United States v. Bernardo Lloyd , 645 F. App'x 273 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4272
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BERNARDO AUGUSTINE LLOYD,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, Senior District Judge.
(8:12-cr-00354-RWT-1)
Argued: March 1, 2016 Decided: April 20, 2016
Before MOTZ, GREGORY, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Jennifer L. Mayer, Richard Alan Finci, HOULON, BERMAN,
FINCI, LEVENSTEIN & SKOK, LLC, Greenbelt, Maryland, for
Appellant. Sujit Raman, OFFICE OF THE UNITED STATES ATTORNEY,
Greenbelt, Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein,
United States Attorney, Hollis Raphael Weisman, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bernardo Lloyd (“Appellant”) was speeding and zig-
zagging through traffic on the Baltimore-Washington National
Parkway (“Parkway”) when his Lexus sedan struck the back of a
pickup truck being driven by Juan Lopez Sanchez. The truck
flipped and careened off the Parkway. Sanchez died at the
scene. On June 25, 2012, a grand jury indicted Appellant for
involuntary manslaughter. He was not arrested until 15 months
later, on September 23, 2013. Eventually, his case proceeded to
trial and a jury found him guilty. Appellant maintains that the
15-month delay between indictment and arrest violated his Sixth
Amendment right to a speedy trial. He also argues that an
expert witness was improperly allowed to testify at trial as to
the cause of the accident, and he maintains he was entitled to a
sentence reduction because he accepted responsibility for his
offense.
We affirm Appellant’s conviction and sentence. His
Sixth Amendment rights were not violated because the 15-month
delay between his indictment and his arrest was not
extraordinary and did not impair his defense. We also find
ample support for the district court’s decision to allow an
experienced accident reconstructionist to testify, consistently
with the opinion of another expert, about the cause of the
accident. And, given Appellant’s testimony at trial, during
2
which he did not accept responsibility for the accident but,
rather, testified that he was not driving recklessly, we have no
quarrel with the district court’s decision not to impose a more
lenient sentence.
I.
On January 31, 2012, Appellant rear-ended Sanchez’s
pickup truck. The front end of Appellant’s vehicle underrode
the pickup with enough force that material from the car’s bumper
was wrapped around the truck’s rear axle. Sanchez’s truck
flipped off the road. Sanchez was killed.
Police took statements from witnesses at the scene,
made measurements of the wreckage, photographed the crash site,
and then impounded the two vehicles. About six months later, on
June 25, 2012, a grand jury in the District of Maryland issued
an indictment charging Appellant with, among other things,
involuntary manslaughter in violation of 18 U.S.C. § 1112(a). 1
A warrant for Appellant’s arrest issued the following day.
However, he was not arrested until September 23, 2013, roughly
15 months later. Appellant raised the issue of the delay soon
after being arrested. Just under a year later, he moved to
1
Appellant was also charged with one count of reckless
driving in violation of 36 C.F.R. § 4.2, but the jury was
instructed not to consider that offense if it convicted on the
involuntary manslaughter charge.
3
dismiss the indictment, alleging a violation of his Sixth
Amendment right to a speedy trial. Specifically, he claimed
that, due to the delay, his expert crash reconstructionist,
Wendell Cover, had been unable to inspect the wrecked vehicles
and, therefore, could not present a theory about the cause of
the accident. Although the vehicles had been released from
impound and were indeed unavailable, the district court
nevertheless denied the motion, reasoning that Appellant’s
defense would not be impaired.
The ensuing three-day trial focused on the cause of
the accident. The evidence showed Appellant was speeding prior
to the collision. He testified that he saw a car rapidly
approaching in his rearview mirror and, thinking it might be a
police cruiser, moved into the right-hand lane. The car, a
Nissan, sped by; Appellant pulled in behind the Nissan and hit
the gas. At that point, according to Appellant, he was driving
fast enough to pass the other cars in the right-hand lane, but
not as fast as the Nissan, which quickly disappeared into the
distance.
At some point, though, Appellant caught up with the
Nissan. Both cars zig-zagged around another driver, Joseph
McCann, in short succession: the Nissan passed on McCann’s left,
straddling two lanes; Appellant’s Lexus then zipped by on the
right, driving partially on the shoulder. And Appellant himself
4
testified that, shortly before the accident, he saw the Nissan
behind him in his side-view mirror.
McCann estimated that Appellant and the driver of the
Nissan were traveling over 100 miles per hour. David Feser, an
off-duty police officer trained in speed detection, was also on
the road that day and testified as a fact witness. He estimated
Appellant’s Lexus was traveling 90 to 100 miles per hour,
characterized Appellant’s driving as reckless, and thought it
likely the car would be involved in an accident. Unfortunately,
he was right.
Two experts testified for the Government. Corporal
Charles Russell, an experienced accident reconstructionist,
analyzed data from the Lexus’ airbag control module, examined
photographs and measurements taken at the scene, and reviewed
witness statements about the crash. From this information, he
extrapolated that Appellant was driving approximately 100 miles
per hour before the crash and saw no evidence that Sanchez’s
actions contributed to the wreck. As a result, Corporal Russell
opined, over Appellant’s objection, that the single likely cause
of the accident was “the excessive speed of the Lexus.” J.A.
252. 2
2
Citations to the “J.A.” refer to the Joint Appendix
filed by the parties in this appeal.
5
Officer Ken Bentivegna of the United States Park
Police (“Park Police”) also testified as an expert. He was
present at and documented the crash scene, and also examined the
vehicles in a Park Police impound lot at some point after they
were removed from the roadway. He reached no specific
conclusion about Appellant’s speed, but he saw nothing in
pictures of the tire marks and other impressions on the road
that indicated aggressive pre-impact braking by either Appellant
or Sanchez. Therefore, he concluded, “[T]he operator of the
Lexus was going too fast to control his vehicle, failed to brake
appropriately to avoid the collision and was driving in a
reckless manner which is what led to the collision between the
Lexus and” Sanchez’s pickup truck. S.J.A. 446. 3
Appellant, for his part, claimed that he rounded a
bend in the Parkway and moved into the far-right lane. As he
did so, he observed Sanchez’s truck also move “suddenly” into
that lane, so Appellant began to drift back into the center
lane. J.A. 307. He says he then saw the Nissan in his side-
view mirror “pushing its way into the center lane,” id. at 307,
so he returned to the right-hand lane. At that moment,
according to Appellant, Sanchez applied his brakes. Appellant
3
Citations to the “S.J.A.” refer to the Supplemental Joint
Appendix filed by the parties in this appeal.
6
“tried to go to the right as fast as [he could],” but he
collided with the truck, sending both off the road. Id. at 308-
09. Appellant denied that he was driving recklessly. He
presented no expert testimony of his own to counter the
Government’s. 4
The jury was thus presented with two relatively
straightforward theories of the case: In the Government’s view,
the evidence indicated that Appellant’s reckless speed caused
him to rear-end Sanchez’s truck. Appellant allowed that he was
speeding, but denied driving recklessly and maintained he was
simply unable to avoid the truck when Sanchez applied the
brakes. The jury, which found Appellant guilty of involuntary
manslaughter, evidently credited the Government’s account.
At sentencing, the district court denied Appellant’s
request for a downward adjustment based on acceptance of
responsibility and imposed a 63-month term of imprisonment.
This timely appeal followed.
4Although Appellant presented Cover’s expert testimony at
the hearing on his motion to dismiss the indictment, he chose
not to present Cover’s testimony at trial.
7
II.
A.
Speedy Trial Challenge
Appellant first challenges the district court’s
decision denying the motion to dismiss the indictment on speedy
trial grounds. We review the district court’s factual findings
for clear error, see United States v. Perry, 757 F.3d 166, 171
(4th Cir. 2014), and its legal conclusion about the effect of
the delay de novo, see United States v. Hall, 551 F.3d 257, 266
(4th Cir. 2009).
The Sixth Amendment guarantees the accused in all
criminal prosecutions the right to a speedy trial. See U.S.
Const. amend. VI. Some delays in bringing a defendant to trial
are simply too brief to violate the Constitution. See Doggett
v. United States, 505 U.S. 647, 651-52 (1992). But delays
approaching -- or, as here, exceeding -- one year presumptively
surpass the bare minimum required to trigger a constitutional
inquiry. See id. at 651-52 & 652 n.1. So, like the district
court, we must “engage in a difficult and sensitive balancing
process” that assesses the length of the delay, the reason for
the delay, how vigorously Appellant asserted his speedy trial
rights, and the extent to which Appellant was prejudiced by the
delay. Barker v. Wingo, 407 U.S. 514, 530-33 (1972). “[N]one
of the four factors . . . [is] either a necessary or sufficient
8
condition to the finding of a deprivation of the right of speedy
trial.” See id. at 533. But if those factors, considered
collectively, weigh in Appellant’s favor, then we must dismiss
the indictment lodged against him. See Vermont v. Brillon, 556
U.S. 81, 93 (2009) (“The factors identified in Barker have no
talismanic qualities” (internal quotation marks omitted)).
1.
Length and Reason for Delay
We consider the first two factors -- length and reason
for the delay -- together. The pertinent delay is the 15-month
gap between indictment and arrest. That period of time is long
enough to merit inquiry into the remaining factors, but not an
“extraordinary” delay. Doggett, 505 U.S. at 657-58 (eight-and-
a-half year delay was extraordinary); Barker, 407 U.S. at 533(delay of over five years extraordinary). And the delay is
attributable solely to the Government -- the authorities knew at
all times where to find Appellant; arresting him simply was not
a priority. Being simply dilatory does not weigh as heavily
against the Government as a “deliberate attempt to delay the
trial in order to hamper the defense . . . .” Barker, 407 U.S.
at 531. However, even a “more neutral reason such as
negligence,” id., still “falls on the wrong side of the divide
between acceptable and unacceptable reasons for delaying
9
criminal prosecution once it has begun,” Doggett, 505 U.S. at
657.
2.
Assertion of the Speedy Trial Right
As for the third factor, the Government makes much of
the fact that Appellant waited nearly a year after his arrest to
move to dismiss the indictment. Yet there is no denying that
Appellant promptly raised the issue at his arraignment. See
Doggett, 505 U.S. at 654 (“[The defendant] is not to be taxed
for invoking his speedy trial right only after his arrest,”
where it was unrebutted that defendant was unaware of indictment
until his arrest.).
3.
Prejudice
That leaves the question of prejudice. “Negligence
over a sufficiently long period can establish a general
presumption that the defendant’s ability to present a defense is
impaired, meaning that a defendant can prevail on his claim
despite not having shown specific prejudice.” United States v.
Velazquez, 749 F.3d 161, 175 (3d Cir. 2014); see also Doggett,
505 U.S. at 658. In Doggett, for example, the Supreme Court
held that an eight-and-a-half year delay caused by the
Government’s negligence violated the Sixth Amendment because the
presumed prejudice to the defendant was “neither extenuated, as
10
by the defendant’s acquiescence, . . . nor persuasively
rebutted.” Id. at 658 (footnotes omitted) (citation omitted).
But significantly shorter delays arising from government
negligence, like the 15-month delay here, do not excuse a
defendant from showing actual prejudice. See, e.g., United
States v. Parker, 505 F.3d 323, 328-29 (5th Cir. 2007) (17-month
delay does not obviate need to inquire into prejudice); United
States v. Clark, 83 F.3d 1350, 1353-54 (11th Cir. 1996) (per
curiam) (17-month delay “insufficient to excuse a defendant
from” showing prejudice); United States v. Beamon, 992 F.2d
1009, 1013-14 (9th Cir. 1993) (“Although the government did not
pursue Beamon and McMillin with due diligence, if the delay in
this case -- only a few months longer than the minimum -- were
sufficient as a matter of law to relieve the defendant of the
burden of coming forward with any showing of actual prejudice,
the presumption of prejudice would be virtually irrebuttable.”).
Instead we consider whether the delay actually
impaired Appellant’s defense. 5 See, e.g., United States v.
Gregory, 322 F.3d 1157, 1163 (9th Cir. 2003) (“[W]e have held
that when the government has been negligent and the delay does
5Other forms of prejudice, such as pretrial incarceration
and the anxiety caused by living under threat of prosecution,
are not relevant here because the delay in this case preceded
Appellant’s arrest and he did not know about the indictment
until he was arrested.
11
not far exceed the minimum time required to trigger the full
Barker inquiry, we must consider the amount of delay in relation
to particularized prejudice.” (internal quotation marks
omitted)). Appellant argues his defense was impaired because
the Park Police released the wrecked vehicles from impound
before he was arrested. As a result, Appellant’s expert,
Wendell Cover, was unable to inspect the vehicles and testified
at a pre-trial hearing that he could not reconstruct the
accident or come to a conclusion about what caused the accident.
We struggle, however, to identify any actual prejudice to
Appellant’s defense. The competing theories of this case, as we
have explained, are that Appellant was driving too fast to avoid
the truck, or that Appellant had no opportunity to avoid the
collision when Sanchez hit the brakes. Yet a closer examination
of Cover’s testimony simply does not establish how inspecting
the wrecked vehicles would have allowed him to prove or disprove
either of those theories.
Like Appellant’s expert, Corporal Russell did not
examine the vehicles involved in the accident. And the
information on which Corporal Russell based his opinion as to
speed was likewise available to Cover, Appellant’s expert.
Further, Cover testified during the pre-trial hearing that “a
simple speed calculation” was the sort of conclusion that could
be reached by examining data from the airbag control module,
12
even without physically inspecting the vehicles. See J.A. 79-
81. It is true that Corporal Russell’s conclusions about
Appellant’s speed were based in part on assumptions he made
about the Lexus’ tire size and gear ratios, variables that
presumably could have been definitively established by
inspecting the vehicles. But defense counsel ably explored
these limitations of Corporal Russell’s testimony on cross-
examination. Moreover, Corporal Russell’s opinion was
consistent with eyewitness testimony about Appellant’s speed,
and, in fact, Appellant did not deny speeding, contradict
Corporal Russell’s estimate, or even object to the validity of
his calculations. We therefore fail to see how an inspection of
the vehicles would have allowed Appellant to contest the
Government’s considerable proof as to his pre-accident speed.
Nor does Cover’s testimony explain how access to the
vehicles would have bolstered Appellant’s theory that Sanchez’s
braking contributed to the cause of the crash. Cover emphasized
that “when you have a case of who crossed the center line or who
was within their lane of travel at the time of impact, you must
have a factual and scientific basis as to the point of impact
and the vehicle’s relationship to those lane lines, you must
[inspect the damage to the actual vehicles].” J.A. 79. Fair
enough. But the position of the vehicles prior to the fatal
collision in this case was never seriously in dispute.
13
Appellant did not testify that Sanchez collided with him while
changing lanes. As Appellant explained, he saw Sanchez move
ahead of him into his lane of travel. But, even crediting his
version of events, Appellant still had time to begin to move
back into the center lane, realize that option was not available
to him, and drift back behind the truck before Sanchez allegedly
applied his brakes.
The relevant question, then, was whether Appellant was
simply traveling too fast to avoid the collision, or whether
Sanchez braked too aggressively. Cross-examination of Officer
Bentivegna suggested that it may have been possible to examine
the pickup truck’s brake filaments for evidence of braking. But
Bentivegna did not rule out the possibility that the truck
braked; he testified that there were no skid marks suggestive of
aggressive pre-contact braking, while allowing that normal
application of the brakes would not have left such marks. And
Cover did not explain how examining the actual vehicles involved
in the accident would have enabled him to contradict
Bentivegna’s observation that the tire marks left on the Parkway
did not indicate that Sanchez braked aggressively prior to the
crash. 6
6 We also note that nothing in the record establishes that
the vehicles were destroyed after they were released from the
Park Police impound. Instead, Detective Wayne Humberson
(Continued)
14
At the end of the day, the Government’s case turned on
Corporal Russell’s estimate (corroborated by other testimony)
that Appellant was travelling upwards of 90 miles per hour,
together with Officer Bentivegna’s testimony that there was no
indication Sanchez braked aggressively before impact. Cover’s
testimony simply does not establish how examining the wrecked
vehicles would have allowed him to contradict those opinions.
And Appellant’s trial counsel ably pointed out the potential
weaknesses in the Government’s expert opinions on cross-
examination. We therefore fail to see how Appellant’s defense
was impaired in anything more than a speculative manner, and
speculative prejudice will not do. See United States v. Loud
Hawk, 474 U.S. 302, 315 (1986) (“Th[e] possibility of prejudice
is not sufficient to support respondents’ position that their
speedy trial rights were violated.” (emphasis supplied)).
We are thus left with an unremarkable delay, caused by
the Government’s negligence, to which Appellant objected, but
testified that the Lexus and the truck were turned over to the
owners’ respective insurance companies. Appellant did not
establish that those insurers thereafter destroyed the vehicles
or refused to make them available for inspection. And
strikingly, given the asserted importance of inspecting the
wreckage, neither Appellant nor his expert, Cover, testified
that they made any effort to contact the insurers to inquire
after the vehicles. For all the record discloses, then, the
vehicles may not have been truly lost at all.
15
which did not impair his defense. Under those circumstances, we
agree with the district court’s conclusion that Appellant’s
Sixth Amendment right to a speedy trial was not violated. See
Beamon, 992 F.2d at 1014 (“On balance, we cannot say that the
government’s negligence, which caused a delay less than [24
months], in light of the presumption of prejudice and the
tenuous showing of actual prejudice, entitles Beamon and
McMillin to relief.”).
B.
Appellant’s remaining challenges can be readily
dispatched.
1.
Admission of Expert Testimony
Appellant first argues Corporal Russell should not
have been permitted to testify that “the excessive speed of the
Lexus” was “the single thing” that most likely caused the
accident. See J.A. 252. We review the district court’s
decision to admit expert testimony for abuse of discretion. See
United States v. Fuertes, 805 F.3d 485, 495-96 (4th Cir. 2015).
Corporal Russell’s calculation of the Lexus’ likely speed was
based on observations of data and mathematical calculations to
which Appellant did not object. And Appellant did not dispute
that the Lexus struck the truck. We take it, then, that
Appellant objects to Corporal Russell’s implication that speed,
16
rather than Sanchez’s braking, was the primary cause of the
wreck.
Federal Rule of Evidence 702 provides that an expert
qualified by “knowledge, skill, experience, training, or
education” may give opinion testimony if it “will help the trier
of fact to understand the evidence or to determine a fact
issue,” so long as the “testimony is based on sufficient facts
or data” produced by reliable principles and methods that have
been reliably applied to the facts of the case. See Fed. R.
Evid. 702(a)-(d). Corporal Russell has over 20 years’
experience investigating crashes. He based his speed estimate
on a series of calculations using the airbag control module data
downloaded from Appellant’s Lexus. He also reviewed Officer
Bentivegna’s report and conclusion, as well as “all the evidence
that the [P]ark [P]olice had,” including the same photographs
and diagrams of the crash scene on which Officer Bentivegna
based his testimony. See J.A. 227 (“I’ve looked at the
photographs of the vehicles. I’ve looked at the data they have.
I have seen the diagrams, the witness statements. You know, so
I examined all the evidence that the [P]ark [P]olice had.”).
Given that Appellant did not object to the admissibility of
Corporal Russell’s speed estimate or to Officer Bentivegna’s
testimony that Sanchez did not brake aggressively, we fail to
see any abuse of discretion in admitting Corporal Russell’s
17
opinion that Appellant’s speed caused the accident. See
Westfield Ins. Co. v. Harris, 134 F.3d 608, 612 (4th Cir. 1998)
(observing that an expert’s opinion may be “based, not only on
data and direct observations, but also on the opinions and
observations of others”).
2.
Sentencing
Finally, Appellant argues the district court should
have afforded him a two-level reduction in his base offense
level at sentencing for three reasons: he cooperated with law
enforcement at the scene of the accident and thereafter
willingly gave a statement; he never denied his involvement in
the accident or that he was speeding; and he went to trial only
to contest the speedy trial issue and the legal issue of whether
the federal involuntary manslaughter statute applied to his
conduct. We review the district court’s sentencing decision on
this point for clear error. See United States v. Jeffery, 631
F.3d 669, 678 (4th Cir. 2011).
Section 3E1.1 of the United States Sentencing
Guidelines provides that a defendant who “clearly demonstrates
acceptance of responsibility” is entitled to a two-level
reduction in the calculation of his offense level. See U.S.S.G.
§ 3E1.1. “Conviction by trial . . . does not automatically
preclude a defendant from consideration for such a reduction.”
18
Id. cmt. n.2. “This may occur, for example, where a defendant
goes to trial to assert and preserve issues that do not relate
to factual guilt . . . .” Id.
In this case, however, the evidence supports the
district court’s conclusion that Appellant did dispute his
factual guilt. As the district court explained, the statute in
question required the Government to prove that Appellant’s
conduct was willful and wanton. Yet Appellant “took the stand
and testified. Clearly the thrust of his testimony was in
denial of the willful and wanton nature of his conduct in
attempting to in effect blame the victim in this case for
changing lanes.” J.A. 325. Indeed, Appellant testified “the
pickup truck went in front of [him] suddenly,” id. at 307; “the
brake lights of the truck went on and that’s when the accident
occurred,” id. at 308; and he was not driving recklessly, see
id. at 311 (Q: Was the manner in which you were driving reckless
-- A. No, sir.). Clearly, Appellant did not accept
responsibility for the accident. Accordingly, the district
court did not clearly err in denying Appellant credit for doing
so. See United States v. Dugger, 485 F.3d 236, 239 (4th Cir.
2007) (“We must give great deference to the district court’s
decision because the sentencing judge is in a unique position to
evaluate a defendant’s acceptance of responsibility.” (internal
quotation marks omitted) (citations omitted)).
19
III.
For the foregoing reasons, the judgment of the
district court is
AFFIRMED.
20