Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 78 CR 492 -- Joel M. Flaum, Judge.
Before WOOD and ESCHBACH, Circuit Judges, and HOFFMAN, Senior District Judge.*fn*
HOFFMAN, Senior District Judge. On July 24, 1978, a warrant was issued for Deleon's arrest because of an alleged illegal distribution of heroin by Deleon in September of 1977. On October 11, 1978, after no arrest had been made by the federal government pursuant to the July 24 warrant, an indictment was returned by a grand jury charging Deleon with conspiring to distribute heroin and with the distribution of heroin in violation of 21 U.S.C. § 841(a)(i). On October 18, 1978, the date the case was originally set for arraignment and plea, the District Court reassigned the case to the fugitive calendar since the Government had failed to locate Deleon. On or about February 1, 1982, the Government located and arrested Deleon in McAllen, Texas, pursuant to the bench warrant issued following the October, 1978, indictment.
On March 11, 1982, Deleon filed a motion to dismiss the indictment. Deleon claimed in his motion that his Sixth Amendment right to a speedy trial had been violated thereby causing his defense of the charges against him to be impaired. Alternatively, Deleon claimed that even if the Court determined that his Sixth Amendment right to a speedy trial had not been violated, the Court should nevertheless exercise its discretionary authority and dismiss the indictment under Federal Rule of Criminal Procedure 48(b). In response the Government submitted ten DEA investigative reports and stated that, based on those reports, it was apparent that the delay in the case was caused not by Government negligence but by Deleon's fugitive status.
On March 30, 1982, the District Court, without an evidentiary hearing, denied Deleon's motion to dismiss. Subsequently, on April 20, 1982, the jury returned a verdict finding Deleon guilty as charged. Deleon now appeals his conviction raising the same points made in his motion to dismiss, and adding that the District Court further erred by denying his motion to dismiss without granting him an evidentiary hearing.
In regard to Deleon's assertion that an evidentiary hearing should have been granted we simply note that because the District Court denied Deleon's motion to dismiss without an evidentiary hearing, we are forced to assume as true the factual allegations made in Deleon's motion and his accompanying memorandum in support thereof. See Isaac v. Perrin, 659 F.2d 279, 281 (1st Cir. 1981); Jones v. Morris, 590 F.2d 684, 687 (7th Cir.), cert. denied, 440 U.S. 965, 59 L. Ed. 2d 780, 99 S. Ct. 1513 (1979); Spinkellink v. Wainwright, 578 F.2d 582, 590 (5th Cir. 1978), cert. denied, 440 U.S. 976, 59 L. Ed. 2d 796, 99 S. Ct. 1548 (1979); Morris v. Wyrick, 516 F.2d 1387, 1392 (8th Cir.), cert. denied, 423 U.S. 925, 46 L. Ed. 2d 251, 96 S. Ct. 268 (1975). With this in mind we turn to Deleon's speedy trial claim.*fn1
The Supreme Court has established a four-part balancing test to determine whether a defendant's constitutional right to a speedy trial has been violated. See Barker v. Wingo, 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972). The four factors are the length of the delay, the reasons for the delay, the nature of the defendant's assertion of his right to a speedy trial, and the prejudice caused to the defendant as a result of the delay. Id. at 530-33. See United States v. McConahy, 505 F.2d 770 (7th Cir. 1974).
The first factor, the length of the delay, is the initial area to be addressed. With respect to this factor, because the Sixth Amendment attaches when a "defendant is indicted, arrested, or otherwise officially accused," the length of the delay in this instance is measured from the time the warrant for his arrest was first issued on July 24, 1978, to the commencement of trial on April 19, 1982. United States v. MacDonald, 456 U.S. 1, 6, 71 L. Ed. 2d 696, 102 S. Ct. 1497 (1982).*fn2 This period covers approximately 44 1/2 months. Since a delay of this length is considered "presumptively prejudicial" further inquiry into the speedy trial allegation is necessary. Barker v. Wingo, supra at 530. See United States v. Jackson, 542 F.2d 403, 407 (7th Cir. 1976) (12 month delay considered presumptively prejudicial); United States v. DeTienne, 468 F.2d 151, 156 (7th Cir.), cert. denied, 410 U.S. 911, 93 S. Ct. 974, 35 L. Ed. 2d 274 (1972) (19 month delay was enough to trigger inquiry into the other Barker factors).
The second factor to be considered is the reason for the delay. With respect to this factor we note that the Government, under the Sixth Amendment, has a "constitutional duty to make a diligent good faith effort" to locate and apprehend a defendant and bring that defendant to trial. Smith v. Hooey, 393 U.S. 374, 383, 21 L. Ed. 2d 607, 89 S. Ct. 575 (1969); United States v. McConahy, supra at 773-74; United States v. Weber, 479 F.2d 331, 332-33 (8th Cir. 1973). The question here is whether the reason for the delay is because the Government breached that duty.
Deleon maintains that the Government breached its duty to make a diligent good faith effort because it was negligent in its attempts to locate and apprehend him. In support of this allegation Deleon cites the following occasions when the Government should have found him: when the complaint was first issued on July 24, 1978, since he was in the custody of Texas officials in Edinburgh, Texas, until August 1, 1978 when he was released on bond; during most of the period from August 1, 1978, until August, 1979, since the Government could have determined his whereabouts from the Texas authorities; on one of the numerous occasions when he crossed the U.S.-Mexican border since his name was registered with the Immigration and Naturalization Service (INS) and the Federal Bureau of Investigation (FBI); and during the sixteen month period beginning in October, 1980, until his arrest on February 1, 1982, when he lived with his parents in McAllen, Texas.
In response, the Government submitted ten investigative reports filed by the DEA in connection with their attempts to locate and apprehend Deleon. According to an accompanying affidavit submitted by the DEA these reports disclose the efforts made by the Government to locate Deleon from the time the arrest warrant was issued on July 24, 1978,*fn3 through December 15, 1981. Based on these reports Government efforts included inquiry of Deleon's whereabouts at his last known place of address; routinely conducted surveillance at various locations known to be frequented by Deleon; checks with INS, FBI and the Chicago Police Department; and the placing of stop orders for Deleon's arrest with the National Crime Information Center, the Treasury Enforcement Communications System, and the Narcotics and Dangerous Drugs Information System. Further review of the reports indicate that the only information received by the Government concerning Deleon's whereabouts was that he was residing in McAllen, Texas on October 2, 1978. The Government maintains that because Deleon did not reside in McAllen, Texas until October, 1980, the efforts made by the Government to locate Deleon as detailed in the reports are all that can be expected. Accordingly, any delay in this case was caused not by Government negligence but by Deleon's fugitive status.
With respect to the contention by Deleon that the Government should have found him while he was in the custody of Texas officials or while he was out on bond, we do not agree. Deleon does not allege that the Government received information from Texas officials concerning Deleon's whereabouts. Furthermore, we do not believe that knowledge of Deleon's location by the Texas authorities should be imputed to the federal government. We also do not agree with Deleon regarding his assertion that the Government should have found and apprehended him on one of the occasions when he crossed the U.S.-Mexican border. In light of the fact that thousands of people both legally and illegally cross the border daily, we believe that such a requirement, without some type of reasonable lead, would place too great a burden on the Government. Finally, in connection with Deleon's allegation that the Government should have found him in McAllen, Texas, where he was living with his parents, we note that although the Government was infomred that he was residing in McAllen on October 2, 1978, Deleon did not ...