United States v. Irizarry-Colon, Criminal No. 11–231 (FAB)

• Decision Date: 02 August 2017
• Docket Number: Criminal No. 11–231 (FAB)
• Citation: 268 F.Supp.3d 324
• Parties: UNITED STATES of America, Plaintiff, v. Efren IRIZARRY–COLON, Defendant.
• Court: U.S. District Court — District of Puerto Rico

268 F.Supp.3d 324

UNITED STATES of America, Plaintiff,

v.Efren IRIZARRY–COLON, Defendant.

Criminal No. 11–231 (FAB)

United States District Court, D. Puerto Rico.

Signed August 2, 2017

Maria Dominguez–Victoriano, Miami, FL, Scott H. Anderson, United States Attorneys Office District of Puerto Rico, San Juan, PR, for Plaintiff.

OPINION AND ORDER¹

BESOSA, District Judge.

On October 22, 2014, Efren Irizarry–Colon ("Irizarry") pled guilty to conspiring to defraud the United States Department of Agriculture in violation of 18 U.S.C. section 371.² (Docket No. 104 at p. 1.) The guilty plea was conditioned on Irizarry's right to appeal this Court's previous four dismissals of the case without prejudice on the basis of alleged violations of the Speedy Trial Act and the Fifth and Sixth Amendments to the United States Constitution. Id. at p. 5. The First Circuit Court of Appeals vacated the Court's denial of Irizarry's Sixth Amendment claim, remanded for reconsideration, and affirmed all other aspects. (Docket No. 136 at p. 2.) The Court requested (Docket No. 139) and Irizarry and the United States filed, supplementary memoranda discussing the four factors set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, (1972). (Docket Nos. 145, 146 and 147.) For the reasons that follow, the Court GRANTS Irizarry's motion, and DISMISSES the indictment with prejudice .

I. BACKGROUND

After Hurricane Georges struck Puerto Rico in 1998, Irizarry acted as a closing agent for the Farm Service Administration ("FSA") and as an attorney for emergency and operating loans disbursed to farmers in the Arecibo region in Puerto Rico. (Docket No. 104 at p. 9.) Between September 1998 and September 2000, Irizarry participated in a conspiracy to defraud the United States government. Id. at p. 9. In essence, the fraud involved:

[F]iling of applications for emergency loans for farmers through the FSA [...] The applications would contain false information and would also be accompanied by false documentation. [Irizarry] would not timely present the mortgages for recording at the Property Registrar, at the time of the disbursement of the loans, contrary to his obligations as closing agent, thereby deceiving FSA into believing that the loan had not yet closed, and as a mechanism to delay the collection of payments by the FSA from the particular farmers.

Id. at pp. 9–10.

Irizarry was first indicted on July 28, 2005. He was arrested and arraigned on August 4, 2005. (Criminal No. 05–258, Docket No. 98 at p. 1; and ECF Docket No. 136 at p. 3.) Irizarry filed his first motion to dismiss pursuant to the Speedy Trial Act ("STA") on January 29, 2007. See Criminal No. 05–258, Docket No. 81. The Court found that 294 non-excludable days had elapsed, well beyond the 70–day STA requirement, and dismissed the case. Id. at Docket No. 98 at p. 4. Because of the seriousness of the offense, the lack of governmental bad faith, and the lack of prejudice towards Irizarry, the dismissal was without prejudice.³ Id. Docket No. 98 at p. 5.

Irizarry was subsequently re-indicted on April 4, 2007. (Criminal No. 07–146, Docket No. 1.) The Court set trial for August 17, 2009, a date that was 140 to 148 non-excludable days after the indictment.⁴ Id. Docket No. 52 at p. 4; ECF Docket No. 146 at p. 5. The date was agreed upon by both the government and Irizarry, but the Court did not find tolling. (Criminal No. 07–146, Docket Nos. 52 at p. 4 and 76 at p. 3.) Irizarry moved, for a second time, to dismiss pursuant to the STA. Id. at p. 12. The Court dismissed again without prejudice. Id. at pp. 5–7.

Irizarry was indicted a third time on January 27, 2010. (Criminal. No. 10–024, Docket No. 1.) The Court set trial for May 11, 2010. Id. Docket No. 10. On March 8, 2010 the Supreme Court of the United States ruled in Bloate v. United States that pretrial motions were no longer automatically excludable, placing the May 11 trial beyond the 70–day STA requirement. Bloate v. United States, 559 U.S. 196, 213, 130 S.Ct. 1345, 176 L.Ed.2d 54 (2010). On May 12, 2010, Irizarry moved to dismiss pursuant to the STA, and the Court, concluding ninety non-excludable days had passed, granted the motion. (Criminal No. 10–024, Docket No. 31 at p. 5.) The Court found that (1) the government had plenty of time to react to the Bloate ruling; (2) it was the government's duty to move a criminal case promptly to trial; and (3) it was the third time the United States had failed to follow the STA time frame. Id. Docket No. 31 at pp. 6–9. Nevertheless, the Court again dismissed without prejudice, for reasons similar to the first two dismissals.⁵ Id. Docket 31 at pp. 10–11.

Irizarry was indicted for the fourth and final time on June 17, 2011. (Docket No. 1.) Irizarry filed another motion to dismiss pursuant to the STA and Fifth and Sixth Amendments. (Docket No. 17.) The Court denied the motion in its entirety.

United States v. Irizarry–Colón, 820 F.Supp.2d at 314.

The case was subsequently appealed and the First Circuit Court of Appeals affirmed in part, vacated in part, and remanded the case back to the Court for further consideration. United States v. Irizarry–Colón, 848 F.3d 61 (1st Cir. 2017). The First Circuit Court of Appeals found that the timing of the Sixth Amendment claim began on the first indictment (July 28, 2005), making the delay per se prejudicial and requiring the Court to conduct a full Barker analysis. Id. at 70.

II. LEGAL STANDARD

The Sixth Amendment of the United States Constitution provides that in all criminal prosecutions "the accused shall enjoy the right to a speedy and public trial [...]" U.S. CONST. amend VI. Courts consider four factors (the " Barker" test) when determining whether a defendant's Sixth Amendment right to a speedy trial has been violated: (1) the length of the delay; (2) the reasons for delay; (3) the defendant's assertion of his or her speedy trial right; and (4) prejudice to the defendant caused by the delay. See Barker v. Wingo, 407 U.S. at 530, 92 S.Ct. 2182 ; United States v. Rivera–Fuentes, 979 F.Supp.2d 233, 238 (D.P.R. 2014) (Besosa, J.). None of the factors is a "necessary or sufficient condition to the finding of a depravation of the right to a speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant." Barker, 407 U.S. at 533, 92 S.Ct. 2182.

III. DISCUSSION

Irizarry argues that the case against him should be dismissed with prejudice pursuant to a violation of his Sixth Amendment right to a speedy trial. (Docket No. 145.) The United States opposes. (Docket No. 146.) The Court will proceed to analyze Irizarry's claim pursuant to the Barker test.

A. Time of Delay

Irizarry notes that his case has been delayed six years. His situation entails four separate arrests and indictments, which constitute a "presumably prejudicial" delay meriting analysis of the three remaining Barker factors. (Docket No. 145 at p. 2.) The United States concedes that "there can be no argument that a presumptively prejudicial delay has not occurred" but argues that the delay is mitigated by the complexity of the case. (Docket No. 146 at p. 4.)

The length of delay is calculated from arrest or indictment, whichever occurs first. See United States v. Muñoz–Amado, 182 F.3d 57, 61 (1st Cir. 1999). The entirety of delay between the first indictment to trial is considered in the inquiry. United States v. Loud Hawk, 474 U.S. 302, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986) ; Irizarry–Colon, 848 F.3d at 70. Any delay over one year is considered presumptively prejudicial and triggers further inquiry. See Doggett v. United States, 505 U.S. 647, 652 at n. 1, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992).

The delay in this case, beginning on the first indictment in 2005 and running to Irizarry's motion to dismiss in 2011, has been nearly six years. This is far beyond the one-year guidepost for a finding of prejudice. See Barker, 407 U.S. at 534, 92 S.Ct. 2182 (describing a five-year delay between arrest and trial as "extraordinary."); Irizarry–Colon, 848 F.3d at 68. The United States' argument that the case is complex is unpersuasive. When this Court dismissed the first indictment it noted:

Although this case involves a plethora of documentary evidence, numerous witnesses, and will take 2–3 months to try, it is not complex from the government's viewpoint. This case is an offshoot of the principal case [...] in which all but two defendants entered guilty pleas. The case was tried as to the two remaining defendants, who were convicted and sentenced [...] More so, the government never requested an ‘ends of justice’ continuance in this case [...] To the contrary, prosecutor Gil at all times stated he was prepared for trial.

(Criminal No. 05–258, Docket No. 98 at p. 4.) The prosecution has, by its own admission, been prepared for trial since at least 2005 and has already prosecuted cases with the same underlying facts. The current case's complexity does not merit an additional six years of preparation. As such, the Court finds that this prong weighs in Irizarry's favor.

B. Reason for delay

The United States points to a variety of factors causing the significant delay in this case. (Docket No. 146.) It first pins the blame on Irizarry himself, noting that he managed to have the case dismissed three times. Id. In terms of the specific indictments, the government argues that Irizarry prolonged the first case by filing pretrial motions and by failing to raise his STA claims promptly. Id. In the second indictment, the United States points out that Irizarry acquiesced to the timing of the trial. Id. at pp. 4–5. The United States blames the Supreme Court's ruling in Bloate for the third violation of the STA, arguing that neither the Court nor the government realized the impact Bloate would have on the STA timing period until after the STA expired.⁶ Id. at p. 6.

The reason for delay is the "focal inquiry" in the Barker analysis. United States v....