     06-0338-cr
     United States v. Abad


 1                             UNITED STATES COURT OF APPEALS
 2
 3                                      FOR THE SECOND CIRCUIT
 4
 5
 6
 7                                         August Term, 2007
 8
 9    (Argued: November 28, 2007                                         Decided: January 30, 2008)
10
11                                       Docket No. 06-0338-cr
12
13
14                                    UNITED STATES OF AMERICA ,
15
16                                                                                          Appellee,
17
18                                                –v.–
19
20                                           FREDDY ABAD ,
21
22                                                                              Defendant-Appellant.
23
24
25
26   Before:
27
28                  JACOBS , Chief Judge, B.D. PARKER and WESLEY , Circuit Judges.
29
30           Appeal from a judgment of conviction entered in the United States District Court for the
31   Southern District of New York (Daniels, J.), on January 18, 2006. We conclude that Abad’s
32   claim under the Speedy Trial Act, 18 U.S.C. § 3162, is barred by the Act’s waiver provision, and
33   not subject to review for plain error under Federal Rule of Criminal Procedure 52(b). Abad’s
34   other claims are without merit.
35
36          AFFIRMED .
37
38
39


                                                    1
 1                  DAVID M. RODY (Celeste L. Koeleveld, Assistant United States Attorney, of
 2                        counsel) for Michael J. Garcia, United States Attorney for the Southern
 3                        District of New York, New York, New York, for Appellee.
 4
 5                  GERALD J. MC MAHON (Joshua F. McMahon, on the brief), New York, New York,
 6                       for Appellant.
 7
 8
 9
10   PER CURIAM :

11          Defendant-Appellant Freddy Abad appeals from a judgment of conviction entered in the

12   United States District Court for the Southern District of New York (Daniels, J.), on January 18,

13   2006. The issues on appeal are – with one exception – controlled by established precedent and

14   are dispensed with briefly below. We write to clarify that Abad’s claim under the Speedy Trial

15   Act, 18 U.S.C. § 3162, is barred by the Act’s waiver provision, and not subject to review for

16   plain error under Federal Rule of Criminal Procedure 52(b).

17                                             Background

18          Abad was convicted of armed robbery and the murder of one Hilario DeJesus, a drug

19   dealer. Abad was the leader of a group of armed robbers who targeted drug dealers throughout

20   the New York City area, as well as New Jersey, between 1993 and 1996. In the summer of 1996,

21   Abad and a member of his gang, Hector Ortiz, robbed DeJesus at gunpoint. DeJesus retaliated.

22   With the aid of a half dozen other men, DeJesus attempted to kidnap Abad; after Abad was

23   forced into a car, DeJesus threatened to use a “sawing machine” on him. The abduction ended

24   when Abad jumped from the moving vehicle.

25          On the evening of September 7, 1996, Abad gathered three accomplices (including Ortiz)

26   to rob DeJesus’s drug operation. At Abad’s direction, they covered their fingertips with Crazy

                                                     2
 1   Glue to avoid leaving fingerprints. Abad armed the men with various weapons and carried a

 2   machine gun himself.

 3          On the night of the crime, DeJesus was hosting a party for his family. After forcing their

 4   way into the apartment at gunpoint, Abad and his gang herded the DeJesus family into the living

 5   room. Abad and Ortiz then took DeJesus into the back bedroom, where they tied his hands with

 6   a phone cord. The robbers took turns guarding DeJesus, watching the family and searching the

 7   apartment for cash and valuables. Eventually, Abad walked into the back bedroom and fired a

 8   machine gun into DeJesus’s right side. The assailants then fled. Later, Abad bragged that he

 9   had shot DeJesus seventeen times.

10          Abad was captured in North Carolina on April 12, 2002, and first appeared before the

11   District Court on May 9, 2002. His trial began on November 29, 2004. Because his murder of

12   DeJesus made Abad eligible for the death penalty, the Capital Case Unit of the Department of

13   Justice reviewed the case to decide whether the government would seek the death penalty. In

14   October 2003, it decided not to do so. In January 2004 – nearly nineteen months after Abad’s

15   first appearance in court – Hector Ortiz made his first court appearance after his capture by the

16   government. Ortiz likewise faced a possible death penalty requiring Capital Case Unit review;

17   he later pled guilty and was a cooperating witness at Abad’s trial.

18          After a trial, Abad was convicted on five counts: murder in aid of racketeering, in

19   violation of 18 U.S.C. § 1959(a)(1); conspiracy to commit Hobbs Act robbery, in violation of 18

20   U.S.C. § 1951; Hobbs Act robbery, in violation of 18 U.S.C. § 1951; use of a firearm during a

21   crime of violence, in violation of 18 U.S.C. § 924(c); and use of a firearm to commit murder



                                                      3
 1   during a crime of violence, in violation of 18 U.S.C. § 924(j).1

 2                                               Discussion

 3          Abad asserts that he was denied a speedy trial, in violation of his rights under the Speedy

 4   Trial Act, the speedy trial clause of the Sixth Amendment, the Due Process Clause of the Fifth

 5   Amendment, and the Cruel and Unusual Punishment Clause of the Eighth Amendment.

 6          Based on his review of the docket sheet, Abad counts 223 elapsed (and allegedly

 7   unexcused) days on his speedy trial clock between the date of his initial appearance, May 9,

 8   2002, and the day his trial began, November 29, 2004. The government, on the other hand,

 9   counts only three such days on the speedy trial clock. This discrepancy arises because, at several

10   pretrial conferences, the District Court did not record its exclusions of time (made pursuant to

11   the Speedy Trial Act2) on the docket sheet. The government has submitted the transcripts of

12   those pretrial conferences to show the District Court’s exclusions of time under the Speedy Trial

13   Act.

14          While the government’s position appears correct, it is unnecessary for us to decide the

15   factual issue because Abad failed to file a timely pretrial motion to dismiss the indictment, and

16   therefore waived his claim under the Speedy Trial Act. The Act provides that “[f]ailure of the


        1
         The judgment entered by the District Court incorrectly cited 18 U.S.C. § 924(i). As the
     government explains, § 924(i) was a previously mislabeled version of 18 U.S.C. § 924(j). The
     mislabeled version was evidently cited in the indictment and relied upon by the District Court.
        2
          Those exclusions were made in the interests of justice. See 18 U.S.C. § 3161(h)(8)(A).
     Occasionally, the District Court noted that exclusions in the interests of justice were related to
     other reasons for delay that are also appropriate considerations under the Speedy Trial Act – e.g.,
     to permit the filing of pretrial motions, see 18 U.S.C. § 3161(h)(1)(F), and because of the
     involvement of a codefendant, see 18 U.S.C. § 3161(h)(7).

                                                      4
 1   defendant to move for dismissal prior to trial or entry of a plea of guilty or nolo contendere shall

 2   constitute a waiver of the right to dismissal under this section.” 18 U.S.C. § 3162(a)(2).

 3   Accordingly, Abad waived his claim under the Speedy Trial Act. See United States v. Patten,

 4   826 F.2d 198, 199 (2d Cir. 1987) (per curiam) (citing waiver provision of § 3162(a)(2) because

 5   defendant “never made a timely motion for relief under the Speedy Trial Act”).

 6          The parties dispute, however, whether the waiver provision of § 3162(a)(2) applies or

 7   whether we should review Abad’s failure to make a timely Speedy Trial Act motion under the

 8   “plain error” standard of review of Federal Rule of Criminal Procedure 52(b). The Government

 9   advocates waiver, while Abad, relying upon United States v. Sorrentino, 72 F.3d 294, 297 (2d

10   Cir. 1995), argues that his unpreserved speedy trial claim should be reviewed for plain error.

11          Sorrentino’s use of plain error to review a Speedy Trial Act claim, despite the explicit

12   waiver command of § 3162(a)(2), does not appear to have been a deliberate rejection of §

13   3162(a)(2) by this Court. This is clear from the opinion in Sorrentino, which makes no reference

14   to § 3162(a)(2), as well as from the briefs of the parties in that case, which do not cite it.3 See




        3
          The Government’s argument in Sorrentino is all the more perplexing in light of its citation
     of United States v. Patten, 826 F.2d 198, 199 (2d Cir. 1987). See Brief of Appellee at 13, United
     States v. Sorrentino, 72 F.3d 294 (2d Cir. 1995) (No. 95-1152). The government’s citation of
     that particular page of Patten to support the government’s plain error argument in Sorrentino is
     odd in that there is no discussion of plain error review there. In fact, as noted earlier, that page
     of Patten discussed Patten’s waiver of his Speedy Trial Act claim under § 3162(a)(2) due to his
     failure to make a timely motion. See Patten, 826 F.2d at 199 (“Patten never made a timely
     motion for relief under the Speedy Trial Act. That Act expressly provides that ‘[f]ailure of the
     defendant to move for dismissal prior to trial or entry of a plea of guilty or nolo contendere shall
     constitute a waiver of the right to dismissal’ under the Act[.] 18 U.S.C. § 3162(a)(2) (1982); see,
     e.g., United States v. Balland, 779 F.2d 287, 294 (5th Cir. 1986); United States v. Daly, 716 F.2d
     1499, 1506 & n. 5 (9th Cir. 1983). No such motion was ever made here.”).

                                                       5
 1   Brief of Appellee United States Gov’t at 13, United States v. Sorrentino, 72 F.3d 294 (2d Cir.

 2   1995) (No. 95-1152). Moreover, the Sorrentino opinion makes no attempt to distinguish our

 3   prior analysis of § 3162(a)(2) in United States v. Patten, 826 F.2d 198, 199 (2d Cir. 1987).

 4   Thus, Sorrentino’s use of the plain error standard appears to have been limited to the arguments

 5   presented by the parties and does not control this case. Accordingly, we take this opportunity to

 6   clarify that, while unpreserved constitutional claims are subject to review for plain error,

 7   unpreserved Speedy Trial Act claims are deemed waived, in accordance with § 3162(a)(2) and

 8   United States v. Patten. Sorrentino, to the extent it suggests otherwise, is hereby overruled.4

 9          Abad’s constitutional speedy trial claim fairs no better than his waived statutory claim.

10   His constitutional speedy trial claim is governed by the four Barker v. Wingo factors: “Length of

11   delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the

12   defendant.” Barker v. Wingo, 407 U.S. 514, 530 (1972); see also Garcia Montalvo v. United

13   States, 862 F.2d 425, 426 (2d Cir. 1988) (per curiam) (applying Barker’s four-part test). The

14   first of these factors – the length of delay, 31 months – militates in favor of Abad; the others

15   weigh in the government’s favor.

16          As to the second factor, there were a number of valid reasons for the delay, not least of

17   which was the time needed for the Capital Case Unit to decide whether to seek the death penalty

18   against Abad or Hector Ortiz, including time for the defendants to make mitigation submissions



        4
           As is our practice, we circulated this opinion to the active members of this Court before
     filing. See United States v. Brutus, 505 F.3d 80, 87 n.5 (2d Cir. 2007).



                                                       6
 1   to the Department of Justice. The delay was also attributable to the parties’ review of discovery

 2   materials, the filing of pretrial motions (including a successful defense motion to preclude

 3   evidence of a prior bad act committed by Abad), and the addition of Ortiz as a defendant in

 4   January 2004.

 5          As to the third factor, Abad (through counsel) cited his speedy trial rights at a handful of

 6   pretrial conferences. But Abad did so opportunistically, raising his speedy trial right when it

 7   suited his interests but not when the delay benefitted him. For example, at a pretrial conference

 8   on November 7, 2002, Abad expressed his desire for a speedy trial. But little more than a month

 9   later, on December 20, 2002, defense counsel consented to an exclusion of time under the

10   Speedy Trial Act until February 14, 2003 in order to submit mitigation materials to the

11   Department of Justice. Judge Daniels asked Abad directly whether his concern about a speedy

12   trial had been satisfied; Abad responded that it had. Abad pressed his concerns again in early

13   2004 after Ortiz had joined the case and slowed its progress toward trial. But the same

14   considerations at issue for Abad – a death penalty determination and defense counsel’s review of

15   discovery materials – were raised by Ortiz, and the delay was therefore warranted.

16          Finally, as to the fourth factor, Abad points to no prejudice. Rather, he contends that the

17   delay allowed the government to locate certain “key prosecution witnesses”: Ortiz and another

18   cooperating witness, Flora Salas. But this is not the sort of prejudice contemplated by Barker’s

19   fourth factor. That prejudice is concerned with impediments to the ability of the defense to make

20   its own case (e.g., if defense witnesses are made unavailable due to the government’s delay); the

21   opportunity for the prosecution to prepare for trial does not, on its own, amount to prejudice to



                                                      7
 1   the defense. See Barker, 407 U.S. at 532 (considering, as one of several kinds of possible

 2   prejudice to the defense, “the inability of a defendant adequately to prepare his case” that might

 3   arise “[i]f witnesses die or disappear during a delay,” or “if defense witnesses are unable to recall

 4   accurately events of the distant past”).

 5          Accordingly, Abad’s speedy trial rights under the Sixth Amendment were not violated.

 6   His arguments regarding the Fifth and Eighth Amendments are without merit.

 7                                                    II

 8          Abad’s remaining arguments fall short as a result of established precedent.

 9                                                   A.

10          First, Abad argues that his trial counsel was ineffective because his counsel failed to

11   move to dismiss the indictment on speedy trial grounds, object to the government’s “other

12   crimes” evidence, or develop and present a credible defense theory.

13          This claim is governed by the two-part Strickland standard, which requires that a criminal

14   defendant show that his lawyer’s performance “fell below an objective standard of

15   reasonableness” and that “there is a reasonable probability that, but for counsel’s unprofessional

16   errors, the result of the proceeding would have been different.” Strickland v. Washington, 466

17   U.S. 668, 688, 694 (1984).

18          There is no question that Abad fails to satisfy the first prong of Strickland. For reasons

19   explained above, Abad’s statutory speedy trial claim was waived, and even if it had not been

20   waived, we find greater merit in the government’s argument that Abad’s statutory speedy trial

21   rights were not violated. Furthermore, as just explained, Abad’s constitutional speedy trial rights



                                                      8
 1   were not violated. Thus, any defense motion on either a statutory or constitutional basis would

 2   have been denied by the District Court. Abad’s counsel could not therefore have been

 3   ineffective for failing to make a motion that would have been futile.

 4          Additionally, the evidence of Abad’s prior bad acts was admissible as proof that the

 5   charged racketeering enterprise existed and that Abad was one of its members. See United States

 6   v. Coonan, 938 F.2d 1553, 1561 (2d Cir. 1991) (affirming the admission of “evidence [that] was

 7   certainly probative of the existence of the charged enterprise”). It follows that a defense motion

 8   to preclude such evidence likewise would have been denied. Lastly, Abad cites snippets of the

 9   trial transcript as proof of his trial counsel’s ineffectiveness. Having reviewed these aspects of

10   the trial in context, we conclude that Abad’s contentions are without merit.

11          In any event, even assuming that Abad satisfied the first prong of Strickland, given the

12   strength of the government’s case, Abad cannot show that he was prejudiced by his counsel’s

13   performance. The government’s case was strong. It included the testimony of four cooperating

14   witnesses, various law enforcement witnesses, and two civilian eyewitnesses to the DeJesus

15   robbery and murder, along with physical evidence collected from the crime scene. And although

16   neither of the eyewitnesses could conclusively identify Abad as the shooter of DeJesus, three

17   cooperating witnesses linked Abad directly to the killing of DeJesus, and also testified that Abad

18   bragged about it afterwards. (One cooperator testified to watching Abad shoot DeJesus

19   numerous times.) Accordingly, even if defense counsel did what Abad argues should have been

20   done, there is no “reasonable probability that . . . the result of the proceeding would have been

21   different.” Strickland, 466 U.S. at 694.



                                                      9
 1                                                    B.

 2          Second, Abad argues that the evidence was legally insufficient both to prove that his

 3   murder was in aid of racketeering, and that he was the shooter of Hilario DeJesus. “A defendant

 4   who challenges his conviction based upon the sufficiency of the evidence bears a heavy burden.”

 5   United States v. Griffith, 284 F.3d 338, 348 (2d Cir. 2002). “Not only must the evidence be

 6   viewed in the light most favorable to the government and all permissible inferences drawn in its

 7   favor, but if the evidence, thus construed, suffices to convince any rational trier of fact of the

 8   defendant’s guilt beyond a reasonable doubt, . . . [the] conviction must stand.” United States v.

 9   Martinez, 54 F.3d 1040, 1042 (2d Cir. 1995) (internal citations omitted). For reasons mentioned

10   above, the evidence was more than sufficient for “any rational trier of fact [to] have found the

11   essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,

12   319 (1979). Accordingly, Abad’s sufficiency challenge fails.

13          Finally, Abad filed two briefs pro se, raising a number of issues concerning the evidence

14   admitted at trial and his counsel’s performance. We have reviewed those claims and find them

15   to be without merit.

16                                                Conclusion

17          For the foregoing reasons, the district court’s judgment of conviction entered in the

18   United States District Court for the Southern District of New York (Daniels, J.), on January 18,

19   2006 is hereby AFFIRMED .




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