OPINION AND ORDER
WILLIAM S. DUFFEY, Jr., District Judge.
This matter is before the Court on Defendant Adam Ghani Beltran's ("Beltran")
Defendant Beltran is charged with unlawful possession of a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The felony conviction on which the charge is based occurred on January 23, 2004, when Beltran pled guilty in the United States District Court for the Southern District of New York to an eight-count indictment, including a charge for a terrorism-related offense.
On February 27, 2017, Beltran filed his Motion to Dismiss the Indictment on the grounds that his Sixth Amendment right to a speedy trial was violated when the charge against him was not immediately brought to trial.
Factual and Procedural Background
On November 10, 2009, Beltran, a citizen of Algeria, was taken into custody by Immigration and Customs Enforcement ("ICE") and served with a Notice of Intent to Issue a Final Administrative Removal Order based on his aggravated felony convictions in 2004. (Ray Decl. [45.1] at 2; [45.2]). Beltran did not contest that he was removable, but contended his removal be withheld or deferred under the Convention Against Torture ("CAT"). ([32.3] at 7-8; [45.2] at 3). On November 25, 2009, ICE issued its Final Administrative Removal Order, finding Beltran "deportable as charged" to Algeria or Morocco, but delayed execution of the order until Beltran could be interviewed about his application for deferral under CAT. ([45.1] at 2; [45.3]).
On December 9, 2009, an asylum officer interviewed Beltran and, on March 3, 2010, Beltran was referred to the Immigration Court in Atlanta, Georgia, for consideration of his deferral application. ([45.1] at 3).
On March 18, 2010, the United States Probation Office for the Southern District of New York filed a petition to revoke Beltran's supervised release, and the United States District Court for the Southern District of New York issued a warrant for his arrest. ([45.1] at 3; [42.3]; [42.5]). On March 24, 2010, Beltran was taken into custody and, as a result, on April 1, 2010, the proceedings before the Immigration Court in Atlanta, Georgia, were administratively closed. ([45.1] at 3; [42.4]).
On October 27, 2010, the United States District Court for the Southern District of New York found Beltran had violated the terms of his supervised release, including by attempting to possess a firearm in the spring or summer of 2007, attempting to purchase an AK-47 assault rifle in the summer or fall of 2009, associating with another felon from 2006 to November 2009, and making false statements in late 2009. Beltran was sentenced to thirty-one (31) months imprisonment followed by further supervised release. ([42.5] at 3-4; [45.1] at 3). On June 22, 2012, after his release from custody, Beltran was returned to ICE custody.
On June 26, 2012, ICE filed a motion with the Immigration Court in Atlanta to re-calendar Beltran's immigration proceedings and transfer venue over the proceedings to the Stewart Immigration Court. The motion was granted on August 16, 2012. ([45.1] at 3).
On March 12, 2013, the Immigration Court conducted a hearing on Beltran's application for asylum and withholding of removal, during which Beltran explained his reasons for opposing removal to Algeria. He consented at the hearing to removal to Morocco, where Beltran claimed to have citizenship through his father, a Moroccan national. ([45.4]; [45.1] at 4). On June 13, 2013, the Immigration Judge denied Beltran's asylum request but found him eligible for deferral to Algeria, instead ordering his removal to Morocco. ([45.4]; [45.1] at 4). ICE moved to reconsider, and on June 24, 2013, an amended decision was entered again granting Beltran's application for deferral of removal to Algeria, but allowing removal to Morocco. ([45.1] at 4; [45.5]). ICE appealed this decision to the Board of Immigration Appeals ("BIA"). ([45.1] at 4).
On August 8, 2013, ICE provided Beltran with travel documents for travel to Morocco, asked him to complete a packet of material relating to removal, and asked him to provide information regarding his father's Moroccan citizenship. On August 27, 2013, ICE mailed the travel document request to the Moroccan Consulate. ([45.1] at 4). ICE contacted the Moroccan Consulate on several occasions during the period October 31, 2013 to November 1, 2013, requesting a status report on the travel document request. ([45.1] at 4).
On February 18, 2014, Beltran filed his pro se petition for writ of habeas corpus in the Middle District of Georgia, seeking release from detention. After Beltran was appointed counsel in October 2014, he amended his petition, alleging that his indefinite confinement was unconstitutional. ([42.18]);
At the end of May 2014, ICE asked its Headquarters Enforcement and Removal Operations Travel Document Unit ("TDU") to help secure travel documents for Beltran. TDU coordinated with other agencies to contact and interview Beltran's family members and obtain documents to verify Beltran's derivative Moroccan citizenship. (Gephart Decl. [42.12] at 3; Soto Decl. [42.13] at 2). TDU located Beltran's father in Algeria, but was unsuccessful in arranging an interview with him. ([42.13] at 2). On June 12, 2014, Special Agents with the Federal Bureau of Investigation ("FBI") met with Beltran. During the interview, agents showed him a copy of the arrest warrant issued in the Northern District of Georgia for the charge in the indictment. ([42.17]). In March and April of 2015, United States officials requested assistance from the Government of Algeria to locate and interview Beltran's father. The government of Algeria agreed to help. ([42.13] at 3).
While efforts were ongoing to secure travel documents for Beltran's removal to Morocco, on November 18, 2015, a status conference was held on Beltran's habeas petition in the Middle District of Georgia. ([42.14]). During the conference, Magistrate Judge Stephen Hyles stated that Beltran "want[ed] to enjoy his liberty somewhere other than Algeria" and that the "United States [did] not want to hold him for any particular reason" and "want[ed] him to enjoy his liberty somewhere other than the United States," but that he had "one impediment with [the] pending indictment in the Northern District." (
The Government advised the Magistrate Judge that the indictment against Beltran had been unsealed, was on the record, and that "if [the] Court grant[ed Beltran's] habeas petition" and his immigration detention ended, Beltran would be taken into custody based on his indictment returned in the Northern District of Georgia. (
On December 21, 2016, the Magistrate Judge in the Middle District issued his Report and Recommendation, recommending that Beltran's amended petition for a writ of habeas corpus be granted and that he be released from ICE custody. ([32.4]). On January 3, 2017, Beltran was arrested on the warrant issued in the Northern District of Georgia when the indictment in this case was returned. ().
On February 27, 2017, Beltran filed his Motion to Dismiss the Indictment. On June 28, 2017, Magistrate Judge Vineyard issued his R&R, recommending that Beltran's motion be denied. On July 12, 2017, Beltran filed four objections to the R&R. First, he claims the combined pre- and post-indictment delays were not properly evaluated in determining whether Beltran's Sixth Amendment Speedy Trial rights were violated. ( at 1). Second, he objects on the grounds the Magistrate Judge failed to consider
After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject, or modify a magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1);
An accused has a fundamental Sixth Amendment right to a speedy trial in a criminal prosecution.
"The Sixth Amendment right to a speedy trial attaches at the time of arrest or indictment, whichever comes first, and continues until the date of trial."
In evaluating if a defendant's speedy trial right was violated after an indictment was returned, and to perform the balancing analysis required, the Court considers four factors: (i) the length of the delay, (ii) the reason for the delay, (iii) the defendant's assertion of the speedy trial right, and (iv) prejudice to the defendant.
The purpose of the
Objections 1 and 2: Combined pre- and post-indictment delays not properly evaluated (Objection 1) and the Magistrate Judge's failure to consider United States v. Ingram (Objection 2)
Beltran argues that the Magistrate Judge failed to consider the pre-indictment delay in weighing the
The Eleventh Circuit in
There are two analyses required in evaluating the length of delay. The first is whether the "interval between accusation and trial has crossed the threshold dividing ordinary from `presumptively prejudicial' delay."
In this case, the Magistrate Judge found that the delay between indictment and arrest was "presumptively prejudicial." This Court, and presumably the Magistrate Judge, considers the length of delay factor to be presumptively prejudicial and one that weighs against the Government. The coupling of pre- and post-indictment delay is not, as Beltran appears to argue, sufficient to find conclusively that a speedy trial violation occurred. It is only one of four factors the Court must weigh. Beltran's objection to the Magistrate Judge's consideration of the pre-indictment delay is, upon de novo review, overruled.
Furthermore, the Magistrate Judge did not ignore the pre-indictment delay facts. The Magistrate Judge was aware of, and considered, the pre-indictment delay alleged by Beltran. At footnote 13 of the R&R, the Magistrate Judge considered Beltran's argument for dismissal based on "inexcusable pre-indictment delay" in seeking an indictment. The Magistrate Judge concluded that the pre-indictment delay did not cause Beltran actual prejudice and did not warrant dismissal of the indictment. (R&R at 15 n.13);
Beltran's first two objections assert that the length of his pre-trial detention weighs heavily against the Government. (
Objection 3: Delay based on the immigration proceedings and the prospect for removal
In Objection 3, Beltran claims the reason for the post-indictment delay is not excusable and it too should weigh heavily against the Government. Beltran argues the Magistrate Judge erred in not making this finding. The Court disagrees.
The Government has the burden to establish valid reasons for the delay.
On November 10, 2009, Beltran was detained on an order of removal based on aggravated felony convictions returned against him in 2004. On March 24, 2010, Beltran went from immigration detention to the custody of federal law enforcement authorities when he was arrested for violating the terms of his supervised release, including by attempting to possess a firearm, attempting to purchase an AK-47 assault rifle, associating with another felon, and making false statements. His supervised release was revoked and he was sentenced to serve thirty-one (31) months imprisonment. When he was released from federal custody on June 22, 2012, Beltran was returned to immigration detention. Beltran continued to challenge his immigration order of removal and continued in detention.
On January 3, 2013, Beltran was indicted on the charge pending in this action, specifically unlawful possession of a firearm. An arrest warrant also was issued and the indictment was sealed. Beltran's immigration case moved forward as immigration officials and the immigration court determined whether Beltran should be removed and, if so, to which country.
On February 18, 2014, Beltran filed, in the United States District Court for the Middle District of Georgia,
About a year and a half later, a Middle District of Georgia Magistrate Judge conducted a hearing on Beltran's habeas petition. During the course of the hearing, an Assistant United States Attorney was asked why the Government had not moved forward on the charge on which Beltran was indicted in the Northern District of Georgia. The Government responded:
([42.14] at 8-11).
Objection 4: The timeliness of Beltran's assertion of his speedy trial right
The Magistrate Judge found that Beltran's delay in asserting his Sixth Amendment speedy trial right weighs heavily against him. The Court concludes this finding is sound and well-reasoned. Beltran was made aware by federal agents on June 12, 2014, of his indictment and the warrant for his arrest on the charge against him. Sometime in October 2014, counsel was appointed to represent Beltran in his habeas action and this counsel and Beltran were present at the November 18, 2015, status conference conducted by the Magistrate Judge in the Middle District of Georgia. It was at this conference that the Government said it was content not to arrest and prosecute Beltran on the pending charges, that it was satisfied with his current immigration detention, and that the "various cooks" involved in the case in this district ultimately were willing to let Beltran live in the country to which he would be removed and, if and when that occurred, Beltran could avoid prosecution.
The Court here has found that the Government decided to delay prosecution of Beltran until a decision was made on his removal and the Court now also finds that Beltran made his own strategic decision not to demand trial. Indeed, it would not be in Beltran's interest to demand something that he might avoid completely. The Court finds that Beltran's decision not to request a speedy trial until he was arrested on the warrant, and only then to demand his speedy trial rights, weighs against Beltran, and does so heavily. The Court overrules his objection based on the Magistrate Judge's finding on the timeline of Beltran's assertion of his speedy trial rights.
Weighing the Barker factors
The Magistrate Judge considered each of the
As Beltran points out in his objections, the charge here is relatively straightforward and simple. He is charged as a felon in possession of a firearm. Whether he was a felon at the time of possession requires simple evidence and whether he possessed a weapon at the time alleged also requires a straightforward presentation. Beltran does not present any argument that he was prejudiced, relying instead on a finding that the second and third factors weigh heavily against the Government which, he argues, require that the charges against him be dismissed.
For the foregoing reasons,