United States v. Bergfeld

Revised January 21, 2002

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 01-50396

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

WILLIAM E. BERGFELD,

Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Texas

January 16, 2002
Before GARWOOD, DeMOSS, and DENNIS, Circuit Judges.

DeMOSS, Circuit Judge:

Defendant-Appellant, William E. Bergfeld, appeals his

conviction following a conditional plea of guilty for the

interstate transportation of misbranded devices in violation of 21

U.S.C. §§ 331(a) and 333(a)(2), and aiding and abetting in

violation of 18 U.S.C. § 2. Bergfeld argues that his conviction

should be reversed because his Sixth Amendment right to a speedy
trial was violated. We hold that the district court erred in its

analysis and, therefore, reverse Bergfeld's conviction and

sentence.

I. BACKGROUND

From 1992 to 1994, Enrique Hernandiz Plou (Plou), a Spanish

national living in Texas, was the president of SORISA U.S.A.

(SORISA), an affiliate of S.O.R. Internacional, S.A. (S.O.R.).

S.O.R. is a manufacturer and exporter of beauty equipment, and is

based in Barcelona, Spain. SORISA imported cosmetology steamers,

vaporizers, and other skin care products into the United States,

which had been manufactured by S.O.R. Plou worked in San Antonio

with Carlos Soriano Martinez (Martinez) and Jose Luis Cabello

(Cabello). Bergfeld was one of SORISA’s biggest volume American

distributors.

In 1992, Plou learned that the devices he was importing from

Spain were classified as medical devices by the Food and Drug

Administration (FDA), and that they could not be legally imported

without FDA approval. After United States Customs officials

detained one of SORISA’s shipments at the direction of the FDA,

Plou, Cabello, Martinez, and Bergfeld developed a plan to evade FDA

detection.

They set up a dummy company with a different name, PEYBEL

U.S.A. (PEYBEL), and imported the devices in that name through a

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different American port. After learning of this scheme, FDA

investigators executed a search warrant at the SORISA facility in

San Antonio. Plou, who was in California, heard of the search and

fled the country. Sometime later, Cabello and Martinez also left

the United States.

On June 7, 1995, a grand jury handed down a nine count

indictment charging Bergfeld, Plou, Martinez, Cabello, and SORISA

with the following crimes: count one for conspiring to defraud the

FDA under 18 U.S.C. § 371; counts two and three for the interstate

transportation of misbranded devices in violation of the Federal

Food, Drug, and Cosmetic Act under 21 U.S.C. §§ 331(a) and

333(a)(2), and aiding and abetting under 18 U.S.C. § 2; counts four

through eight for smuggling under 18 U.S.C. § 545, and aiding and

abetting under 18 U.S.C. § 2; and count nine for obstructing

justice under 18 U.S.C. § 1505, and aiding and abetting under 18

U.S.C. § 2. Because the government believed it extremely unlikely

that Bergfeld’s alleged co-conspirators would voluntarily return to

this country knowing they were under indictment, the United States

moved to have the indictment placed under seal the day it was

returned by the grand jury. Also on that day, arrest warrants were

issued for all of the defendants.

Although the government discovered that it would not be

possible to extradite Plou, Martinez, or Cabello from Spain, it

requested that the arrest warrants be entered into the National

Crime Information Computer (NCIC) and the Treasury Enforcement

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Communications System (TECS) network on June 12, 1995. This was

the extent of the government’s effort to apprehend Plou, Martinez,

and Cabello. The warrant for Bergfeld was not entered into the

computer systems so that his alleged co-conspirators could be

arrested prior to Bergfeld's arrest. The government never pursued

arresting Bergfeld, and Bergfeld did not know about the

indictment’s existence. Notably, the government discovered in

2001, after the district court denied Bergfeld’s motion to dismiss

the indictment, that the only name actually entered into the NCIC

and TECS was Plou’s.

Government records show that Plou reentered the United States

three times after 1994. Plou first reentered this country on

October 24, 1996, and then again on July 10, 1999. On the last

occasion, September 10, 2000, he was arrested. Only then did the

government request that the indictment against Bergfeld be

unsealed. After being notified about the indictment by the

government for the first time, Bergfeld voluntarily appeared and

was arraigned on October 18, 2000. On November 1, 2000, Bergfeld

moved to dismiss the indictment, alleging that the delay between

indictment and trial violated his Sixth Amendment right to a speedy

trial. The district court denied the motion.

Bergfeld entered a conditional plea of guilty to count two of

the indictment on February 21, 2001, reserving the right to appeal

the denial of his constitutional speedy trial complaint. On April

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19, 2001, Bergfeld was sentenced to serve 12 months and one day of

confinement, fined five thousand dollars, ordered to pay a $50

special assessment, and placed on one year of supervised release at

the conclusion of his sentence. Bergfeld timely filed his notice

of appeal and remains on bond pending the resolution of this

appeal.

II. STANDARD OF REVIEW

In analyzing a defendant's Sixth Amendment speedy trial claim

based on post-indictment delay, which is at issue in this case, we

must consider four factors established by the Supreme Court: (1)

the length of the delay; (2) the reason for the delay; (3) the

defendant's diligence in asserting his Sixth Amendment right; and

(4) prejudice to the defendant resulting from the delay. Barker v.

Wingo, 407 U.S. 514, 530-33 (1972). We review for clear error a

district court's findings in applying the elements of this

balancing test. Robinson v. Whitley, 2 F.3d 562, 568 (5th Cir.

1993).

III. DISCUSSION

In Doggett v. United States, the Supreme Court clarified how

the four factors used to analyze a defendant's Sixth Amendment

speedy trial claim based on a post-indictment delay are weighed,

and the burden each party carries. 505 U.S. 647 (1992). The

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threshold inquiry is whether the delay was long enough to trigger

a “speedy trial” analysis. Id. at 651-52. Generally, it is

accepted that a post-accusation delay approaching one year is

sufficient. Id. at 652 n.1.

Next, the length of the delay, the reason for the delay, and

defendant’s diligence in asserting his or her rights is weighed

against the prejudice to the defendant. Id. at 656-57. Depending

on how heavily the first three factors weigh for or against the

defendant, prejudice is presumed in some cases, relieving the

defendant of any burden to show actual prejudice. Id. One lesson

from Doggett is that the longer the delay, the greater the

presumption of prejudice. Id. at 656.

The district court, citing Barker and Doggett, recognized its

duty to weigh these factors. Nonetheless, it ultimately concluded

that the length of the delay and the reason for the delay did not

weigh so heavily in Bergfeld’s favor as to alleviate his burden of

demonstrating actual prejudice. And, because the court concluded

that he failed to show actual prejudice, it found that his right to

a speedy trial had not been violated. The correctness of the

district court’s determination that Bergfeld was required to show

actual prejudice is the crux of this appeal. Based on the Supreme

Court’s decision in Doggett, we conclude that the district court’s

analysis was incorrect.

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 The district court correctly recognized that the length of the

delay between the time Bergfeld was indicted and the time the

indictment was unsealed and he first appeared in court weighed

heavily in Bergfeld's favor. This is not surprising given the fact

that this time period exceeded five years. See, e.g., Doggett, 505

U.S. at 652; Barker, 407 U.S. at 530; United States v. Lucien, 61

F.3d 366, 371 (5th Cir. 1995). Furthermore, the court correctly

recognized that the “diligence of the defendant” element weighed

exclusively in Bergfeld’s favor, as he had no idea the indictment

existed until it was unsealed.

However, in analyzing the “reason for the delay” element, the

district court decided that “in light of the fact that the

Government acted, at least at the beginning, in pursuit of

legitimate prosecutorial interests,” prejudice to Bergfeld cannot

be presumed. Specifically, the district court found that the

government’s interest in hiding the existence of the indictment in

hopes the other defendants would be lulled into a false sense of

security and reenter the country was valid.

In Doggett, the Court explained that “different weights are to

be assigned to different reasons for delay.” Doggett, 505 U.S. at

657. If the government diligently pursues a defendant from

indictment to arrest, a speedy trial claim will always fail without

a showing of actual prejudice. Id. at 656. On the other hand, if

“the Government had intentionally held back in its prosecution . .

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. to gain some impermissible advantage at trial,” that fact weighs

heavily against the government. Id. Finally, the Doggett Court

explained that:

Between diligent prosecution and bad-faith delay,
official negligence in bringing an accused to trial
occupies the middle ground. 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.

Id. at 656-57.

In the case before us, the district court concluded that the

government’s delay should be treated as falling within Doggett’s

“official negligence” category. We agree with this conclusion.

The district court, however, placed too great a weight on its

conclusion that the government’s initial delay was legitimate.

Specifically, the district court stated:

The Court finds that the Government’s
justification[s] for not arresting the Defendant at
the outset are valid. The Government attempted to
indict a group of individuals who, in the
Government’s view, are guilty of participating
together in a criminal scheme. The Government
wished to prosecute them together, and the
Government did not want to tip any of the
Defendants off by arresting one when it could not
arrest them all. Moreover, the Government was not
negligent in its attempts to reach the absent
Defendants. As the Government points out, it
investigated the possibility of extradition, and it
posted the outstanding warrants for these men.

These findings do not mandate an automatic win
for the Government, however. As time went on,
Bergfeld’s interest in a fair trial increased.
Certainly, the Government did not diligently

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 attempt to apprehend Bergfeld himself, who remained
at the same address the entire time the indictment
was sealed. In addition, the Government concedes
that it had at least two opportunities to catch
some of the Defendants in this country and failed
to do so. Therefore, the Court finds that the
justification for the delay does not conclusively
decide this case in favor of the Government;
however, the Court also concludes that, in light of
the fact that the Government acted at least at the
beginning, in pursuit of legitimate prosecutorial
interests, that Bergfeld’s burden to show some
actual prejudice remains intact at least to some
degree.

Notably, four months after Bergfeld entered his conditional

plea of guilty, the government filed an amended statement

indicating that it has since discovered that it did not post

warrants for two of the absent defendants, Martinez and Cabello.

Thus, the extent of the government’s pursuit of these two

defendants for a five-year period amounted to its initial inquiry

about whether they could be extradited. Based on the district

court’s overall reasoning quoted above, the fact that these

warrants were not actually posted should have tilted the scale in

Bergfeld’s favor.

However, the real error in the district court’s reasoning lies

in its analysis of the “prejudice” factor. Specifically, the court

looked to Bergfeld’s evidence of prejudice, decided that the

evidence was not convincing, and then concluded that the lack of

prejudice evidence reduced the weight of the other three factors:

In sum, the Court concludes that the first [Barker]
factor weighs heavily in favor of the Defendant.
Five years well exceeds a length of time that might

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 be held to be presumptively excessive. The third
factor, whether the Defendant asked for speedy
resolution of his trial also weighs in the
Defendant’s favor. Because he did not know of the
indictment, he could not make the request. The
second factor weighs slightly against the
Government. While the Government’s interest in
bringing all the Defendants to trial together was
initially valid, that interest, in the Court’s
view, diminished as the years passed and the
Defendant’s interest in a speedy trial increased.

The fourth factor, however, weighs strongly
against dismissing the indictment [because Bergfeld
has not demonstrated prejudice], and resolution of
this factor has some bearing on each of the other
factors.

The court’s reasoning is contrary to Doggett. The first three

factors should be used to determine whether the defendant bears the

burden to put forth specific evidence of prejudice (or whether it

is presumed); nothing in Doggett endorses the district court’s

performing the analysis the other way around, i.e., using the

absence of specific evidence of prejudice to reduce the weight of

the other three factors.1

The Supreme Court in Doggett stated that “[w]hen the

Government’s negligence thus causes delay six times as long as that

generally sufficient to trigger judicial review, and when the

presumption of prejudice, albeit unspecified, is neither

1
Oddly enough, while the district court applied Barker and
Doggett incorrectly, there is another place in its order where the
relationship between the factors is correctly explained: “It
hardly makes sense, then, to weigh the opposing arguments regarding
prejudice to determine whether prejudice will be presumed. The
presumption of prejudice, and its effect, is the question to be
answered.”

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extenuated, as by the defendant’s acquiescence, nor persuasively

rebutted, the defendant is entitled to relief.” 505 U.S. at 658

(footnotes and citations omitted). The delay in Doggett was eight

years, the defendant was unaware of the indictment, and the

government was negligent in failing to diligently pursue the

defendant. Id. at 657. Based on these facts, the Doggett Court

held that the defendant’s failure to demonstrate actual prejudice

was not fatal, as the weight of these facts warranted a presumption

of prejudice. Id. at 657-58. In so holding, the Court emphasized

that “to warrant granting relief, negligence unaccompanied by

particularized trial prejudice must have lasted longer than

negligence demonstrably causing such prejudice.” Id. at 657.

Similarly, we conclude that under a correct application of Doggett,

the five-year delay in the present case caused by the government’s

negligence entitles Bergfeld to a presumption of prejudice.2 Had

the delay been considerably shorter, Bergfeld might well have been

properly required to demonstrate prejudice.3

2
Significantly, the Ninth Circuit in United States v. Shell, also
followed Doggett to hold that a five-year delay caused by the
government’s negligence is sufficient to give rise to a presumption
of prejudice. See 974 F.2d 1035, 1036 (9th Cir. 1992).
3
Although the five year statute of limitations under 18 U.S.C.
§ 3282 was not violated in this case because Bergfeld was indicted
within the statutory period, we are well aware of Congress' intent
behind such a statute. See Toussie v. United States, 397 U.S. 112,
114-15 (1970) (explaining that statute of limitations is designed
to insure that defendants do not have to “defend themselves against
charges when the basic facts may have become obscured by the
passage of time and to minimize the danger of official punishment

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 IV. CONCLUSION

For the foregoing reasons, we hold that Bergfeld's Sixth

Amendment right to a speedy trial was violated. Therefore, we

reverse the district court's judgment.

because of acts in the far-distant past”). The same concerns are
implicated in post-indictment speedy trial cases. Thus, from a
policy standpoint, we find it significant in this case that had the
government waited to indict Bergfeld until the date it unsealed his
indictment and finally notified him of its existence, it would have
been limitations barred.

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GARWOOD, Circuit Judge, dissenting in part.

While I agree with much of what is said in Judge DeMoss’s

opinion, in my view we should not render judgment but should rather

remand for the district court to reconsider the matter.

The district court found that the government’s intentional

delay was initially legitimate, a conclusion with which I agree and

which Judge DeMoss’s opinion does not dispute. The district court

also correctly found that as time went on this justification

dissipated. However, the district court never fixed any even

approximate period after which the justification was no longer

valid. Such a determination, it seems to me, is a function of both

the mere passage of time and of the government’s efforts to

apprehend Plou, Martinez and Cabello. As to Plou, the district

court made no specific finding whether the failure to post his name

on Customs’ “Look-Out” system before September 1, 1999 was

negligent and what the delay likely would have been had this been

accomplished with reasonable promptness (Plou was apprehended when

he entered after that posting but not when he entered in October

1996 and July 1999). As to Martinez and Cabello, the district

court was not aware until after sentencing that the warrants for

these defendants had not been properly posted.

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 The majority appears to treat the entire delay from the return

and sealing to the unsealing of the indictment as the proper yard-

stick by which to determine presumed prejudice under Doggett. But

Doggett itself considered only the unjustifiable portion of the

delay for that purpose. Id. 112 S.Ct. 2686 at 2694. In my view,

there is no plain error in the district court’s finding that not

all the delay was unjustifiable.**** That court should, in the first

instance, determine what portion of the delay was unjustifiable and

apply Doggett accordingly, subject to appropriate review by this

court should either party appeal.

****
We review the district court’s application of the relevant
factors for clear error. United States v. Lucien, 61 F.3d 366, 371
(5th Cir. 1995).

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