In United States v. Vargas, No. 22-10604 (Apr. 3, 2024) (Jordan, Lagoa, Marcus), the Court affirmed the district court’s denial of Mr. Vargas’s motion to dismiss his indictment as a result of a 35-month delay between indictment and arrest.

Mr. Vargas was charged–in September 2018–with conspiracy to possess with intent to distribute one kilogram or more of heroin and possession with intent to distribute one kilogram or more of heroin.  He was indicted in Florida, but was living in New York at the time.  He was not arrested until nearly 3 years later.  The government made immediate attempts to arrest him–with South Florida DEA official reaching out to a number of groups with the New York Division of the DEA to assist–but its efforts stalled around September 2019.  Then, the global COVID-19 pandemic hit, and no activity in Mr. Vargas’s case occurred during the first sixteen months of the pandemic.  Mr. Vargas was detained by immigration officials in New York in July 2021, released and re-arrested by the U.S. Marshals Service in August 2021, and finally arraigned in September 2021.

Mr. Vargas moved to dismiss his indictment, claiming a violation of his right to a speedy trial on account of the delay between indictment and arrest.  The district court denied the motion, finding that the first three Barker factors did not weigh heavily against the government.  More specifically, the district court found that the government had not acted in bad faith or deliberately, but rather had been “merely negligent” in its efforts to apprehend Mr. Vargas.

This Court agreed, finding that the first three Barker factors did not weigh heavily against the government.  It found that agents had acted in good faith and with due diligence.  Additionally, the Court noted that an emergency global health epidemic was “exactly the kind of ‘complicating factor’ that would reduce the government’s responsibility for a delay in making an arrest.”  Evidence adduced at a hearing in the district court demonstrated that the pandemic had encumbered the government’s efforts to arrest Mr. Vargas.  So, in the Court’s view, a global pandemic like COVID-19 that is beyond the control of all the parties involved justifies an appropriate delay, more akin to a delay due to a missing witness.  Per the Court, even if little activity takes place for a year or two, the government will not necessarily be held responsible for the delay, as long as the government’s conduct was unintentional and in good faith, even if negligent.  The Court also found that while Mr. Vargas had timely asserted his constitutional right to a speedy trial, that did not excuse him from showing prejudice under the fourth Barker factor.  With regard to prejudice, the Court noted that any delay did not affect the evidence, the charges, the legal defenses or strategies, or any other aspect of the criminal proceedings.

Judge Jordan concurred in the judgment.  He wrote separately to note that, with regard to the second Barker factor–the reason for the delay–the lower courts were “way too charitable in describing the government’s conduct.”  He specifically disagreed with the lower court’s characterization of law enforcement’s efforts as diligent.  Additionally, though the pandemic was a complicating factor, agents were still able to communicate with one another electronically or by phone about pending matters, and here, “[t]he record contains nothing, absolutely nothing, about any communications between agents during the pandemic.”  Were he not bound by the clear error standard on appeal, Judge Jordan noted that this case presented “a set of facts [that] called for a ruling which might have a deterrent effect on government apathy.”