FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO Hon. Francisco A. Besosa, U.S. District Judge.
A. Backiel, with whom Efrén Irizarry-Colón, pro
se, was on brief, for appellant.
Carlos Reyes-Ramos, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States
Attorney, and Nelson Pérez-Sosa, Assistant United
States Attorney, Chief, Appellate Division, were on brief,
Howard, Chief Judge, Torruella and Kayatta, Circuit Judges.
KAYATTA, Circuit Judge.
defendant, Efrén Irizarry-Colón, pled guilty to
participating in a conspiracy to defraud the federal
government in violation of 18 U.S.C. § 371. His plea
agreement reserved his right to appeal the district
court's denial of his motion to dismiss the indictment
with prejudice based on violations of the Speedy Trial Act,
the Speedy Trial Clause of the Sixth Amendment, and the Due
Process Clause of the Fifth Amendment. For the following
reasons, we find that the district court was misled by dicta
in one of our prior opinions in calculating the length of
delay relevant to evaluating the alleged Sixth Amendment
violation. Consequently, we vacate the district court's
denial of Irizarry's Sixth Amendment claim and remand for
reconsideration of that claim. In all other respects, we
was a closing agent for the Farm Service Agency (FSA) and an
"attorney for emergency and operating loans disbursed to
farmers" after Hurricane Georges struck Puerto Rico in
1998. Between September 1998 and September 2000, Irizarry
participated in a conspiracy to defraud the FSA. In the words
of the version of the facts incorporated into the plea
The essence of the conspiracy to defraud involved the filing
of applications for emergency loans for farmers through the
FSA . . . . The applications would contain false information
and would also be accompanied by false documentation. The
defendant . . . would not timely present the mortgages for
recording at the Property Registrar, at the time of the
disbursement of the loans, contrary to his obligations as
closing agent, thereby deceiving FSA into believing that the
loan had not yet closed, and as a mechanism to delay the
collection of payments by the FSA from the particular
government first indicted Irizarry on July 28, 2005. This
indictment contained thirty-seven counts. Count one charged
that Irizarry participated in a conspiracy to defraud the
government in violation of 18 U.S.C. § 371. The other
thirty-six counts charged various specific instances of false
statements concerning the presentation of mortgage deeds in
favor of FSA to the registry of deeds, in violation of 18
U.S.C. § 1006, or furnishing the government with false
information (or failing to disclose relevant information) in
connection with the loans, in violation of 18 U.S.C. §
1014. The indictment also sought forfeiture.
March 13, 2007, the court dismissed the indictment pursuant
to Federal Rule of Criminal Procedure 48(b) for violation of
the Speedy Trial Act, 18 U.S.C. §§ 3161-3162, on
Irizarry's motion. The district court found that 294
nonexcludable days had passed between the indictment and the
first tolling of the Speedy Trial Act clock. See United
States v. Irizarry Colón, 477
F.Supp.2d 419, 421-22 (D.P.R. 2007). The district court also
concluded that there had been no bad faith on the part of the
government in allowing that time to elapse, that the parties
were "immediately ready to go to trial, " and that
Irizarry could have sought dismissal of the indictment much
earlier "but waited to do so." Id. at 423.
For those reasons, the district court elected to dismiss the
indictment without prejudice. Id. at 422-23.
Irizarry did not appeal that order.
government indicted Irizarry again on April 4, 2007. The
second indictment charged thirty-five of the thirty-seven
counts in the first indictment as well as seven new counts
charging bank fraud, in violation of 18 U.S.C. § 1344.
August 10, 2009, and again on Irizarry's motion, the
court dismissed the second indictment pursuant to Rule 48(b)
for violation of the Speedy Trial Act. The district court
found that "approximately 140 or 148" nonexcludable
days had passed since the indictment. This time, the court
found that the parties had agreed to begin the trial on a
date after the Speedy Trial Act clock expired and that, when
setting this date, the court had failed to make any findings
as to tolling. The court found that the parties had acted
"in good faith" and that defense counsel's
acquiescence to the late trial date "weighs heavily in
favor of the without prejudice [dismissal]."
Accordingly, the district court once again elected to dismiss
the indictment without prejudice. Irizarry also did not
appeal that order.
government indicted Irizarry for a third time on January 27,
2010. The third indictment charged the same counts as the
second but with the bank fraud counts removed (leaving
thirty-five counts and a request for forfeiture).
12, 2010, Irizarry moved to dismiss the third indictment on
the ground that ninety nonexcludable days had passed and that
he had been prejudiced by the cumulative delay up to that
point. His motion sought to take advantage of a recent
Supreme Court decision, Bloate v.
United States, 559 U.S. 196 (2010), that had
abrogated a prior rule in this circuit that automatically
excluded time for the parties to prepare pretrial motions
from the Speedy Trial Act clock. See United States
v. Huete-Sandoval, 668 F.3d 1, 4 (1st Cir.
2011) (recognizing abrogation). The district court dismissed
the indictment, again without prejudice to refiling. We
discuss the precise details of how it did so in Section II of
this Opinion. Irizarry did not appeal that order.
government indicted Irizarry for the fourth and final time on
June 17, 2011. The indictment was identical to the third
August 25, 2011, Irizarry filed a motion to dismiss the
fourth indictment for violation of the Speedy Trial Act and
the Fifth and Sixth Amendments to the United States
Constitution. On October 18, 2011, the district court denied
the motion. See United Statesv.Irizarry-Colón, 820 F.Supp.2d 306, 317
(D.P.R. 2011). On October 22, 2014, Irizarry entered a
conditional guilty plea to count one, reserving his right to
bring this appeal as to the denial of his motion to dismiss.
On April 9, 2015, he was sentenced to time served, one year
of supervised release, ...