United States v. Herrera
| Decision Date | 19 April 2021 |
| Docket Number | CRIMINAL NUMBER G-04-020-02 |
| Parties | UNITED STATES of America, Plaintiff, v. Elias Luis HERRERA, Defendant. |
| Court | U.S. District Court — Southern District of Texas |
Quincy L. Ollison, Financial Litigation, Office of U.S. Attorney, Houston, TX, for Plaintiff.
Defendant Elias Luis Herrera ("Defendant") has filed a Motion to Dismiss the Indictment with Prejudice Based on the Violation of His Constitutional Right to a Fair and Speedy Trial ("Defendant's Motion") (Docket Entry No. 37).
On July 17, 2003, the FBI was notified of a sexual assault (rape) that occurred on a Royal Caribbean Cruise Line ("RCCL") ship called the RHAPSODY OF THE SEAS while the ship was located in the Special Maritime and Territorial Jurisdiction of the United States.1 On July 20, 2003, Special Agent Stone boarded the ship in Galveston, Texas, and interviewed the victim, a 15-year-old girl whom he identifies in his affidavit as "KL."2 KL described how she was raped by two unidentified crew members during the early hours of July 17, 2003.3 After reporting the rape to officials aboard the ship, KL was examined by a physician who collected physical evidence including vaginal swabs.4 The physician provided this evidence to Special Agent Stone.5 Special Agent Stone interviewed several crew members including Defendant, who voluntarily provided a buccal DNA swab.6 Stone submitted Defendant's DNA swab and the physical evidence from KL to an FBI laboratory for DNA analysis.7
On August 4, 2003, an attorney representing RCCL told Stone that Defendant had "jumped ship" from RHAPSODY OF THE SEAS on July 30, 2003, while the ship was docked in Cozumel, Mexico.8 In January of 2004 RCCL's Manager of Security told Stone that Defendant was reported missing from RHAPSODY OF THE SEAS on July 25, 2003 – five days after Defendant was interviewed by the FBI in Galveston, Texas.9
On February 4, 2004, Special Agent Stone received a report from the FBI Laboratory that identified Defendant as the major contributor of seminal fluid recovered as part of the examination of KL.10 On December 15, 2004, a federal grand jury sitting in the Southern District of Texas indicted Defendant and Edgerton Phillip Medford on one count of Aggravated Sexual Abuse in violation of 18 U.S.C. § 2241(a)(1) and one count of Sexual Abuse in violation of 18 U.S.C. § 2242(2).11
On December 17, 2004, Special Agent Stone "set a lead" to the FBI office in Panama City, Panama, to locate Defendant in Nicaragua.12 Included in the information Agent Stone sent to the office were details he learned about Defendant from a review of his employment records, including Defendant's date of birth, address, telephone number, passport number, emergency contact information (his mother), employment reference, recruiting agent, previous supervisor, and previous employer.13 Stone also made a request through the Regional Security Officer of the United States Department of State ("State Department"), but no information regarding Defendant's location was provided to the FBI.14
On December 20, 2004, Magistrate Judge John Froeschner issued arrest warrants for Defendant and Medford.15 At the same time, details concerning Defendant's arrest warrant were placed into the National Crime Information Center ("NCIC").16 Special Agent Stone stated that since the entry into NCIC, "the FBI has routinely conducted required NCIC audits to ensure the warrant for [Defendant] was still valid and to confirm [Defendant] was still wanted."17
On June 17, 2005, an INTERPOL Red Notice for Defendant (a request to law enforcement worldwide to locate and provisionally arrest a person pending extradition, surrender, or similar legal action) was issued by INTERPOL Washington, DC.18 On July 2, 2007, Agent Stone "set a lead" to an FBI office in Mexico City, Mexico, requesting any details concerning entry and exit of Defendant from Mexico, but Mexican authorities were unable to provide any information concerning Defendant.19
On October 3, 2013, Nicaraguan authorities issued another Red Notice for Defendant, this time because Defendant was wanted for drug smuggling.20 The description of Defendant included a Nicaraguan identity card number, his date and place of birth, his mother's maiden name, and a photograph that Agent Stone recognized as being of the same person he had interviewed back in July of 2003.21 On November 4, 2013, FBI Special Agent Richard Rennison set a lead to Panama City, again requesting assistance in locating Defendant, but received no response from Nicaraguan authorities regarding Defendant's location.22
Defendant was arrested in Costa Rica in 2014 for trafficking more than 737 kilograms of cocaine from Colombia to Costa Rica.23 In 2016 a Costa Rican court sentenced Defendant to twelve years in prison.24 On September 10, 2019, FBI Special Agent Patrick York was notified through the Criminal Justice Information Services Division that Defendant had been arrested.25 On September 19, 2019, Costa Rican Prosecutor Elias Maxera told Assistant Legal Attache Julia Igualada in Panama City that when Defendant was arrested he was carrying a false Honduran Identification Card.26 Defendant was also carrying a Nicaraguan passport, which the Nicaraguan Ministry of Foreign Affairs stated had "not been issued by the General Directorate of Immigration and Foreign Affairs."27
In March of 2020 the United States sent the Costa Rican government a provisional request for Defendant's arrest pending extradition.28 Defendant claims that this is the first time he was made aware of the sexual assault charges on which he had been indicted over fifteen years earlier.29 On May 28, 2020, the United States sent a formal request for Defendant to be extradited to face charges of Aggravated Sexual Assault and Sexual Assault.30
On August 23, 2020, Costa Rican officials voluntarily terminated the remainder of Defendant's 12-year sentence for the drug conviction, but Costa Rica did not release Defendant because its extradition treaty with the United States prevents it from doing so.31 Defendant is currently being held in a Costa Rican prison on the sexual assault charges pending extradition to the United States.32 The Government states that Defendant is "vigorously contesting his extradition to the United States in the Costa Rica judicial system."33
Defendant argues that the fifteen-year delay between indictment and arrest violates his Sixth Amendment right to a speedy trial.34 The Government responds that the Sixth Amendment provides no relief for Defendant because he fled prosecution, evaded the Government's diligent efforts to locate him, and can point to no specific prejudice that resulted from the delay.35 Moreover, the Government argues that Defendant's Motion should not even be considered because the "fugitive disentitlement doctrine" prevents Defendant from affirmatively contesting his charges until he personally appears within the Southern District of Texas.36
The Supreme Court has recognized the fugitive disentitlement doctrine at least since Molinaro v. New Jersey, 396 U.S. 365, 90 S. Ct. 498, 24 L.Ed.2d 586 (1970), in which it dismissed the appeal of a defendant who failed to surrender himself to state authorities after his bail was revoked. The Court explained that "[w]hile such an escape does not strip the case of its character as an adjudicable case or controversy, we believe it disentitles the defendant to call upon the resources of the Court for determination of his claims." Id. at 498-99. Since then federal courts have consistently applied the doctrine when necessary to " ‘limit[ ] a criminal defendant's access to the judicial system whose authority he evades.’ " Bright v. Holder, 649 F.3d 397, 399 (5th Cir. 2011) (quoting Bagwell v. Dretke, 376 F.3d 408, 410 (5th Cir. 2004) ).
The doctrine is an equitable one that a court exercises in its discretion. Id. at 400. It is justified by several rationales, including the difficulty of enforcing judgments against fugitives, the encouragement of voluntary surrenders, the efficient operation of the courts, and respect for the judiciary and the rule of law. Id. ; see also United States v. Shelton, 482 F.2d 848, 849 (5th Cir. 1973) (); Dawkins v. Mitchell, 437 F.2d 646, 649 (D.C. Cir. 1970) ().
"Although the fugitive disentitlement doctrine is often invoked during the appellate process, it also applies to pretrial motions made by fugitives in the district courts." United States v. Oliveri, 190 F. Supp. 2d 933, 936 (S.D. Tex. 2001) (citing United States v. Eagleson, 874 F. Supp. 27, 29-31 (D. Mass. 1994) ). District courts have applied the doctrine to require defendants living abroad to submit to the jurisdiction of the United States before ruling on their motions. See, e.g., United States v. Hayes, 118 F. Supp. 3d 620, 627 (S.D.N.Y. 2015) (); United States v. Chung Cheng Yeh, No. CR 10-00231 WHA, 2013 WL 2146572, at *3 (N.D. Cal. May 15, 2013) ( ); United States v. Kashamu, 656 F. Supp. 2d 863, 868 (...
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