United States of America v. United States District Court : for the Eastern District of Amir Karim Beigali, :…

The Honorable William O. Bertelsman, United States District Judge for the Eastern District*
of Kentucky, sitting by designation.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0753n.06
No. 09-1588
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, :
:
Plaintiff-Appellee, :
: ON APPEAL FROM THE
v. : UNITED STATES DISTRICT COURT
: FOR THE EASTERN DISTRICT OF
AMIR KARIM BEIGALI, : MICHIGAN
:
Defendant-Appellant. :
BEFORE: SUTTON and GRIFFIN, Circuit Judges; BERTELSMAN, District Judge.*
OPINION
PER CURIAM:
Defendant-Appellant, Amir Karim Beigali, appeals the district court’s dismissal without
prejudice of an indictment against him, alleging violations of the Speedy Trial Act and the Fifth and
Sixth Amendments. Beigali contends that the dismissal should have been with prejudice.
Beigali, who was re-indicted and convicted of attempted possession of cocaine with intent
to distribute and use of a firearm in relation to that offense, also appeals the district court’s refusal
to grant a downward departure based on alleged sentencing manipulation and entrapment.
We AFFIRM.

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FACTUAL AND PROCEDURAL BACKGROUND
A. Events Leading to Beigali’s Arrest
The Drug Enforcement Agency (“DEA”) received information from an informant regarding
illegal drug activity involving Beigali. The informant apprised the DEA that Beigali, while in prison
serving time for armed robbery, had approached a fellow inmate expressing interest in making a lot
of money by selling drugs. Beigali was released from prison in March 2003, after which he began
corresponding with his former fellow inmate regarding his desire to pursue a drug business.
In September 2005, the DEA contacted Walter Ramirez, a confidential informant, and
directed him to place a recorded telephone call to Beigali. Ramirez called Beigali on September 27,
2005, representing himself to be a cousin of Beigali’s fellow inmate and a distributor of cocaine with
several kilograms to sell. Beigali expressed an interest in purchasing several kilograms of cocaine,
but he told Ramirez he had only $10,000. Ramirez told Beigali that was not enough money for even
one kilogram of cocaine.
Two days later, Beigali, who was then on supervised release in Florida, flew from his home
in Orlando to Detroit, Michigan to meet with Ramirez. While under DEA surveillance, Ramirez
picked Beigali up from the airport and drove to a restaurant, where the two men discussed a cocaine
purchase. The men then drove to a hotel where Beigali had rented a room. Beigali told Ramirez that
he could sell multiple kilograms of cocaine in Orlando, and Ramirez told him that additional
kilograms could be “fronted” if an initial transaction went smoothly. Beigali agreed that he would
contact Ramirez after he obtained enough money to buy the cocaine. These conversations were all
recorded. Beigali then returned to Florida.

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Beigali spoke with Ramirez three times in early October 2005. Beigali still did not have
enough money to purchase the cocaine which, at that time, had a street value of approximately
$18,000 to $20,000 per kilogram. At the suggestion of a DEA agent, Ramirez told Beigali that he
might be willing to sell the cocaine in exchange for a combination of cash and guns.
Beigali told Ramirez that he could provide two nine-millimeter handguns, an AK-47 assault
rifle, and $10,000 in cash. The men agreed that Beigali would travel to Michigan to pick up five
kilograms of cocaine, one paid for by the cash and guns, and four “fronted” to Beigali on
consignment. Beigali and a third person would then travel back to Florida where Beigali would sell
the cocaine and give the third person money for the additional four kilograms, which the third person
would then return to Ramirez in Michigan.
On November 16, 2005, Beigali called Ramirez while en route to Michigan, and the men
agreed to meet the following day. Ramirez told Beigali to stay at the same hotel where he had stayed
on his previous trip to Detroit.
On November 17, 2005, DEA agents followed Beigali from his hotel to a restaurant in
Dearborn, Michigan where he met Ramirez. In a recorded conversation, the men discussed details
of the drug transaction. Ramirez accepted the three guns and $10,000 cash for one kilogram of the
cocaine and told Beigali that he would owe Ramirez money for the other four kilograms. The men
went out to the parking lot to complete the transaction, where DEA agents arrested Beigali. The
agents found $10,000 cash and the fully-loaded weapons in the trunk of Beigali’s vehicle.

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B. Proceedings in the District Court
1. Preindictment Proceedings
On November 18, 2005, the government filed a one-count complaint charging Beigali with
attempted possession of cocaine with the intent to distribute in violation of 21 U.S.C. § 841(a)(1).
[R. 1] A public defender was appointed for Beigali [R. 2], and, on November 21, 2005, Beigali
consented to detention pending trial. [R. 4]
On January 30, 2007, Beigali’s public defender moved to withdraw. [R. 7] Counsel stated
that, although she had been working with the government to reach a plea agreement, the delay in
reaching such an agreement had caused a breakdown in her relationship with Beigali, who had asked
that she be removed. [Id.] The District Court granted the motion to withdraw and appointed new
counsel on February 12, 2007. [R. 8]
On August 8, 2007, Beigali’s second appointed counsel moved to withdraw on the grounds
that Beigali was dissatisfied with his representation and wanted to represent himself. [R. 9] The
court held a motion hearing on September 27, 2007, during which counsel for the government
informed the court of the government’s efforts to negotiate a plea agreement with both of Beigali’s
appointed counsel. [R. 33 at 4-5] Beigali’s second counsel likewise told the court of his attempts
to negotiate a plea deal on Beigali’s behalf, which he believed to be in his client’s best interest. [Id.
at 18] In this regard, the court noted that, while the complaint charged only the drug offense, Beigali
was also facing a weapons charge which carried an additional mandatory twenty-five year prison
sentence, leading to a potential sentence in excess of forty-five years. [Id. at 9, 19-20]

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Following this hearing, the District Court granted Beigali’s motion to represent himself and,
on October 4, 2007, it granted counsel’s motion to withdraw. [R. 13]
2. Indictment and Trial
On October 4, 2007, nearly two years after the filing of the complaint, the first indictment
against Beigali in this proceeding was filed. [R. 14] The indictment charged Beigali with two
counts: (1) attempt to possess with intent to distribute five kilograms or more of cocaine in violation
of 21 U.S.C. §§ 841(a)(1) and 846; and (2) use of a firearm during and in relation to a drug offense
in violation of 18 U.S.C. § 924(c). [Id.]
Beigali pled not guilty to these charges, consented to detention, and the District Court again
appointed counsel on October 11, 2007. [R. 17]
On February 4, 2008, Beigali’s counsel filed a motion to dismiss the indictment with
prejudice based on pre-trial delay in violation of the Speedy Trial Act, 18 U.S.C. §§ 3161 et seq., the
Fifth Amendment, and the Sixth Amendment. [R. 22]
On April 30, 2008, the District Court issued an Opinion and Order dismissing the indictment
without prejudice. [R. 29] The court concluded that, while Beigali’s rights under the Speedy Trial
Act had indeed been violated, requiring dismissal of the indictment, the dismissal should be without
prejudice under the factors set forth in 18 U.S.C. § 3162(a)(1). [Id. at 4] The court further
concluded that Beigali had shown no violation of his rights under the Fifth and Sixth Amendments.
[Id. at 6-7]

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The government contends that the District Court based this conclusion on a clearly erroneous1
finding of fact, although it did not appeal that finding. (Brief for the United States at 25) n. 5) The
government argues that the record reveals that Beigali in fact purchased the full five kilograms of
cocaine, one for which he paid up front, and four on consignment. Given the statutory minimum
applicable to the drug charge, any discrepancy on this issue is immaterial.
6
On May 7, 2008, the grand jury returned a superseding indictment charging Beigali with the
same two counts contained in the original indictment. [R. 30] Although Beigali attempted to
establish an entrapment defense, on August 21, 2008, the jury convicted him on both counts.
3. Sentencing
On November 17, 2008, Beigali filed a sentencing memorandum in which he objected to the
amount of drugs used to compute his base offense level, arguing that the government had artificially
increased the drug amount by having the confidential source offer a lower price for the cocaine and
agree to accept guns as payment, thereby resulting in “sentencing entrapment.” [R. 39] Beigali
argued that the court should thus depart downward from the sentencing guidelines range. [Id. at 3]
The district court held Beigali’s sentencing hearing on April 14, 2009, and it issued its
Sentencing Opinion the next day. [R. 44] The court found persuasive Beigali’s argument that the
guideline range for Count I should be computed based only on the one kilogram of cocaine which
Beigali had the actual means to purchase at the time of his offense, and not on the additional four
kilograms that Beigali aspired to purchase after the “trial run.” [Id. at 6-7]1
Although this reduction in the drug amount resulted in a lower guideline range, the court
found the recalculation immaterial to Beigali’s sentence because the drug offense for which Beigali
was convicted carries a mandatory minimum sentence of ten years. [Id. at 8] The court also found

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18 U.S.C. §§ 3553(e) and (f) permit a district court to impose a sentence below a statutory2
minimum only if: (1) the government so moves based on the defendant’s substantial assistance to
the government, or (2) the defendant meets certain “safety valve” criteria, including having no more
than one criminal history point. Neither exception applied to Beigali.
7
that neither of the two criteria under which a court may depart downward from a statutory minimum
was present. [Id. at 8-9]2
As to Count II, the court found unpersuasive Beigali’s argument that the court should depart
downward because inclusion of guns in the drug transaction was first suggested by the government’s
confidential informant rather than Beigali. [Id. at 8]
After consideration of the 18 U.S.C. § 3553(a) factors, the court sentenced Beigali to the
statutory minimum of 120 months on Count I and 25 years on Count II, to run consecutively. [Id.
at 11]
Beigali filed a timely notice of appeal on April 23, 2009. [R. 46]
ANALYSIS
A. Speedy Trial Act
This court reviews for an abuse of discretion a district court’s decision to dismiss an
indictment without prejudice, rather than with prejudice, pursuant to the Speedy Trial Act. See
United States v. Taylor, 487 U.S. 326, 332 (1988); United States v. Perez, 306 Fed. App’x 929, 934
(6th Cir. 2009); United States v. Robinson, 389 F.3d 582, 589 (6th Cir. 2004).
The Speedy Trial Act requires, among other things, that an indictment charging an individual
with the commission of an offense be filed within thirty days from the date that the defendant was

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This analysis applies only to the dismissal without prejudice of the drug charge, as a speedy3
trial violation requires dismissal only of the offenses charged in the original complaint. See United
States v. Turner, 602 F.3d 778, 786 (6th Cir. 2010) (citations omitted). The weapons offense of
which Beigali was ultimately convicted was not charged in the original complaint and is thus not
affected by the speedy trial violation.
8
arrested or served with a summons in connection with such charges. 18 U.S.C. § 3161(b). Where
an indictment is not timely filed, the Act mandates its dismissal. 18 U.S.C. § 3162(a)(1).
“Although the Speedy Trial Act does not specify whether dismissal should be with or without
prejudice and does not contain a default presumption one way or the other, it does provide three
factors for a court to consider when making this determination.” Perez, 306 Fed. App’x at 932
(citation and internal quotations omitted). The Act directs the district court to consider: (1) the
seriousness of the offense; (2) the facts and circumstances of the case which led to the dismissal; and
(3) the impact of a reprosecution on the administration of this chapter and on the administration of
justice. 18 U.S.C. § 3162(a)(1).
“Where, as here, Congress has declared that a decision will be governed by consideration of
particular factors, a district court must carefully consider those factors as applied to the particular
case and, whatever its decision, clearly articulate their effect in order to permit meaningful appellate
review.” Taylor, 487 U.S. at 336. “[W]hen the statutory factors are properly considered, and
supporting factual findings are not clearly in error, the district court’s judgment of how opposing
considerations balance should not be lightly disturbed.” Id. at 337.
Here, the district court properly considered each of these statutory factors and explained its
reasoning for concluding that the indictment against Beigali should be dismissed without prejudice.3

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Indeed, the question of entrapment is generally one for the jury, rather than for the court.4
United States v. Schaffer, 586 F.3d 414, 426 (6th Cir. 2009) (citation omitted).
9
[R. 29 at 4-6] The court first noted that the drug offense with which Beigali was charged is
“undeniably serious,” and that this factor weighed heavily in favor of dismissal without prejudice.
[Id. at 4-5] This conclusion is consistent with decisions of this court finding similar drug charges
to be serious ones weighing in favor of dismissal without prejudice. See Perez, 306 Fed. App’x at
933.
Further, the length of Beigali’s ultimate sentence – 420 months – is also indicative of the
seriousness of his offenses and also favors dismissal without prejudice. See Robinson, 389 F.3d at
588 (concluding that sentence of 44½ years reflects seriousness of offense).
Beigali’s sole argument against the seriousness of his offense is essentially the same as the
entrapment defense he presented at trial: that the felony charges were “wholly created and facilitated
by the government.” [Brief of the Defendant-Appellant at 18]
This argument puts the cart before the horse. The statute directs the trial court to consider
the seriousness of the offense with which the defendant is charged. 18 U.S.C. § 3162(a)(2). While
a criminal defendant may assert numerous defenses at trial, the statute does not require the court to
consider possible defenses in determining whether the seriousness of the charged offense warrants
dismissal of the indictment with or without prejudice.4
The district court next considered the facts and circumstances which led to the delayed
indictment. [R. 29 at 5] The court noted that at least some of the delay was attributable to Beigali’s
two requests that he be appointed new counsel, and that some of the delay had been “for Defendant’s

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benefit.” [Id. at 5] Beigali argues that the district court failed to state any reasons for this latter
conclusion. [Brief of the Defendant-Appellant at 22] Beigali’s argument is belied by the record as
a whole.
Although the district court’s written opinion does not explain why much of the delay between
the filing of the complaint and the indictment was for Beigali’s benefit, it is clear from the transcript
of the motion hearing that the court was alluding to the fact that each of Beigali’s appointed counsel
had attempted to negotiate a plea agreement on his behalf with the government. Beigali’s second
counsel informed the court that he believed a plea would have been in Beigali’s best interest given
that he was facing a second charge which carried a mandatory minimum sentence of imprisonment
of twenty-five years, to run consecutively with any other sentence. [R. 33 at 9, 18-20]
In other words, the protracted plea negotiations were undertaken by Beigali’s counsel in an
effort to help him avoid what did, in fact, ultimately transpire: a conviction coupled with a
mandatory sentence of several decades in prison. Beigali does not contest the accuracy of this factual
finding.
We thus conclude that the district court did not abuse its discretion in determining that this
fact, coupled with the absence of evidence of bad faith on the part of the government, also weighed
in favor of dismissal of the indictment without prejudice. See United States v. Pierce, 17 F.3d 146,
149 (6th Cir. 1994) (“Where there is no affirmative misconduct by either party, the court’s
conclusion that this second factor authorizes dismissal with or without prejudice is a matter within
its discretion.”) (citation omitted).

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The parties agree that the district court mistakenly referred to the surveillance tapes as video,5
rather than audio, recordings.
11
Finally, the district court considered the impact of reprosecution on the administration of
justice. [Id. at 5-6] The court concluded that, because the government’s evidence consisted
primarily of audio recordings of Beigali engaged in conversations regarding the drug transaction,5
Beigali was not prejudiced by any loss of evidence caused by the delay. The court further noted that
there was no evidence that the government had engaged in misconduct or gained any unfair
advantage as a result of the delay. This court has agreed that such factors weigh in favor of dismissal
of the indictment without prejudice. Pierce, 17 F.3d at 149.
While Beigali argues that the delay caused a deterioration in the memory of the confidential
informant, the trial testimony he cites appears immaterial given the nature of the government’s
evidence. Likewise, the informant’s inability to remember specific dates did not impair Beigali’s
ability to argue that he was not predisposed to commit the crimes at issue and that he was entrapped
by the government agents.
Equally unpersuasive is Beigali’s argument that the district court erred in failing to consider
the impact of his pre-indictment incarceration. It is undisputed that Beigali consented to detention
pending trial. [R. 4] Moreover, as the government notes, had Beigali not been detained in Michigan,
he would have been transferred to Florida where he was facing a supervised release violation. It is
unlikely, then, that incarceration in Michigan resulted in any additional restrictions on Beigali’s
liberty. See United States v. Taylor, 487 U.S. 326, 341 (1988). And, preparing for his federal trial

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in Michigan while in Florida, with appointed Michigan counsel, would undoubtedly have been more
difficult for Beigali.
In sum, the district court properly considered the pertinent statutory factors and acted within
its discretion by dismissing the indictment without prejudice.
B. Fifth and Sixth Amendments
Beigali also asserts that the district court erred in rejecting his claim that the preindictment
delay in this case violated his rights under the Fifth and Sixth Amendments to the United States
Constitution. We find no such error.
While the statutes of limitations provide the primary guarantee against the prosecution of
stale criminal charges, “the Due Process Clause of the Fifth Amendment also plays a ‘limited role’
in protecting against excessive preindictment delay.” United States v. Brown, 959 F.2d 63, 65 (6th
Cir. 1992) (quoting United States v. Lovasco, 431 U.S. 783, 789 (1977)). Dismissal for
preindictment delay under the Fifth Amendment is warranted only where the defendant shows (1)
substantial prejudice to his right to a fair trial, and (2) that the delay was an intentional device by the
government to gain a tactical advantage. Id. at 66 (citations omitted). A defendant’s Fifth
Amendment due process rights are generally not implicated where the government offers a valid
reason for the delay. Id. (citation omitted). See also United States v. Schaffer, 586 F.3d 414, 425-26
(6th Cir. 2009) (noting that the burden is on the defendant to show that government had no valid
reason for preindictment delay and that the delay was an intentional device to gain a tactical
advantage).

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Beigali fails to make any showing that the government’s delay in indicting him was a
deliberate device intended to afford it a tactical advantage in his prosecution. For this reason alone,
his Fifth Amendment claim fails. Schaffer, 586 F.3d at 426. Further, the ongoing effort by the
government to reach a plea agreement with Beigali’s counsel before filing an indictment that
included the weapons charge constitutes a valid reason for the delay.
Beigali also asserts a Sixth Amendment claim. This court reviews de novo the constitutional
question of whether a defendant’s Sixth Amendment right to a speedy trial has been violated, but the
district court’s factual findings are reviewed for clear error. United States v. Brown, 169 F.3d 344,
348 (6th Cir. 1999) (citation omitted).
Conceptually similar to the Speedy Trial Act claim, a Sixth Amendment claim alleging
improper delay requires the court to engage in a balancing test by considering at least the following
four factors: length of delay, the reason for the delay, the defendant’s assertion of his right, and
prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530 (1972). The burden is on the
prosecution to explain the cause of the pretrial delay. Id. at 349 (citation omitted).
Our balancing of these factors leads us to conclude that no violation of Beigali’s Sixth
Amendment right occurred. First, while the delay in this case was not insubstantial, it was, as the
district court noted, “significantly shorter than the five-year statute of limitations for the offenses
charged.” [R. 29 at 7] Second, the government has given a valid reason for the delay, which was
confirmed by Beigali’s counsel: ongoing efforts to strike a plea deal which would enable Beigali to
avoid prosecution for a weapons charge that carried a hefty mandatory minimum prison sentence.

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Third, even assuming that Beigali pressed his counsel to move his case forward, he has
shown no actual prejudice from the delay herein. This factor is much like the Speedy Trial Act
prejudice analysis which, for the reasons already stated, demonstrates that no material prejudice to
Beigali’s defense resulted from the delay.
We therefore find that the district court properly rejected Beigali’s Sixth Amendment claim.
C. Sentencing Manipulation
The final issue raised by Beigali in this appeal pertains to his sentence. He argues that the
district court erred by denying his request for a downward departure from the guidelines due to the
government’s conduct, through the confidential informant, in increasing the quantity of drugs
involved in the transaction and by suggesting the use of weapons as a means of partial payment.
First, of course, there is the question of whether we may even review the district court’s
denial of a downward departure. See United States v. Lebreux, Nos. 06-4448, 06-4615, 07-3271, 07-
3272, 2009 WL 87505, at *2 (6th Cir. Jan. 13, 2009) (noting that appellate court cannot review
denial of downward departure unless trial court improperly computed guidelines, was unaware of
its discretion to depart downward, or imposed the sentence in violation of the law or as a result of
an incorrect application of the guidelines) (quoting United States v. May, 399 F.3d 817, 827 (6th Cir.
2005)). None of those factors present themselves here.
In any event, the “Sixth Circuit has already addressed sentencing entrapment and sentence
manipulation after Gall [v. United States, 552 U.S. 38 (2007)] and reaffirmed that the Sixth Circuit
does not recognize either defense.” United States v. Guest, 564 F.3d 777, 781 (6th Cir. 2009)
(citation omitted). See also United States v. Smith, 358 Fed. App’x 634, 638 (6th Cir. 2009)

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(“‘Imperfect entrapment’ was itself an imperfect theory of sentencing mitigation at its conception,
and it has become more imperfect since.”).
“Whatever the status of imperfect entrapment as a theory of sentencing mitigation, [Beigali]
is wrong to say that the trial court refused to consider it.” Smith, 358 Fed. App’x at 638. Indeed, the
court agreed with Beigali’s argument as to Count I and rejected the recommendation by the United
States Probation Office that Beigali’s base offense level be computed using the full five kilograms
of cocaine, rather than the one kilogram which he then had the actual means to purchase. [R. 44 at
7] This was a hollow victory for Beigali, however, because the district court was constrained by the
statutory minimum to sentence him to no fewer than ten years for that offense. [R. 44 at 8-9] See
United States v. Burke, 237 F.3d 741, 745 (6th Cir. 2001) (absent exceptions not present here, district
court has no discretion to depart downward from statutory minimum).
Finally, we find no error in the district court’s conclusion that Beigali’s sentencing
entrapment argument was unpersuasive as to the weapons charge, on which the court likewise
sentenced Beigali to the mandatory statutory minimum.
Affirmed.

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