U.S. v. Ingram

• Decision Date: 25 April 2006
• Docket Number: No. 05-10866.,05-10866.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Larry Darnell INGRAM, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

446 F.3d 1332

UNITED STATES of America, Plaintiff-Appellee, v. Larry Darnell INGRAM, Defendant-Appellant.

No. 05-10866.

United States Court of Appeals, Eleventh Circuit.

April 25, 2006.

COPYRIGHT MATERIAL OMITTED

Paul M. Rashkind, Asst. Fed. Pub. Def., Kathleen M. Williams, Fed. Pub. Def., Martin John Bidwill, c/o/ Fed. Pub. Def., Miami, FL, for Ingram.

Evelio J. Yera, Anne R. Schultz and Harriet R. Galvin, Asst. U.S. Attys., Miami, FL, for U.S.

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

Before BLACK, BARKETT and COX, Circuit Judges.

COX, Circuit Judge:

Larry Darnell Ingram appeals his convictions for making false statements in connection with the attempted purchase of a firearm. He argues that the district court erred in denying his motion to dismiss the indictment on the grounds that a two-year delay between indictment and trial deprived him of his Sixth Amendment right to a speedy trial. We reverse the conviction and remand with instructions to dismiss the indictment.

I. BACKGROUND & PROCEDURAL HISTORY

On February 28, 2000, Ingram, a convicted felon, attempted to purchase a firearm from Scott Mandel, owner of Greenacres City Pawn Shop. In doing so, he completed and signed Bureau of Alcohol, Tobacco, and Firearms (ATF) Form 4473, answering "no" to Question 9-C, "Have you been convicted in any court of a crime for which the judge could have imprisoned you for more than one year even if the judge actually gave you a shorter sentence?" In fact, Ingram had been convicted of several felonies, including grand theft, burglary and possession of cocaine.

When Mandel submitted Ingram's ATF Form 4473 to the National Instant Criminal Background Check System, the request to purchase the weapon was denied. As a result, in March 2000, ATF Special Agent Jeffrey Kunz began investigating the transaction. As a part of his investigation, Kunz interviewed Mandel. Mandel told Kunz that Ingram had admitted to Mandel that he had prior convictions but said that he was eligible to buy a gun because his civil rights had been restored. Mandel also told Kunz that Ingram had trouble with the form, actually filling it out more than once, and that Ingram had asked questions about Question 9-C. Mandel said that, in response to Ingram's questions, Mandel and Ingram had reviewed the exception on the back of the form.¹

Kunz's review of Ingram's criminal records revealed that, while Ingram's civil rights had been restored in March 1990 for all felony convictions prior to that date, the restored rights did not include the right to possess a firearm. Also, Ingram had been convicted of two more felonies after his civil rights had been restored.

In July 2000, Kunz interviewed Ingram at his place of employment. Ingram admitted that he was a convicted felon and that he had signed the form answering "no" to Question 9-C; he told Kunz that his civil rights had been restored and that his convictions that were more than ten years old did not count. Ingram also gave Kunz his home and cell phone numbers and the address of his home (which he owned); and he told Kunz that his brother was a police officer with the City of Fort Lauderdale. Kunz turned his investigative report over to the U.S. Attorney's office in the summer of 2000 but did not hear anything else about it for over two years. When he checked with the U.S. Attorney's office in 2002, Kunz was told that the case had been "misplaced" there.

On October 25, 2002, over two and one-half years after the incident at the pawn shop, Ingram was indicted for violation of 18 U.S.C. §§ 922(a)(6) and 924(a)(2), making false statements to a firearms dealer in connection with an attempted acquisition of a firearm. On the same day the indictment issued, it was sealed and a warrant was issued for Ingram's arrest. The indictment was unsealed nine months later, on July 31, 2003.

Between October 2002 and July 2004, ATF Agent Kunz made some minimal efforts to contact Ingram. Kunz left telephone messages for Ingram to call him and went to Ingram's residence once. At the residence, an unidentified person outside informed Kunz that Ingram had moved. Ingram returned at least one of Kunz's telephone messages (on December 13, 2002), leaving his cell phone number and his employer's address for Kunz to contact him. After that, Kunz was unable to reach Ingram by telephone. Kunz drove by Ingram's residence and place of work on several occasions but, not seeing Ingram, never got out of the car. On July 27, 2004, Kunz called Ingram at his place of employment and spoke to someone else who gave Kunz another number to call to speak to Ingram; Kunz left a message at this new number, and Ingram returned his call on July 28, 2004.

At no time prior to July 28, 2004, did Kunz communicate to Ingram that Ingram had been indicted or that there was a warrant for his arrest. There is no evidence that Ingram knew of the indictment prior to July 28, 2004, when he was finally told of it by Agent Kunz. During the July 28, 2004 conversation, Ingram agreed to surrender in court on August 3, 2004.

On September 30, 2004, Ingram moved to dismiss the indictment because of pre-and post-indictment delay. A superceding two-count indictment was returned on October 15, 2004. Count 1 alleged violation of 18 U.S.C. § 924(a)(1)(A); Count 2 alleged violation of 18 U.S.C. § 1001(a)(2). Both counts alleged that Ingram had made false statements on ATF Form 4473. Ingram responded to the superceding indictment by moving to dismiss on the same grounds asserted in his first motion. On November 1, 2004, a magistrate judge conducted an evidentiary hearing on Ingram's motion to dismiss the indictment. The magistrate judge recommended denial of the motion. The district court adopted the report and recommendations of the magistrate judge in their entirety and denied Ingram's motion to dismiss.

Trial on the superceding indictment was commenced on November 4, 2004. On November 9, 2004, a jury found Ingram guilty on both counts. Ingram is currently serving a 36-month sentence.

II. ISSUE ON APPEAL

Ingram appeals his convictions, arguing that the district court erred in denying his motion to dismiss the indictment. He maintains that his Sixth Amendment right to a speedy trial was violated when two years passed between his indictment and trial.² He argues that the district court erred when it adopted the recommendations of the magistrate judge, finding that Ingram was partially responsible for the delay and that he could not demonstrate actual prejudice resulting from the delay. The Government argues that the district court correctly determined that Ingram was partially responsible for the delay and that Ingram has not demonstrated actual prejudice.

III. STANDARD OF REVIEW

"Determination of whether a defendant's constitutional right to a speedy trial has been violated is a mixed question of law and fact. Questions of law are reviewed de novo, and findings of fact are reviewed under the clearly erroneous standard." United States v. Clark, 83 F.3d 1350, 1352 (11th Cir.1996) (citing Yapp v. Reno, 26 F.3d 1562, 1565 (11th Cir.1994)).

IV. DISCUSSION

In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Supreme Court established a four-factor test to determine when a defendant's constitutional right to a speedy trial has been violated. The four factors are: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of the speedy trial right; and (4) the prejudice to the defendant. 407 U.S. at 530, 92 S.Ct. at 2192. "[T]o trigger a speedy trial analysis, an accused must allege that the interval between accusation and trial has crossed the threshold dividing ordinary from `presumptively prejudicial' delay. . . ." Doggett v. United States, 505 U.S. 647, 651-52, 112 S.Ct. 2686, 2690-91, 120 L.Ed.2d 520 (1992) (citing Barker, 407 U.S. at 530-31, 92 S.Ct. at 2192). "Only if this threshold point is satisfied may the court proceed with the final three factors in the Barker analysis." Clark, 83 F.3d at 1352. Delays exceeding one year are generally found to be "presumptively prejudicial." Doggett, 505 U.S. at 652 n. 1, 112 S.Ct. at 2691 n. 1; see also Clark, 83 F.3d at 1352. If, after the threshold inquiry is satisfied and the second and third factor are considered, all three of these factors weigh heavily against the Government, the defendant need not show actual prejudice (the fourth factor) to succeed in showing a violation of his right to a speedy trial. Doggett, 505 U.S. 647, 112 S.Ct. 2686, 120 L.Ed.2d 520.

In this case, the magistrate judge identified the four factors of the Barker test and made findings regarding against which party each factor weighed. However, the magistrate judge and the district court failed to complete the Barker analysis by stating how heavily each factor weighs against the identified party. We perform that analysis.

The district court found, and the Government concedes, that factor (1), the length of post-indictment delay, satisfies the threshold requirement so as to entitle Ingram to a presumption of prejudice sufficient to proceed with the other considerations in the Barker analysis. We agree and find that the two-year delay between indictment and trial requires us to proceed with the Barker test.³

In considering factor (2), the reason for the post-indictment delay, the district court found that Ingram contributed to the delay by "making himself difficult to locate." The district court based this finding on three subsidiary factual determinations: (1) Ingram changed his cell phone number; (2) Ingram disconnected his home phone; and (3) Ingram did not respond to the numerous messages Agent Kunz left for him at his place of employment. If the district court was correct, Ingram must demonstrate actual prejudice to prevail. See Clark, 83 F.3d at 1354. Ingram argues, however, that the district court clearly erred in attributing any fault for the...