Court disapproves of dismissal based on long delay in bringing federal indictment; reverses

US v. Garcia, -- F4th --, 2023 WL 1807716 (10th Cir. Feb. 8, 2023) Defendant won the battle in district court but lost the appellate war. Mr. Garcia was indicted by both the state of Colorado and the federal government after a shoplifting incident at a Kmart and a shootout two days later in July 2017. The federal indictment charged Mr. Garcia with possessing a weapon contrary to 18 USC 922(g)(1), robbing the Kmart contrary to 18 USC 1951(a), and violating 18 USC 924(c)(1)(A)(i), (ii) and (iii). The federal indictment was sealed for almost two years while Colorado did its thing. In Colorado state court, Mr. Garcia pled guilty to first degree assault and got a 23-year sentence on August 16, 2019. The government moved to have Mr. Garcia brought to federal court on August 15, 2019; the motion was granted; and Mr. Garcia made his initial appearance in federal court on August 20, 2019. Defendant on 3 occasions requested continuances and moved to exclude 210 days from the speedy trial clock, and the district court granted the motions. Eight months after his initial appearance, Mr. Garcia moved to dismiss the Indictment based on the claim that his 6th Amendment right to a speedy trial was violated. The district court agreed and dismissed with prejudice, and then denied the government’s motion to reconsider. The government appealed, and the Tenth Circuit reversed. The Court first observed that the remedy for a speedy trial violation – dismissal with prejudice – was “severe” and then went on to apply the Barker v. Wingo factors. The first factor, length of the delay, weighed in Mr. Garcia’s favor. The “especially important” second factor – reason for the delay – weighed in the government’s favor: “we conclude the delay caused by the government’s decision to wait until the state prosecution finished to avoid jurisdictional conflicts was permissible.” Additionally, the charges against Mr. Garcia were sufficiently complex to warrant the government’s delay. The third factor – assertion of right – weighed against the defendant because he waited eight months and requested 3 continuances before filing his motion after the government unsealed the indictment. The fourth factor – prejudice – also weighed in the government’s favor as the defendant failed to show that video evidence from the Kmart would have ever been available and thus failed to show the delay in prosecution caused the loss of the video. The defendant also did not prove he was in pretrial custody oppressively long because the federal detainer prevented him from bonding out of state custody because 1) the 23-month delay was not presumptively extreme delay and 2) he received credit from the state court for his pretrial incarceration. So, the order dismissing Mr. Garcia’s indictment was reversed.