USCA4 Appeal: 20-4297 Doc: 54 Filed: 06/13/2023 Pg: 1 of 21
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 20-4297
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
FRANCISCO ESCAMILLA VILLA, a/k/a William Villa-Escamilla, a/k/a Willian Villa-Escamilla, a/k/a William Escamilla Villa, a/k/a William Villa,
Defendant – Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Martin K. Reidinger, Chief District Judge. (1:19-cr-00077-MR-WCM-1)
Argued: January 26, 2022 Decided: June 13, 2023
Before HARRIS and RUSHING, Circuit Judges, and FLOYD, Senior Circuit Judge.
Affirmed by published opinion. Judge Rushing wrote the opinion, in which Judge Harris and Senior Judge Floyd joined.
ARGUED: Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF: Anthony Martinez, Federal Public Defender, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. R. Andrew Murray, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. USCA4 Appeal: 20-4297 Doc: 54 Filed: 06/13/2023 Pg: 2 of 21
RUSHING, Circuit Judge:
Francisco Escamilla Villa was convicted of illegally reentering the United States
after an aggravated felony conviction. He challenges his conviction on numerous fronts,
claiming vindictive prosecution and violations of his constitutional rights to a speedy trial,
due process, and freedom from unreasonable searches and seizures. We affirm.
I.
After receiving tips and conducting surveillance, North Carolina police suspected
Villa of trafficking illegal drugs. On June 7, 2018, officers surveilling Villa stopped his
vehicle for traffic infractions. Villa’s car smelled of marijuana, and he admitted he had
recently smoked marijuana. After exiting the vehicle, Villa consented to a search of his
person, and officers discovered a marijuana vapor pen and more than $3,000 in cash.
During the traffic stop, Villa was cooperative and answered questions from the officers.
Villa said he was a noncitizen who had been in the United States since age seventeen,
claimed he had no other drugs but admitted having firearms in his home, and invited
officers to search his house. To confirm he consented to a search of his residence, Villa
signed a consent-to-search form. The ensuing search uncovered firearms, ammunition,
thousands of dollars in cash, and drug paraphernalia.
Officers arrested Villa on state charges of possession of marijuana and marijuana
paraphernalia. Villa was taken to the Macon County detention center, where he was
fingerprinted as part of the routine booking process. That evening, an agent from the
Department of Homeland Security (DHS) spoke with Villa, who confirmed he was a
noncitizen and had no legal immigration status. Using this information, the agent filed an
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immigration detainer stating probable cause existed to find Villa removable. Villa did not
mention to the agent that he had previously been removed from the United States.
The next day, one of the arresting officers filed a federal criminal complaint
charging Villa with possession of a firearm by an illegal alien in violation of 18 U.S.C.
§ 922(g)(5) and illegal entry in violation of 8 U.S.C. § 1325(a). The officer also searched
for, but did not find, any previous criminal history under the name “Francisco Escamilla
Villa” and the birthdate Villa provided. Villa was transferred into federal custody pursuant
to an arrest warrant on the criminal complaint. After his federal arrest, the United States
Marshals Service fingerprinted Villa as part of its routine booking process.
Over the next several days, the probation office prepared a pretrial services report
about Villa. It indicated that, in 2008, Immigration and Customs Enforcement (ICE) had
charged Villa with illegal entry and “Alien Removal Under Section 212 and 237.” J.A.
1355. The disposition of the charges was “unknown.” J.A. 1355. The report also showed
that Villa had two felony convictions, both drug related.
On June 20, 2018, a federal grand jury indicted Villa on the charge of possessing a
firearm as an illegal alien in violation of 18 U.S.C. § 922(g)(5). 1 At the time, a conviction
under Section 922(g) carried a statutory maximum sentence of 10 years. See 18 U.S.C.
§ 924(a)(2) (2018). Villa pleaded not guilty.
Because the indictment did not include the illegal-entry charge from the criminal 1
complaint, the district court administratively terminated that charge.
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Early in the case, Villa successfully moved to continue the pretrial motions deadline.
Then, in August 2018, Villa moved to suppress evidence from the traffic stop and the
search of his residence. While briefing for the suppression motion was ongoing, Villa
obtained several continuances of his trial to allow for adjudication of the motion. Villa
“waive[d] his speedy trial rights for” the purpose of these continuances. S.J.A. 8, 14. The
government also sought and received two extensions of time to respond to Villa’s motion.
In December 2018, a magistrate judge held a hearing on the motion. Over the six months
following the hearing, Villa again obtained several continuances of his trial while his
suppression motion remained pending. For two of these continuances, Villa again said he
“waive[d] his speedy trial rights.” S.J.A. 20, 27.
In June 2019, roughly ten months after filing his motion to suppress and six months
after the hearing, Villa asserted his speedy-trial rights and requested a ruling on his
suppression motion. Three days later, on June 10, 2019, the magistrate judge issued a
memorandum recommending that the district court grant Villa’s motion to suppress
evidence collected from his home (including the firearms and ammunition) and deny the
remainder of the motion. Both sides objected. In July 2019, the district court overruled
the parties’ objections and adopted the magistrate judge’s recommendation in full.
While Villa’s suppression motion remained pending in June 2019, the government
began considering how it would prove Villa’s alien status at trial for the Section 922(g)
charge. The prosecutor requested assistance from the DHS agent who had previously
spoken with Villa about his immigration status. Realizing that Villa’s fingerprints had not
been checked against law enforcement databases, the agent obtained Villa’s fingerprints
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from the United States Marshals Service and, on June 20, 2019, checked them against the
ICE database. That search confirmed the two felony convictions listed in Villa’s pretrial
services report, and it revealed that Villa had previously been removed from the United
States under the alias “William Villa-Escamilla.” By August 2, 2019, the agent had
obtained the criminal records for Villa’s two prior felonies and Villa’s “A-file,” an official
immigration record that documented Villa’s previous removal. Although Villa had told
officers during the traffic stop that he had been in the United States since he was seventeen,
the A-file proved that Villa had been removed in 2011 at a port of entry in Texas, meaning
he had reentered the United States sometime later.
On August 6, 2019, fourteen months after Villa’s initial arrest but four days after
receiving his A-file, the government obtained a new indictment charging Villa with illegal
reentry after conviction for an aggravated felony in violation of 8 U.S.C. § 1326(a), (b)(2).
That offense carries a 20-year statutory maximum, double the maximum for the Section
922(g) charge. The day of Villa’s initial appearance on this second indictment, the
government moved to dismiss the Section 922(g) charge. The district court granted that
motion two days later.
Villa moved to dismiss the aggravated reentry charge on numerous grounds,
claiming that the second indictment was a vindictive prosecution in retaliation for
undermining the first indictment by successfully moving to suppress key evidence, that the
delay between his arrest and trial violated his speedy-trial rights, and that the delay between
his arrest and the second indictment violated his due process rights. Villa also moved to
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suppress his fingerprint records and the criminal and immigration records they uncovered.
After a hearing, the district court denied Villa’s motions in two written orders.
Villa waived his right to a jury trial. Nineteen months after his arrest, and just short
of six months after the grand jury returned the second indictment, the district court
convicted Villa of aggravated reentry at a bench trial. The court sentenced Villa to 42
months’ imprisonment. This appeal followed.
II.
We first consider Villa’s claim that the district court erred in denying his motion to
dismiss the second indictment for prosecutorial vindictiveness. Typically, “[w]e review
the district court’s factual findings on a motion to dismiss an indictment for clear error”
and “review its legal conclusions de novo.” United States v. Perry, 757 F.3d 166, 171 (4th
Cir. 2014) (internal quotation marks omitted). Similarly, we review de novo “the legal
adequacy of the evidence to support” a “presumption of vindictive prosecution.” United
States v. Wilson, 262 F.3d 305, 316 (4th Cir. 2001). 2
A prosecutor violates the Due Process Clause of the Fifth Amendment by punishing
a defendant for “exercising a protected statutory or constitutional right.” United States v.
Fiel, 35 F.3d 997, 1007 (4th Cir. 1994); see United States v. Goodwin, 457 U.S. 368, 372
(1982). “To establish prosecutorial vindictiveness, a defendant must show, through
2 As the parties acknowledge, our precedents have sometimes invoked an abuse-of- discretion standard for reviewing a district court’s application or denial of a presumption of vindictiveness. See, e.g., United States v. Perry, 335 F.3d 316, 320 (4th Cir. 2003); United States v. Fiel, 35 F.3d 997, 1007 (4th Cir. 1994). We need not resolve the tension, if any, between these cases because, even applying the more generous de novo standard, we conclude the evidence here cannot legally support a presumption of vindictiveness. 6 USCA4 Appeal: 20-4297 Doc: 54 Filed: 06/13/2023 Pg: 7 of 21
objective evidence, that (1) the prosecutor acted with genuine animus toward the defendant
and (2) the defendant would not have been prosecuted but for that animus.” Wilson, 262
F.3d at 314; see United States v. Ball, 18 F.4th 445, 454 (4th Cir. 2021); United States v.
Jackson, 327 F.3d 273, 294 (4th Cir. 2003). Absent this kind of direct evidence, a
defendant may state a claim indirectly with “evidence of circumstances from which an
improper vindictive motive may be presumed.” Wilson, 262 F.3d at 314. Such a
presumption is warranted only by circumstances posing “‘a realistic likelihood of
vindictiveness’” in “all cases of the type presented.” Id. at 314–315 (quoting Blackledge
v. Perry, 417 U.S. 21, 27 (1974)); see Ball, 18 F.4th at 454–455. For example, a
prosecutor’s decision to bring more serious charges on retrial against a defendant who has
successfully appealed his conviction and obtained a new trial is presumptively vindictive.
See Blackledge, 417 U.S. at 28–29; Ball, 18 F.4th at 455. The government may rebut the
presumption of vindictiveness with “objective information justifying the detrimental
action.” Fiel, 35 F.3d at 1007; see Goodwin, 457 U.S. at 374; Wilson, 262 F.3d at 315.
The presumption of vindictiveness “will rarely, if ever, be applied to prosecutors’
pretrial decisions.” Wilson, 262 F.3d at 315; see Perry, 335 F.3d at 324 (“[A] presumption
of prosecutorial vindictiveness is generally warranted only in a post-conviction setting.”).
As the Supreme Court has explained, “a change in the charging decision made after an
initial trial is completed is much more likely to be improperly motivated than is a pretrial
decision.” Goodwin, 457 U.S. at 381. Before trial, the prosecutor’s “assessment of the
proper extent of prosecution may not have crystallized,” id., and the prosecutor retains “the
freedom to reassess the case and bring new charges if they are warranted,” United States
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v. Williams, 47 F.3d 658, 664 (4th Cir. 1995); see United States v. Doty, 832 Fed. App.
174, 180 (4th Cir. 2020) (“Bringing new charges in a superseding indictment before trial
fails to create a presumption of vindictiveness.”). At the same time, defendants routinely
file pretrial motions asserting rights associated with the suppression of evidence, the
sufficiency and form of the indictment, affirmative defenses, requests for psychiatric
services, discovery, and trial by jury. See Goodwin, 457 U.S. at 381. “It is unrealistic to
assume that a prosecutor’s probable response to such motions is to seek to penalize and to
deter” a defendant. Id.
Villa argues that the prosecutor retaliated against him for successfully asserting his
Fourth Amendment rights by charging him with aggravated reentry—an offense with a
greater statutory maximum than the firearm charge in the first indictment—after the district
court granted his motion to suppress the weapons. He lacks direct evidence of
vindictiveness but urges us to apply a presumption of vindictiveness in all cases where a
defendant receives a favorable suppression ruling and the prosecutor obtains a new or
superseding indictment resulting in greater sentencing exposure.
We decline the invitation because these circumstances do not “pose a realistic
likelihood of vindictiveness,” Wilson, 262 F.3d at 315 (internal quotation marks omitted),
sufficient to warrant “adopting an inflexible presumption,” Goodwin, 457 U.S. at 381.
After learning that Villa was an illegal alien and found in possession of eight firearms, the
prosecutor initially charged him with unlawfully possessing those firearms (and
ammunition). As the trial date approached, the prosecutor began collecting evidence to
strengthen the case against Villa on the firearm charge, in particular to prove Villa’s alien
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status. In the process of assisting the prosecutor, a federal agent learned that Villa had
previously been removed from the United States and obtained records documenting Villa’s
removal after having committed two felonies. Contemporaneously, the district court
suppressed evidence in the firearm case that required dismissal of that charge and Villa’s
release if no additional charges were brought. When the prosecutor learned Villa had
committed a different offense that he could prove—aggravated reentry—the prosecutor
promptly obtained an indictment charging that offense instead of facilitating Villa’s
release.
This is the kind of pretrial decisionmaking that the Supreme Court has cautioned
counsels against a presumption of vindictiveness. “An initial [charging] decision should
not freeze future conduct” because “the initial charges filed by a prosecutor may not reflect
the extent to which an individual is legitimately subject to prosecution.” Goodwin, 457
U.S. at 382; see, e.g., Bordenkircher v. Hayes, 434 U.S. 357, 360 (1978). As occurred
here, “the prosecutor may uncover additional information that suggests a basis for further
prosecution” while preparing for trial or “may come to realize” that information already
possessed “has a broader significance.” Goodwin, 457 U.S. at 381. Quite unlike the typical
case in which a presumption of vindictiveness arises when a new charge is added after a
successful appeal, these circumstances do not suggest that the prosecutor previously
“deemed the [aggravated reentry] charge unworthy of prosecution” but then changed his
mind solely in retaliation for Villa’s exercise of his rights. Wilson, 262 F.3d at 319.
Moreover, when a prosecutor adds a “new charge” based on “a new set of facts” after a
pretrial suppression ruling forecloses prosecution on the initial charge, it “is at least as
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likely, or even more likely,” that the decision was based on an assessment that the
defendant “pose[d] a threat to public safety.” Id.
Villa’s counterarguments are unpersuasive. Primarily, Villa urges us to follow
United States v. LaDeau, 734 F.3d 561 (6th Cir. 2013), where the Sixth Circuit affirmed
application of the presumption of vindictiveness to a pretrial charging decision. There, the
government initially charged LaDeau with possessing child pornography. After the district
court granted LaDeau’s motion to suppress the evidence of possession, the government
obtained a superseding indictment charging LaDeau with conspiracy based on the same
conduct. But rather than charging LaDeau “with conspiring to possess child pornography,
the government chose to charge him with conspiring to receive child pornography,” a
decision that doubled his sentencing exposure. Id. at 564. As the Sixth Circuit emphasized,
the heightened charge in the superseding indictment was “based on the same conduct
underlying the charge in the initial indictment,” and “no new revelation or discovery”
supported the government’s shift to a receipt theory. Id. at 570–571.
Whatever the merits of LaDeau, Villa’s is not a case where the prosecutor, in
response to an adverse suppression ruling, obtained a more serious charge based on the
same conduct that animated the original indictment. The LaDeau court itself considered
this a material distinction. See id. at 570 (noting the potential for vindictiveness “only if”
a superseding indictment adds or substitutes charges “based on the same conduct charged
less heavily in the first indictment” (internal quotation marks omitted)); see also United
States v. Ribota, 792 F.3d 837, 841 (7th Cir. 2015) (“Where a more severe charge is filed
as to the same conduct, the possibility of vindictiveness is raised,” but “the spectre of
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vindictiveness is lacking where the challenged charge is independent of the one that formed
the basis of the exercise of the legal right.”). Here, the second indictment charged Villa
for different conduct than the first. The government originally charged Villa with
possessing firearms and ammunition as an illegal alien. See 18 U.S.C. § 922(g)(5). The
second indictment charged Villa with reentering the United States after an aggravated
felony conviction and removal. See 8 U.S.C. § 1326(a), (b)(2). Although both charges
included Villa’s unlawful presence in the United States as an element, they targeted
different conduct—possession of firearms and ammunition in one and illegal reentry in the
other.
And as the district court observed, the aggravated reentry charge was based on
evidence the prosecutor did not have when making the initial charging decision. Not until
after the magistrate judge recommended granting in part Villa’s motion to suppress did the
prosecutor learn that Villa, under a different name, had previously been removed from the
country. We agree that this context presents a further reason to find no realistic likelihood
of vindictiveness. See United States v. Campbell, 410 F.3d 456, 462 (8th Cir. 2005)
(“There can be no prosecutorial vindictiveness if the prosecutor revised the charge because
of newly discovered evidence or some objective reason other than to punish the defendant
for exercising his legal rights.”).
Villa responds that between the prosecutor and various federal agencies, “the
government” collectively had all the information needed to discover his aggravated reentry,
and the decision not to follow those leads earlier should raise a presumption of
vindictiveness. But courts recognize that prosecutors (like defense attorneys) will
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“uncover additional information” during their investigation and trial preparation or “may
come to realize that information” they already possess “has a broader significance” than
previously understood. Goodwin, 457 U.S. at 381. To find vindictiveness in these kinds
of routine pretrial developments would be an ill fit with both Supreme Court precedent and
our caselaw concerning vindictive-prosecution claims. And the construct of collective
knowledge is out of place in a search for vindictiveness, which is a motive personal to the
prosecutor who pursues the heightened charges. See Wilson, 262 F.3d at 314 (requiring
evidence that “the prosecutor acted with genuine animus toward the defendant” or
circumstances from which this motive may be presumed); id. at 320 (declining to “impute
the improper motivation” from one prosecutor to another).
Villa has failed to demonstrate that the presumption of vindictiveness applies. The
presumption of regularity that attends a prosecutor’s pretrial charging decision therefore
remains in place. See Ball, 18 F.4th at 454; Wilson, 262 F.3d at 315. We thus affirm the
district court’s judgment denying Villa’s motion to dismiss the second indictment for
prosecutorial vindictiveness.
III.
Next, Villa appeals the denial of his motion to dismiss the second indictment based
on an alleged violation of his constitutional right to a speedy trial. The Sixth Amendment
guarantees that, “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy
. . . trial.” U.S. Const. amend. VI. Because “[t]he speedy-trial right is amorphous, slippery,
and necessarily relative,” it is not defined by a fixed amount of time but instead is
circumstance-dependent. Vermont v. Brillon, 556 U.S. 81, 89–90 (2009) (internal
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quotation marks omitted). Accordingly, we use a balancing test to evaluate Sixth
Amendment speedy-trial claims, examining the “(1) the ‘length of the delay’; (2) ‘the
reason for the delay’; (3) ‘the defendant’s assertion of his right’; and (4) the ‘prejudice to
the defendant.’” United States v. Robinson, 55 F.4th 390, 399 (4th Cir. 2022) (quoting
Barker v. Wingo, 407 U.S. 514, 530 (1972)). We review the district court’s legal
conclusions on this score de novo but defer to its fact finding absent clear error. See id.;
United States v. Burgess, 684 F.3d 445, 451 (4th Cir. 2012).
The length of the delay is both the balancing test’s first factor and “a threshold
requirement because the defendant must establish that the length of the delay is at least
presumptively prejudicial” to trigger the balancing inquiry. Burgess, 684 F.3d at 451; see
Doggett v. United States, 505 U.S. 647, 651–652 (1992). Courts generally have found a
delay presumptively prejudicial “as it approaches one year,” depending on the nature of
the charges. Doggett, 505 U.S. at 652 n.1; see Burgess, 684 F.3d at 452.
Measuring the length of the delay requires identifying when the speedy-trial clock
begins to tick. Consistent with Supreme Court precedent, we have said that “an ‘arrest,
indictment, or other official accusation’” triggers the Sixth Amendment’s speedy-trial
protection. Burgess, 684 F.3d at 452 (quoting United States v. Woolfolk, 399 F.3d 590,
597 (4th Cir. 2005)); see United States v. Marion, 404 U.S. 307, 320 (1971). And that right
detaches when the government drops the charges in good faith, United States v.
MacDonald, 456 U.S. 1, 7 (1982), or the accused is convicted, Betterman v. Montana, 136
S. Ct. 1609, 1613 (2016).
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This case presents a related question we have not previously addressed: whether
the speedy-trial clock begins anew if, after an initial arrest and indictment, the government
later obtains a new indictment and dismisses the first, but the defendant remains in custody
throughout. In such circumstances, does the time run from the initial arrest or from the
second indictment? The question matters here because Villa asserts that the time between
his arrest and trial—about nineteen months—is presumptively prejudicial, but he does not
make the same argument about the time between his second indictment and trial—just shy
of six months. On the record before us, we hold that Villa’s right to a speedy trial on the
crime charged in the second indictment attached when the prosecution obtained that
indictment. It did not relate back to Villa’s initial arrest for different crimes.
Although our sister circuits have not applied a uniform mode of analysis to this
question, each of the various approaches attempts to guard against the same concern—
namely, that the government will use new or superseding indictments, with new or
modified charges arising from the same conduct as the initial arrest and indictment, to avoid
the strictures of the Speedy Trial Clause. Thus, when charges in a later indictment merely
build off the first indictment or the conduct underlying it, courts tend to calculate the length
of pretrial delay from the arrest or first indictment.
For example, the First Circuit measures the delay from arrest if the new or
superseding indictment involves charges “based on the same act or transaction” or part of
the “common scheme or plan previously charged,” and “the government could have, with
diligence, brought the additional charge at the time of the prior accusation.” United States
v. Handa, 892 F.3d 95, 106–107 (1st Cir. 2018); cf. Fed. R. Crim. P. 8(a). Likewise, the
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Second Circuit has declined to restart the speedy-trial period “where charges on a
superseding indictment arise from the same conduct as the original indictment.” United
States v. Black, 918 F.3d 243, 259 (2d Cir. 2019). The Seventh Circuit has acknowledged
that “the initial arrest may well” trigger the speedy-trial right “if the crimes for which a
defendant is ultimately prosecuted really only gild the charge underlying his initial arrest
and the different accusatorial dates between them are not reasonably explicable.” United
States v. DeTienne, 468 F.2d 151, 155 (7th Cir. 1972). A later charge runs afoul of this
standard if it “merely annotates in more detail the same charge alleged in the initial
accusatory instrument.” United States v. Bailey, 111 F.3d 1229, 1236 (5th Cir. 1997).
While the Fifth Circuit has relied on the Seventh Circuit’s approach in constitutional cases,
see United States v. Nixon, 634 F.2d 306, 309 (5th Cir. 1981), it has also applied the
Supreme Court’s double jeopardy test from Blockburger v. United States, 284 U.S. 299
(1932), to evaluate whether charges in a new or superseding indictment are sufficiently
different to warrant restarting the clock, at least for purposes of the Speedy Trial Act. See
Bailey, 111 F.3d at 1236; see also Black, 918 F.3d at 275–277 (Cote, J., dissenting)
(applying Blockburger test to determine when Sixth Amendment speedy-trial right
attaches). 3
3 Villa asserts that some courts do not consider a superseding indictment ever to have an effect on the speedy-trial clock. See United States v. Black, 830 F.3d 1099, 1112 (10th Cir. 2016); United States v. Battis, 589 F.3d 673, 679 n.5 (3d Cir. 2009); United States v. Jeanetta, 533 F.3d 651, 656 (8th Cir. 2008); United States v. Oriedo, 498 F.3d 593, 597–598 (7th Cir. 2007); United States v. Milhim, 702 F.2d 522, 525 (5th Cir. 1983). But there is no suggestion in these cases that the charges in the later indictments were for conduct unrelated to the charges in the initial indictments. 15 USCA4 Appeal: 20-4297 Doc: 54 Filed: 06/13/2023 Pg: 16 of 21
We are satisfied that the concern underlying these various doctrinal formulations is
not present here. Villa’s second indictment charged conduct unrelated to his arrest;
therefore, the gamesmanship concerns that might counsel against restarting the speedy-trial
clock are not implicated. Indeed, Villa’s illegal reentry predated the traffic violations that
triggered his initial stop, his marijuana possession, and his possession of firearms and
ammunition. His aggravated reentry charge did not “arise from the same conduct as the
original indictment” or a common scheme or plan. Black, 918 F.3d at 259; see Handa, 892
F.3d at 106. In no way could the aggravated reentry charge be said to have merely gilded
or added detail to the Section 922(g) charge. See DeTienne, 468 F.2d at 155. Both charges
required the government to prove different elements. See Bailey, 111 F.3d at 1236
(discussing the Blockburger test); compare 18 U.S.C. § 922(g)(5), with 8 U.S.C. § 1326(a),
(b)(2). And the prosecutor did not even have the evidence necessary to support the
aggravated reentry charge until more than a year after Villa’s original indictment.
On the facts here, Villa’s constitutional right to a speedy trial on the aggravated
reentry charge attached when the government obtained the indictment charging him with
that offense, the second indictment in this case. Because Villa does not argue that the time
between the second indictment and his trial—just short of 6 months—is presumptively
prejudicial, he has not met the threshold requirement for evaluating the remaining Barker
factors. See Doggett, 505 U.S. at 651–652 (explaining the delay must be presumptively
prejudicial “[s]imply to trigger a speedy trial analysis”). We therefore affirm the district
court’s denial of Villa’s motion to dismiss the second indictment on Sixth Amendment
grounds.
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IV.
Villa also briefly argues that the delay between his arrest and the second indictment
violated the Fifth Amendment’s Due Process Clause. The district court denied Villa’s
motion to dismiss the indictment on this ground; we review the court’s factual findings for
clear error and legal conclusions de novo. See United States v. Lopez, 860 F.3d 201, 209
(4th Cir. 2017). When evaluating a claim that pre-indictment delay violated the Fifth
Amendment, we ask (1) whether the defendant has demonstrated substantial actual
prejudice and (2) whether, considering “the government’s reasons for the delay,” there has
been a violation of “fundamental conceptions of justice or the community’s sense of fair
play and decency.” United States v. Uribe-Rios, 558 F.3d 347, 358 (4th Cir. 2009) (internal
quotation marks omitted); see Lopez, 860 F.3d at 213. Substantial actual prejudice requires
a defendant to show not only that the prejudice was actual, as opposed to speculative, but
also “that he was meaningfully impaired in his ability to defend against the [government’s]
charges to such an extent that the disposition of the criminal proceeding was likely
affected.” Jones v. Angelone, 94 F.3d 900, 907 (4th Cir. 1996).
Villa’s claim falters for at least two reasons. First, there was no delay in bringing
the second indictment once the prosecution learned it had probable cause to indict Villa for
aggravated reentry. The grand jury returned the second indictment just four days after the
prosecution obtained Villa’s A-file, which was proof of his prior removal. And the
prosecution reasonably sought the A-file as part of preparing for trial on the original
firearm charge. Second, even assuming delay, Villa has failed to demonstrate substantial
actual prejudice. He primarily contends that the government’s delay impaired his ability
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to appeal the district court’s partial denial of his first suppression motion and to appeal his
above-Guidelines sentence. As to the former, the government’s decision to dismiss the
first indictment after the district court’s suppression ruling—not any pre-indictment
delay—mooted Villa’s ability to appeal that ruling. And as for the latter, any impact on
Villa’s opportunity to effectively appeal his relatively short sentence does not show he was
“meaningfully impaired in his ability to defend against” the aggravated reentry charge. Id.
Villa does not argue, for example, that the delay “resulted in the unavailability of any
records, witnesses, or other evidence” supporting a defense he intended to make to the
aggravated reentry charge. Uribe-Rios, 558 F.3d at 358. Thus, we affirm the district
court’s denial of Villa’s motion to dismiss for pre-indictment delay.
Finally, Villa appeals the district court’s denial of his second motion to suppress, in
which he sought to suppress his fingerprint records and the criminal and immigration
records obtained thereby as the product of unlawful police activity. We review the district
court’s legal conclusions de novo and its fact finding for clear error, construing the
evidence in the light most favorable to the prevailing party—here, the government. See
United States v. Lewis, 606 F.3d 193, 197 (4th Cir. 2010).
When police violate the Fourth Amendment’s prohibition on unreasonable searches
and seizures, the government may be forbidden from using the improperly obtained
evidence at trial. See Herring v. United States, 555 U.S. 135, 140–142 (2009) (explaining
principles for determining when the exclusionary rule applies). “[E]vidence that is the
indirect product of the illegal police activity” may also be suppressed as “‘fruit of the
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poisonous tree’” when it has been obtained “‘by exploitation of that illegality . . . instead
[of] by means sufficiently distinguishable to be purged of the primary taint.’” United States
v. Oscar-Torres, 507 F.3d 224, 227 (4th Cir. 2007) (quoting Wong Sun v. United States,
371 U.S. 471, 488 (1963)).
Courts have long considered fingerprinting one of “the accepted means of
processing an arrestee into custody.” Maryland v. King, 569 U.S. 435, 458 (2013). So
when police fingerprint an individual after an unlawful arrest, the fingerprint records and
evidence obtained with them “are not automatically suppressible simply because they
would not have been obtained but for illegal police activity.” Oscar-Torres, 507 F.3d at
230. Rather, the critical question is whether the evidence was obtained by exploiting the
illegal police activity. Id.
We explained this distinction in Oscar-Torres, drawing on Hayes v. Florida, 470
U.S. 811 (1985), and Davis v. Mississippi, 394 U.S. 721 (1969), as examples of such
exploitation. In those cases, “the police, without probable cause, detained and then
fingerprinted a person they suspected had committed a certain crime” for the “clear
investigative purpose” of using the fingerprints to tie the suspect to the crime. 507 F.3d at
230. We reasoned that “[w]hen police officers use an illegal arrest as an investigatory
device in a criminal case for the purpose of obtaining fingerprints without a warrant or
probable cause, then the fingerprints are inadmissible under the exclusionary rule as fruit
of the illegal detention.” Id. at 230–231 (internal quotation marks omitted). “But when
fingerprints are administratively taken for the purpose of simply ascertaining the identity
or immigration status of the person arrested, they are sufficiently unrelated to the unlawful
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arrest that they are not suppressible.” Id. at 231 (internal quotation marks and ellipses
omitted).
These principles dictate the outcome here and easily support the district court’s
ruling. For starters, the standards outlined in Oscar-Torres presuppose an illegal detention.
But here, deputies fingerprinted Villa after arresting him on probable cause for state drug
law violations, and the United States Marshals fingerprinted him after the district court
issued an arrest warrant based on the federal offenses alleged in the criminal complaint.
Moreover, even assuming Villa’s arrest violated the Fourth Amendment, officers did not
“purposefully exploit[]” an unlawful arrest in order to obtain his fingerprints. Id. (internal
quotation marks omitted). The district court found “no indication in the record that
[Villa’s] fingerprints were taken for investigative purposes, such as to compare them to
unidentified prints taken from a crime scene” or “for any reason other than the normal,
administrative booking process.” United States v. Villa, 429 F. Supp. 3d 168, 173
(W.D.N.C. 2019). That finding is not clearly erroneous.
Villa misreads Oscar-Torres. He contends that suppression is required because his
arrest and fingerprinting were part of a criminal prosecution, as opposed to an
administrative deportation. That is not the line we drew in Oscar-Torres; indeed, a rule
requiring automatic suppression of fingerprint evidence obtained after an unlawful arrest
or detention in all criminal cases would directly contradict our decision. See 507 F.3d at
230. Rather, as previously explained, Oscar-Torres makes exploitation of unconstitutional
tactics the relevant distinction. See id. at 231 (reasoning that suppression is warranted
when police use unlawful means to “obtain[] the challenged fingerprints during
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investigation of a specific crime, and through an investigative detention for investigative
purposes related to that crime” (internal quotation marks omitted)). Nor is suppression
warranted because the fingerprints were later revealed to have investigatory value to law
enforcement. Again, under Oscar-Torres, the focus is on law enforcement’s purpose for
the illegal arrest and fingerprinting, not whether, looking retrospectively, officers obtained
an investigatory benefit from an otherwise routine booking procedure. Villa has not shown
that officers arrested and fingerprinted him for an investigative purpose; therefore, we
affirm the district court’s denial of his second suppression motion.
VI.
After careful review, we conclude that none of Villa’s arguments merit vacatur of
his conviction. The judgment of the district court is
AFFIRMED.