United States v. Irizarry-Colón

• Decision Date: 08 February 2017
• Docket Number: No. 15-1550,15-1550
• Citation: 848 F.3d 61
• Parties: UNITED STATES of America, Appellee, v. Efrén IRIZARRY-COLÓN, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

848 F.3d 61

UNITED STATES of America, Appellee,

v.Efrén IRIZARRY-COLÓN, Defendant, Appellant.

No. 15-1550

United States Court of Appeals, First Circuit.

February 8, 2017

Linda A. Backiel , with whom Efrén Irizarry-Colón , pro se, was on brief, for appellant.

Juan Carlos Reyes-Ramos , Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez , United States Attorney, and Nelson Pérez-Sosa , Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

Before Howard, Chief Judge, Torruella and Kayatta, Circuit Judges.

KAYATTA, Circuit Judge.

The defendant, Efrén Irizarry-Colón, pled guilty to participating in a conspiracy to defraud the federal government in violation of 18 U.S.C. § 371. His plea agreement reserved his right to appeal the district court's denial of his motion to dismiss the indictment with prejudice based on violations of the Speedy Trial Act, the Speedy Trial Clause of the Sixth Amendment, and the Due Process Clause of the Fifth Amendment. For the following reasons, we find that the district court was misled by dicta in one of our prior opinions in calculating the length of delay relevant to evaluating the alleged Sixth Amendment violation. Consequently, we vacate the district court's denial of Irizarry's Sixth Amendment claim and remand for reconsideration of that claim. In all other respects, we affirm.

I. Background

Irizarry was a closing agent for the Farm Service Agency (FSA) and an "attorney for emergency and operating loans disbursed to farmers" after Hurricane Georges struck Puerto Rico in 1998. Between September 1998 and September 2000, Irizarry participated in a conspiracy to defraud the FSA. In the words of the version of the facts incorporated into the plea agreement:

The essence of the conspiracy to defraud involved the filing of applications for emergency loans for farmers through the FSA.... The applications would contain false information and would also be accompanied by false documentation. The defendant ... 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.

The government first indicted Irizarry on July 28, 2005. This indictment contained thirty-seven counts. Count one charged that Irizarry participated in a conspiracy to defraud the government in violation of 18 U.S.C. § 371. The other thirty-six counts charged various specific instances of false statements concerning the presentation of mortgage deeds in favor of FSA to the registry of deeds, in violation of 18 U.S.C. § 1006, or furnishing the government with false information (or failing to disclose relevant information) in connection with the loans, in violation of 18 U.S.C. § 1014. The indictment also sought forfeiture.

On March 13, 2007, the court dismissed the indictment pursuant to Federal Rule of Criminal Procedure 48(b) for violation of the Speedy Trial Act, 18 U.S.C. §§ 3161 -3162, on Irizarry's motion. The district court found that 294 nonexcludable days had passed between the indictment and the first tolling of the Speedy Trial Act clock. SeeUnited States v. Irizarry Colón, 477 F.Supp.2d 419, 421–22 (D.P.R. 2007). The district court also concluded that there had been no bad faith on the part of the government in allowing that time to elapse, that the parties were "immediately ready to go to trial," and that Irizarry could have sought dismissal of the indictment much earlier "but waited to do so." Id. at 423. For those reasons, the district court elected to dismiss the indictment without prejudice. Id. at 422–23. Irizarry did not appeal that order.

The government indicted Irizarry again on April 4, 2007. The second indictment charged thirty-five of the thirty-seven counts in the first indictment as well as seven new counts charging bank fraud, in violation of 18 U.S.C. § 1344.

On August 10, 2009, and again on Irizarry's motion, the court dismissed the second indictment pursuant to Rule 48(b) for violation of the Speedy Trial Act. The district court found that "approximately 140 or 148" nonexcludable days had passed since the indictment. This time, the court found that the parties had agreed to begin the trial on a date after the Speedy Trial Act clock expired and that, when setting this date, the court had failed to make any findings as to tolling. The court found that the parties had acted "in good faith" and that defense counsel's acquiescence to the late trial date "weighs heavily in favor of the without prejudice [dismissal]." Accordingly, the district court once again elected to dismiss the indictment without prejudice. Irizarry also did not appeal that order.

The government indicted Irizarry for a third time on January 27, 2010. The third indictment charged the same counts as the second but with the bank fraud counts removed (leaving thirty-five counts and a request for forfeiture).

On May 12, 2010, Irizarry moved to dismiss the third indictment on the ground that ninety nonexcludable days had passed and that he had been prejudiced by the cumulative delay up to that point. His motion sought to take advantage of a recent Supreme Court decision, Bloate v. United States, 559 U.S. 196, 130 S.Ct. 1345, 176 L.Ed.2d 54 (2010), that had abrogated a prior rule in this circuit that automatically excluded time for the parties to prepare pretrial motions from the Speedy Trial Act clock. See United States v. Huete – Sandoval, 668 F.3d 1, 4 (1st Cir. 2011) (recognizing abrogation). The district court dismissed the indictment, again without prejudice to refiling. We discuss the precise details of how it did so in Section II of this Opinion. Irizarry did not appeal that order.

The government indicted Irizarry for the fourth and final time on June 17, 2011. The indictment was identical to the third indictment.

On August 25, 2011, Irizarry filed a motion to dismiss the fourth indictment for violation of the Speedy Trial Act and the Fifth and Sixth Amendments to the United States Constitution. On October 18, 2011, the district court denied the motion. See United States v. Irizarry – Colón, 820 F.Supp.2d 306, 317 (D.P.R. 2011). On October 22, 2014, Irizarry entered a conditional guilty plea to count one, reserving his right to bring this appeal as to the denial of his motion to dismiss. On April 9, 2015, he was sentenced to time served, one year of supervised release, $50,000 in restitution, and a special monetary assessment. On the government's request, the remaining counts were dismissed. This appeal followed.

II. Discussion

Irizarry argues that his fourth indictment should have been dismissed because the government violated the Speedy Trial Act, his Sixth Amendment right to a speedy trial, and his Fifth Amendment right to due process. We address each argument in turn.

A. Speedy Trial Act

"This circuit reviews a denial of a statutory speedy trial claim de novo as to legal rulings, and for clear error as to factual findings." United States v. Carpenter, 781 F.3d 599, 616 (1st Cir.), cert. denied, ––– U.S. ––––, 136 S.Ct. 196, 193 L.Ed.2d 126 (2015). Applying this standard of review, we affirm the district court's application of the Speedy Trial Act.

In the event that a defendant pleads not guilty, the Speedy Trial Act requires that "the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs." 18 U.S.C. § 3161(c)(1). This Speedy Trial Act clock runs from the indictment or appearance until the beginning of defendant's trial, unless some other provision of the Speedy Trial Act resets or pauses it.

The Speedy Trial Act issue raised on this appeal is whether the seventy-day clock limiting the time between indictment or appearance and trial reset to zero after dismissal of the third indictment. If so, the district court properly rejected Irizarry's motion to dismiss the fourth indictment under the Act. If not, Irizarry was entitled to a fourth dismissal because any prosecution on the subject of the third indictment would have necessarily violated the Act on the day the defendant first appeared in court.¹

The rules that govern resolution of this issue are well understood. Relying on the express language of 18 U.S.C. § 3161(d)(1)² and § 3161(h),³ on the plain negative inferences drawn from that language, and on "common sense," United States v. Myers, 666 F.3d 402, 404 (6th Cir. 2012), courts differentiate between cases dismissed at a defendant's behest and those dismissed by motion of the government. When an indictment is dismissed on a defendant's motion, the clock resets, but when it is dismissed on the government's motion, it merely pauses until a new indictment is filed. See United States v. Rojas – Contr e ras, 474 U.S. 231, 239, 106 S.Ct. 555, 88 L.Ed.2d 537 (1985) (Blackmun, J., concurring in the judgment); Myers, 666 F.3d at 405 (collecting cases); cf. United States v. Colombo, 852 F.2d 19, 23–24 (1st Cir. 1988) (acknowledging this distinction in dicta); United States v. Krynicki, 689 F.2d 289, 292–93 (1st Cir. 1982) (reaching similar conclusion with regard to thirty-day period between arrest or service with summons and indictment).

The parties agree on the basic facts to which we apply these rules. When the court dismissed the third indictment, ninety nonexcludable days had passed since Irizarry's first appearance before a judicial officer without commencement of trial. Hence, the district court was required to dismiss the case upon Irizarry's request, leaving open only the question as to whether the dismissal was with or without...