Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 99 CR 596-David H. Coar, Judge.
The opinion of the court was delivered by: Tinder, Circuit Judge
Before FLAUM, EVANS, and TINDER, Circuit Judges.
Edgar Arceo and a co-defendant were charged with a conspiracy to possess with intent to distribute and to distribute a controlled substance in violation of 21 U.S.C. § 846. More than six years later Arceo was arrested. He moved to dismiss the indictment based on an alleged violation of his constitutional right to a speedy trial. His motion was denied. Arceo then pled guilty to the conspiracy charge, conditioning his plea on the right to appeal the denial of his motion to dismiss. The district court sentenced Arceo to 108 months' imprisonment followed by a term of supervised release.
Arceo appeals. While he raises three issues, his main argument is that his right to a speedy trial was violated. He also challenges his sentence, arguing that the obstruction of justice adjustment under U.S.S.G. § 3C1.1 was not appropriate and that the district court did not adequately consider his cooperation with the government. After a brief presentation of the facts, we turn to Arceo's arguments.
On August 11, 1999, Arceo was arrested in a parking lot in Aurora, Illinois, after delivering approximately 5 kilograms of cocaine to a confidential informant who was working with the Drug Enforcement Agency ("DEA"). Immediately after his arrest, Arceo was interviewed by agents. He waived his Miranda rights and agreed to cooperate with law enforcement. He identified his source of supply of cocaine, Jose Salazar-Felix, and agreed to show the agents where he got the cocaine. The agents accompanied Arceo to a residence in Palatine, resulting in Salazar-Felix's arrest and eventual prosecution. Arceo subsequently was transported to the Palatine, Illinois, Police Department for processing.
Both at the time of his arrest in the parking lot and again while at the Palatine Police Department, Arceo was advised by the DEA Task Force Officer Lou Dominguez and other agents that they did not know when he would be charged, but that he would, in fact, be charged at a later time after his cooperation ended.*fn1 Arceo was released from custody in order to continue his cooperation. He identified his source of marijuana, Jesus Rodriguez-Medina, and arrangements were made for a meeting. Law enforcement and Arceo agreed to contact each other the next day.
For two days Arceo cooperated with law enforcement. He arranged for a marijuana transaction on August 12 with Rodriguez-Medina. Arceo did meet with Rodriguez-Medina, who was arrested. Law enforcement and Arceo agreed to meet the next day. On August 13, however, when Officer Dominguez called Arceo to arrange to meet, he was unable to reach him. Other agents likewise tried to contact Arceo but did not succeed. As a result the agents went looking for Arceo at his residence. They were unable to find him and determined he had moved out. After the usual law-enforcement checks in the Northern District of Illinois, Arceo still did not turn up.
On November 4, 1999, Arceo and Rodriguez-Medina were charged in a one-count indictment with a cocaine and marijuana conspiracy. A minute order was entered that day, stating: "The government will seek to have the defendant detained without bond . . . as to Edgar Arceo, granted. Enter order." An arraignment notice was entered the next day. The docket does not show that an arrest warrant was issued for Arceo. Between November 1999 and July 2000, there were a number of court proceedings involving Rodriguez-Medina but no docket entries reflect any activity as to Arceo. On July 27, 2000, Arceo's case was reassigned to the fugitive calendar.
In early 2001, Officer Dominguez discovered that no arrest warrant had been issued for Arceo. So on April 4, 2001, he contacted the Assistant United States Attorney ("AUSA") assigned to the case in an effort to obtain an arrest warrant. No warrant was issued, so Officer Dominguez contacted the AUSA once again in 2001 and still later in 2002, before he stopped working as a DEA task officer. The agent who took over this case made two attempts in 2003 to have an arrest warrant issued for Arceo. None was issued until December 15, 2005, however. On December 20, that warrant, along with a second warrant issued December 19, were quashed for reasons not indicated in the record, and a third bench warrant was issued.
On April 4, 2006, Arceo was arrested in the Middle District of Pennsylvania. He was living there under the assumed identity of Rowdy Sepulvida, which he admitted he purchased from a friend.
A detention hearing was held on April 5, 2006, in Pennsylvania, at which Arceo's wife of twelve years, Maria Arceo, testified. She stated that in August 1999 she and her husband left Chicago for Mexico "because of the problem" in Chicago (without any details about the nature of the problem) and that they lived in Mexico for about three years. According to Maria, it was her husband's idea to go to Mexico. She testified that she believed her husband knew he was wanted in Chicago. Maria said that they returned to the United States in 2002 and lived in Spring Grove, Pennsylvania, near her family. She also said it was about that time that Arceo began using the Rowdy Sepulvida name. She explained that Arceo could not use his own name because of the problem he had in Chicago.*fn2
Prior to trial Arceo moved to dismiss the indictment. The district court held a hearing on the motion. The court considered the transcript of Maria's testimony at the detention hearing and the testimony of former Task Force Officer Dominguez about Arceo's arrest, cooperation, and flight, and then denied the motion to dismiss. The court found that Arceo was aware he had been arrested and that criminal charges would be filed, yet chose to remove himself from the United States, later returning to another jurisdiction under an assumed name until his arrest. The court indicated that the government may ...