U.S. v. Sandoval

Decision Date02 April 1993
Docket NumberNo. 91-50806,91-50806
Citation990 F.2d 481
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Jose SANDOVAL, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Guy C. Iversen, Asst. Federal Public Defender, Los Angeles, CA, for defendant-appellant.

Jeffrey W. Johnson, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California, Ronald S.W. Lew, District Judge, Presiding.

Before: BROWNING, SCHROEDER, and FLETCHER, Circuit Judges.

FLETCHER, Circuit Judge:

Appellant Jose Sandoval appeals his conviction for concealment and sale of narcotics in violation of 21 U.S.C. § 174 (repealed 1971). The primary question before us is whether Sandoval's right to a speedy trial under the Sixth Amendment has been violated. Sandoval was arrested for selling heroin and cocaine to undercover federal agents on September 10, 1970. Released on $15,000 bond shortly after his arrest, Sandoval was indicted by a federal grand jury on September 30, 1970. He did not appear in court for arraignment on October 26, 1970, and remained at large for almost twenty-one years, until his arrest on April 19, 1991. He was arraigned on the original indictment shortly thereafter, 1 and convicted on all counts following a jury trial.

I. Discussion

A. Sixth Amendment speedy trial claim.

Sandoval claims that the lengthy gap between his arrest and indictment in September 1970 and his trial in June 1991 violated his right to a speedy trial. The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." U.S. Const. amend. VI. We review Sandoval's Sixth Amendment speedy trial claim de novo. United States v. Wallace, 848 F.2d 1464, 1469 (9th Cir.1988) (citing United States v. Williams, 782 F.2d 1462, 1464 (9th Cir.1985)). 2 The issue we face is whether Sandoval, despite his voluntary disappearance, can claim a constitutional speedy trial right violation.

The seminal case in this area is Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), in which the Supreme Court identified "some of the factors" to be employed in assessing whether a particular defendant has been deprived of the right to a speedy trial. Id. at 530-33, 92 S.Ct. at 2191-94. They include: (1) "[t]he length of the delay"; (2) "the reason the government assigns to justify the delay"; (3) "the defendant's responsibility to assert his right" to a speedy trial; and (4) the "prejudice to the defendant." Id. 3

The Court noted that courts and prosecutors have primary, but not exclusive, responsibility for seeing that cases go to trial. Id. 407 U.S. at 529, 92 S.Ct. at 2191. A defendant has "some responsibility" to assert her speedy trial rights, in part because "deprivation of the right may work to the accused's advantage." Id. at 521 529, 92 S.Ct. at 2187, 2191. The Court emphasized that "the right to a speedy trial is unique in its uncertainty as to when and under what circumstances it must be asserted or may be deemed waived," and thus, instead of an absolute standard, "the better rule" is the one that analyzes the assertion or non-assertion of the right as one of several important considerations. Id. at 528-29, 92 S.Ct. at 2191. However, "[w]e hardly need add," the Court said in Barker, "that if delay is attributable to the defendant, then his waiver may be given effect under standard waiver doctrine, the demand rule aside." Id. at 529, 92 S.Ct. at 2191 (emphasis added). 4 Standard waiver doctrine defines waiver as " 'an intentional relinquishment or abandonment of a known right or privilege.' " Id. at 525, 92 S.Ct. at 2189 (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)).

Therefore, when the defendant seeks to "avoid detection by American authorities" and any post-indictment delay can be attributed to him, he waives the right to a speedy trial. United States v. Wangrow, 924 F.2d 1434, 1437 (8th Cir.1991) (citing Barker, 407 U.S. at 529, 92 S.Ct. at 2191); 5 cf. United States v. Gonzalez-Sandoval, 894 F.2d 1043, 1050 (9th Cir.1990) (pre-indictment delay excused; "[defendant]'s own evasive efforts vis-a-vis the border patrol agents" were primary cause of delay); United States v. Terrack, 515 F.2d 558, 559 (9th Cir.1975) (pre-indictment delay excused; "[defendant] cannot claim a violation of his Sixth Amendment rights by reason of delays of his own making"). But see Rayborn v. Scully, 858 F.2d 84, 90 (2d Cir.1988) ("a defendant's status as a fugitive will not relieve the state of its sixth amendment obligations"), cert. denied, 488 U.S. 1032, 109 S.Ct. 842, 102 L.Ed.2d 974 (1989).

A finding of waiver is implicit in the district court's oral ruling on Sandoval's motion to dismiss:

I do find ... that Mr. Sandoval purposely absented himself from the proceedings of this court. He did not voluntarily submit himself to it, although he was not constantly here in the United States to avail himself of that proceeding here in the United States, although he did return to the United States, which is uncontroverted by the [government]. I don't find that this would cause the government to have any form of notice to have Mr. Sandoval found to bring him to justice in this trial.

Sandoval ER at 35. 6

Other courts dealing with a fugitive's Sixth Amendment speedy trial claim, rather than focusing on waiver, have looked first to the cause of the post-indictment delay, typically permitting the government to justify the delay by showing the defendant's purposeful absence. E.g., United States v. Mitchell, 957 F.2d 465, 468-69 (7th Cir.1992) (second factor "weighs heavily against Mitchell," where his "fugitive status in Colombia, including his use of a false name there, is the principal reason for the delay in bringing him to trial"); United States v. Blanco, 861 F.2d 773, 778-81 (2d Cir.1988) ("A defendant's claim that the government violated her right to a speedy trial is seriously undermined when the defendant, and not the government, is the cause of the delay"; "[c]oming from a former fugitive, Blanco's claim that her right to a speedy trial was denied carries almost no weight"), cert. denied, 489 U.S. 1019, 109 S.Ct. 1139, 103 L.Ed.2d 200 (1989).

However, use of this balancing framework, where the defendant has been a fugitive from justice, seems inconsistent with Barker's insistence that "delay ... attributable to the defendant," Barker, 407 U.S. at 529, 92 S.Ct. at 2191, is an entirely different matter. See also id. at 531, 92 S.Ct. at 2192 ("[c]losely related to length of delay is the reason the government assigns to justify the delay"; differentiating "deliberate attempt" by government to hamper defense, a "neutral reason" like overcrowded courts or negligence, and a "valid" justification, such as a missing witness).

Nonetheless, Sandoval assumes that the balancing framework should be applied to him. He argues that he was not truly unavailable for trial, and that if the government had exercised due diligence it could easily have located him and avoided violating his speedy trial right. See, e.g., Rayborn, 858 F.2d at 90 (the government "is under an obligation to exercise due diligence in attempting to locate and apprehend the accused, even if he is a fugitive who is fleeing prosecution"). The Rayborn formulation of the government's obligation, however, is not entirely consistent with Supreme Court precedent. It is true that the government has a constitutional duty to bring an accused to trial "[u]pon the [accused]'s demand." Smith v. Hooey, 393 U.S. 374, 383, 89 S.Ct. 575, 579, 21 L.Ed.2d 607 (1969). 7 Once that speedy trial demand is made, the government is obligated to make a "diligent, good-faith effort" to bring the accused before the court for trial. Id. Sandoval admits that he did not assert his speedy trial right until after his April 1991 arrest.

On the other hand, an accused does not waive her Sixth Amendment speedy trial right by failing to assert it. Barker, 407 U.S. at 528, 92 S.Ct. at 2191. If the accused has not herself caused the post-indictment, pretrial delay, the failure to demand a speedy trial is merely "one of the factors to be considered in an inquiry into the deprivation of the right." Id. at 528-29, 92 S.Ct. at 2191. If, however, the delay is attributable to the defendant, standard waiver doctrine applies. Id. at 529, 92 S.Ct. at 2191. An accused might intentionally relinquish her speedy trial right to enable her attorney to more thoroughly prepare for trial, or might intentionally abandon the right as a byproduct of attempting to avoid prosecution altogether. As one judge put it, "[a] true fugitive, whose location is unknown, or who is successfully resisting government efforts to bring him into the jurisdiction, will not be able to obtain dismissal of an indictment. This is as it should be. Otherwise, the courts would be sanctioning the playing of games by fugitives." United States v. Salzmann, 548 F.2d 395, 404 (2d Cir.1976) (Feinberg, J., concurring); see also Barker, 407 U.S. at 536, 92 S.Ct. at 2194 ("barring extraordinary circumstances, we would be reluctant indeed to rule that a defendant was denied this constitutional [speedy trial] right on a record that strongly indicates ... that the defendant did not want a speedy trial").

Doggett v. United States, --- U.S. ----, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992), suggests that the government does have some obligation to attempt to locate a fugitive defendant and bring him to trial. In that case, the government did not arrest the suspected drug dealer until eight and one-half years after he was indicted for conspiring to import and distribute cocaine. Id. at ----, 112 S.Ct. at 2689-90. The Court utilized the four-part Barker test to reverse Doggett's conviction and remand for further consistent proceedings. Id. at ----, 112 S.Ct. at 2690-94. It...

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