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The Drug Enforcement Administration’s running of a defendant’s name through the National Crime Information Center database a few times over five years without making other efforts to arrest him was a violation of his Sixth Amendment right to a speedy trial, the Third Circuit has ruled in a split decision.

The U.S. Court of Appeals for the Third Circuit’s decision in United States v. Velazquez overturned a district court ruling denying Sergio Velazquez’s motion to dismiss the charges against him for speedy trial violations. The Third Circuit said the length of time between the charges and arrest “crossed the threshold of prejudicial,” the government’s claims of preserving resources as a cause for not doing more to find the defendant failed and the defendant’s receipt of mail at a P.O. box wasn’t enough to show he was being evasive.

“We recognize the significance of our decision,” said Senior Judge Kermit V. Lipez of the First Circuit, who was sitting by designation. “A defendant who pleaded guilty to serious drug charges will no longer have to answer those charges. But we accept such rare outcomes as the necessary cost for the protection of the speedy trial right set forth in the Constitution.”

In Velazquez, the DEA began investigating defendant Velazquez in June 2005 after receiving a tip that he was interested in selling cocaine to a confidential informant, according to Lipez’s majority opinion.

Velazquez and a co-defendant traveled from California to Philadelphia to meet with the informant, who wore a wire to the meeting. The recorded discussions outlined a plan to sell between 5 and 10 kilograms of cocaine, according to the opinion.

The DEA had Philadelphia police stop Velazquez and his co-defendant after the meeting to identify the men. The police got Velazquez’s name, California license information and his P.O. box address. The men were not arrested, Lipez said.

The informant’s calls with Velazquez were monitored and in July 2005, the DEA tracked the co-defendant to a truck stop where another man gave him a sack of cocaine. The police arrested both men, Lipez said.

The two men were indicted in August 2005 and a complaint and arrest warrant were issued for Velazquez a day later. DEA agents traveled to California to visit an address associated with Velazquez, but he was not there, Lipez said. Velazquez was declared a fugitive and the U.S. Marshals Service was charged with apprehending him. The warrant for Velazquez’s arrest was then put into the NCIC database, described as an “‘electronic clearinghouse of crime data that can be tapped into by virtually every criminal justice agency nationwide, 24 hours a day, 365 days a year,’” Lipez said.

In November 2005, an assistant U.S. attorney from the Eastern District of Pennsylvania sent a copy of the complaint to Velazquez’s attorney in California, Jerome Kaplan. Kaplan had testified before the Third Circuit that he was retained to contact the U.S. Attorney’s Office about a potential surrender. Three weeks later, a superseding indictment was filed, charging Velazquez with three counts related to the distribution of cocaine. The indictment was not sent to Kaplan. Neither Kaplan nor Velazquez appeared at the December 2005 arraignment.

Over the next five years, the U.S. Marshals Service checked the NCIC regarding Velazquez four times and the DEA checked it four times. At one point during that time, a DEA agent noticed the warrant was removed from the NCIC and ensured it was put back in the database. No one attempted to visit the California address again, check other commercial databases, contact Kaplan or contact the agent who initially visited the California address, Lipez said.

In November 2010, a new deputy marshal began working on the case and looked at a LexisNexis database of public records that showed Velazquez tried to renew his driver’s license in California with an address that was a garage that possibly employed Velazquez, Lipez said. Surveillance by marshals in California over the next year proved unsuccessful.

Lipez said Velazquez was ultimately apprehended in December 2011 after Glendale, Calif., police arrested him on an unrelated narcotics charge. He was extradited to the Eastern District of Pennsylvania to face the 2005 charges.

The district court denied Velazquez’s motion to dismiss the indictment on the basis of a speedy trial violation. He pleaded guilty in June 2012 while reserving his right to appeal the speedy trial issue.

The Third Circuit examined Velazquez’s claims under the four-factor test outlined in the U.S. Supreme Court’s 1972 decision in Barker v. Wingo to determine whether the right to a speedy trial was violated.

Even the government didn’t argue on the length of delay, with both sides admitting the five years was well beyond what courts in similar cases have found to be an “extraordinary” lapse in time.

The second prong deals with the reason for delay—mainly was it a reasonable choice by the government and did the defendant’s conduct cause a delay. The government argued that its decision not to investigate more in the five years was a reasonable decision to conserve resources and that Velazquez led an evasive lifestyle, furthering the delay.

“If authorities choose to ignore available leads about a suspect’s whereabouts in favor of other tasks, they may nonetheless be found negligent within the context of the speedy trial right,” Lipez said.

Lipez said there was no evidence the government made a conscious decision not to pursue Velazquez or that their delay was harmless. Lipez further dismissed the government’s contention that Velazquez caused the delay based on his transient lifestyle. The judge said Velazquez had the same P.O. box for years.

The government argued Velazquez knew about the indictment, as evidenced by his lawyer talking to prosecutors. But Lipez said Velazquez had no duty to bring on his own trial. There was also no evidence that he knew of the indictment, which was never mentioned to Kaplan.

“Our focus is not the type of life a suspect leads, however, but whether the government has diligently used the information available to it,” Lipez said.

As to the third prong—reasonable diligence—Lipez said there “it was plain that the government was not reasonably diligent in its pursuit of Velazquez.”

The government argued, on the fourth prong regarding prejudice to Velazquez, that he was not prejudiced because the main evidence in the case was recorded through the wiretaps. Lipez rejected that argument, noting it implies the tapes are all the evidence Velazquez would rely upon in presenting his defense and that it puts the burden to show prejudice on Velazquez.

Lipez was joined by Judge Marjorie Rendell. Judge Kent A. Jordan dissented, finding the government’s reason for delay couldn’t be classified as negligent.

“While the government’s investigative efforts fell well short of praiseworthy, they were not so lacking that, on this record, the district court’s decision should be seen as reversible error,” Jordan said.

Kaplan said he was overjoyed with the decision.

“I thought at the time I argued that we should be successful because I think that this was an overwhelming violation of the speedy trial rights,” Kaplan said.

Attorneys for the U.S. Attorney’s Office weren’t immediately available for comment.

Gina Passarella can be contacted at 215-557-2494 or at gpassarella@alm.com. Follow her on Twitter @GPassarellaTLI.

(Copies of the 58-page opinion in United States v. Velazquez, PICS No. 14-0532, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •