United States District Court, S.D. Florida
REPORT AND RECOMMENDATION
M. OTAZO-REYES, UNITED STATES MAGISTRATE JUDGE
CAUSE came before the Court upon Defendants Alvaro Y. Cortes
("Cortes"), Olga L. Aya Rodriguez
("Rodriguez"), and Planet Express Cargo and Courier
Corp.'s ("Planet Express") (collectively,
"Defendants") Motion to Dismiss Indictment for
Violation of Their Sixth Amendment Right to a Speedy Trial
(hereafter, "Motion to Dismiss") [D.E. 61]. This
matter was referred to the undersigned by the Honorable
Darrin P. Gayles, United States District Judge, pursuant to
Title 28, United States Code, Section 636, for report and
recommendation [D.E. 62]. The undersigned held an evidentiary
hearing on this matter on November 15, 2019 [D.E. 80]. Upon
consideration of the factual record, the arguments of counsel
and the relevant authorities, the undersigned respectfully
recommends that Defendants' Motion to Dismiss be DENIED.
CHARGES AGAINST DEFENDANTS
April 18, 2019, the grand jury returned an Indictment against
Defendants, charging them with the following offenses:
Count 1: Conspiracy to commit an offense against the United
States, from May 20, 2014 to December 1, 2015, in violation
of 18 U.S.C. § 371.
Counts 2-6: Smuggling offish and wildlife on May 20, 2014,
November 25, 2014, and July 22, 2015, in violation of 18
U.S.C. § 554.
See Indictment [D.E. 3]. Three other defendants in
the case, Luis David Cuartas Gaviria ("L.
Gaviria"), Juan Pablo Cuartas Gaviria ("J.
Gaviria") and Aquarium Marketing Corp. ("Aquarium
Marketing") (collectively, "the Gaviria
Defendants") have entered guilty pleas [D.E. 88].
Indictment alleges that Planet Express was a freight
forwarding company and that Cortes and Rodriguez were its
President and Vice President, respectively. See Indictment
[D.E. 3 at 1-2]. In Count 1, Defendants are charged with
conspiring to knowingly export certain species of corals and
tropical fish, knowing that they were transported and sold in
violation of the federal Lacey Act, Title 16, United States
Code, Sections 3372(a)(1), 3372(d) and 3373(d)(1)(A) and
applicable regulations, and the smuggling statute, 18 U.S.C.
§ 554. Id. at 3-7. The remaining counts charge
substantive smuggling offenses. Id. at 8-9.
According to the Indictment, the Gaviria Defendants were the
source of the fish and wildlife, which were concealed in
boxes with false documentation and illegally exported by
Defendants via United Parcel Service ("UPS") from
Miami to Colombia. Id. at 5-7.
Sixth Amendment guarantees the right to a speedy trial. U.S.
Const, amend. VI. "The Sixth Amendment right to a speedy
trial attaches at the time of arrest or indictment, whichever
comes first, and continues until the date of trial."
United States v. Gonzalez, 671 F.2d 441, 444 (11th
Cir. 1982) (quoting United States v. Walters, 591
F.2d 1195, 1200 (5th Cir. 1979)). The United States Supreme
Court has prescribed a balancing test for purposes of
analyzing speedy trial claims, which consists of four
factors: "[l]ength of delay, the reason for the delay,
the defendant's assertion of his right, and prejudice to
the defendant." Barker v. Wingo, 407 U.S. 514,
530 (1972). These four factors are related and "must be
considered together with such other circumstances as may be
relevant." Id. at 533.
trigger the Barker analysis, a defendant must allege
that the period of time between indictment and trial
"has crossed the threshold dividing ordinary from
'presumptively prejudicial' delay" Doggett
v. United States, 505 U.S. 647, 651-52 (1992) (quoting
Barker, 407 U.S. at 530-31). If this initial showing
is made, then the court must consider "the extent to
which the delay stretches beyond the bare minimum needed to
trigger judicial examination of the claim."
Doggett, 505 U.S. at 652 (citing Barker,
407 U.S. at 533-34). "Only if this threshold point is
satisfied may the court proceed with the final three factors
in the Barker analysis." United States v.
Clark, 83 F.3d 1350, 1352 (11th Cir. 1996) (citing
Doggett. 505 U.S. at 651-52). "Delays exceeding
one year are generally found to be 'presumptively
prejudicial."' United States v. Ingram, 446
F.3d 1332, 1339 (11th Cir. 2006) (citing Doggett,
505 U.S. at 652 n.1: Clark, 83 F.3d at 1352).
prove a due process violation resulting from a pre-indictment
delay, [Defendant] must show: (1) actual prejudice to [his]
defense from the delay; and (2) that the delay resulted from
a deliberate design by the government to gain a tactical
advantage." United States v. Thomas, 62 F.3d
1332, 1339 (11th Cir. 1995); see also United States v.
Lindstrom, 698 F.2d 1154, 1157-58 (11th Cir. 1983)
(same). According to the Supreme Court, "statutes of
limitations, which provide predictable, legislatively enacted
limits on prosecutorial delay, provide the primary guarantee,
against bringing overly stale criminal charges." See
United States v. Lovasco, 431 U.S. 788, 789 (1977)
(quoting United States v. Marion. 404 U.S. 307, 322
(1971)). Nevertheless, the Supreme Court acknowledged that a
"statute of limitations does not fully define
(defendants') rights with respect to the events occurring
prior to indictment, and that the [Fifth Amendment's] Due
Process Clause has a limited role to play in protecting
against oppressive delay." Lovasco, 431 U.S. at
789 (citations & quotations omitted).
regard to the first prong of the pre-indictment delay
analysis, "[a] stringent standard is employed when
examining the issue of prejudice." United States v.
LeQuire, 943 F.2d 1554, 1560 (11th Cir. 1991) (citing
Stoner v. Graddick, 751 F.2d 1535, 1544 (11th Cir.
1985)). "The prejudice shown must be such as to impair
the fairness of the trial." LeQuire, 943 F.2d
at 1560 (quoting United States v. Solomon, 686 F.2d
863, 872 (11th Cir. 1982)). Thus, "[speculative
allegations, such as general allegation of loss of witnesses
and failure of memories, are insufficient to demonstrate the
[required] actual prejudice ... ." United States v
Radue, 707 F.2d 493, 495 (11th Cir. 1983) (quoting
United States v. Butts, 524 F.2d 975, 977 (5th Cir.
regard to the second prong of the analysis, "[a]
prosecutor has no obligation to bring charges as soon as she
has enough evidence to indict; instead, she may wait until
she is satisfied that she has enough evidence to establish
guilt beyond a reasonable doubt." Thomas, 62
F.3d at 1339. "[I]nvestigative delay is fundamentally
unlike delay undertaken by the Government solely to gain
tactical advantage over the accused, precisely because
investigative delay is not so onesided."
Lovasco, 431 U.S. at 795 (citations & quotations
omitted). "Rather than deviating from elementary
standards of 'fair play and decency,' a prosecutor
abides by them if he refuses to seek indictments until he is
completely satisfied that he should prosecute and will be
able promptly to establish guilt beyond a reasonable
November 15th evidentiary hearing, Defendants acknowledged
the weakness of their post-indictment delay argument. Thus,
Defendants mainly rely on their pre-indictment delay argument
for dismissal of the ...