonment. This appeal followed.

II. DISCUSSION

A. Speedy Trial

Appellants' first claim is that the district court erred by denying their post-trial motions to dismiss the charges on speedy trial grounds. Appellants make arguments under both the Speedy Trial Act, 18 U.S.C. §§ 3161-74, and under the Sixth Amendment. Under both authorities, this claim fails.

1. Speedy Trial Act Claim

Appellants contend that their post-verdict motions to dismiss should have been granted because the Government failed to bring them to trial within seventy days. See 18 U.S.C. § 3161(c)(1). However, the district court properly held that Appellants waived their right to dismissal under the Speedy Trial Act because they did not move for dismissal before trial. See 18 U.S.C.A. § 3162(a)(2) ("Failure . . . to move for dismissal prior to trial . . . shall constitute a waiver of the right to dismissal . . . .")

Despite the plain language of section 3162(a)(2), Appellants argue that Speedy Trial Act provisions are not waivable, citing United States v. Willis, 958 F.2d 60 (5th Cir.1992). Contrary to Appellants' arguments, Willis is inapposite. Willis held that a particular period of delay was not excludable from the 70-day maximum simply because a defendant acquiesces to the delay. Willis did not address the situation here, in which the Appellants entirely failed to assert their speedy trial rights until after the verdict. Under these circumstances, section 3162(a)(2) manifestly provides that Appellants have waived the right to dismissal. See United States v. Jackson, 30 F.3d 572 (5th Cir.1994).

2. Sixth Amendment Speedy Trial Right

Appellants also assert a constitutional speedy trial claim. In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Supreme Court set forth a series of factors that courts should evaluate and balance in assessing such claims. Those factors are: "(1) the length of the delay, (2) the reason for [it], (3) the defendant's diligence in asserting his Sixth Amendment right, and (4) prejudice to the defendant resulting from the delay." United States v. Cardona, 302 F.3d 494, 496 (5th Cir.2002). A full-fledged four-factor analysis is warranted here because the total time from indictment to trial exceeded one year. See United States v. Frye, 372 F.3d 729, 736-37 (2004) (discussing this Court's "one-year guideline" for whether the delay length is sufficient to call for an analysis of all four Barker factors).

Upon analyzing the relevant factors, the district court found no Sixth Amendment violation. The standard of review for assessing a court's "four-factors balancing" is unresolved in this Circuit. Id. at 735-36. We will assume arguendo that our review is de novo.

In undertaking a "full Barker-analysis," we initially look to "the first three factors (delay-length; reason for it; diligence in asserting right) in order to determine whether prejudice will be presumed or whether actual prejudice must be shown." Id. at 736. Prejudice may be presumed where the first three factors weigh "heavily" in the defendant's favor. See United States v. Serna-Villarreal, 352 F.3d 225, 231 (5th Cir.2003).

As to the first factor, the fourteen-month delay here—though long enough to prompt a full Barker analysis—is far too short to weigh in favor of presuming prejudice. Id. at 232. Additionally, the third factor weighs heavily in the Government's favor because Appellants failed to assert their speedy trial rights until after conviction. Barker, 407 U.S. at 532, 92 S.Ct. 2182.

Appellants' argument focuses entirely on the second factor: the reason for the delay. Appellants contend that the Government misled the court and wrongfully obtained continuances. The Government sought continuances to secure the attendance and testimony of a Government witness, Fansler, who had absconded to Mexico prior to Appellants' trial. In arguing for a continuance, the Government represented that Fansler's testimony was "absolutely necessary" to its case. Appellants argue that this was misleading inasmuch as the Government eventually proceeded to trial and obtained a conviction without this "so-called `essential and absolutely necessary witness.'"

Under Doggett v. United States, the second Barker factor cuts strongly in favor of a defendant where the Government acts in bad faith, intentionally holding up prosecution for the purpose of prejudicing the defendant. 505 U.S. 647, 656, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). Cases of "official negligence" weigh less heavily against the Government, and "the weight assigned to [negligent delay] increases as the length of the delay increases." Serna-Villarreal, 352 F.3d at 232 (internal quotation marks omitted).

The Government's actions do not show bad faith. The district court found that the Government acted "in good faith" to secure the testimony of a material witness. According to the Government, Fansler was to testify that Rutilio and Maria Hernandez were, in fact, the "Rudy" and "Maria" frequently referred to in his drug-dealing records.¹ As the district court reasoned, the fact that the Government was eventually "forced to proceed to trial without the witness" fails to demonstrate that the Government did not honestly believe its representations that Fansler's testimony was crucial when it made those representations.

We doubt that the Government's actions amounted even to official negligence. However, assuming that they did, this would not show that prejudice should be presumed in this case. Government-sought continuances resulted only in a comparatively brief delay: 195 days.² The minor delay in this case, even if caused by Government negligence, would not warrant presumed prejudice. See, e.g., Robinson v. Whitley, 2 F.3d 562, 570 (5th Cir.1993).

Prejudice cannot be presumed because the first three Barker factors do not cut strongly in Appellants' favor. Appellants fail to argue that they suffered any actual prejudice. Therefore, their Sixth Amendment speedy trial claim must fail.

B. Use of Successor Judge

Appellants' second claim is that they should receive a new trial because a second judge—and not their original trial judge—presided over post-trial motions and sentencing. This claim has no merit because Federal Rule of Criminal Procedure 25(b) expressly authorizes successor judges where the original trial judge cannot perform post-trial duties.

C. Ineffective Assistance of Counsel

For their third claim, Appellants argue that this Court should order a new trial because they received ineffective assistance of counsel. We decline to address this issue on direct review. We "resolve claims of inadequate representation on direct appeal only in rare cases where the record allow[s] us to evaluate fairly the merits of the claim." United States v. Sanchez-Pena, 336 F.3d 431, 445 (5th Cir.2003). This is not such a rare case. The issue was not fully litigated below: no evidentiary hearing was held; the documentary evidence is one-sided; and the district court did not make findings of fact or otherwise address Appellants' claims on the merits. In short, the record is insufficiently developed for us to resolve Appellants' ineffectiveness claims at this time.³

D. Sufficiency

Appellants' fourth claim is that the Government presented insufficient evidence to prove that they conspired to commit an offense under 18 U.S.C. § 924(c)(1)(A). That statute prohibits "firearm possession that furthers, advances, or helps forward [a] drug trafficking offense." United States v. Ceballos-Torres, 218 F.3d 409, 415 (5th Cir.2000). Our standard of review dictates...