USA v. Edgar Arceo, 07-3296.  Edgar Arceo and a co-defendant were charged with a conspiracy to possess with intent to distribute and to distribute a controlled substance in violation of 21 U.S.C. § 846. More than six years later Arceo was arrested. He moved to dismiss the indictment based on an alleged violation of his constitutional right to a speedy trial. His motion was denied. Arceo then pled guilty to the conspiracy charge, conditioning his plea on the right to appeal the denial of his motion to dismiss. The district court sentenced Arceo to 108 months' imprisonment followed by a term of supervised release.

On August 11, 1999, Arceo was arrested in a parking lot in Aurora, Illinois, after delivering approximately 5 kilograms of cocaine to a confidential informant who was working with the Drug Enforcement Agency ("DEA"). Immediately after his arrest, Arceo was interviewed by agents. He waived his Miranda rights and agreed to cooperate with law enforcement.  For two days Arceo cooperated with law enforcement.  After that time Arceo went missing.

On November 4, 1999, Arceo and Rodriguez-Medina were charged in a one-count indictment with a cocaine and marijuana conspiracy.  In early 2001, Officer Dominguez discovered that no arrest warrant had been issued for Arceo.  None was issued until December 15, 2005, however. On April 4, 2006, Arceo was arrested in the Middle District of Pennsylvania. He was living there under the assumed identity of Rowdy Sepulvida, which he admitted he purchased from a friend.

Prior to trial Arceo moved to dismiss the indictment. The district court held a hearing on the motion.  court found that Arceo was aware he had been arrested and that criminal charges would be filed, yet chose to remove himself from the United States, later returning to another jurisdiction under an assumed name until his arrest. The court indicated that the government may not have done "as much as it could have" but concluded that Arceo's attempt to avoid arrest and prosecution outweighed any negligence by the government.

II. Sixth Amendment Right to A Speedy Trial

Arceo's first and principal argument is that the district court erred in denying his motion to dismiss because he was deprived of his Sixth Amendment right to a speedy trial. The government responds that there was no error because Arceo's own conduct in evading law enforcement outweighs any government conduct contributing to the six-year and eight-month delay following his initial arrest. We review a speedy trial claim de novo and review the district court's factual findings for clear error. See United States v. King, 338 F.3d 794, 797 (7th Cir. 2003) (stating explicitly the standard of review for a Speedy Trial Act claim and applying the same standard to a Sixth Amendment speedy trial claim);

The Sixth Amendment right to a speedy trial is triggered by an arrest, indictment, or some other official accusation. Doggett v. United States, 505 U.S. 647, 655 (1992); United States v. White, 443 F.3d 582, 589 (7th Cir. 2006). In determining whether a defendant has been deprived of this speedy trial right, we consider and weigh the conduct of the government and the defendant. Barker v. Wingo, 407 U.S. 514, 530 (1972). In doing so we assess "whether delay before trial was uncommonly long, whether the government or the criminal defendant is more to blame for that delay, whether, in due course, the defendant asserted his right to a speedy trial, and whether he suffered prejudice as the delay's result." Doggett, 505 U.S. at 651; see also White, 443 F.3d at 589.

The length of the delay acts as a triggering mechanism. Unless the delay is presumptively prejudicial, we need not consider the other factors. Barker, 407 U.S. at 530; White, 443 F.3d at 589. A delay approaching one year is presumptively prejudicial. United States v. Oriedo, 498 F.3d 593, 597 (7th Cir. 2007); White, 443 F.3d at 589-90. Here, more than six and one-half years passed from the time of Arceo's arrest in August 1999 to his plea in April 2007. This extraordinary delay stretches well beyond the minimum needed to trigger a further speedy trial analysis. This lengthy delay weighs in favor of Arceo.

The second factor is the reason for the delay, and it is this factor that is at the heart of Arceo's claim. Different weights should be given to different reasons for delay: "A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence . . . should be weighted less heavily . . . ." Barker, 407 U.S. at 531. Arceo contends the delay is attributable to the government's negligence. The government argues that the principal reason for the delay was Arceo's intentional attempt to evade law enforcement.

Here, Arceo has offered nothing to suggest that the government acted intentionally in causing this delay. Thus, while we consider the reason for this part of the total delay, we do not weight it heavily against the government. See Barker, 407 U.S. at 531.

But most of the blame for the delay lies with Arceo himself. Arceo intentionally fled to Mexico for three years, and returned to the United States, but not to the Chicago area. He returned instead to another jurisdiction hundreds of miles away in Pennsylvania, where he lived under an assumed name. His actions support the conclusion that he was hiding from authorities in a calculated effort to avoid arrest and prosecution.

Two facts easily distinguish this case from Doggett: First, Doggett "lived openly under his own name" upon his return to the United States. Id. at 649. 

Another significant difference is that Doggett had no knowledge of the charges against him until his arrest. Id. at 653-54. While Arceo may have been unaware of the indictment against him until his April 2006 arrest, the district court found that when Arceo fled in August 1999, he was aware that criminal charges were forthcoming. This finding is well-supported by the record. Both at the time of his arrest in the parking lot and again while at the police department, Arceo was advised by Officer Dominguez and other agents that he would be charged, though they did not know when the charges would be filed. Thus, the district court's finding in this regard is not erroneous.

The third factor is somewhat neutral. Arceo was not informed that the indictment had been returned against him until his arrest. See id. at 653-54 (stating that if defendant knew of his indictment for years before he was arrested, the third factor "would be weighed heavily against him," but where he was not aware of the indictment prior to his arrest, he "is not to be taxed for invoking his speedy trial right only after his arrest").

The fourth factor is prejudice to the defendant. Arceo does not claim that he suffered any particularized prejudice caused by the delay. He argues that the extraordinary length of the delay suffices to establish prejudice. Proof of particular prejudice is not necessary in every case; in some cases of excessive delay prejudice may be presumed. Id. at 655-56. Yet this presumed prejudice is not sufficient to carry a speedy trial claim "absent a strong showing on the other Barker factors." Oriedo, 498 F.3d at 600.

Considering all of the circumstances including the absence of any particularized prejudice to Arceo, we conclude that the district court did not err in concluding that Arceo had not shown a deprivation of his constitutional speedy trial right.

For the foregoing reasons, Arceo's conviction and sentence are AFFIRMED.

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

For more about attorney Michael J. Petro, visit www.mjpetro.com.

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