Despite serious delay, defendant could not prove sufficient prejudice so no constitutional speedy trial violation

United States v. Frias, --- F.3d ---, 2018 WL 3150304 (10th Cir. June 28, 2018) -- Ms. Frias was convicted after a trial of felon in possession of a firearm. On appeal, she contended her speedy trial rights were violated, and the trial court abused its discretion in responding to a jury question and in instructing the jury on the government's burden of proof.

Speedy trial issue: Ms. Frias was wanted in connection with a murder. On October 13, 2014, she was arrested by Denver police on the warrant. She fled in her vehicle, crashed it, and then fled. After she was caught, a revolver and two purses were found in the vehicle. One purse contained bullets that fit the revolver and items belonging to Ms. Frias. She was jailed on various state charges. While in jail, on December 15, 2014, she was federally indicted on the 922(g) charge, but the indictment was sealed and Ms. Frias was not told about it. The state did its thing and she pled guilty to one count of accessory to murder on September 24, 2015. Her plea agreement provided that her state sentence would run concurrently with any potential federal sentence and the district attorney would reconsider if she received a consecutive sentence. She was sentenced to four years. On December 19, 2016, two years after the federal indictment and nine months after she was sentenced in state court, the federal government took custody of Ms. Frias and she appeared in federal court for the first time. She moved to dismiss, contending her Sixth Amendment right to a speedy trial had been violated. The district court denied the motion, and her later renewed motions, because Ms. Frias had not been prejudiced. The Tenth Circuit agreed. Three Barker v. Wingo factors weighed in favor of Ms. Frias. The delay was presumptively prejudicial. The government's reasons for the initial delay, from the time of federal indictment to the time the state proceedings concluded, was acceptable, but the 9-month delay after Ms. Frias's sentencing was not. Regarding her assertion of speedy trial rights, this factor slightly favored Ms. Frias because she did not know of the indictment, merely of the possibility of a federal charge. However, the Tenth Circuit also concluded she failed to show prejudice. She would have been incarcerated anyway, and did not demonstrate any specific harm. Finally, she did not show her defense was impaired. The passenger's testimony at trial indicated her memory was clear regarding the events on the day she was arrested, and defense counsel's examination did not bring out any particular deficits. Ms. Frias also pointed out she lost her 18-week window in which she could ask the state court to modify her sentence. The Court said that courts have not held that a federal case must proceed promptly so that a state court can potentially modify a sentence. So even though three factors favored Ms. Frias, on balance, there was no constitutional violation.

Jury question: The district court did not abuse its discretion in referring the jury to the instructions, which correctly stated the law.

Burden of proof: Ms. Frias raised the issue only to preserve it for a petition for certiorari.