UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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UNITED STATES OF AMERICA )
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v. ) Criminal Action No. 07-223-06 (RMC)
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JULIO CESAR PARGA-RIVAS )
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Defendant. )
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MEMORANDUM OPINION
Julio Cesar Parga-Rivas, a Colombian national being held on international drug
trafficking charges and awaiting trial in Washington, D.C., moves to dismiss the Superseding
Indictment against him for alleged violations of his right to a speedy trial pursuant to 18 U.S.C. §
3161 and the Sixth Amendment to the Constitution of the United States, as well as “unnecessary
delay” under Rule 48(b) of the Federal Rules of Criminal Procedure. The Court will deny the
motion. The Speedy Trial Act authorizes the Court to: (1) exclude all time until the last co-
defendant in a case is extradited to the United States, 18 U.S.C. § 3161(h)(6), and (2) exclude time
in the interests of justice because of the complexity of a case, 18 U.S.C. § 3161(h)(7)(B). Because
each of these exclusions applies here, there is no speedy trial violation. There has been no
unreasonable or undue delay in the progression of this case that would trigger a constitutional
analysis or a breach of the federal rules.
I. BACKGROUND
An Indictment returned in 2007 and a Superceding Indictment returned in 2008
charge that Mr. Parga-Rivas and six other Colombians conspired, from 2005 to 2008, and perhaps
longer, to manufacture and distribute cocaine and heroin, knowing that they would be unlawfully
imported into the United States. Mr. Parga-Rivas says that he turned himself into the Colombian
police on April 16, 2008, when he learned he was wanted. He was not extradited to the United
States until March of 2009 and had his initial appearance before a magistrate judge of this court on
March 20, 2009, for arraignment. He entered pleas of not guilty, and counsel was assigned to
represent him. A few days later, Mr. Parga-Rivas conceded to detention pending trial.
Mr. Parga-Rivas first appeared before the undersigned trial judge on April 3, 2009,
for a status conference. At the end of that conference, the Court found that the Speedy Trial Act
should be suspended between April 3, 2009 and May 19, 2009, in the interest of justice. A further
status conference was held on May 19, 2009, at which the Government described its efforts to
provide discovery to counsel for Mr. Parga-Rivas and to obtain the extradition of his co-defendants.
Because of the complexity of the case (wiretaps and documents in foreign languages and alleged
illegal activities in multiple foreign countries, all of which counsel needed to translate and
understand, Mr. Parga-Rivas needed to listen to and understand in light of U.S. law, before counsel
and client could consider his options) and the absence of co-defendants, the Court again suspended
speedy trial. However, further status conferences were held on June 2, 2009, and on July 2, 2009,
at which times the Government reported its progress toward the extraditions of Mr. Parga-Rivas’s
co-defendants, the parties discussed the complexity of the discovery, and, over defense objections,
the Court found it in the interest of justice to suspend speedy trial. Thus, speedy trial was suspended
until the next status conference, which was held on July 31, 2009.
Mr. Parga-Rivas and two of his co-defendants were present at the July 31, 2009,
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status conference, at which time the Government stated that it would not await the extradition of the
remaining co-defendants for trial. Mr. Parga-Rivas’s attorney, along with the attorneys for the two
co-defendants present, requested that the Government provide an index to assist in the review of the
extensive discovery provided thus far. In light of the continuing complexity of discovery and the
need for the newest co-defendant’s counsel to review the discovery and advise his client, over
defense objections, the Court again found it in the interest of justice to suspend speedy trial until the
next status conference, which is set for October 13, 2009.1
In the meantime, on June 30, 2009, counsel for Mr. Parga-Rivas filed his motion to
dismiss the indictment. See Dkt. # 13. The United States opposes the motion. For the reasons set
forth below, the Court will deny Mr. Parga-Rivas’s motion to dismiss.
II. ANALYSIS
A. Speedy Trial Act
Mr. Parga-Rivas notes that more than seventy days have passed since his first
appearance before a judicial officer in connection with the instant case and a trial has not
commenced. From those bare facts, he claims a clear and obvious violation of his rights under the
Speedy Trial Act. See 18 U.S.C. § 3161(c)(1).
According to the United States, the evidence in the case includes the results of a
lawful seizure in Colombia, in February 2007, by Colombian law enforcement of one of the alleged
narcotics shipments, totaling 1089 kilograms of cocaine and 25 kilograms of heroin, with which Mr.
1
At the July 31, 2009, status conference, the Court suspended speedy trial “until the next state
conference, which is presently set for September 16, 2009.” The phrasing speaks to the Court’s
recognition that dates are not set in stone and may change due to unforeseen scheduling conflicts,
as is the case here. The September 16 status conference was adjourned to October 13, 2009.
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Parga-Rivas and his co-defendants are charged. Colombian law enforcement also seized weapons,
military gear, and communications devices. Additionally, the members of the alleged conspiracy
were lawfully intercepted during judicially authorized wire intercepts between August 2006 and
November 2007, discussing arrangements for shipments of cocaine. The Government also expects
testimony from cooperating witnesses. It alleges that Mr. Parga-Rivas was an officer in the
Colombian Army who worked with co-defendant Antonio Vicente Valera Amaya, a member of the
United Self-Defense Forces of Colombia (AUC). The Defendants are alleged to have operated in
the countries of Colombia, Dominican Republic, Haiti, Honduras, Jamaica, Mexico, the United
States, and elsewhere.
Mr. Parga-Rivas was the first of the co-defendants to be extradited to the United
States. Defendant Juan Carlos Bonilla-Medina was extradited on July 1, 2009, and Defendant
Alvaro Montero-Monsalvo was extradited shortly thereafter. Defendant Antonio Vicente Valera-
Amaya was not extradited as scheduled earlier this year because of a medical condition. Defendant
Fabio Javier Gutierrez-Pacheco has been killed. The remaining named Defendants — Luis Eduardo
Manjarres-Pumarejo, arrested in Colombia on May 9, 2009, and Arnulfo Sanchez-Gonzalez, still a
fugitive — will not be extradited for many months, if ever, and the United States has stated that trial
will not await their arrival.
Under these circumstances, the Court has no trouble concluding that the complexity
of the case tolls speedy trial provisions. See 18 U.S.C. § 3161(h)(7)(B). In determining whether to
grant a continuance, one factor the court must consider is
Whether the case is so unusual or complex, due to the number of
defendants, the nature of the prosecution, or the existence of novel
questions of fact or law, that it is unreasonable to expect adequate
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preparation for pretrial proceedings or for the trial itself within the time
limits.
18 U.S.C. § 3161(h)(8)(B)(ii). The evidence in this case is in one or more foreign languages and
both written and oral (wiretapped) evidence must be translated into English before it can be of use
to either the defense or the prosecution. Witnesses and other pieces of evidence must be brought to
the United States for trial, which will require significant international arrangements. It is entirely
unreasonable to expect defense counsel to absorb the evidence, share it with his client, consider it
so as to provide effective advice, and then determine with Mr. Parga-Rivas how they want to proceed
all within seventy days. It is entirely unreasonable, in fact, to expect the Government to produce
fully translated copies of the extensive evidence within seventy days for the defense to even begin
its consideration and evaluation. This conclusion is within the normal precedent for application of
this provision of the Speedy Trial Act. See United States v. Brooks, 697 F.2d 517 (3rd Cir. 1982) (9
defendants and 4 counts made the case complex); United States v. Al-Arian, 267 F. Supp. 2d 1345
(M.D. Fla. 2003) (19 months continuance based on 21,000 hours of recorded conversations in
Arabic, hundreds of boxes of commentary evidence, and voluminous foreign law enforcement
materials).
This case also qualifies for exclusion of speedy trial time because of the exception
for multiple absent defendants, i.e., a “reasonable period of delay” is allowed “when the defendant
is joined for trial with a codefendant as to whom the time for trial has not run and no motion for
severance has been granted.” 18 U.S.C. § 3161(h)(6). Such is the case here and, to its credit, the
United States has indicated that it will not seek to obtain the presence in the United States of all co-
defendants since the extradition process takes so long. Nonetheless, the desirability of trying the co-
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defendants together – with its concomitant savings of trial preparation time, witness time, foreign
travel, court time, and jurors’ time – made it quite reasonable to await the arrivals of the remaining
two defendants. This circumstance falls directly into the Speedy Trial Act exception. See United
States v. Varella, 692 F.2d 1352, 1358 (11th Cir. 1982); United States v. Franklin, 148 F.3d 451, 455
(5th Cir. 1998).
Mr. Parga-Rivas seems to recognize the weakness of his arguments under the Speedy
Trial Act and offers only a short paragraph, without case citations. The Court finds no violation of
his speedy trial rights on this record.
B. Sixth Amendment
In Barker v Wingo, 407 US 514, 530 (1972), the Supreme Court identified four
factors on which a court should base its analysis of the constitutionality of the delay of a criminal
trial: (1) the length of delay, (2) the reason(s) for the delay, (3) the defendant’s assertion of his rights,
and (4) any prejudice to the defendant. Mr. Parga-Rivas argues that each of these points supports
his motion to dismiss.
First, he contends that Sixth Amendment rights are “triggered by arrest, indictment,
or other official accusation,” id. at 655, which means that Mr. Parga-Rivas’s speedy trial rights here
began when the original indictment was returned in 2007. He notes that it has been about two years
since he was first indicted and that he’s been incarcerated (in Colombia and the U.S.) for 14 months.
Despite the passage of this much time, he suggests that his trial will not occur until far in the future,
when all co-defendants have been extradited and all discovery has been produced.
Second, Mr. Parga-Rivas attacks the reasons for the delay in his trial date. He notes
that the Government has an obligation to make a diligent and good faith effort to seek the presence
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of a defendant for trial; that two of his co-defendants have been held by the Colombian authorities
since May 2008; and that none of them is yet extradited (Defendant Bonilla-Medina was not
extradited when Mr. Parga-Rivas filed his motion). Mr. Parga-Rivas attributes all of this delay to
the United States Government (certainly not to him) and argues that it should be found to lack
adequate justification.
Third, Mr. Parga-Rivas asserted his rights to a speedy trial as soon as he appeared
before a magistrate judge in the United States; counsel is unaware of whether Mr. Parga-Rivas made
claims to a speedy trial while held by Colombian authorities in Colombia.
Fourth, Mr. Parga-Rivas claims that he has been unduly prejudiced by the delay in
getting his case to trial. He argues that the alleged criminal events are four-five years in the past.
He also assails the inadequate discovery from the United States and argues that the delay associated
with receiving full discovery has significantly prejudiced him and his trial preparation.
The Sixth Amendment provides that “in all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial.” U.S. Const. amend. VI. “[A] defendant generally
cannot establish a Sixth Amendment speedy trial claim, however long the delay, if the government
pursued the prosecution with ‘reasonable diligence,’ and the defendant fails to show that the delay
resulted in ‘specific prejudice to his defense.’” United States v. Doggett, 505 U.S. 647, 656 (1992);
see also Barker, 407 U.S. at 522 (rejecting a rigid rule because of the “unsatisfactorily severe remedy
of dismissal of the indictment”). The factors identified by the Supreme Court to assess this right
demand a functional analysis that is “a balancing test, in which the conduct of both the prosecution
and the defendant are weighed.” Id. at 530.
Mr. Parga-Rivas makes his situation appear lengthy and extraordinary only by
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collapsing the time he spent detained in Colombia, a sovereign nation in which he was not under the
control of the United States, and his continuing detention in the United States. He attempts to start
counting 70 days from the time the first indictment was returned; however, that was under seal and
he was not presented to a judicial officer for years thereafter. Since his appearance in this Court, the
Court can find no prejudice to Mr. Parga-Rivas because the Government began providing complex
discovery for his review while awaiting the extradition of his co-defendants. The Government has
demonstrated repeatedly that it has acted diligently in this matter and that important considerations
support its desire to try four of the alleged conspirators in a single trial. Mr. Parga-Rivas adds very
little to the balance to outweigh the Government’s efforts and arguments.
The length of the delay in this case (approximately six months) does not trigger a
constitutional speedy trial analysis. Such a delay in the context of a complex, international drug
trafficking prosecution involving foreign defendants is certainly not unusual.
C. Rule 48(b), Fed. R. Crim. P.
“[A] Rule 48(b) dismissal ‘should be imposed only in extreme circumstances.’”
United States v. Huntley, 976 F.2d 1287, 1291 (9th Cir. 1992) (quotation omitted). When the Speedy
Trial Act does not require dismissal, it would be imprudent to grant dismissal under Rule 48(b).
United States v. Paredes-Batista, 140 F.3d 367, 376 (2d Cir.) , cert. denied, 119 S. Ct. 143 (1998).
Mr. Paarga-Rivas claims that the Government has caused unnecessary delay and, despite repeated
opportunities to justify the delay in this case, it has failed to offer a sufficient explanation for the
delay. Counsel’s argument flies in the face of the facts in the record.
There are no extreme circumstances here; only a delay of about four months beyond
the 70 days allowed by the Speedy Trial Act for much more simple cases with all defendants present
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and accounted for. Rule 48(b) provides no basis here to dismiss the Superceding Indictment.
IV. CONCLUSION
The motion to dismiss [Dkt. # 13] will be DENIED. A memorializing order
accompanies this memorandum opinion.
Date: October 2, 2009 /s/
ROSEMARY M. COLLYER
United States District Judge
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