19-408 U.S. v. Cabral
United States Court of Appeals for the Second Circuit _____________________________________
August Term 2019
(Argued: February 19, 2020 Decided: November 2, 2020)
No. 19-408
_____________________________________
UNITED STATES OF AMERICA, Appellee,
— v. —
PAULO RICARDO DEBARROS CABRAL, AKA VICTOR SCHMIDT, AKA PAULO BARROS, AKA HANS SCHMIDT, Defendant-Appellant. _____________________________________
Before: KEARSE, KATZMANN, and BIANCO, Circuit Judges.
Defendant-appellant Paulo Ricardo Debarros Cabral appeals from a judgment of conviction entered on February 14, 2019, in the United States District Court for the Southern District of New York (Hellerstein, J.), following his conditional guilty plea. Cabral argues that the 11-year delay between his 2007 indictment and 2018 arrest violated his Sixth Amendment right to a speedy trial. In particular, Cabral challenges the district court’s findings that (1) the delay was attributable to Cabral fleeing to Brazil in 2006 to avoid prosecution, (2) the government exercised reasonable diligence in determining whether Cabral returned to the United States despite its failure to detect his periodic travel into and out of the United States from 2012 until his arrest in 2018, and (3) Cabral has shown no prejudice from the delay. We conclude that the district court’s findings were not clearly erroneous and, in light of those findings, hold that the delay, though lengthy, did not violate the Sixth Amendment. Accordingly, we AFFIRM the district court’s judgment of conviction.
JACOB R. FIDDELMAN, Assistant United States Attorney (Won S. Shin, on the brief), for Audrey Strauss, Acting United States Attorney for the Southern District of New York, New York, NY, for Appellee.
PHILIP L. WEINSTEIN, Of Counsel, Federal Defenders of New York, Inc., New York, NY, for Defendant- Appellant. _____________________________________
JOSEPH F. BIANCO, Circuit Judge:
Defendant-appellant Paulo Ricardo Debarros Cabral appeals from a
judgment of conviction entered on February 14, 2019, in the United States District
Court for the Southern District of New York (Hellerstein, J.), following his
conditional guilty plea. Cabral argues that the 11-year delay between his 2007
indictment and 2018 arrest violated his Sixth Amendment right to a speedy trial.
In particular, Cabral challenges the district court’s findings that (1) the delay was
attributable to Cabral’s fleeing to Brazil in 2006 to avoid prosecution, (2) the
government exercised reasonable diligence in determining whether Cabral
returned to the United States despite its failure to detect his periodic travel into
2 and out of the United States from 2012 until his arrest in 2018, and (3) Cabral has
shown no prejudice from the delay. We conclude that the district court’s findings
were not clearly erroneous and, in light of those findings, hold that the delay,
though lengthy, did not violate the Sixth Amendment. Accordingly, we AFFIRM
the district court’s judgment of conviction.
I. BACKGROUND
A. Cabral’s Criminal Conduct and Departure from the United States
From January to July 2006, Cabral deposited stolen credit card convenience
checks into his bank accounts, and immediately withdrew money from the
accounts before the checks could be rejected by the banks as fraudulent.
According to the government, Cabral obtained these convenience checks from
mail that belonged to the prior resident of his apartment in Manhattan, which
continued to arrive after Cabral became the new tenant. The total loss to the banks
from Cabral’s fraudulent conduct was approximately $57,690.
On September 29, 2006, inspectors from the United States Postal Inspection
Service (“USPIS”) approached Cabral, and he voluntarily agreed to an interview.
During this interview, Cabral admitted to depositing stolen checks into his bank
accounts. Cabral also gave written consent for USPIS inspectors to search his
3 apartment and signed an admission of guilt. From that search, USPIS inspectors
recovered copies of bank statements showing Cabral’s deposits of stolen checks,
copies of the cancelled checks, a fraudulent Social Security card in Cabral’s name,
and a fake lawful permanent resident card in Cabral’s name.
Several days later, on October 3, 2006, USPIS inspectors attempted to find
Cabral at his apartment and determined that it was vacant. Though USPIS
inspectors seized Cabral’s Brazilian passport at the time of his interview, he was
able to obtain new travel documents from the Brazilian consulate in New York and
departed the United States a few days after the interview. According to Cabral,
the USPIS interview left him “scared,” and he “decided to leave early and return
to Brazil” because his United States travel permit was expiring soon. App’x at 43.
B. Immediate Efforts to Locate Cabral and the Filing of Charges
After determining that Cabral had vacated his apartment, USPIS inspectors
made several attempts to locate him by conducting additional surveillance on his
apartment, checking his post office box, and attempting to contact him by phone
and email. These immediate attempts were unsuccessful. On October 13, 2006,
the government charged Cabral by complaint and entered an arrest warrant for
Cabral into the National Crime Information Center (“NCIC”) wanted persons
4 database. 1 Moreover, in early 2007, USPIS inspectors, in a ruse, made additional
efforts to locate Cabral by placing several calls to a telephone number associated
with him and leaving voicemail messages asking him to return the call because
they had money that belonged to him that they wished to return. Then, in April
2007, USPIS eventually reached Cabral who confirmed that he had returned to
Brazil. Cabral was later indicted on November 16, 2007, on one count of bank
fraud in violation of 18 U.S.C. § 1344.
1The record contains the following uncontroverted explanation of the use and operation of the NCIC system by law enforcement:
NCIC maintains a series of centralized databases . . . for coordination and information-sharing among this country’s many local, state, and federal law enforcement agencies. One of those databases tracks individuals wanted by various agencies on arrest warrants. When an arrest warrant is issued, the responsible law enforcement agency can create an entry in the NCIC wanted persons database. Other law enforcement agencies, upon checking the database for a given individual’s name or other identifying information, should then be notified of the existence of the arrest warrant. . . . Because checking the NCIC database in this manner is often a routine component of many interactions between law enforcement and civilians—including, for example, when an individual attempts to enter the country through a Customs and Border Protection port of entry—entering an arrest warrant into the NCIC wanted persons database is generally sufficient to ensure that the law enforcement authority seeking the person in question receives notification if that person is encountered by other law enforcement authorities.
App’x at 159–60. 5 C. Subsequent Efforts to Locate Cabral
Over the many years that followed, USPIS inspectors periodically searched
various electronic records databases to see if Cabral had returned to the United
States. Records indicate that these searches were undertaken in October 2006,
February 2007, March 2007, February 2008, August 2008, June 2013, September
2013, and March 2014. Among the databases that were checked at different times
over this period were public records databases (such as the LexisNexis Accurint
database), credit report databases, and a driver’s license database. USPIS
personnel also periodically made a number of inquiries of the NCIC system to
confirm that the database entry for Cabral remained valid and active, so as to
notify other law enforcement agencies of Cabral’s status as a wanted individual,
and USPIS received such confirmation in January 2008, December 2008, February
2009, December 2010, June 2013, January 2014, and January 2015. In addition,
USPIS would periodically check with the United States Attorney’s Office to
confirm that Cabral’s case remained active.
Despite USPIS’s multiple confirmations of a valid and active entry in the
NCIC database for Cabral, he obtained a visa from the State Department in 2012
and, from 2012–2018, Cabral lawfully traveled to the United States under his real
name seven times, with each trip lasting several weeks or months at a time. The 6 government was unable to ascertain why Cabral was granted a visa by the State
Department and allowed repeated entry into the United States by Customs and
Border Protection (“CBP”) from USPIS records. Given Cabral’s active and valid
NCIC entry, Cabral should have been flagged as a wanted individual if other
agencies like the State Department and CBP checked his name in the NCIC system
in connection with his travel into the United States, but apparently no such alert
occurred.
The record also indicates that, at some point in or about 2013–2014, USPIS
received information that Cabral had been issued a visa by the State Department
in 2012. USPIS then contacted Immigration and Customs Enforcement (“ICE”) to
determine whether Cabral had reentered the United States, but, for reasons
unclear from the documentation, ICE incorrectly reported to USPIS in March 2014
that Cabral’s last entry to the United States was in 2002. Moreover, in September
2013, USPIS received information about a potential flight by Cabral to San
Francisco in October 2012 and a hotel at which he might have stayed. USPIS
records show that USPIS inquired with the hotel and was informed that Cabral
had not stayed there.
7 D. Cabral’s Arrest
In 2018, personnel at the Fugitive Locator Unit—a joint task force of several
federal agencies—determined that Cabral’s name was not properly showing the
outstanding arrest warrant when it was run in the NCIC database. At that point,
Cabral’s name was then manually flagged for arrest by CBP in a separate CBP
screening database. That manual entry in the CBP system led to Cabral’s arrest on
October 11, 2018, at an airport in Houston, on his way back to Brazil from the
United States. On October 31, 2018, Cabral was transferred to the Southern District
of New York and detained pending trial.
E. Cabral’s Motion to Dismiss
On November 7, 2018, Cabral moved to dismiss the indictment, arguing that
the delay between his indictment and arrest violated his Sixth Amendment right
to a speedy trial. On November 28, 2018, the district court denied Cabral’s motion
to dismiss. The district court analyzed the four factors for constitutional speedy
trial claims as set forth in Barker v. Wingo, 407 U.S. 514 (1972), and made factual
findings pursuant to that legal framework. First, the district court noted that the
delay between the indictment and arrest was long. Second, the district court
determined that the delay was caused by Cabral and that the government
8 “exhibited a sufficient level of diligence” in attempting to locate Cabral. App’x at
223. Third, the district court found that Cabral timely asserted his speedy trial
rights after his arrest, but the district court did not view this factor as important in
this particular case. Finally, the district court determined that there was no
articulable prejudice to Cabral because no potential witness was now absent and
the prosecution was based upon existing records. Thus, after balancing the
various factors, the district court concluded that there was no constitutional
speedy trial violation and denied the motion.
F. Cabral’s Plea and Sentence
On December 4, 2018, pursuant to a plea agreement with the government
under Federal Rule of Criminal Procedure 11(a)(2), Cabral entered a conditional
guilty plea to one count of bank fraud. The plea agreement expressly preserved
Cabral’s right to appeal the denial of his motion to dismiss on speedy trial
grounds.
On February 12, 2019, Cabral was sentenced to time served, and was
ordered to forfeit $57,690 and to pay the $100 mandatory special assessment.
Following sentencing, Cabral was also ordered to pay $26,315.98 in restitution. By
9 consent of both parties, Cabral was removed from the United States to his native
country of Brazil.
This timely appeal followed.
II. DISCUSSION
A. Standard of Review
We review a district court’s determination as to whether there has been a
Sixth Amendment violation of the speedy trial right for abuse of discretion. United
States v. Moreno, 789 F.3d 72, 78 (2d Cir. 2015). A district court abuses its discretion
when “its ruling is based on an erroneous view of the law or on a clearly erroneous
assessment of the evidence, or if its decision cannot be located within the range of
permissible decisions.” United States v. Cuti, 720 F.3d 453, 457 (2d Cir. 2013). A
district court’s improper weighing of the Barker factors can qualify as such an error
of law. Moreno, 789 F.3d at 78 (“[I]f we conclude that the district court struck the
incorrect balance, we must reverse.”).
B. Constitutional Right to a Speedy Trial
The Sixth Amendment provides that “[i]n all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial.” U.S. Const. amend. VI.
The right to a speedy trial protects the accused’s interest in “decent and fair
10 procedures” and the public’s interest in an efficient judicial system. Barker, 407
U.S. at 519. This constitutional right is “triggered by arrest, indictment, or other
official accusation.” Doggett v. United States, 505 U.S. 647, 655 (1992). With respect
to the defendant’s interests, the speedy trial right is designed “(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.” Barker,
407 U.S. at 532. Only the third form of prejudice is potentially implicated here:
whether the delay between Cabral’s indictment and arrest caused a Sixth
Amendment violation by impairing his defense.
In evaluating whether there has been a constitutional speedy trial violation,
the Supreme Court has identified four factors that district courts must balance.
These factors are the “length of delay, the reason for the delay, the defendant’s
assertion of his right, and prejudice to the defendant.” Moreno, 789 F.3d at 78
(quoting Barker, 407 U.S. at 530) (brackets omitted). The first factor—the length of
delay—is a threshold inquiry. Id. In other words, “[a] long delay between
indictment and trial is presumptively prejudicial to the defendant and triggers an
inquiry into the other three Barker factors.” United States v. Blanco, 861 F.2d 773,
777 (2d Cir. 1988). A defendant must show that the time period at issue has crossed
11 the threshold “dividing ordinary from ‘presumptively prejudicial’ delay.” United
States v. Ghailani, 733 F.3d 29, 43 (2d. Cir. 2013) (quotation marks omitted). We
have emphasized that “the notion of a delay that is ‘presumptively prejudicial’ (i.e.
long enough to trigger a Sixth Amendment inquiry) should not be confused with
a delay that is so long as to cause ‘presumptive prejudice’ (i.e. prejudice that need
not be specifically shown)” under the fourth Barker factor. Moreno, 789 F.3d at 78
n.3. “The former bears upon the need for a Barker analysis, whereas the latter bears
upon the merits of that analysis.” Id. Once the delay is determined to be sufficient
to trigger the Barker inquiry, the length of delay is then considered “as one factor
among several” in conducting the requisite balancing. Doggett, 505 U.S. at 652.
Under a Barker analysis, no one factor is necessary or sufficient to find a
deprivation of the right to a speedy trial. Moreno, 789 F.3d at 78. Thus, delay, no
matter how lengthy, “cannot alone carry a Sixth Amendment claim without regard
to the other Barker criteria.” Doggett, 505 U.S. at 656. Instead, all four factors “must
be considered together with such other circumstances as may be relevant.”
Moreno, 789 F.3d at 78 (internal quotation marks omitted).
12 C. Analysis of the Barker Factors
Cabral argues that his Sixth Amendment right to a speedy trial was violated
because of the delay between his 2007 indictment and 2018 arrest. 2 Here, there is
no doubt that the 11-year pre-arrest delay was more than sufficient to trigger the
Barker inquiry, which then required the district court to analyze that delay in the
context of the other factors. See Doggett, 505 U.S. at 652 (“[T]he extraordinary 8½
year lag between [the defendant’s] indictment and arrest clearly suffices to trigger
the speedy trial enquiry . . . .”); see also Moreno, 789 F.3d at 82 n.10 (delay of 27
months sufficient to trigger Barker analysis). Moreover, as it relates to the third
factor, it is uncontroverted that Cabral asserted his right to a speedy trial in a
timely fashion once he was arrested, which the district court recognized as well.
Although the district court concluded that his timely assertion of the right after
arrest was not “much of a factor,” App’x at 221, Cabral does not specifically
challenge the district court’s failure to accord significant weight to that factor. 3
Instead, Cabral principally argues that the district court erred in finding that the
2 Cabral does not also claim a violation of statutory rights under the Speedy Trial Act once he was arrested. Thus, our analysis is confined to a constitutional claim under the Sixth Amendment. 3 In any event, we see no error in that factual finding or the assessment of its weight by
the district court in this case. 13 government bore no fault for any of the 11-year delay and in finding a lack of
prejudice to Cabral from the delay, and further contends that those erroneous
findings led to an incorrect balancing of the Barker factors. Thus, we turn to those
two remaining Barker factors and conclude, for the reasons discussed below, that
the district court’s findings were not clearly erroneous. Accordingly, in light of
those findings and the corresponding balancing of the Barker factors, we agree
with the district court that Cabral’s Sixth Amendment right to a speedy trial was
not violated.
1. The Reasons for the Delay
The second factor—the reason for the delay—is “often critical.” Moreno, 789
F.3d at 79. Delay caused by deliberate government misconduct for tactical reasons
weighs strongly in favor of finding a speedy trial violation, while government
negligence “should be weighted less heavily.” Barker, 407 U.S. at 531. In this
context, the Sixth Amendment is “rarely violated” if the delay is “attributable
entirely to the defendant,” Moreno, 789 F.3d at 79 (citing Vermont v. Brillon, 556 U.S.
81, 90 (2009)), or if the delay “serves some legitimate government purpose” such
as time to collect witnesses, oppose pretrial motions, or to track down a defendant
if he goes into hiding, id. (citing Doggett, 505 U.S. at 656). In particular, “a court
14 need not ignore a defendant’s fugitivity in considering whether there has been a
violation of his sixth amendment right to a speedy trial.” Rayborn v. Scully, 858
F.2d 84, 90 (2d Cir. 1988). However, even if a defendant flees to avoid capture or
prosecution, the government can be at fault for the delay if it failed to use
“‘reasonable diligence’” to locate him and thereby lengthened the delay. Moreno,
789 F.3d at 79 (quoting Doggett, 505 U.S. at 656–57). We emphasize the importance
of recognizing that the circumstances surrounding the delay may change over time
and that, in such situations, a district court must separately assess the reasons for
the delay during each of these differing periods, including potential determination
of which party is responsible for the delay in a particular disputed period. See,
e.g., id. at 80 (noting that “if the government acted with diligence during some
period of the delay, only periods of the delay attributable to negligence should be
weighed against the government”).
The district court found that “[t]he reason for the delay is a simple one,
defendant left the country.” App’x at 220. It further explained: “It seems clear
that defendant left the country because he had the ability to leave the country and
he knew from the interview with the U.S. Postal Inspector and from the evidence
15 that was found in his apartment, that he could not successfully defend against the
inevitable prosecution.” App’x at 220.
With respect to the period from the indictment in 2007 until September 2012,
there is overwhelming, uncontroverted evidence to support the district court’s
finding that Cabral fled to Brazil in October 2006 to avoid his “inevitable
prosecution” and was wholly at fault for the delay. Cabral abruptly left the United
States for Brazil within days of his incriminating interview with USPIS, which led
to the recovery of evidence during a search of his apartment, and he did not return
to the United States for approximately six years. Moreover, Cabral concedes that
his extradition to the United States was not feasible (as the district court found)
because Cabral was a Brazilian citizen and “the Brazilian Constitution forbids
extradition of its citizens.” Appellant’s Br. at 6 n.3. Thus, USPIS was not required
to pursue a futile extradition request, but rather exercised reasonable diligence in
entering his name in the NCIC system immediately upon obtaining the criminal
complaint and arrest warrant for Cabral in October 2006. After learning of his
presence in Brazil, USPIS continued to confirm that the NCIC entry was active and
valid and made other efforts to determine if he had returned to the United States.
See, e.g., United States v. Diacolios, 837 F.2d 79, 83 (2d Cir. 1988) (“[W]e are aware of
16 no case that holds that a formal request for extradition must be made before due
diligence can be found to have existed. Due diligence surely does not require the
government to pursue that which is futile.” (citation omitted)).
In addition, the fact that Cabral had not been formally charged when he fled
does not undermine the district court’s well-supported finding that Cabral was at
fault by intentionally leaving the United States because he knew that he had no
defense to his inevitable prosecution after the USPIS interview and search. Cf.
Strachan v. Colon, 941 F.2d 128, 130 (2d Cir. 1991) (noting, in the context of the
Extradition Clause, that “[t]here is no requirement that the accused must leave
after charges have been filed in order to be considered a fugitive under the
Constitution”). The critical fact for purposes of assessing fault to a defendant in
this context is not the existence of formal charges, but rather his evasive actions to
avoid ever facing such charges—whether formally filed or impending. See, e.g.,
United States v. Villarreal, 613 F.3d 1344, 1351 (11th Cir. 2010) (“A government’s
inability to arrest or try a defendant because of the defendant’s own evasive tactics
constitutes a valid reason for delay.”). To hold otherwise would allow a
defendant, who is aware of a government investigation and imminent charges, to
escape fault under the speedy trial analysis by quickly fleeing before the formal
17 prosecution is commenced. In fact, even Cabral concedes for purposes of this
appeal “that the approximately 7 months between September 2006 when Cabral
returned to Brazil after being interviewed by law enforcement and his telephone
discussions with [a USPIS inspector] in April 2007[] should be counted against
him.” Appellant’s Br. at 13.
Furthermore, although Cabral faults the government for not advising him
in April 2007, when it was able to telephonically communicate with him while he
remained in Brazil, that he had been charged in a criminal complaint, that
omission by the government does not transfer the fault for the delay away from
Cabral. It was certainly reasonable for the government to infer, from Cabral’s
immediate flight following the interview and search, that this Brazilian citizen was
not likely to return to the United States to invoke his speedy trial right if told that
he had been formally charged with a federal crime. Thus, in light of his initial
flight to Brazil, the government should not be faulted for attempting to lure Cabral
back to the United States by hiding the existence of the arrest warrant or the
complaint by telling him that it had money that it wanted to return to him. 4 In
short, Cabral has no one to blame for the initial 5-year delay other than himself.
4Cabral also contends in his brief that “once he spoke to the federal agent in 2007, Cabral no longer had a reason to believe criminal charges might be pending at that time” and 18 We must, however, separately assess whether the government was at fault
for the delay once Cabral returned to the United States under his real name in 2012,
and then traveled back and forth to the United States six additional times between
September 2012 and his arrest in October 2018. For this period, although Cabral
concedes that USPIS had timely entered his name into the NCIC system and that
no alert was generated during his travels to the United States due to some type of
system malfunction, Cabral argues that “the government did not attempt to
ascertain the reason that the arrest warrant was ‘not popping up’ until late 2018”
and “[i]ts failure to do so constitutes official negligence and is attributable solely
to the government.” Appellant’s Br. at 15. On this issue, the district court found
that the government “exhibited a sufficient level of diligence.” App’x at 223. The
“[h]e remained in Brazil because he was a citizen of that country, not because he sought to avoid arrest.” Appellant’s Br. at 14. The district court, however, was not required to credit that assertion regarding his state of mind in light of, among other things, his incriminating statements to law enforcement, the additional incriminating documents found during the search, his abrupt departure to Brazil within days of the search and interview, and the lack of any evidence in the record (or claim from Cabral) that the USPIS inspector represented to him in that 2007 conversation that he had not been (or would not be) charged with a crime. In fact, in his declaration filed in the district court in support of his speedy trial motion, although Cabral stated that he has worked in the travel industry since 2001 and frequently traveled to the United States for weeks or months at a time in connection with the business until his arrest (including numerous trips to the United States between 2012 and 2018), he provides no explanation as to why he did not travel to the United States on such business for almost six years (from 2006 to 2012) if he was not concerned that he would be located and arrested. 19 district court elaborated by finding that malfunctions happen with databases, and
“this unexplained ability to pick up the defendant when he visited the United
States on several occasions from 2012 on is not sufficient to overcome the second
criteria of Barker, the fact that the defendant was responsible for the delay by
absenting himself from the United States.” App’x at 223. Based upon our review
of the record, we cannot conclude that this finding was clearly erroneous.
First, between 2008 and 2015, USPIS personnel made periodic inquiries of
the NCIC system to confirm that the database entry for Cabral remained valid and
active to notify other law enforcement agencies of Cabral’s status as a wanted
individual, and received such confirmation in January 2008, December 2008,
February 2009, December 2010, June 2013, January 2014, and January 2015.
Second, upon confirming in April 2007 that Cabral had returned to Brazil, USPIS
inspectors continued to periodically run searches on various databases (including
public records databases, a driver’s license database, and credit report databases)
to determine if Cabral had returned to the United States, including searches
undertaken in February 2008, August 2008, June 2013, September 2013, and March
2014. Third, although Cabral notes that USPIS received information in the 2013–
2014 timeframe that Cabral had received a visa from the State Department in 2012,
20 USPIS did not ignore that information, but rather contacted ICE to determine
whether Cabral had reentered the United States. For reasons unclear from the
documentation, ICE incorrectly reported to USPIS in March 2014 that Cabral’s last
entry to the United States was in 2002. Nor did USPIS ignore information it
received about a flight Cabral may have made to San Francisco in October 2012
and a hotel at which he might have stayed; rather it took additional investigative
steps to locate Cabral in September 2013. Upon further investigation of the
information, including an inquiry of that hotel, USPIS was informed that Cabral
To be sure, the law enforcement efforts taken to locate Cabral between 2012–
2018 were far from exhaustive. However, that is not the legal test. We have
emphasized that “law enforcement officials are not expected to make heroic efforts
to apprehend a defendant who is purposefully avoiding apprehension or who has
fled to parts unknown.” Rayborn, 858 F.2d at 90; see also Moreno, 789 F.3d at 79
(“An investigation is not unreasonable simply because it misfires or fails of its
purpose, or because other measures would have been more fruitful.”). Instead, in
order to avoid having the delay attributed to the government in this context,
“‘reasonable diligence’” by law enforcement in locating the defendant is all that is
21 required. Moreno, 789 F.3d at 79 (quoting Doggett, 505 U.S. at 656–57). We have
further explained that district courts, in assessing the degree of diligence, should
not judge law enforcement’s actions with the benefit of hindsight, but rather
consider the mix of information available at the time and grant “the day-to-day
tactical decisions of law enforcement a measure of deference.” Id. In short, “[s]o
long as the government made serious investigative efforts calculated to achieve
arrest, it acted reasonably for Sixth Amendment purposes.” Id. at 79–80; see also
Doggett, 505 U.S. at 652 (upholding a finding of government negligence where
there was a failure to make any “serious effort” to locate the defendant).
Thus, if a defendant’s whereabouts were unknown, this Court and other
courts have repeatedly held that reliance on the NCIC wanted persons database
(or other similar law enforcement databases), in combination with basic
investigative efforts such as checking public records databases and following any
leads, satisfies the diligence required for purposes of the Sixth Amendment speedy
trial analysis. See, e.g., Blanco, 861 F.2d at 778 (affirming district court’s finding of
diligence by the government because the government entered the defendant’s
information into NCIC system, spoke to an informant, and searched hospitals for
a patient matching the defendant’s description and condition); Moreno, 789 F.3d at
22 80 (holding that entering the defendant’s name into the NCIC database, pursuing
leads, and requesting utility bills and travel records were “diligent and reasonably
calculated to lead to capture”); accord United States v. Wanigasinghe, 545 F.3d 595,
598 (7th Cir. 2008); United States v. Corona-Verbera, 509 F.3d 1105, 1115 (9th Cir.
2007); United States v. Walker, 92 F.3d 714, 718 (8th Cir. 1996); United States v.
Aguirre, 994 F.2d 1454, 1455–57 (9th Cir. 1993); United States v. Deleon, 710 F.2d
1218, 1221–22 (7th Cir. 1983). 5
In the instant case, given (1) the entering of Cabral’s name into the NCIC
database, (2) the periodic checks to confirm that the NCIC entry was active and
5 The cases cited by Cabral in which government negligence was found are not to the contrary because they involved circumstances where law enforcement failed to enter the arrest in the NCIC database and/or failed to engage in any serious investigative efforts to locate the defendant. For example, in United States v. Boone, the district court found that the arrest warrant was not entered into the NCIC database, the government’s evidence failed “to establish that [the defendant] took any specific steps with the intent of evading arrest,” and the government “produced no evidence indicating that it put forth ‘serious effort’ to find and arrest [the defendant].” 706 F. Supp. 2d 71, 76 (D.D.C. 2010) (quoting Barker, 407 U.S. at 531). Similarly, in United States v. Mendoza, the Ninth Circuit held that there was insufficient evidence “to support a finding that the government conducted a serious effort to find [the defendant]” where “the record [was] silent as to any efforts by the government to apprehend [the defendant] beyond merely entering [the defendant’s] arrest warrant in the law enforcement database.” 530 F.3d 758, 764 (9th Cir. 2008). Finally, in United States v. Erenas-Luna, the Eighth Circuit upheld a finding of government negligence where law enforcement officers did not enter the defendant’s arrest warrant into the NCIC database for well over two years and “made no efforts to locate and arrest [the defendant] over a three-year period,” despite knowledge of his contacts in various places and a tip from an informant that he was in Nebraska. 560 F.3d 772, 775, 777 (8th Cir. 2009). 23 valid, (3) the independent periodic searches of other databases (including public
records databases) to determine if Cabral had returned to the United States, and
(4) the additional investigative steps taken when receiving information that Cabral
may have returned to the United States starting in 2012, there is sufficient evidence
to support the district court’s finding that USPIS made serious investigative efforts
to locate Cabral during the entire period of delay, including the period from 2012
until his arrest in 2018 when he was traveling back and forth to the United States
without triggering NCIC notifications due to some apparent malfunction in the
system.
This case is analogous to the circumstances in United States v. Machado, 886
F.3d 1070 (11th Cir. 2018), in which the Eleventh Circuit affirmed the district
court’s finding that there was no negligence by the government where an agent
placed the defendant’s name in the NCIC system but, due to some technological
issue, the agent was not alerted when the defendant reentered the United States in
2010 and 2014, and the agent’s database searches did not uncover the defendant’s
activities in the United States. In concluding that the technical issues with the
database did not warrant a finding that the government should be faulted for the
delay, the Eleventh Circuit explained:
24 [The law enforcement agent] was not aware of Machado’s presence in the United States until the arrest in 2016, and [the agent’s] database searches did not uncover Machado’s updated license, credit card, or bank account. These failures speak more to technological gaps than to [the agent’s] negligence. [The agent’s] efforts included planned interception of Machado at the border via the NCIC system and periodic searches for indicia of Machado’s continued presence in the United States. These efforts were carried out in good faith and with due diligence, and were all that was required of [the agent]. The district court’s factual findings in this regard were not clearly erroneous.
Id. at 1081.
We conclude, as the Eleventh Circuit did in Machado, that the government
should not be found to be negligent based solely on an apparent malfunction,
technological or otherwise, with the NCIC system, especially where USPIS
checked on multiple occasions over the period of delay to ensure that the entry
was active and valid. Similarly, although USPIS learned that Cabral had obtained
a visa in 2012, USPIS should not be deemed negligent because it inquired as to
Cabral’s use of that visa and was misinformed by ICE that Cabral had last entered
the United States in 2002. 6 There is no claim by Cabral that USPIS was acting in
6We note that the NCIC database is consulted as part of the visa issuance process, see 22 C.F.R. § 40.5(b), and so the very fact that Cabral was granted a visa might have alerted USPIS to the possibility that Cabral’s NCIC entry was not functioning properly. We cannot conclude that this oversight demands a finding of negligence, however, given USPIS’s repeated and apparently good-faith efforts to confirm that the warrant entry was active and valid. 25 bad faith in relying on that representation by ICE, and USPIS even made other
independent efforts, upon receiving that information from ICE in March 2014, to
confirm that Cabral was not in the United States, including a search of the
LexisNexis Accurint database and a search of another unidentified public records
database. We recognize that there are circumstances where these types of errors,
whether by the investigating agents or others within the government bureaucracy
at large, can individually or cumulatively be a strong indicator of a lack of
reasonable diligence under the Sixth Amendment by the government, but such a
finding is not compelled by the record in this particular case. 7 In short, given the
investigative efforts by USPIS over the entire period (including the period in which
7 For example, if there were evidence of knowledge of persistent and widespread errors in the functioning of the NCIC system, the government could be found to be negligent in not addressing the cause of such errors over time, or in not developing additional protocols to operate as a check on the NCIC system. Here, no such evidence is contained in the record. Moreover, if it would have been apparent to any reasonable law enforcement agent that the information provided by ICE could not have been accurate in light of other information known to that agent about Cabral and his travels, then a negligence finding may be warranted if the agent failed to take additional steps to resolve the contradictory information. Here, the information provided by ICE in March 2014 that indicated that Cabral had last entered the United States in 2002 was not on its face inconsistent with Cabral having been present in the United States until 2006. In addition, the act of obtaining a visa does not necessarily indicate actual travel to the United States because a person’s intended plans may change. In any event, as noted above, USPIS also conducted another independent check of public records databases in March 2014 for any indication of Cabral’s presence in the United States, and that check was negative, and additionally confirmed in January 2015 that the warrant was still active and valid in NCIC. 26 Cabral was frequently traveling into the United States), the district court’s finding
of sufficient diligence by the government, which is entitled to “considerable
deference,” Doggett, 505 U.S. at 652, was not clearly erroneous. Accordingly, in
light of that finding, the district court properly concluded that this second factor,
which is “often critical,” Moreno, 789 F.3d at 79, weighed against the defendant.
2. The Issue of Prejudice
The other contested Barker factor relates to the issue of prejudice. As to that
factor, the Supreme Court in Doggett observed that “we generally have to
recognize that excessive delay presumptively compromises the reliability of a trial
in ways that neither party can prove or, for that matter, identify.” 505 U.S. at 655.
At the same time, however, the Court emphasized that “such presumptive
prejudice cannot alone carry a Sixth Amendment claim without regard to the other
Barker criteria,” but rather “it is part of the mix of relevant facts, and its importance
increases with the length of delay.” Id. at 656. More specifically, the Court made
clear that, if the government pursues a defendant with reasonable diligence, the
Sixth Amendment claim fails “however great the delay” unless the defendant can
show “specific prejudice to his defense.” Id.; see also United States v. Hills, 618 F.3d
619, 632 (7th Cir. 2010) (“[A]s long as the government shows reasonable diligence
27 in prosecuting its case, a defendant who cannot demonstrate prejudice with
specificity will not show a Sixth Amendment violation, no matter how long the
delay.”); United States v. Corona-Verbera, 509 F.3d 1105, 1116 (9th Cir. 2007) (same);
United States v. Brown, 325 F.3d 1032, 1035 (8th Cir. 2003) (same).
In the instant case, because the district court found that the government
acted with reasonable diligence, Cabral cannot rely on any presumption of
prejudice; instead, under Doggett, he must show actual prejudice. The district
court found that there was no “articulable ground for a finding of prejudice,”
explaining that “[n]o witness has been identified whose absence will be
important” and “[t]he records are the records, and it looks to [the district court
that] the case is a compelling one from the records.” App’x at 221. As set forth
below, we can discern no clear error in that finding. The record reflects that the
government’s proof that Cabral deposited stolen credit card convenience checks
into his bank account without authorization was overwhelmingly document-
based—including the intended use of documents from Cabral’s bank accounts,
relevant bank documents and false identification documents recovered during the
search of his apartment, surveillance video from one of the banks where Cabral
deposited some of the stolen checks, and a signed written statement from Cabral.
28 Furthermore, given the nature of the proof, any potential defense also would have
undoubtedly been document-based and thus unimpaired by the delay.
Cabral contends that, notwithstanding this documentary evidence and his
admissions in the USPIS interview that he deposited the stolen checks into
checking accounts that did belong to him, he is prejudiced by the delay because he
also noted in the interview (and his written statement) that he did not know it was
illegal to do so because the practices in Brazil for depositing checks are different
than in the United States. Thus, Cabral suggests that the government would have
had to independently prove that level of criminal intent at trial from evidence
beyond his admissions and the documents. We find this argument to be
unpersuasive. As a threshold matter, although the government needs to prove as
an element of the mail fraud statute that Cabral had the intent to defraud by
depositing the stolen checks into his bank account without authorization, it need
not also establish that he knew that it was against the law to do so. See United
States v. Porcelli, 865 F.2d 1352, 1358 (2d Cir. 1989) (“The specific intent required
under the mail fraud statute is the intent to defraud, and not the intent to violate
a statute.” (citation omitted)). Moreover, here, there is no suggestion that the
government’s proof regarding Cabral’s specific intent to defraud, along with the
29 other essential elements, would have been based upon anything other than a
documentary record.
Cabral also contends that he suffered actual prejudice because he could not
locate an alleged co-conspirator that he referred to in his written statement as the
person who gave him the stolen checks, and this person is a “missing and crucial
witness.” Appellant’s Br. at 20. But this argument is equally unavailing. Cabral
has not established that this witness was unavailable following his arrest. Cabral
merely asserts that he “did not know where that person currently resided,”
Appellant’s Br. at 20, but provides no details about any efforts that were made to
attempt to find him after Cabral’s arrest.
In any event, Cabral failed to provide the district court with any basis to
conclude that this individual would have waived his Fifth Amendment privilege
and somehow exculpate Cabral in his purported testimony. See Thomas v. United
States, 501 F.2d 1169, 1172 (8th Cir. 1974) (“A missing witness whose testimony
cannot help a defendant constitutes a flimsy basis on which to claim prejudice.”).
Cabral specifically suggests that this individual could have shed light on the
reference in Cabral’s written confession to “money orders” in his Washington
Mutual Bank account that Cabral received in the mail from Spain. Appellant’s Br.
30 at 20. However, the materiality of that vague reference to “money orders” in the
written confession is far from clear, especially in light of Cabral’s admitted
additional use of his Commerce Bank account to accomplish the fraud, as well as
his separate admission in his written statement that the stolen “checks” he
deposited were received from this individual in Cabral’s apartment (not in the
mail from Spain). App’x at 17. Furthermore, in his declaration to the district court
in support of his speedy trial motion, Cabral does not even mention any issue
regarding “money orders” or articulate in any way why this individual would
have had exculpatory information that would be helpful to Cabral; rather, Cabral
states, in one conclusory sentence, “[T]here was a man involved in what
happened, but I have not seen him since 2006 and have no idea where he might
be.” App’x at 44. To satisfy his burden of demonstrating actual prejudice, Cabral
was required to explain to the district court why this individual’s testimony,
including with respect to any money orders from Spain or any other issue, would
have been relevant to some defense on the charge in the indictment. Cabral failed
to do so. Given the lack of evidence regarding his unavailability if Cabral had
gone to trial and the speculative nature of Cabral’s assertion that he would have
31 testified favorably for Cabral, this “missing” witness does not support a finding of
actual prejudice to Cabral from the delay.
Finally, to the extent that Cabral also alleges without specificity that he
“ha[s] trouble remembering everything about what happened” in 2006, App’x at
44, such a generalized claim of memory problems is not sufficient for a defendant
to show the required “specific prejudice to his defense,” see Doggett, 505 U.S. at
656; see also United States v. Manning, 56 F.3d 1188, 1194 (9th Cir. 1995)
(“Generalized assertions of the loss of memory, witnesses, or evidence are
insufficient to establish actual prejudice.”); United States v. Koller, 956 F.2d 1408,
1414 (7th Cir. 1992) (“[The defendant’s] general allegation that his witnesses’
memories faded during the delay does not rise to the level of specificity required
to show actual prejudice.”).
Accordingly, the district court did not err in finding that the fourth Barker
factor weighed against Cabral.
* * *
In sum, the district court’s findings—including that Cabral was at fault for
the 11-year delay, that the government exercised reasonable diligence in
attempting to locate him, and that Cabral identified no prejudice from the delay—
32 were not clearly erroneous based upon the record. In light of those findings, the
district court properly balanced the Barker factors in concluding that the delay,
though lengthy, did not violate Cabral’s Sixth Amendment right to a speedy trial.
III. CONCLUSION
For the reasons above, we AFFIRM the district court’s judgment of
conviction.