Mendoza

ORDER AMENDING OPINION AND CONCURRENCE AND AMENDED OPINION AND AMENDED CONCURRENCE

ORDER

The opinion and concurrence filed May 8, 2008, slip op. 5135, are amended as follows:

1. At slip op. 5144, lines 7-12, delete the following sentences:

Replace with the following sentence:

2. At slip op. 5144, lines 13-15, delete the following sentence:

Replace with the following sentence:

3. At slip op. 5149, lines 1-5, delete the following sentence:

Replace with the following sentence:

No further petitions for rehearing or rehearing en banc may be filed.

IT IS SO ORDERED.

OPINION

Paul Mendoza appeals his convictions on two counts of subscribing to a false income tax return in violation of 26 U.S.C. § 7201 . Mendoza contends that the eight-year delay between his indictment and his arrest violated his Sixth Amendment right to a speedy trial. He further contends that the district court plainly erred when it ordered restitution during sentencing. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we reverse.

I. Background

Mendoza’s conviction was based on two income-tax returns that underreported his income. Mendoza worked for a management company in Los Angeles, California…

concurring:

Appellant Paul Mendoza was found guilty by a jury of his peers of filing false tax returns for failing to report over $285,000 in funds he embezzled from his employer. Today we are forced to overturn his conviction. I join the majority opinion because I believe we dutifully applied Doggett v. United States, 505 U.S. 647 , 112 S.Ct. 2686 , 120 L.Ed.2d 520 (1992); I write separately because the facts before us demonstrate how Doggett requires a presumption unsupported by the record. Because the government did not make even a single effort to notify Mendoza of his indictment, we must find the government responsible for the constitutionally impermissible eight-and-a-half-year delay between Mendoza’s indictment and arrest. 1 Nevertheless, we might not have been required to set aside Mendoza’s jury verdict but for Doggett’s requirement that we presume that the delay prejudiced Mendoza. In this case, it appears Mendoza suffered no prejudice.

Mendoza was a manager at a medical clinic in Los Angeles, where his duties included depositing clients’ checks to the clinic’s bank account. Instead, Mendoza kept the money for himself. Over a two year period, Mendoza managed to…

I. Background

Mendoza’s conviction was based on two income-tax returns that underreported his income. Mendoza worked for a management company in Los Angeles, California called Nobel Marketing Company where he was in charge of admin- istering Nobel Medical Clinic. As the administrator, Mendoza was authorized to deposit clients’ checks into the clinic’s bank accounts, but he was not a signatory on the accounts.

During 1989 and 1990, Mendoza embezzled approximately $285,000 from the clinic by personally collecting some of the clinic’s checks and depositing them into his own bank accounts or cashing the checks at a check-cashing company. The money from these transactions was not reported on his 1989 or 1990 tax returns.

During the Internal Revenue Service’s (“IRS”) investiga- tion of Mendoza’s failure to report the money on his income tax returns, Mendoza left the United States and went to the Philippines. On June 19, 1995, prior to Mendoza’s departure from the United States, IRS Special Agent Slotsve attempted to serve Mendoza with a Grand Jury subpoena for handwrit- ing and fingerprint exemplars by serving the subpoena on Mendoza’s attorney. When Mendoza failed to meet with Agent…