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United States v. Cortes

United States District Court, S.D. Florida

December 3, 2019

UNITED STATES OF AMERICA,
v.
ALVARO Y. CORTES, OLGA L. AYA RODRIGUEZ, and PLANET EXPRESS CARGO AND COURIER CORP., Defendants.

          GAYLES, Judge

          REPORT AND RECOMMENDATION

          ALICIA M. OTAZO-REYES, UNITED STATES MAGISTRATE JUDGE

         THIS 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.

         THE CHARGES AGAINST DEFENDANTS

         On 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].

         The 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.

         APPLICABLE LAW

         A. Post-indictment delay.

         The 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.

         To 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).

         B. Pre-indictment delay.[1]

         "To 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).

         With 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. 1975)).

         With 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 doubt." Id.

         DISCUSSION

         At the 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 ...


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