United States v. Mendoza , 530 F.3d 758 ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 06-50447
Plaintiff-Appellee, D.C. No.
v. CR-96-00394-
PAUL MENDOZA,  RSWL
Defendant-Appellant. ORDER
WITHDRAWING
OPINION AND
 OPINION
Appeal from the United States District Court
for the Central District of California
Ronald S.W. Lew, District Judge, Presiding
Argued and Submitted
December 3, 2007—Pasadena, California
Filed May 8, 2008
Before: Thomas G. Nelson, Richard A. Paez, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Thomas G. Nelson;
Concurrence by Judge Bybee
5135
5138 UNITED STATES v. MENDOZA
COUNSEL
Richard A. Levy, Torrance, California, for the defendant-
appellant.
Alka Sagar, Assistant United States Attorney, Los Angeles,
California, for the plaintiff-appellee.
ORDER
The opinion and concurrence filed March 3, 2008, appear-
ing at 518 F.3d 706, are hereby withdrawn. The superceding
opinion and concurrence will be filed concurrently with this
order. The pending petition for panel rehearing is denied as
moot.
OPINION
T.G. NELSON, Circuit Judge:
Paul Mendoza appeals his convictions on two counts of
subscribing to a false income tax return in violation of 26
U.S.C. § 7201. Mendoza contends that the eight-year delay
between his indictment and his arrest violated his Sixth
Amendment right to a speedy trial. He further contends that
the district court plainly erred when it ordered restitution dur-
ing sentencing. We have jurisdiction pursuant to 28 U.S.C.
§ 1291, and we reverse.
UNITED STATES v. MENDOZA 5139
I. Background
Mendoza’s conviction was based on two income-tax
returns that underreported his income. Mendoza worked for a
management company in Los Angeles, California called
Nobel Marketing Company where he was in charge of admin-
istering Nobel Medical Clinic. As the administrator, Mendoza
was authorized to deposit clients’ checks into the clinic’s
bank accounts, but he was not a signatory on the accounts.
During 1989 and 1990, Mendoza embezzled approximately
$285,000 from the clinic by personally collecting some of the
clinic’s checks and depositing them into his own bank
accounts or cashing the checks at a check-cashing company.
The money from these transactions was not reported on his
1989 or 1990 tax returns.
During the Internal Revenue Service’s (“IRS”) investiga-
tion of Mendoza’s failure to report the money on his income
tax returns, Mendoza left the United States and went to the
Philippines. On June 19, 1995, prior to Mendoza’s departure
from the United States, IRS Special Agent Slotsve attempted
to serve Mendoza with a Grand Jury subpoena for handwrit-
ing and fingerprint exemplars by serving the subpoena on
Mendoza’s attorney. When Mendoza failed to meet with
Agent Slotsve on June 27, 1995, as required by the subpoena,
Agent Slotsve again contacted the attorney. The attorney
informed Agent Slotsve that he no longer represented Men-
doza.
Based on previous correspondence with Mendoza’s attor-
ney, Agent Slotsve determined that Mendoza had left the Los
Angeles area for Seattle, Washington. Agent Slotsve then sent
the subpoena to IRS Special Agent Lynn in the Seattle area
so that Agent Lynn could serve Mendoza. Agent Lynn called
Mendoza’s wife on January 4, 1996. Mendoza’s wife
informed Agent Lynn that Mendoza had left her and her chil-
dren and had been living in the Philippines since June 1995.
5140 UNITED STATES v. MENDOZA
Mendoza’s wife gave Agent Lynn a phone number for Men-
doza’s relatives in the Philippines.
After Agent Lynn spoke with Mendoza’s wife and left a
message for Mendoza at his sister’s house in the Philippines,
Mendoza returned Agent Lynn’s phone call from the Philip-
pines. Agent Lynn was not in the office so Mendoza spoke
with an FBI agent, but refused to give the agent his contact
information. On January 9, 2008, Mendoza called again from
a pay phone in the Philippines and spoke with Agent Lynn.
Mendoza stated that he was planning on returning to Seattle
in two months and that he was in the Philippines selling prop-
erty so he could defend himself in California. Mendoza
refused to give Agent Lynn his contact information. Agent
Lynn did not inform Mendoza that he wanted to serve him
with a subpoena. After Agent Lynn spoke with Mendoza, he
called Agent Slotsve to inform him of his conversation with
Mendoza.
Mendoza was indicted on April 12, 1996. After the indict-
ment, the government put a warrant out on the law enforce-
ment database so that Mendoza would be detained when he
attempted to return to the United States. The warrant was the
only attempt the government made to apprehend Mendoza;
the government made no attempt to contact Mendoza to
inform him that he had been indicted.
Mendoza returned to the United States in June 2004, but
was not arrested until October 13, 2004. After his arrest, Men-
doza sought and received seven continuances of the scheduled
trial date, from December 7, 2004, to March 14, 2006. On
January 3, 2006, Mendoza filed a motion to dismiss the
indictment because the eight-year delay between his indict-
ment and his arrest violated his Sixth Amendment right to a
speedy trial. The district court denied the motion, but did not
make any factual findings, stating only: “This Court DENIES
Defendant’s Motion to Dismiss the Indictment finding that
UNITED STATES v. MENDOZA 5141
. . . (2) [ ] defendant Mendoza’s speedy trial rights have not
been violated.”
Mendoza was found guilty on two counts of subscribing to
a false income-tax return after a jury trial and was sentenced
to a term of imprisonment of thirteen months and restitution
in the amount of $79,837.90.
II. Mendoza’s Right to a Speedy Trial
A district court’s decision on a Sixth Amendment speedy
trial claim is reviewed de novo. United States v. Gregory, 322
F.3d 1157, 1160 (9th Cir. 2003). Factual determinations
underlying the claim are reviewed for clear error. Id.[1] The Sixth Amendment guarantees that criminal defen-
dants “shall enjoy the right to a speedy and public trial . . . .”
U.S. Const. amend. VI. To determine whether a defendant’s
Sixth Amendment speedy trial right has been violated, we bal-
ance the following four factors: “[l]ength of delay, the reason
for the delay, the defendant’s assertion of his right, and preju-
dice to the defendant.” Barker v. Wingo, 407 U.S. 514, 530
(1972).
None of these four factors are either necessary or sufficient,
individually, to support a finding that a defendant’s speed trial
right has been violated. Id. at 533. Rather the factors are
related and “must be considered together with such other cir-
cumstances as may be relevant.” Id. Further, the balancing of
these factors, and other relevant circumstances, “must be car-
ried out with full recognition that the accused’s interest in a
speedy trial is specifically affirmed in the Constitution.” Id.A. Length of Delay
[2] For speedy trial claims, the length of the “delay is mea-
sured from ‘the time of the indictment to the time of trial.’ ”
United States v. Gregory, 322 F.3d 1157, 1162 (9th Cir. 2003)
5142 UNITED STATES v. MENDOZA
(quoting United States v. Sears, Roebuck & Co., 877 F.2d
734, 739 (9th Cir. 1989)). If the length of delay is long
enough to be considered presumptively prejudicial, an inquiry
into the other three factors is triggered. Barker, 407 U.S. at
530. Generally, a delay of more than one year is presump-
tively prejudicial. See Gregory, 322 F.3d at 1161-62.
[3] In this case, the indictment was filed on April 12, 1996,
and the trial did not start until April 25, 2006. We find that
this ten-year delay creates a presumption of prejudice and
triggers an inquiry into the other three factors.
B. Reason for the Delay
The government has “some obligation” to pursue a defen-
dant and bring him to trial. United States v. Sandoval, 990
F.2d 481, 485 (9th Cir. 1993). If the government fulfills that
obligation by pursuing a defendant with reasonable diligence,
the defendant does not have a speedy trial claim. Doggett v.
United States, 505 U.S. 647, 656 (1992). On the other hand,
if the government is negligent in pursuing the defendant, prej-
udice is presumed. Id. at 657.
The government has the primary, though not exclusive,
responsibility to ensure that the defendant is brought to trial.
See Sandoval, 990 F.2d at 482. If a defendant attempts to
avoid detection, the government is not required to “ ‘make
heroic efforts to apprehend a defendant who is purposefully
avoiding apprehension.’ ” Id. at 485 (quoting Rayborn v.
Scully, 858 F.2d 84, 90 (2d Cir. 1988)). However, if the
defendant is not attempting to avoid detection and the govern-
ment makes no serious effort to find him, the government is
considered negligent in its pursuit. See Doggett, 505 U.S. at
653.
[4] In this case, the agent in charge of Mendoza’s investiga-
tion made no effort to contact Mendoza to inform him that he
had been indicted. The government had Mendoza’s wife’s
UNITED STATES v. MENDOZA 5143
telephone number and the telephone number of Mendoza’s
relatives in the Philippines. But rather than attempting to
inform Mendoza that he had been indicted through those ave-
nues, the government simply put a warrant out on the law
enforcement database so that Mendoza would be detained
when he returned to the United States.1 As a result, Mendoza
was not informed he had been indicted until more than eight
years after the indictment.
Even though Mendoza left the country prior to his indict-
ment, the government still had an obligation to attempt to find
him and bring him to trial. After Doggett, the government was
required to make some effort to notify Mendoza of the indict-
ment, or otherwise continue to actively attempt to bring him
to trial, or else risk that Mendoza would remain abroad while
the constitutional speedy-trial clock ticked. However, the gov-
ernment made no serious effort to do so. Further, there is no
evidence that Mendoza was keeping his whereabouts
unknown. Although he refused to give his own contact infor-
mation, the government still had his relative’s contact infor-
mation. And when a government agent contacted Mendoza’s
wife and left a message with his sister, Mendoza returned the
call from the Philippines on two different occasions.
[5] Nor does Mendoza’s failure to return to the United
States as he stated he would support the argument that he was
deliberately avoiding contact with the government. Mendoza
was unaware of the indictment, so he did not know that he
needed to return. And it was not Mendoza’s responsibility to
contact the government during the investigation. Based on its
previous success in contacting Mendoza, the government was
negligent when it failed to attempt to inform Mendoza of the
indictment by calling either the wife or the relative’s tele-
phone number. Therefore, the delay between Mendoza’s
1
For reasons not made clear in the record nor in oral argument, this war-
rant did not result in Mendoza being detained when he reentered the
United States, but did eventually lead to his arrest.
5144 UNITED STATES v. MENDOZA
indictment and arrest was caused by the government’s negli-
gence, and this factor weighs in favor of Mendoza.
Our recent decision in United States v. Corona-Verbera,
509 F.3d 1105 (9th Cir. 2007), does not alter this conclusion.
In Corona-Verbera, the defendant was in Mexico and there
was an almost eight-year delay between his indictment and
his arrest. Id. at 1111. However, the government in that case
took additional steps beyond simply entering the defendant’s
arrest warrant into the law enforcement system. The govern-
ment contacted Unsolved Mysteries and America’s Most
Wanted, which aired segments on the case over twenty times
in the United States and at least once in Mexico. Id. at 1115.
In contrast, in this case, the government made no effort
beyond entering Mendoza’s arrest warrant in the law enforce-
ment database.
C. Defendant’s Assertion of Speedy Trial Right
There is no evidence that Mendoza knew of his indictment,
such as evidence that the government had attempted to notify
Mendoza by leaving a message with his relatives. Therefore,
Mendoza could assert his speedy trial right as to the eight-
year period between his indictment and his arrest. Cf. Sando-
val, 990 F.2d at 485 (holding that the defendant could not
assert a speedy trial right under Doggett because he was “well
aware of the indictment against him [and] skipped bail and
became a fugitive to avoid prosecution”).
[6] However, Mendoza did not assert his right to a speedy
trial until after he made numerous requests for continuances
and delayed the trial date by over a year. Because Mendoza
caused this delay before his assertion of his speedy trial
rights, this factor does not weigh in favor of Mendoza nor in
favor of the government. Corona-Verbera, 509 F.3d at 1116.
UNITED STATES v. MENDOZA 5145
D. Prejudice
The final factor is prejudice. The Supreme Court has recog-
nized three forms of prejudice that can result from post-
indictment delay: (1) oppressive pretrial incarceration, (2)
anxiety and concern of the accused, and (3) “the possibility
that the [accused’s] defense will be impaired by dimming
memories and loss of exculpatory evidence.” Doggett, 505
U.S. at 654 (quoting Barker, 407 U.S. at 532) (internal quota-
tions omitted). “Of these forms of prejudice, ‘the most serious
is the last, because the inability of a defendant adequately to
prepare his case skews the fairness of the entire system.’ ” Id.(quoting Barker, 407 U.S. at 532).
This final form of prejudice is not only the most important,
it is also the most difficult to prove because “time’s erosion
of exculpatory evidence and testimony ‘can rarely be
shown.’ ” Id. at 655 (quoting Barker, 407 U.S. at 532). In
other words, excessive delays can “compromise[ ] the reliabil-
ity of a trial in ways that neither party can prove or, for that
matter, identify.” Id.[7] Due to these concerns, “no showing of prejudice is
required when the delay is great and attributable to the gov-
ernment.” United States v. Shell, 974 F.2d 1035, 1036 (9th
Cir. 1992) (citing Doggett, 505 U.S. at 657-58). Instead, we
presume prejudice. Id. Further, “[t]he presumption that pre-
trial delay has prejudiced the accused intensifies over time.”
McNeely v. Blanas, 336 F.3d 822, 831 (9th Cir. 2003).
[8] If, in this case, the government had pursued Mendoza
with reasonable diligence, his speedy trial claim would have
failed unless he could show “specific prejudice to his
defense.” Doggett, 505 U.S. at 656. However, the government
did not exercise due diligence. Instead, the government was
negligent in pursuing Mendoza, and the eight-year delay
between Mendoza’s arrest and indictment was attributable to
the government. There is, therefore, a strong presumption that
5146 UNITED STATES v. MENDOZA
Mendoza suffered prejudice, which the Government has not
rebutted. See id. at 658 n.4 (stating that the absence of particu-
larized trial prejudice “has not, and probably could not have,
affirmatively proved that the delay left [the defendant’s] abil-
ity to defend himself unimpaired”).
III. Conclusion
After balancing the Barker factors, we conclude that Men-
doza’s Sixth Amendment speedy-trial right was violated. The
eight-year delay between Mendoza’s indictment and arrest
was a result of the government’s negligence, so we presume
that Mendoza suffered prejudice. As a result, a dismissal of
Mendoza’s indictment is warranted.2
Accordingly, we REVERSE and REMAND the case for
proceedings consistent with this opinion.
BYBEE, Circuit Judge, concurring:
Appellant Paul Mendoza was found guilty by a jury of his
peers of filing false tax returns for failing to report over
$285,000 in funds he embezzled from his employer. Today
we are forced to overturn his conviction. I join the majority
opinion because I believe we dutifully applied Doggett v.
United States, 505 U.S. 674 (1992); I write separately because
the facts before us demonstrate how Doggett requires a pre-
sumption unsupported by the record. Because the government
did not make even a single effort to notify Mendoza of his
indictment, we must find the government responsible for the
constitutionally impermissible eight-and-a-half-year delay
between Mendoza’s indictment and arrest.1 Nevertheless, we
2
Because we find that Mendoza’s Sixth Amendment speedy-trial right
was violated, we do not need to address his arguments related to sentenc-
ing.
1
Subsequent to Mendoza’s arrest, trial was further delayed by another
year and a half due to Mendoza’s own requests for continuances. On
UNITED STATES v. MENDOZA 5147
might not have been required to set aside Mendoza’s jury ver-
dict but for Doggett’s requirement that we presume that the
delay prejudiced Mendoza. In this case, it appears Mendoza
suffered no prejudice.
Mendoza was a manager at a medical clinic in Los Ange-
les, where his duties included depositing clients’ checks to the
clinic’s bank account. Instead, Mendoza kept the money for
himself. Over a two year period, Mendoza managed to
embezzle $285,135.26, none of which he chose to report to
the IRS. After being served, through his attorney, with a sub-
poena to provide handwriting and fingerprint exemplars for
the IRS investigation in 1995, Mendoza left his wife and child
behind and fled to the Philippines.
The IRS filed an indictment in April 1996, but, by its own
admission, never attempted to contact Mendoza to inform him
of this turn of events or otherwise bring him to trial. Because
Mendoza never provided contact information, no IRS agent
attempted to contact him directly. No agent attempted to call
the phone number in the Philippines his wife had provided,
for relatives with whom she believed he was in contact. No
agent attempted to notify his wife of the indictment—even
though when Special Agent Lynn spoke with his wife on Jan-
uary 4, 1996, Mendoza himself called the IRS just a few days
later and asked for Special Agent Lynn. The only step the
government took was to place notices in law enforcement
databases about the indictment and the outstanding warrant
for Mendoza’s arrest—in other words, the government told
other law enforcement agencies about the indictment but not
Mendoza himself.2
appeal, however, Mendoza alleges the cognizable constitutionally imper-
missible post-indictment delay to be the eight-and-a-half year period from
the date of his indictment, April 12, 1996, to the date of his arrest, October
14, 2004.
2
Even this tactic appeared to be of limited utility, as even with notice
of the arrest warrant out “in the system,” Mendoza was able to re-enter the
United States in June of 2004 and was not arrested or informed of his
indictment until October 13, 2004, eight and one-half years after it was
first filed.
5148 UNITED STATES v. MENDOZA
Mendoza was ultimately found guilty by a jury on two
counts of filing a false income tax return, and was sentenced
to thirteen months’ imprisonment and ordered to pay the IRS
restitution in the amount of $79,837.90. On appeal, Mendoza
does not challenge the sufficiency of the government’s evi-
dence against him; nor does he argue that any aspects of his
jury trial deprived him of due process. Rather, despite the fact
that Mendoza fled to the Philippines and hampered the IRS
investigation against him, Mendoza argues that we must
reverse his conviction because he was denied his Sixth
Amendment right to a speedy trial. Under Doggett, he is cor-
rect.
Doggett holds the government responsible for post-
indictment delay if it is “negligent” in its attempt to bring the
defendant to trial, however, Doggett does not define the duty
of care the government owes. 505 U.S. at 652-53. The Sixth
Amendment does not require the government to make “heroic
efforts to apprehend a defendant who is purposefully avoiding
apprehension.” United States v. Sandoval, 990 F.2d 481, 485
(9th Cir. 1993) (internal quotation and citation omitted). In
this case, the government may have been understandably frus-
trated by the fact that Mendoza fled the country and refused
to provide contact information. Nonetheless, the government
knew that within a few days of speaking to his wife, Mendoza
was somehow informed of both the fact that the IRS was try-
ing to reach him and that the particular agent was named Spe-
cial Agent Lynn. Moreover, the government knew that
Mendoza was able to initiate responsive communication with
the government just days after the government’s contact with
his wife. Thus, Mendoza, though half-way around the world,
was never more than a pay-phone call away from the IRS.
The fact that Mendoza called the government twice soon after
learning an IRS agent was trying to reach him may even sug-
gest that, while attempting to maintain a healthy distance
between himself and the IRS, Mendoza was not attempting to
disappear completely.
UNITED STATES v. MENDOZA 5149
Because there was no extradition treaty that would permit
the IRS to bring Mendoza to trial against his will, notifying
Mendoza of his indictment and asking him to return to the
United States to face the charges against him might have been
the IRS’s only hope of locating him and bringing him to trial.
At the very least, it would have put Mendoza on notice that
he had been indicted, so that any subsequent post-indictment
trial delay would have been attributable to Mendoza’s own
decision to remain a fugitive, and not to the government’s
negligence. See Sandoval, 990 F.2d at 484 (holding that there
was no speedy trial violation because “unlike the accused in
Doggett, Sandoval was well aware of the indictment against
him [and] skipped bail and became a fugitive to avoid prose-
cution”). On these facts, it is quite possible that even a single
additional communication from Special Agent Lynn to Men-
doza’s wife, in which he notified her of the indictment and
asked her to let Mendoza know he needed to contact the IRS,
might have been sufficient for the government to discharge its
duty of care under Doggett. Unfortunately, we were not given
the opportunity to rule on this question because the govern-
ment did not take even these small steps.
Yet even the government’s negligence in this case might
not have required us to overturn Mendoza’s jury conviction
absent Doggett’s requirement that we presume that the defen-
dant was prejudiced where the delay was attributable to the
government’s negligence and far in excess of the threshold
needed to state a speedy trial claim. See 505 U.S. at 657-58.
Unreasonable post-indictment delay may cause three types of
prejudice: oppressive pretrial incarceration, anxiety and con-
cern of the accused, and the possibility that the accused’s
defense will be impaired by dimming memories and loss of
exculpatory evidence. Id. at 654. The eight-and-a-half year
delay between Mendoza’s indictment and his arrest did not
implicate oppressive pretrial incarceration, as Mendoza lived
freely in the Philippines during that time. Mendoza suffered
no “anxiety and concern [as an] accused” because he
remained blissfully unaware that he had been indicted. Id.5150 UNITED STATES v. MENDOZA
The only form of prejudice Mendoza could possibly have
suffered would be an impairment of his ability to prepare his
defense. The Doggett Court stated that “the impairment of
one’s defense is the most difficult form of speedy trial preju-
dice to prove because time’s erosion of exculpatory evidence
and testimony ‘can rarely be shown.’ ” 505 U.S. at 654 (citing
Barker v. Wingo, 407 U.S. 514, 532 (1972)). The Court’s
solution to this evidentiary problem was to require the court
of appeals to “recognize that excessive delay presumptively
compromises the reliability of a trial in ways that neither party
can prove or, for that matter, identify.” Id. The Court further
held that it is in “the nature of the prejudice presumed” that
we must make the presumption stronger as the length of the
delay increases. Id. at 657. We have interpreted Doggett’s
directive, accurately, I believe, to mean that “no showing of
prejudice is required when the delay is great and attributable
to the government.” United States v. Shell, 974 F.2d 1035,
1036 (9th Cir. 1992).
In Mendoza’s case, the facts strongly suggest he suffered
no impairment in his ability to marshal his defense. Mendoza
claims that he was prejudiced because much of the documen-
tary evidence of his embezzlement has been destroyed. Yet,
the government maintained all of the documentary evidence
related to this case, including the checks Mendoza cashed to
his own checking account, bank records for the seven bank
accounts he controlled, and the accounting ledgers of the
medical clinic. Mendoza has not introduced any evidence to
suggest these records were incomplete or unreliable. Mendoza
also claims he was unable to locate a key witness. Yet, the
record shows that Mendoza made no attempt to locate, con-
tact, or subpoena the witness, suggesting it was not the pre-
trial delay that caused the absence of this witness at trial. As
for another key witness, there is evidence in the record that,
after Mendoza learned this witness would not be “friendly” to
his case, Mendoza called the witness in the Philippines and
threatened to “bring him down” if he traveled to the United
States to testify against him. Given the opportunity, we might
UNITED STATES v. MENDOZA 5151
rule that the record shows Mendoza’s ability to marshal a
defense had not been prejudiced. Unfortunately, Doggett does
not permit us to reach this question.
If not for Doggett, I would uphold Mendoza’s conviction.
I would hold that the pre-trial delay was attributable to the
government’s negligence, but that Mendoza had not been
prejudiced. Instead, I join the majority in holding that Mendo-
za’s speedy trial right was violated under Doggett. As the
government closed in on Mendoza, he fled to the Philippines
and hampered efforts to investigate and indict him. Today,
however, Mendoza proves that under Doggett, you can still
claim your right to a speedy trial has been violated if you run,
but you don’t hide.