NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0085n.06
No. 13-3329 FILED
Jan 30, 2014
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE SOUTHERN
) DISTRICT OF OHIO
HARRY H. JONES, )
)
Defendant-Appellant. )
)
BEFORE: BATCHELDER, Chief Judge, and GRIFFIN, Circuit Judges; and BELL, District Judge.*
GRIFFIN, Circuit Judge.
Defendant Harry H. Jones conditionally pled guilty to willfully filing a false tax return in
violation of 26 U.S.C. § 7206(1), reserving the right to appeal the district court’s denial of his
motion to dismiss the indictment based on an alleged violation of his Sixth Amendment right to a
speedy trial. On appeal, Jones argues that the district court erred in finding that a six-year-and-two-
week delay between his indictment and arrest did not constitute a violation of his constitutional right
to a speedy trial. We disagree and affirm.
I.
On October 14, 2004, the government charged defendant Harry H. Jones, a CPA, with one
count of filing a false return for tax year 1997, in violation of 26 U.S.C. § 7206(1), and two counts
*
The Honorable Robert Holmes Bell, United States District Judge for the Western District
of Michigan, sitting by designation.
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United States v. Jones
of failing to file tax returns, for tax years 1998 and 1999, in violation of 26 U.S.C. § 7203. An arrest
warrant was issued four days later and posted with the National Crime Information Center (NCIC)
in February 2005.
On October 29, 2010—six years and two weeks after he was indicted—authorities arrested
Jones in the Western District of New York as he was entering the country from Canada. His arrest
was based upon the warrant in the NCIC, which had been continually posted with the service since
2005. Jones was thereafter committed to the Southern District of Ohio. He promptly filed a motion
to dismiss the indictment based upon an alleged violation of his Sixth Amendment right to a speedy
trial.
In his motion, Jones claimed that the government violated his speedy-trial right because it
took “no action” in his case during the six years and two weeks between his indictment and arrest.
The government responded that it did not know where Jones was located during that time and had
no information as to his whereabouts until his arrest. After hearing oral argument, the district court
denied Jones’s motion in a written opinion.
Jones subsequently entered a conditional guilty plea to filing a false return for tax year 1997,
reserving the right to appeal the denial of his motion to dismiss. The court sentenced Jones to one
year and one day imprisonment, one year of supervised release, and also ordered restitution as a
condition of supervised release but held the amount in abeyance pending the receipt of certain
information from the IRS. Jones timely appealed.
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II.
The parties dispute whether the district court erred in denying Jones’s motion to dismiss the
indictment due to an alleged violation of his Sixth Amendment right to a speedy trial. We review
the district court’s legal rulings on this issue de novo and its factual findings for clear error. United
States v. Ferreira, 665 F.3d 701, 705 (6th Cir. 2011).
The Sixth Amendment provides criminal defendants a right to a speedy trial. U.S. Const.
amend. VI. “Courts must balance four factors to determine whether a delay violated the Sixth
Amendment: (1) the ‘[l]ength of the delay’; (2) ‘the reason for the delay’; (3) ‘the defendant’s
assertion of his right’; and (4) ‘prejudice to the defendant.’” Ferreira, 665 F.3d at 705 (quoting
Barker v. Wingo, 407 U.S. 514, 530 (1972)). The parties agree that the relevant “delay” in this case
is the six years and two weeks between the indictment and the arrest. The parties also agree that
Jones timely asserted his speedy trial right.
“The first factor is a threshold requirement: we only consider the remaining Barker factors
if the delay is longer than one year.” United States v. Zabawa, 719 F.3d 555, 563 (6th Cir. 2013)
(citing United States v. Robinson, 455 F.3d 602, 607 (6th Cir. 2006)). The rationale here is that
judicial examination of a speedy trial claim is needed only where the delay crosses the line dividing
ordinary from “‘presumptively prejudicial[.]’” Girts v. Yanai, 600 F.3d 576, 588 (6th Cir. 2010)
(quoting Doggett v. United States, 505 U.S. 647, 651–52 (1992)).
In this case, the delay was six years and two weeks, so we must consider the remaining
Barker factors. Jones argues that the district court erred in finding that “it is unnecessary to decide”
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whether the length of the delay was “presumptively prejudicial” for purposes of the threshold
requirement. Even if this was error, it was harmless because, although the district court stated it was
“unnecessary to decide” the issue, it plainly assumed that Jones had satisfied the threshold
requirement. If it had not, the court would not have addressed the remaining Barker factors as it did.
“The second Barker factor looks at ‘whether the government or the criminal defendant is
more to blame for [the] delay.’” Zabawa, 719 F.3d at 563 (quoting Maples v. Stegall, 427 F.3d
1020, 1026 (6th Cir. 2005)). “Governmental delays motivated by bad faith, harassment, or attempts
to seek a tactical advantage weigh heavily against the government, while neutral reasons such as
negligence are weighted less heavily, and valid reasons for a delay weigh in favor of the
government.” Robinson, 455 F.3d at 607. Thus, “different weights should be assigned to different
reasons[,] ” Barker, 407 U.S. at 531, and a district court’s conclusions regarding these inquiries are
entitled to “‘considerable deference,’” United States v. Brown, 169 F.3d 344, 349 (6th Cir. 1999)
(quoting Doggett, 505 U.S. at 652).
Here, Jones does not allege any “bad faith” on the government’s part and the government
offers no “valid reason” for the delay. The parties dispute only whether the government exhibited
reasonable diligence in attempting to discover Jones’s whereabouts from the time of the indictment
until his arrest. The district court did not clearly err in finding that it did.
Based upon affidavits from an IRS special agent and a deputy U.S. Marshal, the court found
that the government did not know where Jones was located after 1999 and had no information or
leads as to his whereabouts until he was arrested. The court also found that the government
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exercised reasonable diligence in discharging its duty to bring Jones to trial by continually posting
his arrest warrant with the NCIC, one of the only options available given that Jones’s location was
unknown. However, because the government conceded that it did bear some responsibility for the
delay, the court ultimately determined that the second Baker factor was neutral in the analysis.
Jones offers no good reason to upset the “considerable deference” afforded to the district
court’s conclusion. He does not dispute that the government had no information about his
whereabouts, that it continually posted his warrant with the NCIC or that his arrest was based upon
the NCIC posting. Rather, Jones argues that the government was negligent because it should have
done more to find him. This argument provides no basis to conclude that the district court erred in
determining that the government acted with reasonable diligence under the circumstances.
First, the cases Jones relies on, Doggett and Ferreira, are easily distinguishable because in
those cases, the government was actually aware of the defendant’s whereabouts post-indictment but
were faulted for failing to follow up on the defendant’s status and take the necessary steps to timely
bring the defendant to trial. In Doggett, the government knew that the defendant was in Panama
post-indictment, 505 U.S. at 649, and in Ferreira, the government knew that the defendant was in
state custody on unrelated charges post-indictment, 665 F.3d at 704. In this case, the district court
found as a matter of fact that the government had no idea where Jones was since 1999 and had no
post-indictment leads as to his whereabouts. This record-supported finding is not clearly erroneous.
Second, the courts in Doggett and Ferreira both notably affirmed a trial court’s finding that
the government acted negligently and did not invade upon the “considerable deference” afforded
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to a district court’s conclusion regarding the second Barker factor. See Brown, 169 F.3d at 349; see
also United States v. Heshelman, 521 F. App’x 501, 509 (6th Cir. 2013) (“[T]he district court’s
conclusion that the government acted with reasonable diligence is entitled to ‘considerable
deference[.]’”) (quoting Doggett, 505 U.S. at 652).
Third, “[i]n assessing the [g]overnment’s role in post-indictment delay, it is important to
avoid the temptation to rely on unfair ‘hindsight’ or to engage in excessive ‘Monday morning
quarterbacking.’” United States v. Valiente-Mejia, No. 04 CR 772 (NRB), 2009 WL 3401210, at
*8 (S.D.N.Y. Oct. 19, 2009) (quoting United States v. Agreda, 612 F. Supp. 153, 158 (E.D.N.Y.
1985). Jones openly invites the court to indulge in this temptation as he offers a litany of ways in
which the government could have searched for him but did not. We decline the invitation because
that inquiry is relevant—as Doggett and Ferreira make clear—only when the government knew of
a defendant’s whereabouts but took no further reasonable actions to apprehend him. Here, the
government had no idea where Jones was located, and it continually posted his arrest warrant with
the NCIC for over five years to effectuate his arrest. Under these circumstances, the district court
did not commit reversible error in concluding that the government acted with reasonable diligence.
The fourth and final Barker factor “‘requires the defendant to show that substantial prejudice
has resulted from the delay.’” Zabawa, 719 F.3d at 563 (quoting Robinson, 455 F.3d at 608).
“Prejudice ‘should be assessed in the light of the interests of defendants which the speedy trial right
was designed to protect,’ of which there are three: ‘(i) to prevent oppressive pretrial incarceration;
(ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense
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will be impaired.’” Ferreira, 665 F.3d at 706 (quoting Barker, 407 U.S. at 532). “To the extent that
the district court ruled on [a defendant’s] prejudice claims, its factual findings are reviewed for clear
error.” United States v. Young, 657 F.3d 408, 419 (6th Cir. 2011).
In this case, Jones claims only the third type of prejudice. He maintains that his defense has
been impaired because the delay has caused the loss or destruction of (1) certain “working papers,”
records of a reconciliation of his trust account related to a complex transaction to sell his accounting
practice; (2) records of a civil case in which he was a defendant; and (3) bank account records of a
disbarred attorney. Jones claims that these missing records are vital for the purpose of determining
what income was attributable to him and that the lack of the records denies him the right to defend
himself.
“In this circuit ‘[w]hen the government prosecutes a case with reasonable diligence’”—as
is the case here—“‘a defendant who cannot demonstrate how his defense was prejudiced with
specificity will not make out a speedy trial claim no matter how great the ensuing delay.’” Id. at 418
(quoting United States v. Howard, 218 F.3d 556, 564 (6th Cir. 2000)). Morever, this “specific
prejudice must be ‘substantial prejudice’ for a defendant to prevail on a speedy-trial claim.” Id.
(quoting United States v. White, 985 F.2d 271, 276 (6th Cir. 1993) (emphasis added)).
The district court did not clearly err in finding that Jones had failed to establish prejudice.
The court properly rejected Jones’s assertion that without the missing records, it was “virtually
impossible to prepare a defense[.]” Other than his affidavit, which essentially claimed that the
missing records would have shown what was income to him and what was not, Jones presented no
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other evidence to confirm or explain the exculpatory content of such records. His generalized
assertion that these records are essential to his defense fails the specificity inquiry.
Moreover, an entire universe of evidence that was available regarding Jones’s guilt
undermines his claim that he has suffered substantial prejudice from the lost records. For example,
Jones collected “substantial income” in 1998 and 1999 from investments in brokerage accounts,
precious metals, and insurance policies, yet he did not file tax returns for those years. The missing
records would not help Jones defend against the tax evasion charges for those years because the
records have nothing do with those three sources of income. See Wilson v. Mitchell, 250 F.3d 388,
396 (6th Cir. 2001) (state court reasonably applied fourth Barker factor in finding that, although
defendant’s father had died before trial, prejudice was not established where it was not shown that
if the unavailable testimony had been presented, the outcome would have been different). Relatedly,
the degree of prejudice that Jones would have us assign to the missing records is too speculative
because this case did not go to trial. See United States v. MacDonald, 435 U.S. 850, 858 (1978)
(“Before trial . . . an estimate of the degree to which delay has impaired an adequate defense tends
to be speculative.”). Given the totality of the evidence against Jones, he cannot establish that the
absence of certain records inflicted a specific and substantial prejudice to his ability to defend.
Further, the district court correctly declined to afford Jones a presumption of prejudice. We
have recognized that “‘extreme’ delays may, on their own, ‘give rise to a strong presumption of
evidentiary prejudice affecting the fourth Barker factor.’” Ferreira, 665 F.3d at 706 (quoting United
States v. Smith, 94 F.3d 204, 209 (6th Cir. 1996)). “The presumption of prejudice only applies,
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however, when the delay is attributable to the government’s negligence.” Zabawa, 719 F.3d at 563.
Here, the government acted with reasonable diligence. Accordingly, the district court correctly held
that Jones was not entitled to a presumption of prejudice.
III.
For these reasons, we affirm the judgment of the district court.
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