2023 Supreme(US)(ca10) 36
COURT OF APPEALS FOR THE TENTH CIRCUIT
United States – Appellant
Versus
Garcia – Respondent
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