United States v. 2005-06-27 | 03-50441 | USA VBARKEN | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 03-50441
Plaintiff-Appellee, D.C. No.
v. CR-02-01147-SVW-  02GARY DONALD BARKEN,
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued June 7, 2004
Submitted June 13, 2005
Pasadena, California
Filed June 27, 2005
Before: Dorothy W. Nelson, John R. Gibson,* and
Susan P. Graber, Circuit Judges.
Opinion by Judge Gibson
*The Honorable John R. Gibson, Senior Circuit Judge, United States
Court of Appeals for the Eighth Circuit, sitting by designation.
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COUNSEL
Leonard Sharenow, Esq., Los Angeles, California, for the
defendant-appellant.
Dorothy Kim, Esq., Assistant United States Attorney, Los
Angeles, California, for the plaintiff-appellee.
OPINION
GIBSON, Circuit Judge:
Gary Donald Barken appeals his jury trial conviction and
sentence for unlawful transportation and disposal of hazard-
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ous material without a permit in violation of 42 U.S.C.
§ 6928(d)(1) and (d)(2)(A) (codifying the Resource Conserva-
tion and Recovery Act, (RCRA)). He argues that the district
court erred by denying his motion to dismiss the indictment
for pre-indictment delay in violation of his due process rights
under the Fifth Amendment and under Federal Rule of Crimi-
nal Procedure 48(b). He also alleges four sentencing errors.
We affirm Barken’s conviction and remand to the district
court to consider the sentencing issues in accordance with
United States v. Booker, 125 S. Ct. 738 (2005), and United
States v. Ameline, No. 02-30326, 2005 WL 1291977 (9th Cir.
June 1, 2005) (en banc) .
FACTS
Barken was indicted on October 28, 2002, with eleven of
the twenty-one counts relating to events that took place nearly
five years earlier. In 1997, Barken became president of a
family-owned business, Barken’s Hard Chrome, located in
Compton, California. The company’s business is chrome plat-
ing and metal finishing. Beginning in the spring of that year,
Barken spoke with Michelle Totten, the environmental facili-
ties manager for Philadelphia Gear, a gear manufacturing
company. Totten contacted Barken because Philadelphia Gear
had decided to stop its copper plating business, and Totten
was charged with finding a home for the equipment and
chemicals the company would no longer need. She first tried
to find a buyer, but when she had no success, Philadelphia
Gear decided to look for a company that would take the
equipment and chemicals at no cost. Barken agreed to take
everything, and Philadelphia Gear and Barken’s Hard Chrome
entered into a written agreement concerning the transfer of
ownership and relocation of the items. Philadelphia Gear
hired a company to pump the chemicals out of the equipment
and separate them into waste product and good product. The
chemicals were pumped into blue 55-gallon drums. Philadel-
phia Gear agreed to keep the waste product, and Barken’s
Hard Chrome was to get only good product.
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On November 4, 1997, a crew of people hired by Barken’s
Hard Chrome and Barken’s Hard Chrome employee, Saul
Reyna, met Totten at Philadelphia Gear. The blue drums con-
taining good product were loaded on to a Ryder truck that
Barken’s Hard Chrome had rented and Reyna was driving.
Totten did not see a placard on the truck that would identify
the chemicals the truck would be transporting. Totten was
concerned about the lack of proper labeling, but Reyna
assured her that there would be no problem. Reyna drove the
Ryder truck, with the drums aboard, back to Barken’s Hard
Chrome. Later that day, Barken told his office manager, Cori
Ames, that he had no use for the chemicals in the drums and
that he was going to dump them that night. She overheard him
instruct Reyna to remove the labels from the drums. Barken
was involved in a personal relationship with Ames at the time,
but it was a tumultuous one: Barken fired and rehired Ames
twenty to twenty-five times between November 1997 and July
1998 when she left the company’s employment. The firings
most often were related to their relationship.
On November 5, 1997, the Riverside County Fire Depart-
ment contacted the county’s Investigations and Emergency
Response Unit concerning blue barrels found at three desert
locations: eight were found at the first site, twenty-three at the
second site, and nine at the third. Each drum had writing on
the top, some of which said “HCL,” “caustic liquid,” and “cu-
pral copper.” One drum at each of the first two sites had
leaked some of its contents onto the soil. Investigators col-
lected samples and field tested the liquid in the barrels to
determine pH levels. Tests resulted in readings as low as zero
and as high as thirteen, numbers which are classified as corro-
sive hazardous waste under RCRA, the statute under which
Barken was convicted. One of the drums was labeled with an
address that led investigators to Philadelphia Gear.
Following its investigation, Riverside County charged
Barken with six felony counts under California environmental
laws for transporting and disposing of forty drums of hazard-
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ous waste. He was arrested on those charges in February
1998. A settlement was reached in which the criminal charges
against Barken were dismissed, Barken Enterprises (the cor-
porate name of Barken’s Hard Chrome) pleaded guilty to a
single count and was sentenced to probation, and a civil con-
sent judgment was entered in which the company paid
approximately $80,000 for cleanup costs, penalty, and envi-
ronmental education and enforcement. This comprehensive
settlement took place on June 17, 1998.
On October 28, 2002, approximately five days before the
federal statute of limitations expired, the government indicted
Barken, Reyna, and Barken Enterprises on eleven counts in
connection with the November 1997 events. The indictment
originally included ten more counts and an additional defen-
dant, and it alleged crimes that occurred between July 1998
and November 2001. The latter counts were severed for trial
and later dismissed, on the government’s motion, without
prejudice. They are not at issue in this appeal.
On March 17, 2003, the court granted the government’s
motion to dismiss, without prejudice, all counts against the
company and counts six through eight (concerning transporta-
tion without a manifest) against Barken and Reyna. The five-
day trial against the remaining defendants Barken and Reyna
began on March 25, 2003. Following the government’s case
in chief, Reyna successfully moved for a judgment of acquit-
tal. The government had been precluded from introducing at
trial statements attributed to Barken that implicated Reyna
and another former employee. Barken also moved for a judg-
ment of acquittal, but his motion was granted as to Counts 1
and 2 only. The jury returned a guilty verdict on each of the
six remaining counts. Barken received concurrent twenty-four
month sentences on each count.
The district court granted Barken’s application to extend
his time to file a notice of appeal, and he filed the notice on
September 9, 2003. Although he argues that the indictment
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against him should have been dismissed due to delay and that
the district court committed sentencing errors, he does not
challenge the sufficiency of the evidence.
STANDARDS OF REVIEW
This court reviews a district court’s denial of a motion to
dismiss an indictment for preindictment delay, under both the
Fifth Amendment’s due process clause and Federal Rule of
Criminal Procedure 48(b), for abuse of discretion. United
States v. Huntley, 976 F.2d 1287, 1290 (9th Cir. 1992). Clear
error is the standard for reviewing a district court’s finding
with respect to prejudice. United States v. Doe, 149 F.3d 945,
947-48 (9th Cir. 1998).
I.
Barken argues vigorously against the injustice of this
indictment, which resulted in his conviction for a single inci-
dent that had occurred nearly five years earlier. The same
incident had been prosecuted by Riverside County in state
court. In the state court case, the County, Barken, and Barken
Enterprises entered into a global settlement that resolved both
criminal and civil matters and resulted in the County’s recov-
ering more than it had spent in removing and cleaning up the
barrels. Barken further argues that no federal interest was
present in prosecuting him.
[1] The law does not support Barken’s argument. An indict-
ment is rarely dismissed because delay by the prosecution
rises to the level of a Fifth Amendment due process violation.
The well-settled test for determining whether a defendant’s
due process rights have been violated is in two parts. First, “a
defendant must prove that he suffered actual, non-speculative
prejudice from the delay,” meaning proof that demonstrates
exactly how the loss of evidence or witnesses was prejudicial.
United States v. Doe, 149 F.3d 945, 948 (9th Cir. 1998) (quot-
ing United States v. Sherlock, 962 F.2d 1349, 1353 (9th Cir.
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1989)). The defendant’s burden to show actual prejudice is
heavy and is rarely met. Id. The second part of the test applies
only if the defendant has demonstrated actual prejudice.
United States v. Manning, 56 F.3d 1188, 1194 (9th Cir. 1995).
In the second part, the delay is weighed against the reasons
for it, and the defendant must show that the delay “ ‘offends
those fundamental conceptions of justice which lie at the base
of our civil and political institutions.’ ” Doe, 149 F.3d at 948
(quoting Sherlock, 962 F.2d at 1353-54).
Barken filed his motion to dismiss on March 4, 2003, three
weeks before trial commenced. The district court heard argu-
ment and issued an oral ruling denying Barken’s motion.
Although the motion addressed four groups of evidence and
two witnesses who were no longer available for Barken to
introduce, the argument that preceded the ruling addressed
only one witness, Nereo Prestegui. Prestegui was an employee
of Barken’s Hard Chrome until May 31, 1998. Some time
after that, he moved to Mexico. Barken’s counsel obtained an
affidavit, allegedly signed by Prestegui, in which he admits
that he and two other individuals abandoned the chemical
drums and that neither Barken nor Reyna was involved in the
offense. Prestegui’s affidavit also stated that he had no inten-
tion of providing testimony in the case. Barken argued that,
had the government not delayed indicting him, Prestegui
would have been available and would have provided exculpa-
tory testimony. Barken’s counsel was unable to provide many
answers to the district court’s questions about Prestegui, and
he said that an intermediary had obtained the affidavit
because counsel did not know how or where to reach the wit-
ness.
The district court concluded that Prestegui would have been
available for a deposition under Federal Rule of Criminal Pro-
cedure 15 and expressed doubt about the credibility of an
inculpatory affidavit that was written after the statute of limi-
tations had run against the affiant. Without addressing the cat-
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egories of unavailable evidence or the other unavailable
witness, the district court denied the motion.
The evidence Barken addressed in his motion included an
American Express receipt from a Denny’s restaurant which
was no longer available because the restaurant’s retention pol-
icy calls for such receipts to be kept for six months. The gov-
ernment alleged that Barken and Reyna ate a meal at that
restaurant the night they dumped the drums in the desert,
while Barken asserted that his brother had used the company
credit card that night and signed the receipt.1 Barken also
complained that the drums themselves had been destroyed by
the Riverside County investigators, which prevented him from
showing that his fingerprints were not on the drums. The
chemical samples taken from the drums the day they were dis-
covered also had been destroyed by the Riverside County
investigators. Finally, the documents concerning how Phila-
delphia Gear handled the chemicals and the records detailing
the Ryder truck rental by Barken’s Hard Chrome had not been
preserved.
The other witness Barken mentioned in his motion was
Joseph Vermetti, another former company employee. Ver-
metti allegedly knew and could identify “Mario,” a person
who, Barken asserted, had participated in the disposal of the
drums with Prestegui. Vermetti died in January 2001.
[2] While Barken argued that his defense was substantially
prejudiced by the absence of this testimonial and non-
testimonial evidence, case law holds that the statute of limita-
tions is typically adequate protection for a defendant’s rights.
E.g., United States v. Pallan, 571 F.2d 497, 499 (9th Cir. 1978).2
1Louie Barken, the brother, has a criminal history involving convictions
for drug possession and sales. He testified at trial that he, Mario, and Pre-
stegui disposed of the drums of chemicals and that they ate a meal at
Denny’s that evening.
2The statute of limitations for all the counts in the indictment is five
years. 18 U.S.C. § 3282 (2000).
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In this case, Barken’s arguments do not go beyond specula-
tion. The most compelling argument he asserts is that he was
prejudiced by the absence of the drums and the chemical sam-
ples taken from them, but the force of the argument is dimin-
ished by Barken’s failure to argue on appeal the insufficiency
of evidence of RCRA violations. Moreover, where adequate
substitutes exist for missing non-testimonial evidence, preju-
dice does not exist. United States v. Cederquist, 641 F.2d
1347, 1351 (9th Cir. 1981). Many other items of evidence
were introduced at trial concerning the drums and their con-
tents, including photographs, analyses, and reports. Barken
has not met the “heavy burden” placed on him to show actual,
non-speculative prejudice. The district court did not commit
clear error in finding no prejudice.
[3] Although Barken devotes significant time to arguing the
unfairness and lack of justification for the government’s
delay, and the government provides little explanation, this
court need not examine the reasons for delay if Barken has
not met his burden of demonstrating prejudice. Manning, 56
F.3d at 1194. Accordingly, the district court did not abuse its
discretion in denying the motion to dismiss for violation of
Barken’s due process rights.
II.
[4] Barken also sought dismissal of his indictment under
Federal Rule of Criminal Procedure 48(b), which states:
The court may dismiss an indictment, information,
or complaint if unnecessary delay occurs in:
(1) presenting a charge to a grand jury;
(2) filing an information against a defen-
dant; or
(3) bringing a defendant to trial.
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As Barken concedes, Rule 48(b) comes into play only after a
defendant has been placed under arrest. United States v. Mays,
549 F.2d 670, 674 n.4 (9th Cir. 1977). Barken was arrested on
the federal charges in October 2002 and tried five months
later, which obviously does not constitute delay. However,
Barken argues that the measuring date should be the date on
which he was arrested on state charges for the same conduct.
That arrest was in February 1998. He offers no support for his
argument, and we find none.
Even if the delay between arrest and trial had been nearly
five years, the court would have dismissed the indictment
under Rule 48(b) only in extreme circumstances, after exer-
cising caution and after forewarning the government of the
consequences of further delay. United States v. Sears, Roe-
buck & Co., Inc., 877 F.2d 734, 737-38 (9th Cir. 1989). The
record shows no such forewarning. The district court did not
abuse its discretion in denying Barken’s motion to dismiss
under Rule 48(b).
III.
Shortly after this case was submitted, the Supreme Court
issued its opinion in Blakely v. Washington, 124 S. Ct. 2531
(2004). By way of letters pursuant to Federal Rule of Appel-
late Procedure 28(j), Barken’s counsel raised the Sixth
Amendment as an additional ground to his already-existing
challenge to Barken’s sentence. This court withdrew submis-
sion of Barken’s appeal on September 10, 2004, pending fur-
ther guidance from the Supreme Court in United States v.
Booker, 125 S. Ct. 738 (2005). The case was not resubmitted
following the issuance of Booker because the judges of this
circuit voted to vacate the panel opinion and grant rehearing
en banc in United States v. Ameline, 401 F.3d 1007 (9th Cir.
2005). The en banc opinion has been issued, No. 02-30326,
2005 WL 1291977 (9th Cir. June 1, 2005), and this case is
now resubmitted so that we may consider Barken’s alleged
sentencing errors in light of Booker and Ameline.
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Barken originally raised five sentencing issues. The first
three involve enhancements to his sentence under various pro-
visions of the United States Sentencing Guidelines. He
objects to a two-level enhancement under § 2Q1.2(b)(1)(B)3
on the ground that the record does not support a finding of
actual contamination. Barken objects to a four-level enhance-
ment under § 2Q1.2(b)(4) that was imposed because he failed
to obtain a permit. He argues that the enhancement amounts
to double-counting.
Barken further objects to the two-level enhancement he
received under § 3B1.1 for being a manager. He asserts the
enhancement is improper because one of the people he man-
aged was acquitted at trial. The presentence investigation
report recommended against the enhancement because of the
acquittal, and the district court made the finding by relying on
testimony that the court held inadmissible at trial.
Barken argues that he was entitled to a downward departure
under application note 8 to § 2Q1.2 because the district court
did apply that departure under application note 5. Finally,
Barken objects to the district court’s refusal to grant him a
two-level reduction in his sentence under § 3E1.1 for accep-
tance of responsibility.
Although Barken timely objected to these issues at sentenc-
ing, he did not do so on Sixth Amendment grounds until the
case was on appeal. Because several of these issues involve
post-conviction findings of fact by the district court, Barken’s
constitutional challenge is one that we review for plain error.
Ameline, 2005 WL 1291977, at *1. That standard allows an
error to be corrected that was not raised at trial if it was in fact
an error, it was plain, and it affected the defendant’s substan-
tial rights. If those three conditions are met, the district court
3Technically, the district court applied the four-level upward adjustment
called for by the specific offense characteristic in § 2Q1.2(b)(1)(B), and
departed downward two levels under application note 5 to that guideline.
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has the discretion to correct the error if it seriously affected
the fairness, integrity, or public reputation of judicial proceed-
ings. United States v. Olano, 507 U.S. 725, 732-36 (1993).
[5] The district court committed an error that was plain by
applying the Guidelines as mandatory, a practice that is no
longer valid under Booker. Ameline, 2005 WL 1291977, at
*5. Thus, we must turn to the question of whether the error
affected Barken’s substantial rights, “that is, whether the out-
come of [Barken’s] sentencing was affected by the erroneous
enhancement of [his] sentence on the basis of judge-made
findings in the mandatory guidelines regime.” Id. It is for
Barken to demonstrate a reasonable probability that the dis-
trict court would have imposed a different sentence had the
court known the guidelines were merely advisory. However,
because the record does not indicate what the district court
would have done, we must remand for the district court to
answer that question in accordance with the procedures set
forth in Ameline. Id. at *6, *11.
CONCLUSION
We affirm Barken’s conviction and we remand his sentence
in accordance with United States v. Booker, 125 S. Ct. 738
(2005), and United States v. Ameline, No. 02-30326, 2005
WL 1291977 (9th Cir. June 1, 2005) (en banc). In light of our
disposition, appellant’s motion to remand is DENIED as
moot.
Convictions AFFIRMED; sentence REMANDED.
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