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
2
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
3
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
4
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
5
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.
6
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 . .
7
. 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
8
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
9
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.”
10
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
11
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.
12
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.
13
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).
14