United States v. Gutierrez

1

UNITED STATES OF AMERICA, Plaintiff, v. LUIS GUTIERREZ, Defendant.

No. CR 20-1570 JCH

United States District Court, D. New Mexico

September 1, 2022

MEMORANDUM OPINION AND ORDER

On August 1, 2022, Defendant Luis Gutierrez filed a Motion to Dismiss with Prejudice for Violation of his Right to Speedy Trial (ECF No. 20). The Court has reviewed the motion, response, and reply. Because neither party in the briefing requested a hearing, the Court inquired of the parties by email to determine if they wanted an evidentiary hearing. Both parties stated that the Court could render its decision on the current record, so the Court will decide the motion on the written record. Having considered all the materials presented on the issue, the Court concludes that Defendant's motion should be denied.

I. FACTUAL BACKGROUND

According to the Government, Albuquerque Police Department (“APD”) officers in late April 2020 investigated calls about gunshots fired at the home of Defendant's wife, who reported she had been receiving multiple threatening calls and text messages from her estranged husband, and an incident in which Defendant tried to kidnap her at gunpoint from her driveway. (See Gov.'s Resp. 1, ECF No. 21.) On May 8, 2020, APD detectives, in executing a state search warrant, allegedly found and arrested Defendant, a previously convicted felon, at a local motel, and the search of his room revealed a firearm and ammunition. (Id.) The State of New Mexico brought charges against Defendant for aggravated assault against a household member with use of a deadly weapon and he was held without bond at the Metropolitan Detention Center (“MDC”). (See Def.'s Ex. D, ECF No 20-4; Gutierrez Aff. ¶¶ 2-4, ECF No. 20-3.)

The United States indicted Defendant and issued a warrant for his arrest on August 11, 2020, for being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1) based on the items seized in the May 8, 2020, search. (Indictment, ECF No. 2). According to the Government, on August 13, 2020, a federal agent served the MDC with a copy of the indictment and arrest warrant and placed a federal detainer on Defendant. (See Gov.'s Resp. 2, ECF No. 21.) MDC records do not indicate that Defendant was notified of the federal charges. (See Def.'s Ex. F, ECF NO. 20-6.)

At the time Defendant was federally indicted, the President of the United States had declared a national emergency and the Governor of the State of New Mexico declared a state of public health emergency because of the COVID-19 pandemic. See Admin. Order, 20-mc-00004-9 (filed Mar. 13, 2020). To take proactive steps to combat the spread of COVID-19, the courts in this district had continued all civil and criminal jury trials, among other measures. See id. Because of the pandemic, the federal court permitted matters such as initial appearances to be conducted using video or telephone conferencing. See Admin. Order, 20-mc-00004-25 (filed June 26, 2020). The Government asserts that from May 2020 to early March 2022, the United States Marshals Service (“Marshals”) instructed the United States Attorney's Office not to file writs for federal defendants in state custody due to the COVID-19 pandemic. (Gov.'s Resp. 2, ECF No. 21.)

On October 28, 2021, Defendant entered a plea of guilty on the state charge of aggravated assault against a household member with use of a deadly weapon, and on November 24, 2021, a state judge sentenced him to four years of incarceration with a suspended two-year sentence.

(Def.'s Ex. D at 1-4, ECF No. 20-4; Gutierrez Aff. ¶ 4, ECF No. 20-3.) His projected discharge date from jail was May 5, 2022, and he spent his entire custodial sentence at MDC. (Def.'s Ex. E at 3, ECF No. 20-5; Gutierrez Aff. ¶¶ 4-5, ECF No. 20-3.) On May 5, 2022, Defendant was first informed by a guard that he would not be released because of the federal warrant, and on May 6, 2022, Defendant was released from MDC to federal custody. (See Def.'s Ex. D at 4; Gutierrez Aff. ¶¶ 6-7, ECF No. 20-3.) He appeared for his federal charges on May 9, 2022, was appointed counsel at that time, and was detained pending resolution of the federal case. (See Order, ECF No. 9; Clerk's Minute Sheet, ECF No. 13.)

Trial was initially scheduled for July 18, 2022, but on May 31, 2022, defense counsel filed an unopposed motion to continue trial for 60 days to conduct an investigation and prepare any necessary pretrial motions. (Def.'s Mot. 2, ECF No. 17.) The Court granted the continuance of trial until September 19, 2022 (see Order, ECF No. 19), and on August 1, 2022, defense counsel filed the motion to dismiss on speedy trial grounds (see Def.'s Mot., ECF No. 20).

II. ANALYSIS

The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial.” U.S. CONST. amend. VI. The remedy for a Sixth Amendment speedy trial violation is dismissal of the case with prejudice. United States v. Toombs, 574 F.3d 1262, 1274 (10th Cir. 2009). In determining whether a defendant has been deprived of his constitutional right to a speedy trial under the Sixth Amendment, the Court should consider and balance the following factors: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his right to a speedy trial; and (4) prejudice to the defendant. Id. (citing Barker v. Wingo, 407 U.S. 514, 530 (1972)). Of these factors, the length of the delay is the threshold consideration. Id. Only if the delay is "presumptively prejudicial" will the court need to consider the remaining factors. United States v. Hill, 197 F.3d 436, 443-44 (10th Cir. 1999) (citation omitted). The Tenth Circuit has recognized that delays of over one year generally satisfy the requirement of presumptive prejudice. United States v. Seltzer, 595 F.3d 1170, 1176 (10th Cir. 2010) (citing United States v. Batie, 433 F.3d 1287, 1290 (10th Cir. 2006)).

A. Length of delay is presumptively prejudicial and favors Defendant

The speedy trial right attaches when a defendant “is arrested or indicted on federal charges, whichever come[s] first.” United States v. Banks, 761 F.3d 1163, 1181 (10th Cir. 2014). The length of the delay is then measured from that point - “the earlier of either arrest or indictment.” Batie, 433 F.3d at 1290. The delay period ends with trial or denial of the motion to dismiss. United States v. Nixon, 919 F.3d 1265, 1269 (10th Cir. 2019). If the defendant shows presumptive prejudice, the court must then consider “the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim.” Seltzer, 595 F.3d at 1176. In determining whether the length of the delay weighs in favor of the defendant, a court may also consider the nature and complexity of the charges. See id.; Banks, 761 F.3d at 1182. The simpler the charges, the more likely a delay will favor the defendant. See Banks, 761 F.3d at 1182.

In this case, Defendant was indicted on August 11, 2020. Although a federal arrest warrant was issued that same day, he was not arrested on the federal warrant until May 6, 2022. The Government argues, however, that the delay is only five months, relying on the date he was sentenced in state court. However, the time begins to run on the date that came first - either arrest or indictment. The Court finds that Defendant's speedy trial right attached on the earlier date of federal indictment - August 11, 2020. Cf. Seltzer, 595 F.3d at 1176 (using date of federal indictment in determining length of delay). After his arrest and appearance, the Court scheduled his first trial date on July 18, 2022, Defendant moved to continue the trial, and during the period of continuance, filed the current motion. Because the delay is approximately two years, it is presumptively prejudicial. Moreover, the felon-in-possession charge generally is a simple case, and thus, the length-of-delay factor weighs in favor of Defendant. See id. (explaining that first factor weighed in favor of defendant where delay was two years on not-complicated charges of felon-in-possession, drug, and counterfeit charges).

B. Logistical difficulties involving the need to prevent the spread of COVID-19 explains the majority of the delay

The burden is on the government to provide an acceptable reason for the delay. Banks, 761 F.3d at 1183. Delays attributable to the defendant do not weigh against the government. United States v. Abdush-Shakur, 465 F.3d 458, 465 (10th Cir. 2006). For example, the government will not be held accountable for delays resulting from continuances or motions filed by the defendant. See Batie, 433 F.3d at 1291 (“continuances and other motions filed by the defendant do not weigh against the government”); Banks, 761 F.3d at 1183 (finding defendants caused delay where they filed “multiple continuances with the district court and argued that they would be prejudiced if the court refused to grant them additional time to prepare”). Accordingly, the most recent delay caused by defense counsel's request for a continuance will not be counted against the government, excluding the time from July 18, 2022, to the September trial date. Even excluding that time, the delay attributable to the Government was nearly two years, so the Court must consider the United States' reason behind the bulk of the delay in bringing Defendant before a federal court to hear the charges against him and appoint counsel.

The Court must assess the “degree to which the government caused the delay.” Batie, 433 F.3d at 1291. The government's motive in causing the delay is particularly relevant to this factor. See id. A delay that was deliberately caused to gain a strategic advantage will weigh heavily against the government, while delays due to...