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United States v. Chavira

United States District Court, D. New Mexico

June 7, 2018

JOSE CHAVIRA, Defendant.


         THIS MATTER comes before the Court following a hearing on Defendant's Motion to Dismiss Indictment or Other Sanctions (Doc. 24), filed February 20, 2018. Jose Chavira (hereinafter “Defendant”) is charged with possession of a firearm and ammunition by a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Defendant has moved this Court to dismiss his indictment on the grounds that the post-indictment delay violated his constitutional and statutory rights. Having reviewed the parties' pleadings, having considered the testimony and arguments presented at the hearing on June 6, 2018, and having considered the controlling law, the Court finds that Defendant's motion is not well-taken and, therefore, is DENIED.


         This case stems from the Government's eighteen-month delay from indicting Defendant with possession of a firearm by a felon to arraigning him on this charge in federal court. Defendant was federally indicted while he was already incarcerated and awaiting trial on related state charges. Defendant alleges he has been deprived of his rights under the Sixth Amendment guarantee of a speedy trial, the notice provisions of the Speedy Trial Act and the Interstate Agreement on Detainers, the Fifth Amendment Due Process Clause, and the Sixth Amendment right to counsel. The Court finds that there was no violation of Defendant's Fifth or Sixth Amendment rights. Without ruling on whether the Government violated the statutory notice provisions, the Court rejects Defendant's argument that dismissal of the indictment would be the proper remedy for such violations.


         On December 14, 2015, Defendant was arrested on multiple state charges, which included possession of a firearm by a felon. Defendant was incarcerated and awaiting trial for state charges when the following events took place. In February 2016, the United States Attorney's Office adopted Defendant's felon in possession charge for federal prosecution, and the Government obtained a federal indictment on March 8, 2016, based on the same events upon which Defendant was already arrested and charged in state court. The Government did not obtain a detainer or provide notice to Defendant that there was a federal indictment against him. On March 31, 2016, apparently without the knowledge of the United States, a state grand jury in the Second Judicial District Court, Bernalillo County, returned an indictment that charged Defendant with numerous crimes. The United States asserts that it “speculates that the State of New Mexico did not know that the United States was prosecuting the defendant.” Doc. 26 at 5 n.1.

         On May 12, 2016, Defendant pleaded nolo contendere to three of the state charges, including felon in possession of a firearm. Doc. 26-1; Doc. 26-2. The United States asserts that it had no knowledge at that time that Defendant entered this plea, which Defendant entered without any notice from the United States that he had a federal indictment against him. Defendant was sentenced to a total of eight and one-half years' incarceration in state court, with eighteen months' of that incarceration for the firearm charge, and an active term of four years and the remainder suspended. Doc. 26-2 at 16:11-17:6.

         On July 13, 2017, the Assistant United States Attorney assigned to this case, Mr. Samuel Hurtado, received a mass email from his supervisor advising prosecutors of the recent ruling in United States v. Archuleta. No. 14-CR-1542 (D.N.M. June 16, 2017) (Vazquez, J.). In that case, Judge Vazquez dismissed an indictment with prejudice because the Government had failed to bring the defendant, who was in state custody serving a sentence, to federal court for arraignment in a timely manner. On September 13, 2017, the attorney for the Government finally reviewed Defendant's case, as the “large caseload made it hard to attend to this matter sooner.” Doc. 26 at 6 n.4. Upon reviewing the file, Mr. Hurtado asked the case agent, ATF Task Force Officer (TFO) Victor Hernandez, about the status of the defendant. See Government's Exhibits 1-3.TFO Hernandez indicated Defendant was in state custody, serving time for one or more probation violations. Id. On September 14, 2017, the United States filed a motion for writ of habeas corpus ad prosequendum (Doc. 6) requesting Defendant's transfer from state custody to the U.S. Marshal for prosecution. Defendant was arrested on September 26, 2017, and he was also appointed counsel on that day. Defendant was arraigned on the federal charge on September 27, 2017, which was over eighteen months after he was indicted.

         In late November 2017, defense counsel advised the attorney for the Government of a possible speedy trial issue, which motivated Mr. Hurtado to again speak to TFO Hernandez on December 13. See Government's Exhibits 4-6. The Government asserts that the emails between TFO Hernandez and Mr. Hurtado revealed that TFO Hernandez “did not know that he was supposed to timely contact the U.S. Marshals Service after the defendant had been indicted federally. TFO Hernandez admitted that he did not know the procedure for notifying a defendant in state custody of a pending federal indictment.” Doc. 26 at 8. The Government asserts that “TFO Hernandez made an honest mistake. The United States also admits fault in failing to bring the defendant into federal custody in a timely manner. The United States submits, however, that the delay was not the result of any sinister motive or bad faith by the United States . . . .” Id.

         Defendant filed the present motion on February 20, 2018 (Doc. 24), urging the Court to dismiss the indictment against him. The Government responded on March 1, 2018 (Doc. 26), and Defendant replied on March 16, 2018 (Doc. 28). The Court conducted a hearing on this matter on June 6, 2018, at which time the Court heard arguments from the parties and testimony from TFO Hernandez. Trial in this matter is set for August 6, 2018.


         Defendant makes a number of assertions to support his requested relief of dismissal of the indictment with prejudice. As discussed below, the Court does not find a violation of any of Defendant's constitutional rights, and dismissal of the indictment is not the proper remedy for a violation of the relevant statutory provisions.

         I. Sixth Amendment: Speedy Trial Guarantee

         Among its guarantees, 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. As the Tenth Circuit has stated, “[a]lthough the right is somewhat amorphous, the remedy is severe: dismissal of the indictment.” United States v. Margheim, 770 F.3d 1312, 1325 (10th Cir. 2014) (quoting United States v. Seltzer, 595 F.3d 1170, 1175 (10th Cir. 2010)). The constitutional right to a speedy trial “attaches when the defendant is arrested or indicted, whichever comes first.” United States v. Black, 830 F.3d 1099, 1112 (10th Cir. 2016) (citations omitted). In Barker v. Wingo, 407 U.S. 514 (1972), the Supreme Court provided the four-factor framework that the trial court should follow when determining whether a delay has caused a defendant to be deprived of his right to a speedy trial. 407 U.S. at 530-32. The Barker analysis is a balancing test in which the court must weigh the following factors: “(1) the length of delay; (2) the reason for the delay; (3) the defendant's assertion of his right; and (4) prejudice to the defendant.” Margheim, 770 F.3d at 1325-26 (quoting United States v. Yehling, 456 F.3d 1236, 1243 (10th Cir. 2006)). The first factor “functions as a triggering mechanism, and the remaining three factors need only be assessed if the delay is long enough to be presumptively prejudicial[.]” Id. at 1326 (citations and quotation marks omitted).

         A. First Barker Factor: Length of Delay

         In United States v. Seltzer, 595 F.3d 1170 (10th Cir. 2010), the Tenth Circuit noted that “the length of the delay crossed the threshold from ‘ordinary' to ‘presumptively prejudicial' because it was more than a year.” 595 F.3d at 1176 (citation omitted). The United States concedes here that the undisputed eighteen-month delay from indictment (Mar. 8, 2016) to arrest (Sept. 26, 2017) and arraignment (Sept. 27, 2017) is presumptively prejudicial. Doc. 26 at 10. This first factor weighs in favor of Defendant, and the Court may consider the remaining factors.

         B. Second Barker Factor: Reason for Delay

         This factor requires the court to “assess the reasons offered by the government for not bringing the defendant to trial in a timely fashion.” Margheim, 770 F.3d at 1326. The Tenth Circuit has noted that “[i]t is incumbent upon the government to present acceptable reasons for the delay.” Id. The court must determine whether the Government's delay was willful, such as an attempt to stall the defense, or the result of a “neutral reason, ” such as negligence by the prosecution due to heavy caseloads. Id. Deliberate or willful conduct weighs heavily against the prosecution, while a “neutral reason” weighs less heavily against the government. See Barker, 407 U.S. at 531 (“A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.”); United States v. Vaughan, 643 Fed.Appx. 726, 730 (10th Cir. 2016) (“[C]ourts have held that the reason-for-delay factor weighs against the government when it cannot explain its failure to arrest or notify the defendant of an indictment.”).

         In this instance, the Government asserts that “there was no deliberate attempt to hamper the defense. The case agent simply did not know that he was supposed to contact the U.S. Marshals Service to notify the defendant about his pending federal indictment.” Doc. 26, at 10- 11. The prosecuting attorney's own admission of neglect due to his heavy caseload is part of the Court's consideration, as well. Doc. 26 at 6 n.4. Defendant asserts that the “Government's response concedes extraordinary negligence and inexcusable delay.” Doc. 28 at ¶ 1.

         At the hearing conducted on June 6, 2018, the Court heard testimony from TFO Hernandez about his role as the case agent. TFO Hernandez testified that, at the time, he was unaware that Defendant was being prosecuted in state court for possession of a firearm, or that Defendant had entered a plea of no contest to the firearm charge in state court. Instead, TFO Hernandez thought that Defendant was being held in state custody pursuant to outstanding warrants for probation violations, which TFO Hernandez's research reflected were among Defendant's charges. The email exchange between AUSA Hurtado and TFO Hernandez reflects this was TFO Hernandez's belief. See Government Exhibits 2, 4. After he became aware that he should have presented the indictment to the appropriate deputy U.S. Marshal, who would in turn have filed a detainer, TFO Hernandez indicated that he was unaware of the procedure for notifying a defendant in state custody of a federal indictment. This testimony is also supported by the email exchange between AUSA Hurtado and TFO Hernandez. See Government's Exhibits 4, 5. TFO Hernandez stated in the email exchange that he believed he “did everything right at the time, ” and he thought he made a “good faith mistake.” See Government's Exhibit 6. The Court finds that the testimony of TFO Hernandez is credible, and that TFO Hernandez acted in good faith.

         The Court also relies on the status of Assistant United States Attorney Samuel Hurtado as a member of this judiciary's bar to support the notion that he has honestly presented the reasons underlying the delay. AUSA Hurtado's statements to the Court indicate that there was insufficient communication between the state prosecutor's office[2] and the United States Attorney's Office on Defendant's case. The Court notes that both state and federal prosecutorial offices have heavy caseloads and while the two offices have no obligation to share information, AUSA Hurtado indicated that the lack of communication was also a factor in the delay. AUSA Hurtado's statements reflect no intentional, bad-faith motive for delaying prosecution.

         Considering the testimony and representations made at the hearing, it appears that an honest mistake, heavy caseloads, and a lack of communication caused the post-indictment delay. The Court rejects the notion that there was an intentional eighteen-month delay in prosecution because Defendant was already in state custody. The Government has therefore provided sufficient evidence that the delay was not motivated by bad faith, and the Court finds that the delay was caused by the prosecution's neglect. Such negligence weighs against the Government in the Barker balancing framework, although much less heavily than willful misconduct.

         The Court agrees with Defendant, however, in that “[t]he United States Attorney, not the case agent, is in the best position to be aware of its own court filings.” Doc. 28 at ¶ 6. The facts indicate that the federal prosecutor assigned to this case did not review Defendant's file until September 2017, eighteen months after Defendant's federal indictment. It was upon the file review that the formal proceeding guaranteed to Defendant by the Constitution commenced, which also resulted in the appointment of counsel. Given these facts, timely review of the file likely would have resulted in the arraignment of Defendant sooner, and could have eliminated the need for the Court to opine on these issues now. The Tenth Circuit cited the Third Circuit case United States v. Battis approvingly on this point, noting that “[o]nce federal prosecutors bring an indictment against a defendant, they have a duty to notify the District Court that the defendant should be arraigned and appointed counsel, and to bring the defendant to trial expeditiously.” Seltzer, 595 F.3d at 1177 (quoting United States v. Battis, 589 F.3d 673, 680 (3d Cir. 2009)). The United States offers no excuse for its negligence, and the Court agrees with Defendant that the prosecution is not “absolved” of its untimely delay here. It is precisely because of this negligence that this factor weighs against the Government in the Court's analysis.

         C. Third Barker Factor: Defendant's Assertion of His Speedy Trial Right

         The Tenth Circuit has explained that “[a]t the third step of the Barker test, we assign strong weight to the defendant's assertion of his constitutional speedy-trial right, but ‘[w]e may weigh the frequency and force of [his] objections' to the delay.” Margheim, 770 F.3d at 1328 (citing United States v. Latimer, 511 F.2d 498, 501 (10th Cir. 1975)). As the Supreme Court stated in Barker, “[a] defendant has no duty to bring himself to trial; the State has that duty as well as the duty of insuring that the trial is consistent with due process.” 407 U.S. at 527. For this reason, a defendant does not bear the burden of protecting this right, particularly if he is uninformed that formal proceedings triggering that right have commenced against him. See Doggett v. United States, 505 U.S. 647, 653-54 (1992) (ruling that when defendant was not aware of indictment prior to arrest, he was “not to be taxed for invoking his speedy trial right only after his arrest”); see also United States v. Vaughan, 643 Fed.Appx. 726, 731 (10th Cir. 2016) (“We agree that this factor should be deemed neutral here, given [defendant's] assertion he had no knowledge of the indictment during the relevant 22-month delay.”).

         In this case, Defendant was unaware of the indictment, and was thus unable to invoke his right to a speedy trial during the eighteen-month delay. Although the Government points out that Defendant has requested three continuances of trial, Defendant made those requests after the eighteen-month delay. The Court thus considers this factor neutral because it weighs in favor of neither party.

         D. Fourth Barker Factor: Prejudice to the Defendant

         Unlike the other factors of the Barker framework, the defendant bears the burden on this factor of demonstrating that his Sixth Amendment right to a speedy trial was prejudiced by the delay. See Seltzer, 595 F.3d at 1179 (“The individual claiming the Sixth Amendment violation has the burden of showing prejudice.” (citation omitted)). The Tenth Circuit explained that “[e]ven though we may conclude that a delay is presumptively prejudicial under the first Barker factor, we will relieve a defendant of his separate ‘burden to present specific evidence of prejudice' under the fourth Barker factor only if there is evidence of an extreme delay.” United States v. Black, 830 F.3d 1099, 1120-21 (10th Cir. 2016) (citation omitted); see Seltzer, 595 F.3d at 1180 n.3 (requiring a delay of six years to constitute extreme delay). If a defendant cannot show “extreme delay, ” the defendant must

make a particularized showing of prejudice which addresses the interests the speedy trial right was designed to protect. These interests include (i) the prevention of oppressive pretrial incarceration; (ii) the minimization of anxiety and concern of the accused; and (iii) [the] minimization of the possibility that the defense will be impaired.

Black, 830 F.3d at 1122 (citations and quotation marks omitted). Of these interests, “the most serious is the ‘hindrance of the defense' because the inability of a defendant to adequately prepare his case skews the fairness of the entire system.” Seltzer, 595 F.3d at 1179-80 (citation omitted).

         Defendant asserts two primary reasons for why the fourth Barker factor should weigh in his favor. First, he claims that his plea of nolo contendere in state court, which he entered without knowing he was under federal indictment, impaired his ability to defend against this charge in federal court. Doc. 24 at 5-6. Second, Defendant argues that under the reasoning in Seltzer, the Tenth Circuit has “deemed it sufficient for dismissal that the defendant was unable to exercise certain fundamental rights.” Doc. 28 at ¶ 12.

         1. Defendant was not prejudiced by the delay when he entered a nolo contendere plea in state court because a nolo contendere plea is not an admission of factual guilt under New Mexico law.

         Defendant's first argument is that his defense is impaired because he pleaded no contest to the state court charge after the federal indictment was obtained, but before Defendant was given notice of the indictment. The state court charges were numerous, but one of the three to which Defendant pleaded no contest was possession of a firearm or destructive device by a felon. Doc. 26-1 at 1. The defense asserts that “[b]efore he was made aware of the pending indictment, Mr. Chavira pleaded guilty to all of the elements of the federal charge, and potentially ushered in a mandatory minimum sentence of 15 years of incarceration.” Doc. 24 at 5-6. In response, the United States points out that Defendant pleaded no contest in state court. Doc. 26 at 12. The Government's position is that it is still required to “prove at trial for the instant offense that the defendant was guilty beyond a reasonable doubt.” Id. Defendant replies that “Mr. Chavira's State of New Mexico ‘no contest' plea functions in every ...

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