United States of America v. Pedro Gutierrez

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 08-2529
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UNITED STATES OF AMERICA
v.
PEDRO GUTIERREZ,
Appellant
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(Crim. No. 06-cr-00582-004)
District Judge: Hon. Thomas M. Golden
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 29, 2009
Before: MCKEE, CHAGARES and NYGAARD, Circuit Judges
(Opinion filed: November 5, 2009)
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OPINION
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MCKEE, Circuit Judge
Pedro Gutierrez appeals the order of the district court denying his motion to
dismiss the indictment pursuant to Rule 12(b) of the Federal Rules of Criminal Procedure
based on alleged violations of his speedy trial rights under the Sixth Amendment to the

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United States Constitution and the Speedy Trial Act, 18 U.S.C. § 3161. For the reasons
set forth below, we will affirm.
I.
We review the district court’s legal conclusions de novo, but we review “the
factual findings underpinning these legal conclusions . . . for clear error.” Burkett v.
Fulcomer, 951 F.2d 1431, 1438 (3d Cir. 1991). We review the court’s decision to grant
continuances for abuse of discretion. United States v. Fields, 39 F.3d 439, 444 (3d Cir.
1994).
As we write primarily for the parties who are familiar with the facts of this case,
we need not recite the factual or procedural history in detail.
Gutierrez argues that the district court abused its discretion in granting
continuances under the test set forth in Barker v. Wingo, 407 U.S. 514 (1972), and that
his rights under the Speedy Trial Act were also violated.
II.
The Sixth Amendment requires the government to make a diligent, good faith
effort to promptly bring a defendant to trial. Smith v. Hooey, 393 U.S. 374, 383 (1969).
In Barker v. Wingo, the Supreme Court established a balancing test to determine when
delays violated that Sixth Amendment right. Pursuant to that test, courts must consider:
(1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his
right, and (4) prejudice to the defendant. 407 U.S. at 530.

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The first Barker factor – the length of delay – triggers a speedy trial inquiry as
there is no need to undertake a speedy trial analysis unless the length of any delay is
sufficient bo be “presumptively prejudicial.” Id. at 530. The outcome of that initial
inquiry depends on the facts and circumstances of each case. Id. at 530-31 (finding that
the delay that can be tolerated for an ordinary street crime is considerably less than for a
serious, complex conspiracy charge). Generally, delays that approach twelve months are
sufficient to trigger a speedy trial inquiry under Barker. See Doggett v. United States,
505 U.S. 647, 651 n.1 (1992). Nevertheless, delay alone, is not sufficient to establish a
speedy trial violation under the Sixth Amendment. See id.
Here, the time that lapsed between Gutierrez’s arraignment and trial is sufficient to
warrant an inquiry under Barker. Accordingly, the district court appropriately considered
each of the Barker factors, and concluded that Gutierrez’s right to a speedy trial under the
Sixth Amendment had not been violated.
The court concluded that although Gutierrez did “timely and consistently assert[]
his speedy trial rights,” both the second and fourth Barker factors weighed heavily against
him. United States v. Gutierrez, No. 06-CR-582-4, at *11 (E.D. Pa. December 6, 2007).
The court found that there was a valid and significant reason to delay the trial and
Gutierrez suffered no prejudice. We agree.
Plea negotiations were ongoing and they appeared to be progressing toward a
nontrial disposition. More importantly, Gutierrez had filed twenty five pretrial motions,

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many of which required hearings, findings of fact, and memorandum opinions and orders.
Gutierrez can not now complain because the court delayed his trial long enough to
thoughtfully consider and dispose of the numerous motions he filed.
Moreover, the Supreme Court has identified the key interests that the Sixth
Amendment is designed to protect, “(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. The Court has stressed the last
interest because delay can result in loss of defense witnesses or dim memories of
witnesses whose recollection may be crucial to a credible defense. Id.
Yet, Gutierrez has not identified any specific prejudice resulting from his pretrial
delay. He has not established that the delay jeopardized the testimony of any defense
witness, nor can he argue that his pretrial detention was oppressive, or responsible for
undue anxiety or concern. United States v. Gutierrez, No. 06-CR-582-4, at *12 (E.D. Pa.
December 6, 2007). On the contrary, the district court found that the delay inured to
Gutierrez’s benefit because it facilitated his ability to defend himself by allowing time for
the court to thoughtfully respond to his pretrial motions.
II.
Similarly, the district court did not abuse its discretion in granting a continuance
under the 70-day requirement in the Speedy Trial Act. The Speedy Trial Act requires that
a defendant be brought to trial 70 days from the date of information, indictment, or

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arraignment, whichever occurs last. 18 U.S.C. § 3161(c)(1). The statute, however,
provides exceptions for certain types of delays. 18 U.S.C. 3161(h). The district court
found that at least three of these exceptions applied here.
The court found that the delay was justified under 18 U.S.C. § 3161(h)(8)(A)(1),
which allows for a delay if the “ends of justice” served by the delay outweigh the interests
of the public and the defendant in a speedy trial. A district court is “required to set out its
reasons for granting an ‘ends of justice’ continuance” to provide a record for appellate
review, otherwise “the time is not excludible.” United States v. Brooks, 697 F.2d 517,
520 (3d Cir. 1982). Additionally, once a district court grants a continuance we have
“strongly urged” district courts “not to wait and rely on counsel to inform them when
defendants are ready to go to trial.” United States v. Lattany, 982 F.2d 866, 883 (3d Cir.
1992).
Here, the district court ruled that this was a complex case because of the number of
defendants, and the fact that the indictment contained fifty separate charges. See United
States v. Fields, 39 F.3d 439, 444 (3d Cir. 1994) (holding that an “ends of justice”
continuance may be appropriate where the case is “unusual or complex”). Although
Gutierrez attempts to refute that finding as to him by arguing that he was only charged in
three counts, that does not reduce the overall complexity of the case. He does not
complain that his case should have been severed to allow a more prompt resolution of his
charges, and the record would not support a finding of prejudice even if he made such a

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claim. Moreover, the court outlined specific deadlines for pre-trial matters, scheduled a
definitive new date for the trial, and adequately explained its reasons for granting an
“ends of justice” continuance.
We also agree with the district court’s conclusion that the delay was justified under
18 U.S.C. § 3161(h)(1)(F), which allows delay resulting from the filing and deciding of
pretrial motions. As the district court noted, “[a]lthough Gutierrez objected to both
continuances, he also took advantage of the time they provided, filing over two dozen
pretrial motions.” United States v. Gutierrez, No. 06-CR-582-4, at *15 (E.D. Pa.
December 6, 2007).
The district court also applied the exception that allows for delay beyond the 70
day period where it would be unreasonable to expect adequate preparation for pretrial
proceedings or for the trial itself, 18 U.S.C. § 3161(h)(8)(B)(ii). Pointing to the
approximately 47,000 pages of discovery provided by the government, the district court
reasoned a continuance was necessary “to alleviate the burdensome discovery in this case
by providing the defendants ample time to review the government’s evidence against
them.” That was clearly not only reasonable, but necessary for a fair resolution of the
charges in the indictment.
III.
For the foregoing reasons, we will affirm the orders of the district court
denying Gutierrez’s motion to dismiss the indictment.

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