United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
S. Shah U.S. District Judge.
2004, federal agents confronted Edgar Martinez because of an
alleged role in a drug conspiracy. They executed a search
warrant at his home, seized four kilograms of cocaine, a gun,
and $80, 000 in cash, and arrested him. The agents did not
process and present him to the magistrate judge because he
waived his right to presentment and agreed to cooperate.
After an initial period of cooperation, Martinez moved to
Mexico. His attorney and the agents lost contact with him,
some months passed, and the grand jury indicted Martinez. The
FBI entered a new arrest warrant into a database, but
Martinez was not arrested and arraigned on these charges
until 2018. Martinez moves to dismiss the indictment based on
the fourteen-year delay. See U.S. Const. amend. VI
(“the accused shall enjoy the right to a speedy and
2004, interceptions over court-authorized wiretaps, agent
surveillance, and a seizure of 30 kilograms of cocaine
implicated Martinez in a drug-trafficking conspiracy.
[98-1]. Agents obtained a search warrant for
Martinez's home and an arrest warrant (docketed as case
number 04 CR 720 (N.D. Ill.)). On August 11, 2004, agents
executed the warrants. [106-1] at 2. They found a gun, four
bricks of cocaine, and $80, 000 in cash. [106-1] at 3;
United States v. Martinez, 04 CR 720, Dkt. No. 6
¶ 2 (N.D. Ill.). Martinez later met with FBI agents and
an Assistant United States Attorney and waived timely
presentment to the magistrate judge. [106-2] at 2. He was
represented by an attorney and agreed to cooperate with
weeks that followed, Martinez cooperated by consenting to
interceptions over his phones, making detailed statements
about his drug dealing, relaying information from his
contacts, and recording meetings. [106-2]; [106-3]; [106-4].
In September 2004, the government dismissed the arrest
warrant against Martinez. Martinez, 04 CR 720, Dkt.
No. 6 ¶ 3. By November 2004, however, Martinez stopped
all contact with the agents. Martinez, 04 CR 720,
Dkt. No. 6 ¶ 4. On November 9, 2004, the grand jury
returned a superseding indictment in this case, 04 CR 543,
adding Martinez as a defendant, and a new bench warrant
issued for his arrest. ; . Martinez says he moved to
Mexico in 2004.  at 3.
November 12, 2004, agents entered the new arrest warrant for
Martinez into the National Criminal Information Center
database and told Martinez's mother and brother that
there was a warrant for Martinez's arrest.  at 8. He
returned to the United States in 2011, because he feared the
drug cartel in Mexico more than going to a U.S. prison. 
at 3; [98-4] at 3. Martinez says that upon his return he was
living in Addison, Illinois, under his legal name,  at 3,
but in November 2011, Martinez obtained an Illinois
identification card in the name Juan Rodriguez.  at 11;
[98-2] at 3-4. He knew he was a fugitive and that was why he
paid $3, 000 for the ID in a false name. [98-4] at
Martinez did not file tax returns after he returned to this
country until 2017, for tax year 2016. In January 2012,
the Illinois Secretary of State's office's facial
recognition program indicated that the same person could have
IDs under the name Edgar Martinez and Juan Rodriguez. [98-2]
at 2. That office opened an investigation but found no
warrants in the NCIC system. Id. It took no action,
keeping “all stops in effect” on the drivers'
licenses and ID cards at issue “until the subject comes
forward to provide documentation as to true identity”
and closed the file. Id.
was using the Rodriguez identity in February 2012 when he was
stopped by East Chicago, Indiana police officers in a traffic
stop. [106-5] at 2. The officers ran the Rodriguez name and
learned that there was a warrant for Rodriguez's arrest.
Id. Martinez's fingerprints had not been entered
into the system when he was arrested in 2004,  at 2, so
when the East Chicago officers fingerprinted him (under
Rodriguez's name), they were able to determine only that
he was not the real Juan Rodriguez. [98-4] at 3. They
released him. Id. Martinez claims he was living
openly under his legal name and that federal authorities
“presumably” were contacted by the East Chicago
police yet did nothing.  at 3. I reject these claims.
Although Martinez may have used his true name for some
purposes, the evidence is that he was using the false
Rodriguez identity, not filing tax returns, and that East
Chicago did not have enough information to justify an alert
to federal agents.
until 2016 did Martinez, using his true identity, reveal
himself to government agencies. He hired an attorney (not his
criminal defense attorney from 2004), and they went to the
Illinois Secretary of State's office to sort out the
duplicate-identity issue flagged years earlier. [98-2] at 3.
Martinez lied to the Secretary of State investigators and
said he obtained the Rodriguez identity when he was young and
stupid. Id. In fact, he got the ID in 2011 because
of his fugitive status. [98-4] at 3. Martinez proved his
identity to the Secretary of State's office's
satisfaction, and it rescinded the cancellation of his
Martinez Id. [98-2] at 4-5. Martinez told agents that he
hired a lawyer to fix his fugitive status, [98-4] at 3, but
there is no evidence that either an immigration attorney or a
criminal defense attorney took any steps to clear the warrant
2016, Martinez applied for immigration status on behalf of
his spouse, using his true name and Addison, Illinois
address. [98-3] at 2. The government approved the petition,
 at 4, and in 2017, Martinez and his spouse filed an
online immigrant visa and alien registration application.
Defendant's Exh. D. Martinez used his name and Addison
address and attached copies of his 2016 tax return.
Defendant's Exhs. D & E. He applied for a
passport-again using his true name and Addison address. 
at 14; Defendant's Exh. F. The State Department denied
the application in March 2017 because he was the subject of
an outstanding arrest warrant from November 2004.  at 14;
Defendant's Exh. G. The denial letter advised Martinez of
his right to a hearing to review the denial and told him he
could reapply once he had cleared his warrant.
Defendant's Exh. G. Martinez did not appeal or turn
himself in.  at 14-15. He crossed the U.S. border in May
2017 using his valid Illinois identification card without
incident.  at 15;  at 6. He was not arrested, and I
credit the government's representation that border patrol
did not check NCIC because Martinez was a U.S. citizen with
valid identification.  at 6.
not until April 2018 that agents arrested Martinez, at the
constitutional speedy-trial right is amorphous and slippery,
and the only remedy for a violation is dismissal of the
indictment-a remedy more serious than the exclusionary rule.
Barker v. Wingo, 407 U.S. 514, 522 (1972). To test
whether the right has been violated, courts evaluate four
factors: length of delay, the reason for the delay, the
defendant's assertion of his right, and prejudice to the
defendant. Id. at 530. Courts assess prejudice
“in light of the interests the Sixth Amendment seeks to
protect. The interests are (i) to prevent oppressive pretrial
incarceration; (ii) to minimize anxiety and concern of the
accused; and (iii) to limit the possibility that the defense
will be impaired.” United States v. Bell, 925
F.3d 362, 376 (7th Cir. 2019) (quoting United States v.
Harmon, 721 F.3d 877, 883 (7th Cir. 2013)). When
considering the reasons for delay, the government's bad
faith or negligence in bringing defendant to trial weighs
against it but delay attributable to the defendant weighs
against him. Doggett v. United States, 505 U.S. 647,
656-57 (1992); United States v. Arceo, 535 F.3d 679,
686 (7th Cir. 2008). Both sides bear a burden: “the
longer the delay and the more vigorous the defendant's
demand to be tried speedily, the more reason the state must
show for the delay and the less harm (of whatever type) to
himself the defendant need show.” United States ex
rel. Mitchell v. Fairman, 750 F.2d 806, 808 (7th Cir.
1984); see also Loera v. United States, 714 F.3d
1025, 1032 (7th Cir. 2013).
delay from 2004 to 2018 is presumptively prejudicial. See
Bell, 925 F.3d at 376 (delay greater than one year is
presumptively prejudicial) (quoting United States v.
O'Connor, 656 F.3d 630, 643 (7th Cir. 2011). The
reasons for most of the delay fall on Martinez. He fled to
Mexico knowing that he was the target of an investigation. It
was his choice to avoid trial. When he returned in 2011, he
did not assert his rights to a trial, did not contact his
handlers from the FBI, and no lawyer on his behalf reached
out to criminal authorities to surrender on or clear the
warrant. Although a search of the docket in 04 CR 720 would
not have told Martinez about the indictment and warrant in 04
CR 543, he admitted that he knew he was fugitive-he
didn't need any more information. And even though a
lawyer may have told him that he had no problems if he was
able to cross the border, Martinez still expected to be
arrested someday. See [98-4] at 3-4. He obtained an
alias ID because he knew he was a fugitive. All of this
indicates that Martinez was actively avoiding apprehension.
He got lucky in January and February 2012, when local
officials were unaware of his federal troubles, but he did
nothing to draw federal attention until 2016.
luck continued because parts of the federal government knew
about Martinez and his location in 2016, yet he wasn't
arrested. If the FBI were actively looking for Martinez, they
likely could have found him after 2016, when he started
pursuing immigration options for his spouse. In 2017, USCIS
knew about Martinez, where he lived, and the fact that there
was a warrant for his arrest. The IRS knew of his existence
when he filed a return in 2017, for tax year 2016. He crossed
the border in 2017 using his true identity. It seems only his
contact with the Illinois Racing Board in 2018 prompted the
FBI to dust off the file and look for him. See 
at 6. There is no evidence that the federal government acted
in bad faith, but the two-year delay from 2016 to 2018 is
partially the result of government ...