NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 30 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50013
Plaintiff-Appellee, D.C. No. 8:13-cr-00108-AG-1
v.
MEMORANDUM*
PEDRO HERNANDEZ, AKA Flaca Flaca,
AKA Flaco,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Submitted July 6, 2020**
Pasadena, California
Before: PAEZ and BADE, Circuit Judges, and MELGREN,*** District Judge.
Pedro Hernandez was convicted in the Central District of California of
multiple drug and gun offenses and sentenced to seventy months of imprisonment.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Eric F. Melgren, United States District Judge for the
District of Kansas, sitting by designation.
Prior to his trial, the district court denied Hernandez’s motion to dismiss the
Government’s indictment on Sixth Amendment speedy trial grounds and under
Federal Rule of Criminal Procedure 48(b). We review the district court’s legal
analysis on a Sixth Amendment claim de novo and its factual findings for clear
error. United States v. Gregory, 322 F.3d 1157, 1160 (9th Cir. 2003). We review
a denial of a Rule 48(b) motion for abuse of discretion. United States v. Sears,
Roebuck & Co., 877 F.2d 734, 737 (9th Cir. 1989). Exercising jurisdiction under
28 U.S.C. § 1291, we affirm the district court’s ruling.
1. To determine if a Sixth Amendment speedy trial violation occurred,
we apply the four-factor test articulated in Barker v. Wingo, 407 U.S. 514, 530, 92
S. Ct. 2182, 33 L. Ed. 2d 101 (1972). Those factors are: (1) length of delay, (2)
reason for the delay, (3) the defendant’s assertion of his speedy trial rights, and (4)
prejudice to the defendant. Id. “A court balances all four of these factors in a
practical, case-by-case analysis under Barker.” United States v. Myers, 930 F.3d
1113, 1120 (9th Cir. 2019) (citation omitted). No single factor is “either a
necessary or sufficient condition to the finding of a deprivation of the right of
speedy trial.” Barker, 407 U.S. at 533. “Rather, they are related factors and must
be considered together with such other circumstances as may be relevant.”1 Id.
1
The first Barker factor is not disputed. The Government concedes that the delay
exceeds the one-year delay generally considered presumptively prejudicial. See
United States v. Myers, 930 F.3d 1113, 1119 (9th Cir. 2019). Although
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Hernandez was indicted on federal charges in July 2013, but the FBI’s
attempts to locate and arrest Hernandez proved unsuccessful. Approximately
eighteen months after he was indicted by the federal government, Hernandez was
arrested on unrelated state charges in Yuma County, Colorado. A federal detainer
was issued against Hernandez, but the FBI (by its own admission) had negligently
lifted the detainer prior to his release from state custody in June 2015. The FBI did
not apprehend Hernandez until February 2017, when he was arrested pursuant to a
renewed detainer and transferred to California to face federal charges. Therefore,
the FBI’s negligence caused Hernandez’s federal trial to be delayed an additional
twenty months.
Finding that Hernandez avoided apprehension by living under an alias in a
remote part of Colorado, the district court attributed the twenty-three months
preceding his release from state custody to Hernandez’s conduct. Hernandez
contends that the district court’s findings were not supported by any evidence.
Regardless of whether Hernandez took steps to avoid apprehension, the second
factor favors dismissal only if the Government failed to pursue Hernandez with
“reasonable diligence.” United States v. Mendoza, 530 F.3d 758, 763 (9th Cir.
2008). We hold that the Government satisfied this obligation when it attempted to
Hernandez’s “prompt assertion of [his] speedy trial rights weighs, at least slightly,
in [his] favor,” Barker’s third factor does not tip the balance here. See Gregory,
322 F.3d at 1162 n.4. Accordingly, we discuss only the second and fourth factor.
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arrest Hernandez at his last-known address, circulated Hernandez’s photograph at
nearby businesses, and monitored a federal law enforcement database. Our
holding renders it unnecessary to resolve Hernandez’s challenge to the district
court’s factual findings.
Barker’s fourth factor requires that we consider how the delay prejudiced
Hernandez. Because only twenty months of the delay in this case is attributable to
the Government’s negligence, Hernandez has the burden to demonstrate actual
prejudice. See Gregory, 322 F.3d at 1162–63; United States v. Beamon, 992 F.2d
1009, 1013–14 (9th Cir. 1993).
We affirm the district court’s ruling that Hernandez suffered no actual
prejudice. The Supreme Court recognizes that an unreasonable delay can prejudice
a defendant in three ways: (1) “oppressive pretrial incarceration,” (2) “anxiety and
concern of the accused,” and (3) “the possibility that the defense will be impaired.”
Barker, 407 U.S. at 532. Hernandez claims to have suffered all three types of
prejudice, but his assertions are not persuasive.
Hernandez argues that he suffered oppressive pretrial incarceration because
the Government negligently released a federal detainer on him while he was held
by Colorado authorities, and this act of negligence caused him to lose custody
credits that would have reduced the time spent serving his federal sentence.
Assuming loss of pretrial custody credits would have caused him actual prejudice,
4 19-50013
Hernandez fails to explain how he would have been entitled to them had the
federal detainer not been lifted.
Hernandez contends that he suffered excessive anxiety when he was arrested
on federal charges twenty months after he had been released from Colorado
custody. There is little in the record to support Hernandez’s claims of anxiety.
Lastly, Hernandez argues the long delay impaired his ability to prepare an
adequate defense. He asserts that “the passage of time . . . unquestionably affected
the memory of [Hernandez] and the [law enforcement] agents” without any
specific examples or proof that Hernandez’s defense was impaired by dimmed
memories. This assertion is speculative, and the district court correctly concluded
that Hernandez failed to meet his burden to prove actual prejudice. United States
v. Corona-Verbera, 509 F.3d 1105, 1112–13 (9th Cir. 2007). Therefore, we affirm
the district court’s holding that Hernandez’s Sixth Amendment rights were not
infringed upon.
2. The district court did not abuse its discretion in denying Hernandez’s
Rule 48(b) motion. A Rule 48(b) dismissal is a severe remedy that “should be
imposed only in extreme circumstances.” Sears, 877 F.2d at 737. Hernandez
makes no showing that the district court abused its discretion in denying dismissal
under Rule 48(b). Moreover, Hernandez has not cited any case where this Court
deemed a denial of a Rule 48(b) motion to be an abuse of discretion.
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AFFIRMED.
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