UNITED STATES COURT OF APPEALS February 8, 2023

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

v. No. 20-1386

JOSHUA OMAR GARCIA,

Defendant - Appellee. _________________________________

Appeal from the United States District Court for the District of Colorado (D.C. No. 1:17-CR-00358-CMA-1) _________________________________

J. Bishop Grewell, Assistant United States Attorney (Matthew T. Kirsch, Acting United States Attorney, with him on the briefs), Denver, Colorado, for Plaintiff-Appellant.

Shira Kieval, Assistant Federal Public Defender, (Virginia L. Grady, Federal Public Defender, Jacob Rasch-Chabot, Assistant Federal Public Defender, and Joshua Omar Garcia with her on the brief), Denver, Colorado, for Defendant-Appellee. _________________________________

Before McHUGH, MURPHY, and CARSON, Circuit Judges. _________________________________

CARSON, Circuit Judge. _________________________________

Violating a defendant’s Sixth Amendment speedy-trial right compels a severe

remedy: dismissing the indictment with prejudice. But a defendant cannot avail

himself of that protection when he did not diligently assert that right. After a Appellate Case: 20-1386 Document: 010110810027 Date Filed: 02/08/2023 Page: 2

shoplifting incident at a Colorado Kmart and a shootout two days later, the federal

and state governments both indicted Defendant Joshua Garcia. The federal

government waited nearly twenty-three months to prosecute Defendant, while the

state prosecution ran its course. The district court held the delay violated

Defendant’s Sixth Amendment right to a speedy trial and dismissed the federal

indictment against him. Exercising jurisdiction under 28 U.S.C. § 1291 and 18

U.S.C. § 3731, we reverse.

I.

On July 3, 2017, Defendant 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, Defendant

brandished and discharged a firearm at the ground before fleeing. Authorities did not

apprehend Defendant until two days later, when they responded to a complaint of a

man with a gun in a trailer. During his arrest, Defendant allegedly shot at law-

enforcement officers. The District Attorney’s Office filed a complaint against

Defendant on July 11 based on the July 5 incident.

Then, on September 27, a federal grand jury returned a three-count indictment

against Defendant based on the July 3 events. The indictment alleged that Defendant

possessed a weapon in violation of 18 U.S.C. § 922(g)(1), robbed a Kmart store in

violation of 18 U.S.C. § 1951(a), and knowingly used, brandished, or discharged a

firearm during and in relation to a crime of violence in violation of 18 U.S.C.

2 Appellate Case: 20-1386 Document: 010110810027 Date Filed: 02/08/2023 Page: 3

§ 924(c)(1)(A)(i), (ii), and (iii). The indictment remained sealed for almost two years

while Colorado’s case against Defendant proceeded in state court.

In state court, Defendant pleaded guilty to first-degree assault, and the court

sentenced him to twenty-three years’ imprisonment on August 16, 2019. The day

before, the government moved for a writ of habeas corpus ad prosequendum,

requesting authorities bring Defendant from the st

Click Here to Read the rest of this document