Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
Violating a defendant’s Sixth Amendment speedy-trial right compels a severe remedy: dismissing the indictment with prejudice. But a defendant can’t take advantage of that remedy when they didn’t diligently assert that right, the 10th Circuit Court of Appeals determined.
After a shoplifting incident at a Colorado Kmart and a shootout two days later, federal and state prosecutors indicted Joshua Garcia. The federal government waited nearly 23 months to prosecute Garcia while the state prosecution ran its course. The district court held the delay violated Garcia’s Sixth Amendment right to a speedy trial and dismissed the federal indictment against him. Exercising jurisdiction, the 10th Circuit Court of Appeals reversed.
On July 3, 2017, Garcia allegedly shoplifted from a Kmart in Aurora, Colorado. When he exited the store, Kmart employees, who had been watching him, confronted him. While talking with the employees outside the store, Garcia allegedly brandished and discharged a firearm at the ground before fleeing. Authorities didn’t apprehend Garcia until two days later, when they responded to a complaint of a man with a gun in a trailer. During his arrest, Garcia allegedly shot at law enforcement officers. The District Attorney’s Office filed a complaint against Garcia on July 11, 2017 based on the July 5 incident.
Then, on Sept. 27, 2017, a federal grand jury returned a three-count indictment against Garcia based on the July 3 events at Kmart. The indictment alleged Garcia possessed a weapon in violation of federal law, robbed a Kmart store and knowingly used, brandished or discharged a firearm during and in relation to a crime of violence. The indictment was sealed for almost two years while Colorado’s case against Garcia proceeded in state court.
In state court, Garcia pleaded guilty to first-degree assault and was sentenced to 23 years’ imprisonment on Aug. 16, 2019. The day before, the federal government moved for a writ of habeas corpus ad prosequendum, requesting authorities bring Garcia from the state detention facility into the U.S. Marshal’s custody to begin prosecuting the federal case. The district court granted that motion, unsealed the federal indictment and on Aug. 20, 2019, Garcia made his initial appearance in federal court.
Garcia filed three motions to exclude 210 days from the speedy-trial clock, all of which the district court granted. And, eight months after his initial appearance in federal court, Garcia moved to dismiss the indictment with prejudice for violation of his Sixth Amendment right to a speedy trial. The district court granted Garcia’s motion and dismissed the indictment against him, finding that all factors set forth in the U.S. Supreme Court decision in Barker v. Wingo in 1972, favored Garcia and that the government violated his right to a speedy trial. The district court determined the delay prejudiced Garcia because it resulted in lost evidence and an unnecessary two years of pretrial incarceration. Federal prosecutors moved for reconsideration, which the district court denied, reasoning the prosecution hadn’t shown that the court “misapprehended the facts, a party’s position, or the law.”
Federal prosecutors appealed both the indictment’s dismissal and the denial of their motion for reconsideration.
The 10th Circuit determined the parties agreed that the first factor of the Barker test, the length of the delay, favored Garcia. But the second factor, the reason for the delay, and the third factor, a defendant’s assertion of their speedy-trial right, favored prosecutors. The 10th Circuit found federal prosecutors justified the delay and Garcia waited eight months and requested three continuances before moving to dismiss the indictment on speedy-trial grounds. The fourth factor, prejudice, also favored prosecutors, the court found, because Garcia failed to carry his burden of showing that evidence was lost because of the delay.
The 10th Circuit determined the balance of factors in this case favors federal prosecutors and it echoed the Supreme Court’s reluctance in Barker to find a constitutional speedy-trial-right violation when Garcia failed to adequately assert that right. The appeals court held the delay didn’t violate Garcia’s speedy-trial right and the district court improperly dismissed his indictment.
It reversed the district court’s decision dismissing Garcia’s indictment and remanded the case.
U.S. Bank National Association employed Darren Markley as vice president and managing director of private wealth management at its Denver location. Markley managed a team of wealth managers and private bankers, including Bob Provencher and Dave Crittendon, when issues arose in 2017.
Markley, in violation of a U.S. Bank policy, provided Provencher a personal loan. Markley also allegedly prevented Crittendon from “sandbagging” an investment, a practice where a banker carries a transaction over to a new reporting period to help meet sales goals. Members of Markley’s team, including Crittendon, accused Markley of giving Provencher commission credits for sales on which Provencher didn’t participate and hadn’t met the clients.
U.S. Bank investigated the allegation and a report substantiated the claims. A separate misconduct disciplinary committee unanimously voted to terminate Markley’s employment. At no time during the investigation did Markley suggest the allegations against him were motivated by his age.
Over a year later, Markley filed a wrongful termination suit under the Age Discrimination in Employment Act and a wrongful discharge claim under Colorado law. U.S. Bank moved for summary judgment. As to the ADEA claim, the district court concluded Markley didn’t sustain his burden of producing evidence capable of establishing that U.S. Bank’s reason for terminating his employment — improperly giving Provencher commission credits — was pretext for age discrimination. The district court granted summary judgment in favor of U.S. Bank.
On appeal, Markley contended U.S. Bank conducted a flawed, “sham” investigation, which established pretext.
The 10th Circuit Court of Appeals determined that while an imperfect investigation may support an inference of pretext, there must also be some other indicator of protected-class-based discrimination. Otherwise, the court ruled, a jury would be forced to speculate about the cause of the investigatory flaws. The appeals court also found that, even if deficiencies in an investigation alone could support a finding of pretext, Markley’s criticisms of the investigation were unpersuasive and insufficient to permit a reasonable jury to find U.S. Bank’s reasons for termination pretextual.
The 10th Circuit affirmed the district court’s grant of summary judgment to U.S. Bank.