United States v. Robert Agli

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 7, 2023
• Docket: 21-30283
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 7 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 21-30283

Plaintiff-Appellee, D.C. Nos. 4:19-cr-06043-SAB-1 v. 4:19-cr-06043-SAB

ROBERT SILVIO AGLI, MEMORANDUM* Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Washington Stanley A. Bastian, Chief District Judge, Presiding

Submitted February 16, 2023** Seattle, Washington

Before: PAEZ and VANDYKE, Circuit Judges, and BENITEZ,*** District Judge.

Robert Silvio Agli was convicted of one count of violating 18 U.S.C.

§§ 922(g)(1), 924(a)(2) (Felon in Possession of a Firearm). Agli challenges his

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Roger T. Benitez, United States District Judge for the Southern District of California, sitting by designation. conviction on speedy trial grounds, asserting his statutory right under the Speedy

Trial Act and his constitutional right under the Sixth Amendment. We have

jurisdiction under 28 U.S.C. § 1291 and affirm.

1. Agli argues the district court violated his rights under the Speedy Trial

Act by failing to properly analyze the factors set forth in 18 U.S.C. § 3161(h)(7)(B)

and United States v. Olsen, 21 F.4th 1036, 1046 (9th Cir. 2022). Agli raises this

argument for the first time on appeal and as such, we cannot reach the merits of

Agli’s claim. The Speedy Trial Act states that “[f]ailure of the defendant to move

for dismissal prior to trial . . . shall constitute a waiver of the right to dismissal under

this section.” 18 U.S.C. § 3162(a)(2). Here, it is undisputed that Agli failed to make

any motion to dismiss the indictment, let alone a motion before trial. Agli’s

argument that he repeatedly asserted his speedy trial rights throughout the

proceedings does not suffice to preserve his Speedy Trial Act claim. United States

v. Tanh Huu Lam, 251 F.3d 852, 858 n.9 (9th Cir. 2001) (holding defendant waived

his Speedy Trial Act claim because he failed to timely move to dismiss the

indictment, despite the defendant’s repeated assertions that he desired a speedy trial).

Agli’s reliance on Olsen also fails because there the defendant filed the requisite

motion to dismiss. See Olsen, 21 F.4th at 1043. Because Agli failed to file a motion

to dismiss his indictment before trial, he waived his Speedy Trial Act claim.

2. Algi also argues that his Sixth Amendment right to a speedy trial was

2 violated. Four factors are evaluated to determine whether a pretrial delay violates a

defendant’s Sixth Amendment right to a speedy trial: (1) length of delay; (2) reason

for delay; (3) the defendant’s assertion of his right; and (4) prejudice to the

defendant. Barker v. Wingo, 407 U.S. 514, 530 (1972). To trigger an analysis of all

four factors, the accused must allege that the length of delay “crossed the threshold

dividing ordinary delay from ‘presumptively prejudicial’ delay.” Doggett v. United

States, 505 U.S. 647, 651–52 (1992) (citation omitted); see also Barker, 407 U.S. at

530. “Although there is no bright-line rule, courts generally have found that delays

approaching one year are presumptively prejudicial,” and “a general consensus

among the courts of appeals [is] that eight months constitutes the threshold

minimum.” United States v. Gregory, 322 F.3d 1157, 1161–62 & n.3 (9th Cir. 2003)

(citations omitted).

This Court has held that six months was a “borderline” pretrial delay and

although the delay “was not very long,” it sufficed to trigger a full analysis. United

States v. Valentine, 783 F.2d 1413, 1417–18 (9th Cir. 1986) (citation omitted). The

disputed delay here was only 40 days, and Agli made no arguments to the district

court, or on appeal, that the delay was presumptively prejudicial.1 Accordingly, this

1 Instead, Agli continues to argue that the district court failed to consider the Olsen factors with respect to his individual case. However, Olsen considered only the Speedy Trial Act and statutory factors are not necessarily applicable to a Sixth Amendment speedy trial claim. Instead, the Barker factors govern, and Agli makes no attempt to argue these factors.

3 length of delay does not trigger an analysis of the remaining Barker factors.

3. Even if a 40-day delay was long enough to trigger a Barker analysis,

the factors would still weigh against Agli’s position. The reason for the delay was

the COVID-19 pandemic and, based on public health advisories, holding trial

prematurely would have curtailed the court’s ability to obtain an adequate jury while

limiting counsel and court staff’s availability to be present in the courtroom. The

delay served to ensure the court and parties were safely equipped to try the case. In

addition, although Algi asserted his desire for a speedy trial throughout the

proceedings through statements and objections on the record, this factor weighs

against Agli because he did not file a motion to dismiss the indictment on Sixth

Amendment grounds. See Tanh Huu Lam, 251 F.3d at 859 (concluding that

defendant’s delay in filing a motion to dismiss weighed against him). Finally, Agli

made no argument that he was actually prejudiced by the delay and the record reveals

only that Agli was “anxious to have his trial whenever he c[ould].” This minimal

prejudice is insufficient to amount to a Sixth Amendment violation when viewing

the factors as a whole. See Valentine, 783 F.2d at 1417–18 (holding that a six-month

delay and minimal prejudice—i.e., anxiety—did not violate the accused’s

constitutional right to a speedy trial).

AFFIRMED.