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Media Alerts - United States of America v. Sergio Velazquez - Third Circuit
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April 16, 2014
  United States of America v. Sergio Velazquez - Third Circuit
Headline: Third Circuit Finds Government's Five-Year Delay in Making Serious Search to Find Defendant Violates Right to Speedy Trial

Area of Law: Constitutional Law - Sixth Amendment

Issue Presented: Whether the right to a speedy trial guaranteed in the Sixth Amendment is violated when, after an initial effort to apprehend the defendant, the government's effort for nearly five years consist only of running the defendant' name a handful of times through the National Crime Information Center, despite other available leads?

Brief Summary: The Drug Enforcement Administration ("DEA") began investigating Sergio Velazquez ("Appellant") in June 2005. Appellant traveled from California to Philadelphia to meet co-defendant Pedro Curiel and informant to discuss the sale of cocaine. Appellant went back to California after discussions. A sale of cocaine between Curiel, another co-defendant and informant subsequently occurred. They were then arrested and indicted. In August 2005, a complaint and arrest warrant were issued for Appellant. A DEA special agent went to an address associated with Appellant in California, but he was not at that address. The case was assigned to the Marshals Service in Philadelphia. Deputy Marshal Degan was assigned to the case; he entered the warrant into National Crime Information Center ("NCIC") database and prepared a collateral request, which is a request for investigative assistance from a Marshals Service office in another jurisdiction. The Los Angeles Marshal Service received the collateral request. The Los Angeles Marshal Service did not take any steps to work on the collateral request. From November 2005 until November 2010 authorities checked the NCIC eight times for Appellant, but nothing came up and no further steps to apprehend Appellant were taken. A new collateral request was issued in June 2011, when Deputy Marshal Ilagan was assigned to the case. The LA Marshal Service took some steps to apprehend Appellant, but they were unsuccessful. In December 2011, Appellant was apprehended on an unrelated narcotics charge. He was then extradited to the Eastern District of Pennsylvania. In March 2012, Appellant filed a motion to dismiss the indictment on the basis of a speedy trial violation. The District Court denied his motion, finding that the government was reasonably diligent in pursuing Appellant. Thus, Appellant had to show specific prejudice to his defense from the delay between indictment and arrest, and the District Court held that he did not make this showing. The Third Circuit found that the length of delay in bringing Appellant to trial was extraordinary and that the government was not reasonably diligent in pursuing the Appellant. Thus, the delay in apprehending the Appellant was due to the government's conduct. The Appellant timely asserted his speedy-trial rights, four months, after he found out about his indictment. Due to the delay of apprehending the Appellant, there is a presumption of general prejudice that applies with considerable force in case of such delay. Thus, the Third Circuit vacated the District Court's conviction of Appellant and directed that the case be dismissed. There was a dissenting opinion by Judge Jordan.

Significance (if any):

Extended Summary:
The Drug Enforcement Administration ("DEA") began investigating Sergio Velazquez ("Appellant") in June 2005. Appellant traveled from California to Philadelphia to meet co-defendant Pedro Curiel and informant to discuss the sale of cocaine. After the meeting, police stopped Appellant and Curiel to identify the men. Appellant was not arrested and returned to California. In July 2005, after a sale between Curiel, another co-defendant and informant, Curiel and the co-defendant were arrested. The co-defendants were indicted on August 2, 2005. A complaint and arrest warrant were issued for Appellant the next day. David Pedrini, a DEA special agent in Philadelphia had a fellow agent from Los Angeles, Steve Pascoe, go to Appellant's California address, but he was unable to locate him.

The DEA declared Appellant a fugitive and turned over the search to William Degan, a deputy marshall in the United States Marshals Service office in Philadelphia. Degan entered Appellant's name into the National Crime Information Center ("NCIC") database, and into a Marshals Service information system. Entering Appellant into the NCIC database would allow any law enforcement agent that took Appellant into custody on unrelated charges to know that Appellant was wanted in another jurisdiction. Degan, in October 2005, then prepared a collateral request, which is a request for investigative assistance from a Marshals Service in another jurisdiction. The request was received by the Los Angeles office. Seven weeks later Degan left his position in the Philadelphia Marshall's Service and ended his involvement with Appellant's case.

In November 2005, an assistant U.S. attorney in Philadelphia sent a copy of the complaint and warrant to Appellant's counsel in California, Jerome Kaplan. Three weeks later, a superseding indictment was filed, charging Appellant. The indictment was not sent to Kaplan. From November 2005 until November 2010, authorities checked the NCIC eight times to see if any law enforcement agents had encountered Appellant. At some point during that time, Pedrini put Appellant on the "Most Wanted" section of the website for the DEA's office in Philadelphia. There were no further steps taken to find Appellant in this five-year period.
In November 2010, Deputy Marshal Ilagan of the Philadelphia office began working on Appellant's case. Ilagan ran a NCIC check along with a Lexis-Nexis search and found a new address for Appellant and a possible new job location. Ilagan continued to check databases. In June 2011, he came up with a new address for Appellant and submitted a new collateral request on June 22, 2011 to the Los Angeles Marshal Service taskforce. Deputy David Dominguez was assigned. He sat surveillance at Appellant's old address as well as at the post office where Appellant had his mail delivered. Although the employees at the Post Office recognized Appellant and noted that he came to retrieve his mail frequently, Appellant did not show up during the half-day that Dominguez waited outside. Appellant was finally apprehended on December 9, 2011 on an unrelated narcotics charge. Appellant was then served with the arrest warrant and extradited to the Eastern District of Pennsylvania.

On March 28, 2012, Appellant filed a motion to dismiss the indictment on the basis of a speedy trial violation. The district denied the motion, finding that the government was reasonably diligent in pursuing Appellant. Thus Appellant had to show specific prejudice to his defense from the long delay between indictment and arrest, and the District Court held that he did not make this showing.
The Supreme Court case of Barker v. Wingo established a four-factor test for evaluating whether the constitutional right to a speedy trial has been violated. The inquiry focuses on: (1) the length of the delay before trial; (2) the reason for the delay and, specifically, whether the government or the defendant is more to blame; (3) the extent to which the defendant asserted his speedy trial right; and (4) the prejudice suffered by the defendant.

The District Court found here that the delay between the November 2005 superseding indictment for Appellant and the July 2012 trial date crossed the threshold of prejudicial delay to justify analysis of the remaining Barker factors.
The District Court found that the government performed reasonable diligence in trying to find the Appellant. The District Court made this determination for two reasons: (1) the unfruitful trip to the Woodward Avenue address in 2005 and the investigate efforts in 2011 showed that the government inaction in the intervening years was a reasonable choice to conserve resources and thus comports with the requirements of reasonable diligence; and (2) that Appellant had an elusive lifestyle and thus bears responsibility for the delay. The Third Circuit, however, found that the Marshal Service and the DEA efforts to find Appellant were limited to periodic checks of the NCIC Persons database. They also found there was no evidence in the record to support a finding that investigators made an actual "choice" not to pursue Appellant. The Third Circuit also found that Appellant consistently listed the same PO Box as his address and that there was no evidence that he either knew he was under indictment or that he was attempting to elude arrest. Thus, the Third Circuit found that the Appellant was not the cause of the delay in prosecution and that the government was not reasonably diligent in its pursuit of Appellant.

The Third Circuit found that knowledge of the indictment as the appropriate measure for the timely assertion of the speedy trial right. Neither Appellant nor his attorney were told of the indictment, thus, Appellant learned of the indictment at the time of his arrest. Thus, Appellant brought his speedy-trial motion in time. The Third Circuit held that the presumption of general prejudice, triggered by the government's extraordinary delay in bringing Appellant to trial, favors the Appellant. Thus, the Barker factors support the Appellant's claim of a violation of his speedy trial right. Therefore, the Third Circuit reverses the district court's judgment of conviction and remanded the case for dismissal.

To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/123992p.pdf

Panel (if known): Rendell, Jordan and Lipez, Circuit Judges

Argument Date: October 17, 2013

Argument Location: Philadelphia, PA

Date of Issued Opinion: April 14, 2014

Docket Number: No. 12-3992

Decided: judgment vacated and case dismissed

Case Alert Author: Tam T. Tran

Counsel: Jerome Kaplan, Esq., for Appellant; Zane David Memeger, Esq. and Robert A. Zauzmer, Esq., Bernadette McKeon, Esq., Joseph T. Labrum, III, Esq., for Appellees

Author of Opinion: Judge Lipez

Circuit: 3rd Circuit

Case Alert Circuit Supervisor: Professor Mark Anderson

    Posted By: Susan DeJarnatt @ 04/16/2014 01:36 PM     3rd Circuit  

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