United States v. Javier Garza , 222 F. App'x 947 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 24, 2007
No. 05-16980 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 99-00620-CR-DLG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAVIER GARZA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 24, 2007)
Before ANDERSON, DUBINA and BARKETT, Circuit Judges.
PER CURIAM:
Appellant Javier Garza appeals his conviction for possession of a firearm by
a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Garza was indicted by a
federal grand jury on August 24, 1999. After his voluntary surrender on April 11,
2005, he filed a motion to dismiss the indictment pursuant to Fed. R. Crim. P.
48(b) alleging a violation of his Sixth Amendment right to a speedy trial. After an
evidentiary hearing, a magistrate judge recommended denying Garza’s motion to
dismiss the indictment on the grounds that Garza had failed to show prejudice
stemming from the delay in the prosecution of his case. The district court adopted
the magistrate judge’s recommendation and denied Garza’s motion to dismiss the
indictment. After a bench trial was held on August 10, 2005, Garza was found
guilty on the single count indictment.
On appeal, Garza argues that the more than five-and-one-half-year delay
from the date of his indictment to the date of his trial constituted a violation of his
speedy trial rights. In analyzing the factors set forth in Barker v. Wingo, 407 U.S.
514, 530, 92 S. Ct. 2182, 2192 (1972), Garza first asserts that the length of time
between the indictment and his voluntary surrender is clearly sufficient to trigger
further review of his claim. Second, Garza maintains that the reason for the delay
was attributable to the government, as it failed to utilize reasonable efforts to locate
him in a timely fashion. To bolster this point, Garza emphasizes the fact that after
ATF agent Howard Greene’s initial physical surveillances of his father’s residence,
2
the ATF agents failed to make any further surveillances or visits to that residence
for over five years. Third, Garza maintains that he was not aware that he had been
indicted until April 2005, and he made arrangements to surrender himself to the
appropriate authorities within hours after the U.S. Marshal visited his father
inquiring about his whereabouts. Lastly, Garza argues that his case is analogous to
both Doggett v. United States, 505 U.S. 647, 112 S. Ct. 2686 (1992), and United
States v. Ingram, 446 F.3d 1332 (11th Cir. 2006). Specifically, he asserts that he
should not be required to show prejudice because the first three factors in Barker
weigh heavily against the government.
The government concedes that in light of Ingram, which was not available
when the district court ruled, Garza’s case should be remanded to the district court
with instructions to dismiss the indictment. The government asserts that the
rationale of Ingram controls and requires a like result. Further, the government
acknowledges that Garza’s case is stronger than Ingram’s, as none of Garza’s
conduct during the five-and-one-half-year post-indictment period is indicative of
an intent to evade prosecution. The government also acknowledges that Garza is
not required to show actual prejudice because each of the first three factors of the
Barker analysis weighs heavily against the government. Therefore, the
government concedes that the district court erred by denying Garza’s motion to
3
dismiss the indictment based on his failure to show actual prejudice.
Accordingly, because the facts and circumstances of Ingram are controlling
in this case, and based on the government’s confession of error, we vacate the
judgment of conviction and remand this case to the district court with instructions
to dismiss the indictment.
VACATED AND REMANDED.
4