Friday, July 01, 2005

Case o' The Week: Pre-indictment delay challenges in the Ninth are Barken up the wrong tree

The Central District of California USAO waits until five days before the statute of limitations tolls to spring this environmental indictment. Despite a defense showing of prejudice caused by the delay, the Ninth tolerates the government's stalling -- for which, by the way, the "government provides little explanation." See United States v. Barken, __ F.3d __, 2005 WL 1501496 (9th Cir. June 27, 2005), available here.

Players: Authored by 80-year old visiting Reagan appointee John R. Gibson. See bio here.

Facts: Gary Barken owned Barken’s Hard Chrome, a metal finishing company in Compton. Id. at *1. He agreed to take chemicals and equipment from another company that was closing. Id. The chemicals, however, ended up dumped all over the desert – and an employee with whom Barken had a "personal relationship" said they were dumped at Barken’s direction. Id. Riverside County filed five felonies against Barken, and the state case was ultimately settled for dismissal of the criminal charges against Barken and a conviction for the company, with a significant fine. Id. at *2. This deal was struck in 1998. Id. Five days before the statute of limitations ran, the feds brought an indictment and ultimately convicted Barken of dumping hazardous materials. Id.

Issue(s): Did the five year delay in prosecution rise to the level of a Fifth Amendment due process violation? Id. at *3.

Held: No. "An indictment is rarely dismissed because delay by the prosecution rises to the level of a Fifth Amendment due process violation . . . . 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. The defendant’s burden to show actual prejudice is heavy and is rarely met. The second part of the test applies only if the defendant has demonstrated actual prejudice. In the second part, the delay is weighed against the reasons for it, and the defendant must show that the delay offense those fundamental conceptions of justice which lie at the base of our civil and political institutions." Id. (internal citations and quotations omitted). "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 limitations is typically adequate protection for a defendant’s rights." Id. at *4.

Of Note: This opinion is particularly bad, because Barken did make a substantial showing of how he was prejudiced by the delay. Because of the delay, he lost an exculpatory witness in Mexico, id. at *3, lost physical evidence – such as receipts – that buttressed the defense theory, id. at *4, lost access to fingerprints, and to chemical testing of the materials, id., and lost another witness to death, id. The Court’s wry observation on the delay is of small solace: "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." Id.

How to Use: It is bad enough that the feds can’t make their own cases, and have to poach existing state convictions. It is ludicrous that the USAO sat around for five years, and waited until five days before the S.O.L. to bring this action – with no explanation of the delay. The message for defense counsel is that an attractive state deal may not be as valuable as it appears, when an AUSA is going to spring up with an indictment a half-decade later. State D.A.’s should chew-out their federal counterparts; no defendant will want to deal in the atmosphere of uncertainty caused by Barken.

For Further Reading: Despite the outcome of this decision, it looks like Barken Hard Chrome is still up and running, employing the good folks of the City of Compton. See web page here.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Webpage available at


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