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<pre>                  United States Court of Appeals <br>                      For the First Circuit <br>                       ____________________ <br> <br>No. 98-1119 <br> <br>                          UNITED STATES, <br> <br>                            Appellee, <br> <br>                                v. <br> <br>                    CARLOS ANGEL MUOZ-AMADO, <br>                     A/K/A CHRISTOPHER MUOZ, <br> <br>                      Defendant, Appellant. <br> <br>                       ____________________ <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF PUERTO RICO <br> <br>          [Hon. Jos Antonio Fust, U.S. District Judge] <br> <br>                       ____________________ <br> <br>                              Before <br> <br>                     Torruella, Chief Judge, <br> <br>                 Stahl and Lynch, Circuit Judges. <br> <br>                      _____________________ <br> <br>    Susana E. Fara, by appointment of the Court, on brief, for <br>appellant. <br>    Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco,  <br>Chief, Criminal Division, Jacabed Rodrguez-Coss, Assistant United <br>States Attorney, and Camille Vlez-Riv, Assistant United States <br>Attorney, on brief, for appellee. <br> <br> <br>                       ____________________ <br> <br>                          June 30, 1999 <br>                       ____________________

         TORRUELLA, Chief Judge.  Carlos Angel Muoz-Amado <br>("Muoz") appeals from his convictions for conspiracy: (1) to <br>possess with intent to distribute multi-kilogram quantities of <br>cocaine on board a vessel of the United States, in violation of 46 <br>U.S.C.  1903 (j) & (f); and (2) to import multi-kilogram <br>quantities of cocaine into the United States, in violation of 21 <br>U.S.C.  952(a) &  953.  Muoz argues that his speedy trial rights <br>under the Speedy Trial Act, 18 U.S.C.  3161, and the Sixth <br>Amendment were violated. <br>                            BACKGROUND <br>         We recount only the critical chain of events central to <br>this appeal.  On November 15, 1995, a Puerto Rico grand jury <br>returned a three count indictment against Muoz and Mario Saavedra <br>charging them with violations of various narcotics laws.  Muoz was <br>arrested in Miami, Florida on November 17, 1995.  Muoz first <br>appeared before the United States District Court for the Southern <br>District of Florida on November 17, 1995.  On November 20, 1995, a <br>detention hearing was held at which the court ordered Muoz held on <br>$500,000 bail.  A removal hearing was held on November 27, 1995.  <br>At the hearing, the court ordered the removal and transportation of <br>Muoz to the United States District Court for the District of <br>Puerto Rico.  On January 25, 1996, Muoz made his initial <br>appearance before the district court for the District of Puerto <br>Rico.  On February 5, 1996, Muoz was arraigned and pled not guilty <br>to all three counts of the indictment. <br>         Muoz filed a motion to dismiss for lack of a speedy <br>trial on June 26, 1996.  He filed a second motion to dismiss on the <br>same grounds on June 17, 1997.  Both motions were denied.  On <br>June 19, 1997, a jury trial commenced.  On July 1, 1997, Muoz was <br>convicted on all three counts.  The district court sentenced Muoz <br>to: (1) 324 months of imprisonment on each count, to be served <br>concurrently; (2) a supervised term of release of five years as to <br>each count, to be served concurrently; and (3) a fine of $10,000 as <br>to each count, and a special monetary assessment of $100 as to each <br>count. <br>                            DISCUSSION <br>I.  Speedy Trial Act Claim <br>         The Speedy Trial Act ("STA") is designed "to protect a <br>defendant's constitutional right to a speedy trial, and to serve <br>the public interest in bringing prompt criminal proceedings."  <br>United States v. Scantleberry-Frank, 158 F.3d 612, 614 (1st Cir. <br>1998) (quoting United States v. Santiago-Becerril, 130 F.3d 11, 15 <br>(1st Cir. 1997)).  The STA provides that the government must bring <br>a criminal defendant to trial no more than seventy days after the <br>later of the filing date of the information or indictment, or the <br>date on which the criminal defendant first appears before a <br>judicial officer of a court in which the charge is pending.  See 18 <br>U.S.C.  3161(c)(1).  In calculating the seventy days, the STA <br>excludes certain time periods.  See 18 U.S.C.  3161(h)(1)-(9);  <br>see also Scantleberry-Frank, 158 F.3d at 614.  If a criminal <br>indictment is not brought to trial within the time limit imposed by <br> 3161(c)(1), as extended by operation of  3161(h)(1)-(9), the <br>penalty provisions of the STA mandate that "the information or <br>indictment shall be dismissed on motion of the defendant." 18 <br>U.S.C.  3162(a)(2).  This Court reviews the disposition of an STA <br>issue for clear error as to factual findings and de novo as to <br>legal rulings.  See United States v. Rodrguez, 63 F.3d 1159, 1162 <br>(1st Cir. 1995). <br>         We begin at the beginning.  The preeminent question in <br>this case is: when did time begin to accrue for STA purposes? <br>Section 3161(c)(1) requires that a defendant be tried within <br>seventy days of the occurrence of one of two events:  the filing of <br>the indictment or the defendant's appearance "before a judicial <br>officer of the court in which such charge is pending, whichever <br>date last occurs."  18 U.S.C.  3161(c)(1).  Relying on 18 U.S.C. <br> 3161(h)(1)(H) (which provides that any unreasonable delay <br>resulting from the transfer of a defendant be included in STA <br>calculations and mandating that any such delay in excess of ten <br>days from the date of the order directing transportation and the <br>defendant's arrival at the destination be presumed unreasonable), <br>Muoz argues that the STA clock began to run on November 27, 1995, <br>when he was ordered removed to Puerto Rico, and that only ten days <br>of the period between the removal order and his January 25, 1996 <br>appearance should be excluded from the STA calculation.  The <br>government counters that the STA clock began to run on January 25, <br>1996, when Muoz first appeared before a judicial officer in Puerto <br>Rico. <br>         Muoz's reliance on this  3161(h)(1)(H) to establish a <br>violation of the STA in his case is misplaced. Section  <br>3161(h)(1)(H) is a tolling provision, not one that sets forth the <br>events that trigger the start of the seventy-day period in which a <br>trial must be held.  Section  3161(c)(1) clearly states that "the <br>trial of a defendant charged in an information or indictment with <br>the commission of an offense shall commence within seventy days <br>from the filing date (and making public) of the information or <br>indictment, or from the date the defendant has appeared before a <br>judicial officer of the court in which such charge is pending, <br>whichever date last occurs." (emphasis added).  Muoz first <br>appeared before a judicial officer of the District of Puerto Rico <br>on January 26, 1995.  The delay resulting from the transfer of <br>Muoz from Miami to Puerto Rico (the court in which the charges <br>were pending) thus took place well before the STA clock even began <br>to run.  See United States v. Barnes, 159 F.3d 4, 10 (1st Cir. <br>1998).  As a result, there was no STA violation. <br>II.  Sixth Amendment Claim <br>          Muoz contends that the delay in his being brought to <br>trial violated his constitutional right to a speedy trial.  We find <br>no merit in this contention. <br>         The Sixth Amendment to the United States Constitution <br>provides, in pertinent part, that "[i]n all criminal prosecutions, <br>the accused shall enjoy the right to a speedy and public trial."  <br>U.S. Const. amend. VI.  This right attaches upon arrest or <br>indictment, whichever occurs first.  See United States v. <br>MacDonald, 456 U.S. 1, 6-7 (1982); United States v. Mala, 7 F.3d <br>1058, 1061 (1st Cir. 1993); United States v. Colombo, 852 F.2d 19, <br>23 (1st Cir. 1988). For Sixth Amendment purposes, Muoz is entitled <br>to a computation of time from November 15, 1995, the date of his <br>indictment. <br>         That there was no violation of the STA in this case does <br>not necessarily preclude a court from finding a violation of <br>Muoz's Sixth Amendment right to a speedy trial.  See United States <br>v. Santiago-Becerril, 130 F.3d 11, 21 (1st Cir. 1997).  Section <br>3173 of the STA states that "[n]o provision of this chapter shall <br>be interpreted as a bar to any claim of denial of speedy trial as <br>required by amendment VI of the Constitution."  18 U.S.C.  3173;  <br>see also United States v. Mitchell, 723 F.2d 1040, 1049 (1st Cir. <br>1983).  "It would be, however, 'an unusual case in which the time  <br>limits of the [STA] have been met but the [S]ixth [A]mendment right <br>to speedy trial has been violated.'"  Mitchell, 723 F.2d at 1049 <br>(quoting United States v. Nance, 666 F.2d 353, 360 (9th Cir. <br>1982)). This court reviews a district court's speedy trial <br>determination under the Sixth Amendment for abuse of discretion.  <br>See Santiago-Becerril, 130 F.3d at 21. <br>         In Barker v. Wingo, 407 U.S. 514, 530-33 (1972), the <br>Supreme Court established a four-part balancing test to be used in <br>determining whether a defendant's Sixth Amendment right to a speedy <br>trial has been violated.  A court should consider:  (1) the length <br>of the delay; (2) the reasons for the delay; (3) the defendant's <br>assertion of his speedy trial right; and (4) the prejudice to the <br>defendant caused by the delay.  See Barker, 407 U.S. at 530.  "None <br>of these factors is 'either a necessary or sufficient condition to <br>the finding of a deprivation of the right of speedy trial.  Rather, <br>they are related factors and must be considered together with such <br>other circumstances as may be relevant.'"  United States v. Henson, <br>945 F.2d 430, 437 (1st Cir. 1991) (quoting Barker, 407 U.S. at <br>533). <br>         The first factor, the length of the delay, was identified <br>by the Supreme Court as:  <br>                  to some extent a triggering mechanism.  Until <br>         there is some delay which is presumptively <br>         prejudicial, there is no necessity for inquiry <br>         into the other factors that go into the <br>         balance. Nevertheless, because of the <br>         imprecision of the right to speedy trial, the <br>         length of delay that will provoke such an <br>         inquiry is necessarily dependent upon the <br>         peculiar circumstances of the case. For <br>         example, the delay that can be tolerated for <br>         an ordinary street crime is less than for a <br>         serious, complex conspiracy charge. <br> <br>Barker, 407 U.S. at 530-31.  The Supreme Court has said that "the <br>lower courts have generally found postaccusation delay <br>'presumptively prejudicial' at least as it approaches one year."  <br>Doggett v. United States, 505 U.S. 647, 652 n.1 (1992) (citations <br>omitted).  We shall assume, under the foregoing, that the nineteen <br>month delay in this case was "presumptively prejudicial" so as to <br>trigger further inquiry.  See, e.g., Santiago-Becerril, 130 F.3d at <br>21 (assuming that a fifteen month delay was presumptively <br>prejudicial so as to trigger further inquiry); Colombo, 852 F.2d at <br>24 (holding that a twenty-four month delay was long enough to be <br>presumptively prejudicial).  Still, we hold that the cumulative <br>effect of the pretrial delay, viewed under all the factors set <br>forth in Barker, falls short of establishing a Sixth Amendment <br>violation. <br>         Once an examination of the Sixth Amendment claim is <br>triggered, the weight given in the analysis to the length of the <br>delay depends upon the extent to which the delay exceeds the bare <br>minimum considered presumptively prejudicial.  See Doggett, 505 <br>U.S. at 652.  Muoz waited over nineteen months for the <br>commencement of trial in this case, a case more complicated than <br>"an ordinary street crime" but less so than "a serious, complex <br>conspiracy charge."  Barker, 407 U.S. at 531.  Arguably, therefore, <br>the period of the delay was long enough to tip the scales slightly <br>in favor of Muoz's claim. <br>         The second factor, the reasons for the delay, has been <br>called, "the focal inquiry."  Santiago-Becerril, 130 F.3d at 22 <br>(citation omitted).  As with the first factor, "[h]ere, too, <br>different weights should be assigned to different reasons."  <br>Barker, 407 U.S. at 531.  Muoz argues that the chief reason for <br>the delay was the two month period from the time Muoz was ordered  <br>removed from the Southern District of Florida until his appearance <br>before a judicial officer in the District of Puerto Rico.  Even <br>acknowledging the fact that the government cannot simply buy Muoz <br>a coach ticket on an airline and immediately place him on a flight <br>to San Juan, two months seems to be quite a long time to transport <br>an inmate from South Florida to San Juan. <br>         That said, Muoz ignores the role his many pretrial <br>motions played in causing the nineteen month delay between his <br>indictment and the jury trial.  His many motions included: (1) a <br>motion for Luis Plaza to withdraw as attorney, and to extend the <br>time to announce new counsel (3/11/96); (2) a motion to transfer <br>the case to the Southern District of Florida (6/11/96); (3) a <br>motion requesting the mandatory disqualification or recusal of the <br>trial judge and a change of venue (6/24/96); (4) a motion to compel <br>the government to administer polygraph examinations to witnesses <br>(6/24/96); (5) a pro se motion to dismiss the indictment alleging <br>government misconduct, destruction of exculpatory evidence, and <br>prosecutorial misconduct (7/2/96); (6) a pro se motion to dismiss <br>the indictment alleging government misconduct and seeking to compel <br>the government to disclose a personnel file, information, and <br>supplementary evidence (7/10/96); (7) a pro se motion to dismiss <br>the indictment alleging violation of due process and constitutional <br>rights (7/15/96); (8) a pro se motion for the setting of a hearing <br>(7/15/96); (9) a pro se motion for additional discovery and Jencks <br>Act material (7/26/96); (10) a pro se motion to suppress evidence <br>(7/26/96); (11) a motion for Joseph Laws to withdraw as attorney <br>(7/29/96); and (12) a motion for Joseph Laws to withdraw as <br>attorney (11/15/96). <br>         The third factor, the defendant's assertion of his speedy  <br>trial right, "is entitled to strong evidentiary weight in <br>determining whether the defendant is being deprived of the right."  <br>Barker, 407 U.S. 531-32.  A defendant should give some indication, <br>prior to his assertion of a speedy trial violation, that he wishes <br>to proceed to trial.  See Santiago-Becerril, 130 F.3d at 22. <br>         The defendant filed two motions to dismiss for lack of a <br>speedy trial.  The first was filed on June 26, 1996, and the second <br>was filed at the eleventh hour before trial on June 17, 1997.  In <br>between the two motions, as the above catalogue of actions <br>illustrates, Muoz demonstrated a "lack of enthusiasm for the <br>speedy trial right which he now asserts."  Henson, 945 F.2d at 438 <br>(1st Cir. 1991) (internal quotation marks and citation omitted). <br>         The fourth factor -- the prejudice to the defendant <br>caused by the delay -- "should be assessed in the light of the <br>interests of defendants which the speedy trial right was designed <br>to protect.  Th[e] Court has identified three such interests: (i) <br>to prevent oppressive pretrial incarceration; (ii) to minimize <br>anxiety and concern of the accused; and (iii) to limit the <br>possibility that the defense will be impaired."  Barker, 407 U.S. <br>at 532 (footnote omitted). <br>         The Barker Court went on to discuss the disadvantages of <br>lengthy pretrial incarceration for the accused who cannot obtain <br>his release.  See Barker, 407 U.S. at 532-33.  However, the <br>nineteen months of pretrial incarceration in this case, by itself, <br>is insufficient to establish a constitutional level of prejudice.  <br>Cf. Santiago-Becerril, 130 F.3d at 23 (stating that "fifteen months <br>of pretrial incarceration was insufficient to establish a <br>constitutional level of prejudice"). <br>         Muoz does not allege any anxiety or concern resulting <br>from his pretrial delay so we immediately turn to the third and <br>final factor. <br>         "Among the three interests safeguarded by the right to <br>speedy trial as guaranteed under the [S]ixth [A]mendment, 'the most <br>serious is [protection against impairment of the defense] because <br>the inability of a defendant adequately to prepare his case skews <br>the fairness of the entire system.'"  Barker, 407 U.S. at 532 <br>(citations omitted). <br>         Muoz claims in a conclusory fashion that he "suffered <br>prejudice while incarcerated.  In the interim . . . witnesses left <br>the country and were not available for trial."  Appellant's Br. at <br>19.  Nowhere does he delineate: (1) the alleged prejudice he <br>suffered; (2) the alleged witnesses who left the country and were <br>not available for trial; or (3) the substance of the testimony that <br>these alleged witnesses would have provided.  There is no <br>indication here that the period of pretrial delay interfered in any <br>way with Muoz's ability to present evidence or obtain the <br>testimony of witnesses, or that it had any impact on the fairness <br>of his trial.  See Colombo, 852 F.2d at 25-26. Accordingly, this <br>paramount interest in no way favors Muoz's claim of constitutional <br>impairment. <br>         We conclude, applying Barker's balancing test, that <br>Muoz's constitutional right to a speedy trial was not violated.  <br>                            CONCLUSION <br>         For the reasons stated in this opinion, we affirm.</pre>

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