*1 (8) (6) gestational age “Probable of the fic information about the unborn child at child,” what, judgment gestational in the of the various ages. unborn prob- with reasonable physician, will printed materials shall be in a type- ability gestational age of the un- be the large enough face clearly legible be at the time the abortion is born child shall be available at no cost from the to be planned performed. Department department health of Health upon request in appropriate number § Section 9. That 34-23A-10.3 be amend- any person, facility hospital. or ed to read as follows: any Section 10. If enjoins, court of law department 34-23A-10.3. The health suspends, delays or the implementation of culturally publish, shall sensitive lan- provisions Act, section of this eighty sixty guages, within one hundred 34-23A-10.1, § provisions as of June days July after following during injunction, are effective such printed way materials in such a as to suspension, delayed or implementation. easily ensure the information is com- Section 11. If any court of any law finds prehensible: provisions of section 7 of this Act to be (1) designed Materials to inform the unconstitutional, provisions the other pregnant woman of all the disclosures section 7 are any severable. If court of Act; enumerated section 7 of this provisions law finds the of section 7 of this (2) designed Materials to inform the fe- entirely Act to be substantially or uncon- pregnant public male woman of pri- stitutional, provisions 34-23A-10, §of agencies vate and services available to as June immediately are reef- pregnant through assist female woman fective. pregnancy, upon childbirth and while dependent, the child is including adop- agencies,
tion which shall include a list agencies available descrip- and a offer;
tion they of the services
{2) (3) designed Materials to inform the pregnant
female woman of the probable America, UNITED STATES of anatomical and physiological characteris- Plaintiff-Appellee, tics of the unborn child at two-week gestational increments from the time pregnant when a female woman can be MENDOZA, Paul Defendant-Appellant. term, known to pregnant be to full in- cluding relevant information on the No. 06-50447. possibility of the unborn child’s survival United States Appeals, Court of pictures drawings representing Ninth Circuit. development of unborn children at gestational two-week increments. Such Argued and Submitted Dec. 2007. pictures or drawings shall contain the 8,May Filed 2008. dimensions of the fetus and shall be Amended June appropriate realistic and stage for the pregnancy depicted. The materials objective,
shall be nonjudgmental, and
designed convey only accurate scienti- *2 in the and at
times United States least once in Mexico. Id. at 1115. Replace following with the sentence: *3 However, government in that case beyond steps simply took additional en- tering the defendant’s arrest warrant sys- into the law enforcement database court specifically tem and the district government found that had been diligent pursuing the defendant. 13-15, slip op. 2. At lines delete Torrance, CA, Levy, Richard A. for the following sentence: defendant-appellant. contrast, case, In government Alka Sagar, Assistant United States At- beyond made entering no effort Mendo- CA, torney, Angeles, plaintiff- Los for the za’s arrest warrant in the law enforce- appellee. ment database. Replace following with the sentence: contrast, By in this the record is silent as to by efforts apprehend ment beyond merely entering Mendoza’s arrest war- database, rant in the law enforcement and the evidence before the district NELSON, Before: T.G. RICHARD A. court is insufficient to support finding PAEZ, BYBEE, and JAY S. Circuit government conducted a serious Judges. effort to find Mendoza.
ORDER AMENDING OPINION AND 1-5, slip op. 3. At delete the lines
CONCURRENCE AND AMENDED following sentence: OPINION AND AMENDED CON- treaty Because there was no extradition CURRENCE that would permit the IRS to bring will, Mendoza to trial against notify-
ORDER ing Mendoza of his indictment and ask- opinion The May and concurrence filed ing him to return to the United States to 8, 2008, slip op. are amended as charges against might face him follows: only hope been the IRS’s him locating bringing him to trial. 7-12,
1. At slip op. lines delete the following Replace sentences: following with the sentence:
However, that case Because believed that took steps beyond simply additional treaty en- there was no extradition tering the defendant’s arrest permit warrant would to bring IRS into system. will, the law enforcement against The to trial for tax offenses Myster- contacted Unsolved notifying Mendoza of his indictment and Wanted, ies and asking America’s Most which him to return to the United segments twenty aired on the charges against case over States to face the him States, Special Agent IRS only hope of the United the IRS’s might have been Mendoza with a attempted to serve him to trial. Slotsve bringing him and locating Jury subpoena handwriting for Grand rehearing petitions No further by serving the sub- fingerprint exemplars may be filed. rehearing en banc attorney. on Mendoza’s When poena IT IS SO ORDERED. Agent to meet with Slotsve Mendoza failed required as the sub- on June OPINION contacted the poena, Agent again Slotsve NELSON, Judge: Circuit T.G. Agent attorney. attorney informed his convictions on appeals longer represented that he no Paul Mendoza Slotsve *4 to a false income subscribing two counts Mendoza. § 7201. in violation of U.S.C. tax return previous correspondence with Based on eight-year de- contends that the Mendoza attorney, Agent deter- Mendoza’s Slotsve and his arrest his indictment lay between had left the Los An- mined that Mendoza right to a Amendment
violated his Sixth
Seattle,
Agent
geles
Washington.
area for
further contends
trial. He
subpoena
then sent the
to IRS
Slotsve
erred when it ordered
plainly
court
district
Lynn in the Seattle area so
Special Agent
sentencing. We have
during
restitution
Lynn could serve Mendoza.
Agent
1291,
§
pursuant to 28 U.S.C.
jurisdiction
on
Agent Lynn called Mendoza’s wife
Jan-
and we reverse.
4,
uary
1996. Mendoza’s wife informed
left
Agent Lynn that Mendoza had
her and
Background
I.
in
living
her children and had been
was based on two
Mendoza’s conviction
since June 1995. Mendoza’s
Philippines
underreported
his
income-tax returns
gave Agent Lynn phone
a
number for
wife
manage-
for a
income. Mendoza worked
Philippines.
relatives in the
Angeles, California
company in Los
ment
Agent Lynn spoke
After
with Mendoza’s
Marketing Company where
called Nobel
at his
message
wife and left a
for Mendoza
administering Nobel
charge
in
he was
Philippines,
in
sister’s house
administrator,
As the
Medical Clinic.
Lynn’s phone call from the
Agent
returned
deposit
clients’
Mendoza was authorized
in
Agent Lynn was not
Philippines.
accounts,
the clinic’s bank
but
checks into
with an FBI
spoke
office so Mendoza
on the accounts.
signatory
he was not a
agent
agent,
give
but refused to
1990,
embez-
During
9, 1996,
January
contact information. On
$285,000from the clinic
approximately
zled
again
pay phone
from a
Mendoza called
collecting some of the clinic’s
by personally
Philippines
spoke
Agent
with
own
depositing
them into his
checks
Lynn.
plan-
Mendoza stated that he was
at a
cashing
the checks
bank accounts
ning
returning
on
to Seattle
two months
money from
company. The
check-cashing
selling
Philippines
that he was in the
on his
reported
was not
these transactions
himself in
property so he could defend
1989 or 1990 tax returns.
give
Mendoza refused to
California.
contact
information.
Agent Lynn his
During
Internal Revenue Service’s
(“IRS”)
Lynn did not inform Mendoza
Agent
Mendoza’s failure
investigation of
subpoena.
him with a
income tax
he wanted to serve
money
on his
report
Mendoza, he
Lynn spoke with
returns,
Agent
After
Mendoza left the United States
19,
him of his
Agent
to inform
On
called
Slotsve
Philippines.
to the
June
and went
Mendoza.
1995,
from conversation with
departure
prior to Mendoza’s
12,
April
following
on
balance
four
Mendoza was indicted
1996.
factors:
indictment, the government put
“[ljength
After
delay,
delay,
the reason for the
the law enforcement da-
warrant out on
right,
the defendant’s assertion of his
would be detained
tabase so that Mendoza
prejudice to the
Barker
defendant.”
to return to the United
attempted
530,
when he
Wingo, 407 U.S.
92 S.Ct.
only attempt
States.
warrant was the
(1972).
L.Ed.2d 101
apprehend
made to
Men-
None of
factors
these four
are either
doza;
made no
sufficient,
necessary or
individually,
contact Mendoza to inform him that he had
support
finding
that a defendant’s speed
been indicted.
Id. at
has been violated.
Mendoza returned
the United States
S.Ct. 2182. Rather the factors are related
until
June
but was
arrested
together
and “must be considered
with
arrest,
After
October
Men-
circumstances may
such other
as
be rele-
doza
seven
sought and received
continu-
Further,
vant.” Id.
the balancing of these
date,
ances of the
scheduled
from factors,
circumstances,
and other relevant
March
December
2006. On “must
full recognition
be carried out with
*5
January
Mendoza filed a motion to
in speedy
the accused’s interest
trial
dismiss the indictment
eight-
because the
specifically
is
affirmed
the Constitu-
year delay between his indictment and his
tion.” Id.
arrest
right
violated his Sixth Amendment
to a
trial. The district
speedy
court de-
Length
A.
Delay
of
motion,
nied the
but did not
make
claims,
For
trial
speedy
the
stating
findings,
only:
factual
“This Court
length
“delay
is measured from ‘the
DENIES
Motion
Defendant’s
to Dismiss
time of the indictment to the time of tri
(2)[
finding
the
...
Indictment
de-
]
”al.’
v. Gregory,
United States
322 F.3d
speedy
rights
fendant Mendoza’s
Cir.2003)
(9th
1157, 1162
(quoting United
not been violated.”
Sears,
Co.,
States v.
Roebuck &
877 F.2d
guilty
Mendoza was found
on two counts
Cir.1989)).
734,
(9th
739
If
length
of subscribing to a false income-tax return
long
is
to be
enough
pre
considered
after a jury trial and was sentenced to a
an
sumptively prejudicial,
inquiry into the
imprisonment
term
thirteen months
triggered. Barker,
other three factors is
$79,837.90.
amount
restitution
Corona-Verbera,
Prejudice
the defendant was in D.
Mexico
eight-year
and there was an almost
The final factor
prejudice.
The Su-
indictment
between his
and his ar-
preme Court
recognized
has
three forms of
However,
rest.
Id. at 1111.
prejudice that
post-indict-
can result from
(1)
ment
steps
that case took additional
delay:
oppressive
ment
pretrial incar-
(2)
ceration,
beyond
anxiety
simply entering the
ar-
and concern of
defendant’s
(3)
accused,
possibility
“the
that the
rest warrant into the law enforcement da-
impaired
[accused’s] defense will be
by
system
tabase
specif-
and the district court
dimming memories
exculpatory
and loss of
ically
government
found that the
had been
Doggett,
evidence.”
505 U.S. at
diligent
pursuing the defendant.
Barker,
S.Ct. 2686 (quoting
407 U.S. at
By contrast,
in this
the record is
2182) (internal
quotations
S.Ct.
silent as
by
efforts
omitted).
“Of
prejudice,
these forms of
apprehend
beyond merely
last,
en-
‘the most serious is the
because the
inability of a
tering
adequately
defendant
pre-
Mendoza’s arrest warrant in the
law
pare his case skews the fairness of the
database,
enforcement
and the evidence
”
system.’
Barker,
entire
Id. (quoting
before the district court is insufficient to
2182).
U.S. at
92 S.Ct.
support
finding
con-
final
ducted a serious
This
form of prejudice
effort to find
is not only
Mendoza.
important,
most
it is also the most
prove
difficult to
because “time’s erosion of
C.
Speedy
Assertion
Trial
Defendant’s
exculpatory evidence and testimony ‘can
Right
”
rarely
be shown.’
Id. at
112 S.Ct.
Barker,
(quoting
There
407 U.S. at
is no
evidence
Mendoza knew
2182).
words,
S.Ct.
In other
excessive de-
indictment,
of his
such as evidence that the
lays can “compromise[ the reliability
]
of a
attempted
had
notify
Men-
ways
trial in
that neither party
prove
can
doza
leaving message
with his rela-
or,
matter,
for that
identify.” Id.
Therefore,
tives.
Mendoza could assert
*7
speedy
his
trial right as to
eight-year
Due
concerns,
to these
“no
period between his indictment and his ar-
showing
prejudice
of
required
is
when the
Sandoval,
(hold- delay
great
rest.
is
990 F.2d at
and
attributable to
gov
Cf.
ernment.”
ing
Shell,
United
that the
States v.
defendant could not assert a
(9th
Cir.1992)
F.2d
(citing Dog
speedy
right
trial
under Doggett because
gett,
657-58,
2686).
Because Mendoza
delay
caused this
before
gence,
speedy
his
trial claim would have
his assertion
of his
rights,
failed unless he could
“specific preju-
show
factor
weigh
does not
in favor of Mendoza dice to his defense.” Doggett, 505 U.S. at
nor in favor
government.
Corona- 656,
However,
Accordingly, we REVERSE left his wife and child behind and consistent proceedings MAND the ease for Philippines. fled to the opinion. with this April an The IRS filed indictment BYBEE, Judge, concurring: Circuit admission, but, never by its own to inform attempted to contact Mendoza Paul Mendoza found Appellant false him of this turn of events or otherwise guilty by jury peers filing nev- bring him trial. failing report over Because tax returns information, provided er no IRS $285,000 in funds from his contact he embezzled directly. to contact him Today agent attempted are forced to over- employer. we *8 num- majority agent attempted phone No to call the join conviction. I the turn his Philippines provid- I ber wife had dutifully ap- we the his opinion because believe States, ed, for with whom she believed he 505 U.S. relatives plied Doggett United agent attempted No 2686, 520 was contact. to 112 S.Ct. 120 L.Ed.2d notify the (1992); the his wife of indictment —even separately I write because however, alleges appeal, anees. Mendoza we Sixth On 2. Because find that Mendoza's violated, right speedy-trial constitutionally impermissible was cognizable Amendment the arguments his we do not need to address delay eight-and-a- post-indictment to the be sentencing. related to year his indict- period half from the date of ment, arrest, April to of his the date arrest, Subsequent to trial was 1. October by year delayed and a half another further requests for continu- to Mendoza's own due spoke Special Agent Lynn country that Mendoza fled the and though when refused January 1996, Mendoza with his contact provide wife on information. Nonethe- just days less, the a few government himself called IRS that knew within a Special Lynn. for Agent wife, later and asked days speaking few to his Mendoza only step government The took was to was somehow informed both the fact place in law enforcement databases notices that the IRS to reach him trying was outstanding about the indictment particular was agent Spe- named warrant other Mendoza’s arrest —in Moreover, Lynn. cial Agent govern- words, told other law en- government ment knew that Mendoza was able initi- forcement about the indictment agencies responsive ate communication with the but not himself.2 Mendoza government just days after the Thus, contact ment’s with his wife. Men- ultimately guilty Mendoza was found doza, though half-way world, around the a jury filing on two counts of a false in- pay-phone was never more than a call return, tax come was sentenced to away from the that IRS. The fact imprisonment thirteen months’ and or- called twice soon after pay dered to the IRS restitution learning an agent trying IRS to reach $79,837.90. amount of appeal, On Mendo- that, may suggest him even while attempt- challenge sufficiency za does not ing healthy to maintain a distance between him; government’s against evidence nor IRS, himself Mendoza was not argue any aspects jury does he his attempting disappear completely. deprived Rather, trial him of process. due despite the fact Mendoza fled to the Because the believed that Philippines hampered investi- IRS treaty there was no extradition that would him, gation against argues permit the bring IRS to Mendoza to trial we must reverse his conviction he because will, for tax against notifying offenses was denied Sixth Amendment to Mendoza of his asking indictment and him a speedy trial. Doggett, Under he is cor- to return to the United States to face the rect. charges against him might have been the
Doggett
government responsi-
only
hope
holds
him
locating
IRS’s
and bring-
ble for post-indictment delay
“negli-
least,
if it is
ing
very
him
trial. At the
it
gent”
in its
to bring
put
the defendant
would
Mendoza on notice that he
trial, however,
Doggett
indicted,
define
does not
had been
subsequent
so that
duty
of care the
owes. post-indictment
would have
652-53,
505 U.S. at
S.Ct. 2686.
attributable Mendoza’s own deci-
Sixth
require
Amendment does not
remain
fugitive,
sion to
and not to the
government to make “heroic
to ap- government’s
Sandoval,
efforts
negligence. See
prehend a
who
purposefully
defendant
767 (1972)). 101 The to this single that additional com- Court’s possible even solution evidentiary require to the problem was Special Agent Lynn to munication from appeals “recognize court of to that exces- wife, in he notified her of which delay presumptively compromises sive the her the indictment and asked to let Men- ways of reliability a trial in that neither IRS, the know needed to contact doza he or, matter, prove can for that identi- party might govern- sufficient for the been fy.” it Id. The Court further held that is duty its of care discharge ment to under presumed” of the prejudice “the nature giv- not Unfortunately, we were Doggett. presumption that we must make the to opportunity question en rule on this the length delay as the increas- stronger did not take even because 657, at 112 es. Id. S.Ct. 2686. We have steps. these small directive, interpreted Doggett’s accurately, government’s negligence in Yet even the believe, showing I mean that “no to of not have us might required case to delay prejudice required is when the is jury overturn Mendoza’s conviction absent great government.” and attributable to the requirement presume that we Doggett’s Shell, United States v. 974 F.2d 1036 prejudiced was where defendant (9th Cir.1992). to delay attributable case, In Mendoza’s the facts strongly far in of negligence ment’s excess impairment he suggest suffered no his a speedy needed state threshold ability to marshal his defense. Mendoza 657-58, 112 claim. See 505 U.S. at S.Ct. prejudiced claims he was because delay post-indictment 2686. Unreasonable documentary much of evidence of his may types prejudice: op- cause three Yet, destroyed. embezzlement has been incarceration, pretrial anxiety and pressive all maintained of the docu- accused, possibility concern of the and the case, mentary related to this in- evidence impaired defense will be accused’s cluding checks Mendoza cashed his by dimming exculpa- memories and loss of account, checking own bank records for tory Id. at 112 evidence. S.Ct. 2686. controlled, bank he seven accounts eight-and-a-half year delay The between clin- accounting ledgers of medical arrest Mendoza’s indictment his did ic. not Mendoza has introduced evi- implicate oppressive pretrial incarcera- were in- suggest dence these records tion, freely Philip- lived in the as Mendoza or Mendoza also complete unreliable. pines during that time. Mendoza suffered key claims he was unable to locate a wit- “anxiety no [as an] and concern accused” Yet, record ness. shows blissfully he unaware because remained locate, contact, no made had indicted. Id. that he witness, suggesting it was subpoena the only prejudice form of The pretrial not the that caused ab- possibly have suffered would be an could at trial. As for an- sence this witness impairment ability his to prepare witness, key other there evidence Doggett that, Court stated that defense. after Mendoza learned this record impairment defense is the “friendly” “the one’s not be witness would preju- most difficult form in the Philip- Mendoza called the witness prove “bring time’s erosion of him pines dice to because and threatened to down” testimony if exculpatory evidence ‘can he traveled to the United States ” testify against opportuni- be U.S. at him. Given the rarely shown.’ ty, might rule that the record shows (citing Wingo, Barker v. we S.Ct. ability to marshal defense had U.S. 33 L.Ed.2d Mendoza’s S.Ct. *10 Unfortunately, not prejudiced. Dog- been
gett permit ques- does not us to reach this
tion.
If Doggett, I uphold would Men-
doza’s I conviction. would hold
pre-trial delay was the gov- attributable to negligence,
ernment’s but that Mendoza Instead, join
had not I prejudiced.
the majority holding that Mendoza’s
speedy trial Dog- violated under
gett. As the closed on
Mendoza, he fled to the Philippines and
hampered investigate efforts to and indict however,
him. Today, proves Doggett, you under can still claim
your right to a trial has been vio- run, you you
lated if but don’t hide.
INTERNATIONAL SOCIETY FOR
KRISHNA CONSCIOUSNESS OF INC., nonprofit,
CALIFORNIA reli-
gious corporation; California, Emil
Beca, one members; of its individual Rights Iran,
Committee for Human public corpora- California benefit
tion; Nabati, Reza one of its individu-
al members, Plaintiffs-Appellees,
CITY ANGELES, OF LOS a California
Municipal Corporation; Stephen Yee,
Airport Manager; Gilbert A. Sando-
val, Airport Police, Chief of Defen-
dants-Appellants.
No. 01-56579.
United States Court of Appeals,
Ninth Circuit.
Filed June