US v. Irizarry-Colon

Filing

OPINION issued by Jeffrey R. Howard, Chief Appellate Judge; Juan R. Torruella, Appellate Judge and William J. Kayatta , Jr., Appellate Judge. Published. [15-1550]

Case: 15-1550

Document: 00117115804

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Date Filed: 02/08/2017

Entry ID: 6068400

United States Court of Appeals
For the First Circuit
No. 15-1550
UNITED STATES OF AMERICA,
Appellee,
v.
EFRÉN IRIZARRY-COLÓN,
Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]

Before
Howard, Chief Judge,
Torruella and Kayatta, Circuit Judges.

Linda A. Backiel, with whom Efrén Irizarry-Colón, pro
se, was on brief, for appellant.
Juan Carlos Reyes-Ramos, Assistant United States
Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States
Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney,
Chief, Appellate Division, were on brief, for appellee.

February 8, 2017

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KAYATTA, Circuit Judge.

Date Filed: 02/08/2017

Entry ID: 6068400

The defendant, Efrén Irizarry-

Colón, pled guilty to participating in a conspiracy to defraud the
federal government in violation of 18 U.S.C. § 371.

His plea

agreement reserved his right to appeal the district court's denial
of his motion to dismiss the indictment with prejudice based on
violations of the Speedy Trial Act, the Speedy Trial Clause of the
Sixth Amendment, and the Due Process Clause of the Fifth Amendment.
For the following reasons, we find that the district court was
misled by dicta in one of our prior opinions in calculating the
length of delay relevant to evaluating the alleged Sixth Amendment
violation.

Consequently, we vacate the district court's denial of

Irizarry's Sixth Amendment claim and remand for reconsideration of
that claim.

In all other respects, we affirm.
I.

Background

Irizarry was a closing agent for the Farm Service Agency
(FSA) and an "attorney for emergency and operating loans disbursed
to farmers" after Hurricane Georges struck Puerto Rico in 1998.
Between September 1998 and September 2000, Irizarry participated
in a conspiracy to defraud the FSA.

In the words of the version

of the facts incorporated into the plea agreement:
The essence of the conspiracy to defraud involved the
filing of applications for emergency loans for farmers
through the FSA . . . . The applications would contain
false information and would also be accompanied by false
documentation.
The defendant . . . would not timely
present the mortgages for recording at the Property
Registrar, at the time of the disbursement of the loans,

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contrary to his obligations as closing agent, thereby
deceiving FSA into believing that the loan had not yet
closed, and as a mechanism to delay the collection of
payments by the FSA from the particular Farmers.
The government first indicted Irizarry on July 28, 2005.
This indictment contained thirty-seven counts.
that

Irizarry

participated

in

a

Count one charged

conspiracy

government in violation of 18 U.S.C. § 371.

to

defraud

the

The other thirty-six

counts charged various specific instances of false statements
concerning the presentation of mortgage deeds in favor of FSA to
the registry of deeds, in violation of 18 U.S.C. § 1006, or
furnishing the government with false information (or failing to
disclose relevant information) in connection with the loans, in
violation

of

18

U.S.C.

§

1014.

The

indictment

also

sought

forfeiture.
On March 13, 2007, the court dismissed the indictment
pursuant to Federal Rule of Criminal Procedure 48(b) for violation
of the Speedy Trial Act, 18 U.S.C. §§ 3161-3162, on Irizarry's
motion.

The district court found that 294 nonexcludable days had

passed between the indictment and the first tolling of the Speedy
Trial Act clock. See United States v. Irizarry Colón, 477 F. Supp.
2d 419, 421-22 (D.P.R. 2007).

The district court also concluded

that there had been no bad faith on the part of the government in
allowing that time to elapse, that the parties were "immediately
ready

to

go

to

trial,"

and

that

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Irizarry

could

have

sought

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dismissal of the indictment much earlier "but waited to do so."
Id. at 423.

For those reasons, the district court elected to

dismiss the indictment without prejudice. Id. at 422-23. Irizarry
did not appeal that order.
The government indicted Irizarry again on April 4, 2007.
The second indictment charged thirty-five of the thirty-seven
counts in the first indictment as well as seven new counts charging
bank fraud, in violation of 18 U.S.C. § 1344.
On August 10, 2009, and again on Irizarry's motion, the
court dismissed the second indictment pursuant to Rule 48(b) for
violation of the Speedy Trial Act.

The district court found that

"approximately 140 or 148" nonexcludable days had passed since the
indictment. This time, the court found that the parties had agreed
to begin the trial on a date after the Speedy Trial Act clock
expired and that, when setting this date, the court had failed to
make any findings as to tolling.

The court found that the parties

had acted "in good faith" and that defense counsel's acquiescence
to the late trial date "weighs heavily in favor of the without
prejudice [dismissal]."
again

elected

to

Accordingly, the district court once

dismiss

the

indictment

without

prejudice.

Irizarry also did not appeal that order.
The government indicted Irizarry for a third time on
January 27, 2010.

The third indictment charged the same counts as

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the second but with the bank fraud counts removed (leaving thirtyfive counts and a request for forfeiture).
On May 12, 2010, Irizarry moved to dismiss the third
indictment on the ground that ninety nonexcludable days had passed
and that he had been prejudiced by the cumulative delay up to that
point.

His motion sought to take advantage of a recent Supreme

Court decision, Bloate v. United States, 559 U.S. 196 (2010), that
had abrogated a prior rule in this circuit that automatically
excluded time for the parties to prepare pretrial motions from the
Speedy Trial Act clock.

See United States v. Huete-Sandoval, 668

F.3d 1, 4 (1st Cir. 2011) (recognizing abrogation).
court

dismissed

refiling.

the

indictment,

again

without

The district
prejudice

to

We discuss the precise details of how it did so in

Section II of this Opinion.

Irizarry did not appeal that order.

The government indicted Irizarry for the fourth and
final time on June 17, 2011.

The indictment was identical to the

third indictment.
On August 25, 2011, Irizarry filed a motion to dismiss
the fourth indictment for violation of the Speedy Trial Act and
the Fifth and Sixth Amendments to the United States Constitution.
On October 18, 2011, the district court denied the motion.

See

United States v. Irizarry-Colón, 820 F. Supp. 2d 306, 317 (D.P.R.
2011).

On October 22, 2014, Irizarry entered a conditional guilty

plea to count one, reserving his right to bring this appeal as to

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the denial of his motion to dismiss.

Entry ID: 6068400

On April 9, 2015, he was

sentenced to time served, one year of supervised release, $50,000
in

restitution,

and

a

special

monetary

assessment.

On

government's request, the remaining counts were dismissed.

the
This

appeal followed.
II.

Discussion

Irizarry argues that his fourth indictment should have
been dismissed because the government violated the Speedy Trial
Act, his Sixth Amendment right to a speedy trial, and his Fifth
Amendment right to due process.
A.

We address each argument in turn.

Speedy Trial Act
"This circuit reviews a denial of a statutory speedy

trial claim de novo as to legal rulings, and for clear error as to
factual findings."

United States v. Carpenter, 781 F.3d 599, 616

(1st Cir.), cert. denied, 136 S. Ct. 196 (2015).

Applying this

standard of review, we affirm the district court's application of
the Speedy Trial Act.
In the event that a defendant pleads not guilty, the
Speedy Trial Act requires that "the trial of a defendant charged
in an information or indictment with the commission of an offense
shall commence within seventy days from the filing date (and making
public) of the information or indictment, or from the date the
defendant has appeared before a judicial officer of the court in
which such charge is pending, whichever date last occurs."

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18

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U.S.C. § 3161(c)(1).

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This Speedy Trial Act clock runs from the

indictment or appearance until the beginning of defendant's trial,
unless some other provision of the Speedy Trial Act resets or
pauses it.
The Speedy Trial Act issue raised on this appeal is
whether the seventy-day clock limiting the time between indictment
or appearance and trial reset to zero after dismissal of the third
indictment. If so, the district court properly rejected Irizarry's
motion to dismiss the fourth indictment under the Act.

If not,

Irizarry was entitled to a fourth dismissal because any prosecution
on the subject of the third indictment would have necessarily
violated the Act on the day the defendant first appeared in court.1
The rules that govern resolution of this issue are well
understood.

Relying

on

the

express

language

of

18

U.S.C.

§ 3161(d)(1)2 and § 3161(h),3 on the plain negative inferences

1

He first appeared in court after the indictment was filed.

2

This statute reads, in relevant part: "If any indictment
or information is dismissed upon motion of the defendant . . . and
thereafter . . . an information or indictment is filed charging
such defendant with the same offense or an offense based on the
same conduct or arising from the same criminal episode, the
provisions of subsection[] . . . (c) of this section shall be
applicable with respect to such subsequent . . . indictment, or
information, as the case may be." Id. § 3161(d)(1).
3

This statute reads, in relevant part: "If the information
or indictment is dismissed upon motion of the attorney for the
Government and thereafter a charge is filed against the defendant
for the same offense, or any offense required to be joined with
that offense, any period of delay from the date the charge was
dismissed to the date the time limitation would commence to run as
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drawn from that language, and on "common sense," United States v.
Myers, 666 F.3d 402, 404 (6th Cir. 2012), courts differentiate
between cases dismissed at a defendant's behest and those dismissed
by motion of the government.

When an indictment is dismissed on

a defendant's motion, the clock resets, but when it is dismissed
on the government's motion, it merely pauses until a new indictment
is filed.

See United States v. Rojas-Contraras, 474 U.S. 231, 239

(1985) (Blackmun, J., concurring in the judgment); Myers, 666 F.3d
at 405 (collecting cases); cf. United States v. Colombo, 852 F.2d
19, 23–24 (1st Cir. 1988) (acknowledging this distinction in
dicta); United States v. Krynicki, 689 F.2d 289, 292–93 (1st Cir.
1982)

(reaching

similar

conclusion

with

regard

to

thirty-day

period between arrest or service with summons and indictment).
The parties agree on the basic facts to which we apply
these rules. When the court dismissed the third indictment, ninety
nonexcludable days had passed since Irizarry's first appearance
before a judicial officer without commencement of trial.

Hence,

the district court was required to dismiss the case upon Irizarry's
request, leaving open only the question as to whether the dismissal
was

with

or

§ 3162(a)(2).

without

prejudice

to

reindictment.

18

U.S.C.

Irizarry made such a request and filed a memorandum

to the subsequent charge had there been no previous charge," id.
§ 3161(h)(5), is "excluded in computing the time within which . . .
the trial of any such offense must commence," id. § 3161(h).

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asking that the dismissal be with prejudice.

Entry ID: 6068400

The government filed

a responsive brief in which it contended that the factors listed
in 18 U.S.C. § 3162(a)(2), as well as additional miscellaneous
factors that this court has found relevant in Speedy Trial Act
cases, see United States v. Barnes, 159 F.3d 4, 16 (1st Cir. 1998),
required that the dismissal be without prejudice.

The magistrate

judge concluded that the indictment "must be dismissed," but
recommended that it "be dismissed without prejudice."
objected

to

this

Report

and

Recommendation

both

Irizarry

because

it

concluded that the dismissal under the Speedy Trial Act should be
without prejudice and because of the magistrate judge's "failure
to find that the government . . . affirmatively moved for dismissal
of the indictment" under Rule 48(a).

The district court then

issued an order stating that the magistrate judge's "Report and
Recommendation is APPROVED and ADOPTED in its entirety," that
"defendant's Motion to Dismiss Indictment With Prejudice . . . is
DENIED," and that "the United States' request contained in its
response . . . for a dismissal of the indictment without prejudice
is GRANTED."

The clerk issued a form Judgment of Discharge, on

which the deputy clerk (who signed the form) checked the box
indicating

that

"[t]he

Court

has

granted

the

motion

of

the

government for dismissal pursuant to Rule 48(a) of the Federal
Rules of Criminal Procedure," rather than the box indicating that
"[t]he Court has dismissed the charges for unnecessary delay,

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pursuant to Rule 48(b)."

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As described above, the government then

filed a fourth indictment.

Without including the nonexcludable

days that passed during the pendency of the third indictment, only
forty-five nonexcludable days passed between the filing of the
fourth indictment and the filing of the motion to dismiss that is
the subject of this appeal.
at 312.

See Irizarry-Colón, 820 F. Supp. 2d

On all this, the parties agree.
The pivotal question is whether the third indictment was

dismissed at the defendant's behest or at the government's.

To

answer this question, both parties urge us to review as a whole
the record and docket in the third proceeding.

Irizarry makes no

argument that we must limit our inquiry to the face of the form
Judgment of Discharge.4

Instead, Irizarry points to the Judgment,

the

the

court's

Recommendation,

order,
and

the

magistrate

government's

judge's

Report

memoranda--all

in

and
the

proceedings under the third indictment--as collectively revealing
that the dismissal of that indictment was at the government's
behest.

Like the district court, we disagree.
The entire effort to dismiss the third indictment began

with a motion filed by Irizarry.
with prejudice.

That motion sought dismissal

On the record as it then stood, Irizarry was

4

Presumably, he decided that such an argument, had he made
it in the district court, might well have led the prosecution to
seek a correction under Federal Rule of Criminal Procedure 32.

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entitled

to

dismissal

by

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right.

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As

the

Entry ID: 6068400

magistrate

judge

recognized, "the parties agree, the indictment . . . must be
dismissed; the question remaining is whether to dismiss with or
without prejudice."

In short, the only issue that was disputed

and required adjudication was whether the dismissal would be with
prejudice.

The briefing, argument, and analysis then trained on

that question, which the magistrate judge and then the district
court expressly resolved against Irizarry, stating explicitly that
dismissal was without prejudice.
Read in the context of this plain record, the references
to the government requesting dismissal without prejudice, or the
district

court

"grant[ing]"

the

government's

request,

were

references not to a government motion to dismiss--there was no
such motion, as dismissal was a done deal--but rather to its
request that the dismissal be without prejudice.

At no point in

the proceeding did Irizarry argue that the indictment should not
be dismissed unless it was dismissed with prejudice.

And when he

objected to the magistrate judge's recommendation, he objected not
to dismissal itself, but to the decision to dismiss the indictment
without prejudice on Rule 48(b) grounds.

In fact, his objection

clearly recognized that the magistrate judge did not find that the
government's request for dismissal without prejudice amounted to
a motion under Rule 48(a), and he argued that this was error.

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To
sense.
dismiss

construe

the

Page: 12

record

Date Filed: 02/08/2017

otherwise

would

Entry ID: 6068400

defy

common

Under Irizarry's revamped view, the government moved to
the

third

nonexcludable days.

indictment

after

the

running

of

seventy

Thus, the Speedy Trial Act clock would not

have reset--because it would only do so on a motion by Irizarry-and a fourth indictment would have been timed-out at the outset,
cf. Myers, 666 F.3d at 404, and so subject to dismissal at any
point Irizarry chose.
dismissed

without

Only if that fourth indictment was then

prejudice

could

the

government

bring

a

hypothetical fifth indictment with a reset clock.
It is unlikely that a prosecutor would take the obviously
self-defeating step of moving to dismiss an indictment after
seventy nonexcludable days, particularly where the defendant has
already filed a motion to dismiss.

We do not read the record to

suggest that this prosecutor did so.

Rather, the government

conceded a clear fact--that the Speedy Trial Act clock had run on
the third indictment--but disputed Irizarry's contention that the
indictment should be dismissed with prejudice.

The government

could properly argue against dismissal with prejudice in its
opposition to Irizarry's motion without implicitly converting that
opposition into a motion to dismiss, and it did so.

Therefore,

the district court did not err in treating the dismissal of the
third indictment as a dismissal on the defendant's motion that
reset the Speedy Trial Act clock.

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motion

to

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forty-five

nonexcludable days after it was filed was correct.
B.

Sixth Amendment Right to a Speedy Trial
The Sixth Amendment to the United States Constitution

also protects a defendant's interest in having a speedy trial, and
it does so in a manner that does not necessarily track that of the
more mechanistic statutory rules set forth in the Speedy Trial
Act.

The Supreme Court has identified four factors that courts

should

assess

when

considering

whether

deprived of the right to a speedy trial.

a

defendant

has

been

These are "[l]ength of

delay, the reason for the delay, the defendant's assertion of his
right, and prejudice to the defendant."

Barker v. Wingo, 407 U.S.

514, 530 (1972).
The first factor--the length of delay--"is actually a
double enquiry.

Simply to trigger a speedy trial analysis, an

accused must allege that the interval between accusation and trial
has crossed the threshold dividing ordinary from 'presumptively
prejudicial' delay . . . ."
647, 651-52 (1992).

Dogget v. United States, 505 U.S.

"If the accused makes this showing, the court

must then consider, as one factor among several, the extent to
which the delay stretches beyond the bare minimum needed to trigger
judicial examination of the claim."

Id.; see also United States

v. Souza, 749 F.3d 74, 81 (1st Cir.), cert. denied, 135 S. Ct. 418
(2014).

"There is no bright-line time limit dividing the lengths

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that trigger further Barker inquiry from those that do not.
Whether a particular delay will warrant further speedy trial
scrutiny 'is necessarily dependent upon the peculiar circumstances
of the case.'"

United States v. Dowdell, 595 F.3d 50, 60 (1st

Cir. 2010) (quoting Barker, 407 U.S. at 530-31). However, "[d]elay
of around one year is considered presumptively prejudicial, and
the presumption that delay prejudices the defendant 'intensifies
over time.'"

United States v. Carpenter, 781 F.3d 599, 610

(quoting Doggett, 505 U.S. at 652); see also Doggett, 505 U.S. at
652 n.1.
The dispute in this case concerns how a court should
measure

the

length

of

delay

under

the

first

Barker

factor.

Irizarry argues that the court should consider the delay across
all four indictments, and not just the sixty-nine days that had
passed between when the government filed the fourth indictment and
when he filed his motion to dismiss.

The district court ruled,

and the government argues on appeal, that the court should consider
only the sixty-nine-day delay after the fourth indictment was
filed.

Both parties agree that if the length of delay is measured

across all four indictments, it was presumptively prejudicial and
therefore triggers the full Barker analysis.
The parties also disagree about the appropriate standard
of review.

This circuit generally reviews district court rulings

on speedy trial motions for abuse of discretion.

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Carpenter, 781

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F.3d at 607; United States v. Salimonu, 182 F.3d 63, 69 (1st Cir.
1999); United States v. Santiago–Becerril, 130 F.3d 11, 21 (1st
Cir. 1997); United States v. Colombo, 852 F.2d 19, 21 (1st Cir.
1988).

We noted in Carpenter, however, that applying an abuse of

discretion

standard

of

review

to

constitutional

speedy

trial

claims is in tension with the rules of other circuits, as well as
this circuit's standard of review when considering other similar
issues

(e.g.,

Amendment).

applying

the

Speedy

781 F.3d at 607–08.

Trial

Act

or

the

Eighth

Carpenter did not resolve this

tension because the defendant's claims failed under any standard
of review.

We need not resolve it in this case, either.

Rather,

for reasons we will explain, we find that the district court
committed

a

type

of

error--applying

an

incorrect

legal

interpretation of the first Barker factor--that must be set aside
even under an abuse of discretion test.

See United States v.

Bater, 594 F.3d 51, 54 n.1 (1st Cir. 2010) ("Although suggesting
great latitude, 'abuse of discretion' has this meaning only where
the issue invites it--usually in applying a general standard to
specific facts (the test being essentially one of reasonableness);
but (confusingly) 'abuse of discretion' is used as well to embrace
mistakes on abstract issues of law (reviewed de novo) and errors
of fact (for which clear error is the customary test)." (citing
Roger Edwards, LLC v. Fiddes & Son Ltd., 427 F.3d 129, 132 (1st
Cir. 2005))).

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The district court was led astray by our statement in
Colombo that it "makes sense" that "[t]he courts have implicitly
assumed

that

if

an

indictment

is

dismissed

on

motion

of

a

defendant, and the defendant is subsequently reindicted for the
same

offense,

only

the

delay

in

prosecution

of

the

second

indictment is relevant for Sixth Amendment speedy trial purposes."
852 F.2d at 23 (citations omitted).

That statement was plainly

dicta, as the holding of Colombo concerned an indictment dismissed
on the motion of the government (and concluded, in that instance,
that the time elapsed under prior indictments is included).

See

id. at 23–24.5
Instead, this case is controlled by United States v.
Loud Hawk, 474 U.S. 302 (1986), which both the Colombo dicta and
the district court's application of that dicta contradict.

There,

the Court treated the entire ninety-month period6 between the
initial indictment and the dismissal just prior to trial as the
period of delay under the first factor, triggering the full Barker

5

The district court also relied on United States v.
MacDonald, 456 U.S. 1 (1981).
MacDonald held only that when
charges are dropped on a first indictment, "the speedy trial
guarantee is no longer applicable" until a second indictment is
filed.
Id. at 8.
This holding has no bearing on how a court
should calculate the length of delay for the first Barker factor.
6

The ninety-month period used by the Supreme Court in its
analysis of the first Barker factor spanned from the initial
indictment on November 25, 1975 to the order dismissing the
indictment on May 20, 1983, which the Supreme Court was reviewing.
Id. at 304-10.

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analysis.

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See id. at 304, 314.

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This ninety-month period included

both periods during which the defendants were "neither under
indictment nor subject to any restraint on their liberty," id. at
310,

and

periods

during

which

either

the

government

or

the

defendants were pursuing interlocutory appeals, id. at 312-14,
316-17.
periods

In applying the second Barker factor, the Court gave
of

the

first

type

no

weight

under

United

States

v.

MacDonald, 456 U.S. 1, 8–9 (1981), and periods of the second type
no weight under a new rule announced in Loud Hawk itself.
Loud Hawk, 474 U.S. at 310-12, 314-16.

See

The Court did so despite

the fact that, after a series of appeals and remands, some of the
counts against the defendant had been dismissed without prejudice
on

the

defendant's

motion

pursuant

to

Rule

48(b),

and

the

government had subsequently obtained a superseding indictment.
See United States v. Loud Hawk, 564 F. Supp. 691, 695 (D. Or. 1983)
(recounting procedural history); United States v. Loud Hawk, 628
F.2d 1139, 1151 (9th Cir. 1979) (reversing dismissal of those
counts insofar as they were with prejudice).
In a recent unpublished decision reviewing a California
state court case with a similar procedural history to this one,
the

Ninth

Circuit

held

that

Loud

Hawk

constituted

clearly

established federal law that the period of delay under the first
Barker factor included the entire period from initial indictment
to trial.

See Carreon v. Long, 612 F. App'x 877, 878 (9th Cir.

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2015) ("[M]easur[ing] the delay as the time between the second
felony

complaint

and

[the

defendant's]

trial

.

.

.

was

'an

unreasonable application of [] clearly established Federal law, as
determined by the Supreme Court of the United States.'" (citing 28
U.S.C. § 2254(d)(1) and Loud Hawk, 474 U.S. at 314)); People v.
Carreon, No. E052856, 2012 WL 5992736, at *2 (Cal. Ct. App. Nov.
29, 2012) (recounting that the first felony complaint was dismissed
without prejudice because of a violation of the statutory right to
a speedy trial after the defendant sought a "writ of mandate," and
that after the writ issued, "the district attorney immediately
filed a new felony complaint"); see also United States v. Sears,
Roebuck & Co., 877 F.2d 734, 739 (9th Cir. 1989) (noting that for
the first Barker factor, "[t]he delay is measured from the time of
the indictment to the time of trial, excluding periods during which
the indictment is dismissed").
While one might correctly argue that the Supreme Court
in Loud Hawk did not expressly rule that the manner in which it
measured the length of the delay was proper, such an argument would
provide

a

otherwise.

poor

justification

for

a

lower

court

to

proceed

See McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 19

(1st Cir. 1991) ("[F]ederal appellate courts are bound by the
Supreme Court's considered dicta almost as firmly as by the Court's
outright holdings.").

Instead, like the Ninth Circuit did in

Carreon, we conclude that the district court should count the

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entire period of time since the first indictment when calculating
the length of delay for the first Barker factor.
Because the district court's opinion turned entirely on
the first factor, it made no findings regarding what portion of
the longer period of delay was attributable to the government,
whether Irizarry promptly asserted his speedy trial rights, or
whether Irizarry was prejudiced.

It engaged in no weighing of

these factors against each other.

Because we review factual

findings and judgmental weighings for abuse of discretion, see
Colombo, 852 F.2d at 21, we decline to make them ourselves in the
first instance as an alternative basis for affirmance.

Rather, we

remand the case to the district court for proper application of
all four Barker factors.
C.

Pre-Indictment Delay
Next, Irizarry argues that the delay before the first

indictment violated his right to due process.7

Reviewing the

district court's decision not to dismiss the indictment on this
ground for abuse of discretion, United States v. Bater, 594 F.3d
51, 53 (1st Cir. 2010), we reject that argument.

7

He also argued that if the Sixth Amendment analysis did not
include time prior to the fourth indictment, then he should be
entitled to argue that the total delay before the fourth indictment
violated his due process rights. Since we have agreed with him
about the Sixth Amendment, we do not consider this alternative
argument.

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Even when an indictment is brought within the statute of
limitations, "excessive pre-indictment delay can sometimes, albeit
rarely, violate the Fifth Amendment's Due Process Clause if the
defendant shows both that the 'delay caused substantial prejudice
to

his

right

intentionally
advantage.'"

to

a

fair

delayed

trial'

and

indictment

.

.

that
.

to

'the
gain

[g]overnment
a

tactical

Id. at 54 (alterations in original) (quoting United

States v. Picciandra, 788 F.2d 39, 42 (1st Cir. 1986)).

"With

respect to prejudice, a defendant must do more than allege that
witnesses' memories had faded or that evidence had been lost that
might have been helpful to him."

United States v. Muñoz-Franco,

487 F.3d 25, 58 (1st Cir. 2007). With respect to intentional delay
for tactical reasons, this court has indicated that such delay
violates the Due Process Clause when it is the product of "'bad
faith' reasons."
Cir. 1985).

United States v. Crooks, 766 F.2d 7, 11 (1st

For instance, pre-indictment delay for the purpose of

investigation, see United States v. Lovasco, 431 U.S. 783, 790–
92,

795–96

(1977),

for

the

purpose

of

discovering

all

the

participants in a conspiracy so they could be tried together, see
id., and for the purpose of letting state authorities pursue their
own prosecution, see United States v. Marler, 756 F.2d 206, 214–
15 (1st Cir. 1985), is permissible.

Delay in order to deprive the

defendant of witnesses, see Bater, 594 F.3d at 54, or impose the
burden of defending oneself in back-to-back trials, see United

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States v. Ramos-González, 775 F.3d 483, 491 (1st Cir. 2015), may
not be.
Irizarry cannot show substantial prejudice.8
that he was prejudiced in two ways.

He argues

First, he claims that he was

"forced . . . to deplete his financial resources" so that "his
defense

would

be

no

match

for

[the

government's]

prosecutors, investigators and co-operators."

team

of

Even assuming that

this is the type of prejudice that could ground a due process
claim, Irizarry does not cite anything in the record establishing
his financial position immediately after the conspiracy or at the
time

of

the

first

indictment.

Second,

he

asserts

that

the

prosecution's decision to indict him after it had already indicted
and reached plea agreements with several potential codefendants
deprived him of witnesses on his behalf.

He does not, however,

cite anything in the record to explain why individuals who had
already pled guilty would be prevented from testifying at his trial
or to establish what testimony those individuals would have offered
otherwise.

8

Irizarry made a similar due process argument in his motions
to dismiss the first indictment and the third indictment, but he
elected not to appeal either dismissal without prejudice.
Cf.
United States v. Worthy, 772 F.3d 42, 46-48 (1st Cir. 2014) (noting
that the decision to dismiss with prejudice rather than without is
appealable).
The government does not argue that Irizarry has
thereby forfeited the opportunity to raise this issue in the
present appeal.
Expressing no opinion as to whether such an
argument would be successful, we consider the merits of Irizarry's
due process argument.

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Irizarry also may not be able to show an intentional
delay for improper reasons.

He argues that it was improper for

the government to indict his co-conspirators first and strike plea
deals with many of them so that they could testify against him.
The Supreme Court has indicated that tactical decisions of this
sort may be permissible reasons to delay trial under the Sixth
Amendment.

See Barker, 407 U.S. at 534 (noting that, under the

Sixth Amendment, "[p]erhaps some delay would have been permissible
under ordinary circumstances, so that [a co-conspirator] could be
utilized as a witness in [the defendant's] trial").

If the

Constitution permits some delay to try a co-conspirator after
indictment, it would be difficult to show that a delay for the
same reason before indictment was in bad faith.

Ultimately, we

need not decide this issue, as Irizarry's due process claim falters
on the substantial prejudice prong.
III.

Conclusion

We vacate the district court's decision on Irizarry's
Sixth Amendment claim and remand for the district court to apply
the full Barker analysis in analyzing that claim.
court

concludes

that

Irizarry's

Sixth

If the district

Amendment

rights

were

violated, it should vacate his conviction and sentence and grant
appropriate relief.

Otherwise, it should reaffirm the conviction

and sentence. We affirm the district court's decision in all other
respects.

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