IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 27, 2009
No. 08-10167 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JUAN CESAR MOLINA-SOLORIO
Defendant-Appellant
Appeals from the United States District Court
for the Northern District of Texas
Before KING, STEWART and SOUTHWICK, Circuit Judges.
CARL E. STEWART, Circuit Judge:
In 1997, defendant-appellant Juan Cesar Molina-Solorio was charged by
indictment with escaping from federal custody. He was arrested on that charge
in 2007 and shortly thereafter filed a motion to dismiss, arguing, inter alia, a
violation of his constitutional right to speedy trial. The district judge denied the
motion, and Molina-Solorio pled guilty while reserving the right to appeal the
district court’s denial of the motion. For the following reasons, we VACATE and
REMAND.
I. FACTUAL AND PROCEDURAL HISTORY
In 1997, Molina-Solorio was convicted in the Southern District of West
Virginia for conspiracy to possess with intent to distribute marijuana. He was
No. 08-10167
sentenced to twenty-one months of imprisonment and incarcerated at the Big
Spring Prison Camp in Big Spring, Texas. On September 28, 1997,
Molina-Solorio escaped. The following month, a federal grand jury returned an
indictment against him for escape from federal custody in violation of 18 U.S.C.
§ 751(a).
In 1999, the Texas Department of Public Safety apprehended Molina-
Solorio, and he was subsequently sentenced to three years of state imprisonment
for possession of cocaine. After Molina-Solorio served his sentence, state
authorities released him to Immigration and Customs Enforcement (ICE)
authorities, who deported him to Mexico on February 24, 2001. The Government
concedes that, at the time of his release into ICE custody, the federal authorities
knew of the federal warrant against Molina-Solorio for his escape.
In December 2006, ICE apprehended Molina-Solorio in Laredo, Texas. In
July 2007, he was sentenced to fifty-one months of federal imprisonment for
illegal reentry of a deported alien in violation of 8 U.S.C. § 1326. Shortly
thereafter, he was arrested on the escape charge, and in September 2007, he
appeared before the magistrate judge for his arraignment on the escape charge.
On November 9, 2007, approximately two months after his arraignment,
Molina-Solorio moved to dismiss the escape indictment, alleging, inter alia,
statutory and constitutional speedy trial violations. The Government responded
that the court should deny Molina-Solorio’s motion to dismiss because, while the
length of delay was presumptively prejudicial, he had not asserted his right to
a speedy trial, nor alleged malicious governmental intent to prevent him from
being brought to trial, and because Molina-Solorio could not prove actual
prejudice as a result of the delay. The district court denied the motion to dismiss
“for the reasons set forth in the Government’s Response.”
Molina-Solorio then conditionally pled guilty to the indictment, specifically
reserving the right to appeal the district court’s denial of his motion to dismiss.
2
No. 08-10167
At sentencing, he reurged his motion, stating that there was prejudice due to the
delay, arguing that his mandatory guideline range in 2001 would have been
eighteen to twenty-four months instead of the twenty-four to thirty months with
which he was faced. The district court sentenced him to thirty months
imprisonment, followed by a three-year term of supervised release.
Molina-Solorio appeals.
II. DISCUSSION
A. Standard of Review
In evaluating the district court’s conclusion that there was no violation of
Molina-Solorio’s constitutional right to a speedy trial, we review findings of fact
for clear error. United States v. Frye, 372 F.3d 729, 735 (5th Cir. 2004).
Surprisingly, still unsettled in this circuit is the proper standard for reviewing
the district court’s application of the four-factor balancing test from Barker v.
Wingo, 407 U.S. 514 (1972). See, e.g., United States v. Parker, 505 F.3d 323, 328
(5th Cir. 2007) (“The Barker factors are reviewed either de novo or for clear
error.”). Because we conclude that, unlike in prior cases, the standard of review
affects the outcome of this appeal, we must decide which one applies. Although
it is the court, and not the parties, that determines the appropriate standard of
review, United States v. Vontsteen, 950 F.2d 1086, 1091 (5th Cir. 1992) (en banc),
we note that neither party provides a strong argument regarding what
deference, if any, the district court’s balancing of the Barker factors merits. The
Government states that “[l]egal conclusions are reviewed either de novo or for
clear error,” echoing our unsettled standard. In contrast, Molina-Solorio relies
on Parker for the proposition that this court reviews de novo the legal conclusion
that a Sixth Amendment right to a speedy trial was not violated. However,
Parker, 505 F.3d 328, expressly observed the unresolved status of our review of
the Barker factors.
3
No. 08-10167
In Frye, after describing the differing statements this court has made in
regard to review of the Barker factors, we suggested why de novo review would
likely apply:
[W]e note that, generally, a district court’s balancing of factors,
resulting in a decision, are akin to, if not, conclusions of law, or at
least rulings on mixed questions of fact and law, reviewed de novo.
E.g., United States v. Soape, 169 F.3d 257, 267 (5th Cir.) (claim that
denial of subpoena requests violated Sixth Amendment right to
compulsory process reviewed de novo), cert. denied, 527 U.S. 1011
(1999). Accordingly, it is arguable that plenary review should be
given a Sixth Amendment speedy trial decision.
372 F.3d at 735-36.1 Although Frye continued that, on the other hand, this
decision is fact-specific, we note the court reviews fact-finding for clear error. Id.
We agree with the Frye court that application of the Barker test is at least a
mixed question of fact and law, and we hold that the appropriate standard of
review of the district court’s application of the Barker factors is de novo. Accord
United States v. Knight, 562 F.3d 1314, 1321 (11th Cir. 2009) (“We review de
novo the denial of a motion to dismiss for a violation of the right to a speedy trial
under the Sixth Amendment.”); United States v. Arceo, 535 F.3d 679, 684 (7th
Cir. 2008) (reviewing a constitutional speedy trial claim de novo and the district
court’s factual findings for clear error); United States v. Sutcliffe, 505 F.3d 944,
956 (9th Cir. 2007) (same); United States v. Brown, 498 F.3d 523, 530 (6th Cir.
2007) (same); United States v. Aldaco, 477 F.3d 1008, 1016 (8th Cir. 2007)
(same).
B. Constitutional Right to a Speedy Trial
Sixth Amendment and the Barker Factors 2
1
The Frye court, like several others, ultimately concluded that it need not resolve the
question because the result would be the same under either standard of review. 372 F.3d at
736; also Parker, 505 F.3d at 328 (same).
2
Although most cases that this court has decided regarding the Sixth Amendment right
to speedy trial have also implicated the Speedy Trial Act, 18 U.S.C. § 3161, Molina-Solorio did
4
No. 08-10167
The Sixth Amendment states that “[i]n all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial.” U.S. C ONST. amend.
VI. The only remedy for a violation of the right is dismissal of the indictment.
Barker, 407 U.S. at 522. A court evaluates a claimed violation of the
constitutional right to a speedy trial by application of a four-factor balancing
test: (1) “length of delay,” (2) “the reason for the delay,” (3) “the defendant’s
assertion of his right,” and (4) “prejudice to the defendant.” Id. at 530. The
court balances the factors by “weigh[ing] the first three Barker factors . . .
against any prejudice suffered by the defendant due to the delay in prosecution.
Obviously, in this balancing, the less prejudice a defendant experiences, the less
likely it is that a denial of a speedy trial right will be found.” United States v.
Serna-Villarreal, 352 F.3d 225, 230–31 (5th Cir. 2003) (internal citations
omitted).
When more than one year has passed between indictment and trial, “this
court undertakes a full Barker analysis, looking to the first three factors to
decide whether prejudice will be presumed.” Parker, 505 F.3d at 328 (internal
citations omitted). The delay of nearly ten years in the present case
unquestionably triggers this court’s review of the remaining Barker factors.
Molina-Solorio argues that the lengthy delay, combined with the
Government’s negligence and his timely assertion of his rights, warrants a
finding of presumed prejudice. We agree.
Length of Delay
After determining that the length of delay is presumptively prejudicial, we
consider it again “as one factor among several.” Doggett v. United States, 505
U.S. 647, 652 (1992). The longer the delay between indictment and trial extends
not argue a Speedy Trial Act claim on appeal. “[A] claim under the Speedy Trial Act differs in
some significant ways from a claim under the [S]ixth [A]mendment speedy trial clause.” Frye,
372 F.3d at 734 (quoting United States v. Mehrmanesh, 652 F.2d 766, 769 (9th Cir. 1981)).
5
No. 08-10167
beyond the bare minimum, the heavier this factor weighs in a defendant’s favor
because “the presumption that pretrial delay has prejudiced the accused
intensifies over time.” Id. In the present case, both parties agree that the first
factor weighs in Molina-Solorio’s favor. We find it to weigh heavily in Molina-
Solorio’s favor because the delay was nearly ten years, the last eight of which
occurred after Molina-Solorio had been back in state and federal custody. See
United States v. Bergfeld, 280 F.3d 486, 489 (5th Cir. 2002) (noting that a delay
of over five years weighs “heavily” in defendant’s favor); United States v.
Cardona, 302 F.3d 494, 497 (5th Cir. 2002) (finding first factor, an
“extraordinary delay of over five years,” to weigh heavily in defendant’s favor).
Reason for the Delay
Under the second factor, “pretrial delay is often both inevitable and wholly
justifiable.” Doggett, 505 U.S. at 656. Courts should “attach great weight” to
considerations such as “time to collect witnesses against the accused, oppose his
pretrial motions, or, if he goes into hiding, track him down.” Id. Prejudice will
never be presumed where the Government has “pursued [the defendant] with
reasonable diligence from his indictment to his arrest.” Id. Conversely, where
the Government acts in bad faith, delaying prosecution in order to gain an
“impermissible advantage at trial, the delay will weigh heavily in favor of the
defendant.” Serena-Villarreal, 352 F.3d at 232. However, this case falls in the
“middle ground” that exists “between diligent prosecution and bad faith delay
and demonstrates negligent prosecution.” Parker, 505 F.3d at 329. “While not
compelling relief in every case where bad-faith delay would make relief virtually
automatic, neither is negligence automatically tolerable simply because the
accused cannot demonstrate exactly how it has prejudiced him.” Doggett, 505
U.S. at 657. In middle ground cases, “the weight assigned to the factor increases
as the length of the delay increases.” Serna-Villarreal, 352 F.3d at 232.
6
No. 08-10167
Molina-Solorio does not allege that the Government engaged in bad faith,
but the Government admits that it cannot show diligent pursuit of Molina-
Solorio. As the Supreme Court noted in Doggett: “Although negligence is
obviously to be weighed more lightly than a deliberate intent to harm the
accused’s defense, it still falls on the wrong side of the divide between acceptable
and unacceptable reasons for delaying a criminal prosecution once it has begun.”
505 U.S. at 657. In Doggett, the defendant’s “lag” between indictment and arrest
was 8.5 years, and thus the “portion of delay attributable to the Government’s
negligence far exceed[ed] the threshold needed to state a speedy trial claim.” Id.
at 657–58. Similarly, the authorities’ negligence in pursuing Molina-Solorio
lasted over eight years. This second factor also weighs heavily in Molina-
Solorio’s favor.
Assertion of Right
Under the third factor, the “defendant’s assertion of his speedy trial right”
receives “strong evidentiary weight,” while “failure to assert the right will make
it difficult for a defendant to prove that he was denied a speedy trial.” Barker,
407 U.S. at 531–32. This court has noted that “mere assertion” of the right does
not automatically cause this factor to weigh in a defendant’s favor, and a
defendant who waits too long to assert his right will have his silence weighed
against him. E.g., Parker, 505 F.3d at 329–330 (weighing third factor against
defendant when he waited until eight months after indictment to first give an
indication that he wished trial to proceed). This court assesses the totality of the
proceedings in considering the amount of time that passed before a defendant
should have raised his speedy trial rights. See id. at 330 (waiting total of
fourteen months, despite awareness of indictment, before affirmatively asserting
constitutional right to speedy trial weighed against defendant).
In this case, this factor presents a close issue. Molina-Solorio argues that
he asserted his speedy trial right in 1999, when he told authorities that he had
7
No. 08-10167
escaped from federal prison in 1997. Molina-Solorio does not cite, and we cannot
find, any case finding such an assertion sufficient to clearly invoke the right to
a speedy trial. However, there is no evidence in the record that Molina-Solorio
was aware of the charges pending against him such that he would have been in
a position to affirmatively ask the authorities about a federal trial in 1999.
While he likely could have surmised that, as a fugitive, he would be brought to
justice once apprehended, the law does not require Molina-Solorio to assume the
existence of, and ask for a speedy trial on, a charge he is not actually aware of.
Instead, we find factor three satisfied by Molina-Solorio’s 2007 motion to
dismiss the indictment, because the record does not show that Molina-Solorio
knew of the escape charge before his 2007 arrest. Although we have said that
“[a] motion for dismissal is not evidence that the defendant wants to be tried
promptly,” Frye, 489 F.3d at 212, that was in the context of a defendant aware
of the pending charges and still waiting to make an affirmative request that trial
go forward. In contrast, the Supreme Court ruled in Doggett that the defendant
should “not [ ] be taxed for invoking his speedy trial right only after his arrest,”
where the evidence showed that he was not aware, prior to his arrest, of the
charges pending against him. Doggett, 505 U.S. at 653. In this case, Molina-
Solorio similarly should not be “taxed” for invoking his speedy trial after his
arrest because he did not know of the indictment pending against him. In
contrast to the defendant in Doggett, who presented trial testimony about his
lack of knowledge that went unrebutted by the Government, Molina-Solorio
entered a conditional guilty plea and thus did not have a trial in which witnesses
testified that he was not aware of the indictment against him.
This court has previously construed a lack of evidence regarding when a
defendant knew of his indictment in favor of the defendant. In Cardona, this
court reasoned that “[t]here [was] no evidence that [the defendant] knew of the
charges against him until his arrest” and “thus this factor weigh[ed] heavily in
8
No. 08-10167
[the defendant]’s favor.” 302 F.3d at 498. In that case, the defendant had not
specifically been questioned at trial about when he learned that he had been
indicted. Id. at 498 n.2; see also Bergfeld, 280 F.3d at 490 (ruling that the third
factor weighed in defendant’s favor because he only learned about the indictment
against him after his arrest). Molina-Solorio’s motion to dismiss is sufficient to
satisfy factor three because, similar to the defendant in Cardona, the record
contains no evidence that he was aware of the indictment against him. The
Government has not presented any evidence that Molina-Solorio was aware of
his indictment prior to late summer 2007 when he was arrested and arraigned
on it. He moved to dismiss soon after his arraignment on the charge.
Therefore, we find that Molina-Solorio has sufficiently established that he
asserted his rights, and this factor weighs in Molina-Solorio’s favor.
Prejudice
The fourth factor is the prejudice suffered by the defendant due to the
delay, and ordinarily the burden is on the defendant to demonstrate actual
prejudice. Serna-Villarreal, 352 F.3d at 230–31. But where the first three
factors together weigh heavily in the defendant’s favor, we may conclude that
they warrant a presumption of prejudice, relieving the defendant of his burden.
Id. Although factor three does not weigh as heavily as it did in prior cases that
have found a constitutional speedy trial right violation, the lengthy delay caused
by the Government’s negligence weighs more heavily than that factor has in our
prior cases. The reason for the delay, Government negligence, also weighs
heavily in Molina’s favor due to the “protractedness of the delay.” Bearing in
mind that the Barker inquiry is “a difficult and sensitive balancing process,” and
a constitutional deprivation may be found without mechanical factor-counting,
Nelson v. Hargett, 989 F.2d 847, 851 (5th Cir. 1993) (quoting Barker, 407 U.S.
at 533) (internal quotation marks omitted), we conclude that together the first
three Barker factors weigh heavily in Molina-Solorio’s favor, and he is relieved
9
No. 08-10167
of the burden of demonstrating actual prejudice.3 See Cardona, 302 F.3d at 498-
99.
Even with such presumption, the Government may still prevail if the
presumption of prejudice is “extenuated, as by the defendant’s acquiescence” or
“persuasively rebutted.” Id. at 499 (quoting Doggett, 505 U.S. at 658) (internal
quotation marks omitted). Neither is the case here. First, Molina-Solorio did
not acquiesce because, as discussed above, he asserted his rights once he was
aware of the pending charge. Second, the Government has not persuasively
rebutted the presumption of prejudice, although it does argue in rebuttal of
Molina-Solorio’s attempts to demonstrate actual prejudice. Doggett speaks
directly to the point: “While the Government ably counters Doggett’s efforts to
demonstrate particularized trial prejudice, it has not, and probably could not
have, affirmatively proved that the delay left his ability to defend himself
unimpaired.” 505 U.S. at 654 n.4 (citing H. Richard Uviller, Barker v. Wingo:
Speedy Trial Gets a Fast Shuffle, 72 C OLUM . L. R EV. 1376, 1394-1395 (1972)).4
3
Molina-Solorio does argue that he suffered prejudice, but because we determine that
the fourth Barker factor should be presumed, it is unnecessary for us to determine whether
he would sufficiently establish that factor independently.
4
Indeed, the article cited by the Supreme Court discusses how, at an egregious length
of delay, prejudice should be presumed and the burden shifted to the state to prove the
negative by affirmatively demonstrating that there was no prejudice to defendant as a result
of the delay. Uviller, 72 COLUM . L. REV . at 1394. Although the burden shift might require the
state to prove facts inaccessible to it, e.g., that no evidence for the defense was lost or
impaired, id., that is the point:
Realistically, prejudice lies beyond the capacity of either side to prove or
disprove, except in the rare instance where a known defense witness of known
competence actually disappears or reports a recent impairment of memory, and
no prior testimony from him is available. Therefore, the shift of burden actually
permits the presumption of prejudice to prevail on the issue. Since that
presumption is well-founded, however, justice is served.
Id. at 1394-95. The presumption of prejudice moves the court from focusing on the defendant
and to instead “merely focus[ing] attention on other elements wherein impropriety or
justification may be more meaningfully discerned.” Id. at 1395. This provides persuasive
10
No. 08-10167
Because we determine that the first three factors combine to weigh heavily
in Molina-Solorio’s favor, excusing Molina-Solorio of the need to demonstrate
actual prejudice, and the Government has not persuasively rebutted that
presumption of prejudice, see Cardona, 302 F.3d at 499, we hold that the pretrial
delay violated Molina-Solorio’s Sixth Amendment right to a speedy trial. “[T]he
only possible remedy[,]” despite its severity, is dismissal of the indictment.
Barker, 407 U.S. at 521.
III. CONCLUSION
For the foregoing reasons, we vacate the judgment of conviction and
remand with instructions to dismiss the indictment.
guidance as to how we should give effect to the Supreme Court’s phrase “persuasively
rebutted.” Even with the generous reading of its brief, to say that the Government has met
its burden in this case would be to rob the Doggett presumption of any efficacy.
11
No. 08-10167
KING, Circuit Judge, dissenting:
I respectfully dissent from the court’s decision to vacate the judgment of
conviction and remand with instructions to dismiss the indictment. In my view,
the government has successfully rebutted Molina-Solorio’s presumed prejudice.
I agree with the majority that prejudice may be presumed here. First, the
egregious length of delay in this case—nearly ten years—both triggers the four-
factor analysis from Barker v. Wingo, 407 U.S. 514 (1972), and weighs
significantly in Molina-Solorio’s favor. Second, the reason for delay probably
results from government negligence, although it is hard to describe as
“negligent” what may have been an affirmative decision not to prosecute Molina-
Solorio but to deport him instead. Third, Molina-Solorio should not be “taxed”
for not knowing of his indictment (and not asserting his desire for a speedy trial)
until he was arrested. Doggett v. United States, 505 U.S. 647, 654 (1992); see
also United States v. Cardona, 302 F.3d 494, 498 (5th Cir. 2002).
My primary disagreement with the majority is that the government has
rebutted the presumption of prejudice by showing that Molina-Solorio has
suffered no actual prejudice and thus no Sixth Amendment speedy trial
violation. In Doggett, the Supreme Court stated that the defendant is not
entitled to relief “when the presumption of prejudice . . . is . . . persuasively
rebutted.” 505 U.S. at 658 (emphasis added, internal footnotes omitted, and
citation omitted). Though the government’s brief does not denominate its
argument as a “rebuttal” of presumptive prejudice, it argues persuasively that
the delay in bringing Molina-Solorio to trial does not implicate the three key
interests that “the speedy trial right was designed to protect”: (1) “to prevent
oppressive pretrial incarceration”; (2) “to minimize anxiety and concern of the
accused”; and (3) “to limit the possibility that the defense will be impaired.”
Barker, 407 U.S. at 532. Regarding the “most serious” of the three interests,
Molina-Solorio does not even argue that his defense was impaired, nor could he.
12
No. 08-10167
Id. He makes no claim that his ability to defend against the charge specified in
the indictment—specifically, escaping from the Big Spring Prison Camp—has
been impaired by the amount of time that elapsed after the indictment. As for
the other two interests, again, neither is even claimed by Molina-Solorio to have
been infringed. Molina-Solorio’s primary assertion—that had he been
incarcerated for escape, he might not have committed the subsequent crimes of
possession of a controlled substance (cocaine) and illegal reentry and would not
have been charged with the resulting criminal history points—not only fails to
demonstrate prejudice; it is, as the government says, “preposterous.” His second
assertion—that Texas “might have been willing to run his state sentence of three
years imprisonment for possession of a controlled substance . . . concurrent or
partially concurrent with his federal charge of escape”—is pure speculation.
There is no reason, grounded in the Sixth Amendment or otherwise, why
Molina-Solorio ought not to go to prison for escape.
13