United States v. Garcia ( 2023 )

Appellate Case: 20-1386 Document: 010110810027 Date Filed: 02/08/2023 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
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 state detention facility into the
United States Marshal’s custody to begin prosecuting the federal case.1 The district
court granted that motion, unsealed the federal indictment, and on August 20, 2019,
Defendant made his initial appearance in federal court.2
Defendant 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, Defendant moved to dismiss the indictment with prejudice for
violation of his Sixth Amendment right to a speedy trial. The district court granted
Defendant’s motion and dismissed the indictment against him, finding that all factors
set forth in Barker v. Wingo, 407 U.S. 514, 530–32 (1972), favor Defendant and that
the government violated his right to a speedy trial. The district court determined that
the delay prejudiced Defendant because it resulted in lost evidence and an
1
Defendant contends that he spent the entire twenty-three-month pretrial
period incarcerated only because of the federal detainer preventing him from bonding
out of state custody, because though he could not afford the bond at first, his family
committed to raising the money.
2
Defendant also asserts that he did not learn of the sealed federal indictment
against him pending in the District of Colorado until May 2019.
3
Appellate Case: 20-1386 Document: 010110810027 Date Filed: 02/08/2023 Page: 4
unnecessary two years’ pretrial incarceration for him. The government then moved
for reconsideration, but the district court denied that too because the government had
not shown that the court “misapprehended the facts, a party’s position, or the law.”
United States v. Christy, 739 F.3d 534, 539 (10th Cir. 2014). The government
appeals both the indictment’s dismissal and the denial of its motion for
reconsideration.
II.
“The Sixth Amendment guarantees that ‘[i]n all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial.’” United States v. Jumaev,
20 F.4th 518, 532 (10th Cir. 2021) (quoting United States v. Medina, 918 F.3d 774,
779 (10th Cir. 2019)). Although we have described the speedy-trial right as
“somewhat amorphous,” the remedy for violating that right is “severe: dismissal of
the indictment with prejudice.” United States v. Black, 830 F.3d 1099, 1111 (10th
Cir. 2016) (cleaned up). To determine whether a delay violates a defendant’s Sixth
Amendment speedy-trial right, we apply the four-part balancing test set forth by the
Supreme Court in Barker. Jumaev, 20 F.4th at 532. “The four factors are: ‘(1) the
length of delay; (2) the reason for the delay; (3) the defendant’s assertion of his right;
and (4) prejudice to the defendant.’” Medina, 918 F.3d at 780 (quoting United States
v. Yehling, 456 F.3d 1236, 1243 (10th Cir. 2006)).
We review the legal question of whether the government violated a
defendant’s Sixth Amendment right de novo “and any underlying district court
factual findings for clear error.” United States v. Frias, 893 F.3d 1268, 1272 (10th
4
Appellate Case: 20-1386 Document: 010110810027 Date Filed: 02/08/2023 Page: 5
Cir. 2018) (citing Black, 830 F.3d at 1111). “Clear error exists when a factual
finding lacks any factual support in the record, or after reviewing the evidence, the
record convinces us the district court made a mistake.” United States v. Rico, 3 F.4th
1236, 1238 (10th Cir. 2021) (citing United States v. Hooks, 551 F.3d 1205, 1216
(10th Cir. 2009)).
III.
Under Barker’s test to determine whether a delay violates the Sixth
Amendment, “[n]o single factor is determinative or necessary”; we consider “all
four . . . to determine whether a violation has occurred.” Black, 830 F.3d at 1111(quoting United States v. Seltzer, 595 F.3d 1170, 1176 (10th Cir. 2010)).
A.
The district court correctly determined that the first factor favors Defendant;
and the government agrees. The length-of-delay factor typically serves as a
gatekeeper. Frias, 893 F.3d at 1272. “We examine the other factors only when the
delay is presumptively prejudicial,” Jumaev, 20 F.4th at 532 (quoting Frias, 893 F.3d
at 1272)—a requirement that “[d]elays approaching one year generally satisfy,”
United States v. Batie, 433 F.3d 1287, 1290 (10th Cir. 2006) (citing Doggett v.
United States, 505 U.S. 647, 652 n.1 (1992); Jackson v. Ray, 390 F.3d 1254, 1261
(10th Cir. 2004)). “The delay period starts with the indictment or arrest, whichever
comes first.” Jumaev, 20 F.4th at 533 (quoting United States v. Nixon, 919 F.3d
1265, 1269 (10th Cir. 2019)). And it ends at conviction. Id. (citing Betterman v.
Montana, 578 U.S. 437, 441 (2016)).
5
Appellate Case: 20-1386 Document: 010110810027 Date Filed: 02/08/2023 Page: 6
The grand jury returned the indictment against Defendant on September 27,
2017, and federal authorities arrested him on August 20, 2019, when the district court
unsealed the indictment. The parties do not contest the district court’s determination
that Defendant’s rights attached when the government filed the sealed indictment on
September 27, 2017—twenty-three months before Defendant’s arrest. Twenty-three
months is presumptively prejudicial. See Batie, 433 F.3d at 1290 (“Delays
approaching one year generally satisfy the requirement of presumptive prejudice.”).
And the district court determined that “the delay stretche[d] beyond the bare
minimum needed to trigger judicial examination of the claim.” Seltzer, 595 F.3d at
1176 (quoting Doggett, 505 U.S. at 652) (stating that when the accused makes a
showing that the delay is presumptively prejudicial, “the court must then consider, as
one factor among several, the extent to which the delay stretches beyond the bare
minimum needed to trigger judicial examination of the claim.) The government does
not dispute this determination. Thus, the length of delay favors Defendant.
B.
The second Barker factor focuses on the reason for the delay. This factor is
especially important. Seltzer, 595 F.3d at 1177 (citing United States v. Loud Hawk,
474 U.S. 302, 315 (1986)). Both the prosecutor and the court have an affirmative
constitutional obligation to timely try a defendant. Jumaev, 20 F.4th at 533 (citing
United States v. Muhtorov, 20 F.4th 558, 639 (10th Cir. 2021)). Thus, the
prosecution must explain the cause of the pretrial delay. Id. (citing Muhtorov, 20
6
Appellate Case: 20-1386 Document: 010110810027 Date Filed: 02/08/2023 Page: 7
F.4th at 639). A deliberate attempt to delay trial to hinder the defense weighs heavily
against the government. Seltzer, 595 F.3d at 1177 (citing Barker, 407 U.S. at 531).
A more neutral reason, such as negligence or overcrowded courts, weighs less
heavily against the government—though the government still bears responsibility for
“such circumstances.” Id. (quoting Barker, 407 U.S. at 531). But a valid reason, like
a missing witness, justifies appropriate delay. Id. (citing Barker, 407 U.S. at 531).
The government asserts it delayed prosecuting Defendant until Colorado
completed its case against him for, among other things, reasons of comity. Waiting
for the completion of another sovereign’s prosecution can justify a delay in some—
but not all—cases. See id. at 1178. The government must explain why it needed to
wait in a particular case. Frias, 893 F.3d at 1272. Three subfactors can tip the
second Barker factor in favor of the government: when (1) the charges or proceedings
overlap, (2) “concurrent proceedings would . . . be logistically cumbersome,” or (3)
the defendant faces complex charges. Medina, 918 F.3d at 781 (quoting Seltzer, 595
F.3d at 1178).
The district court determined the government failed to show this case’s
circumstances necessitated the delay. It found: (1) the federal and state proceedings
minimally overlapped because only Defendant’s involvement and discharge of the
same firearm linked the July 3 and 5 incidents; (2) prosecuting both cases
simultaneously would not unduly burden the government because each sovereign
could work together to transfer Defendant from its custody and document the
7
Appellate Case: 20-1386 Document: 010110810027 Date Filed: 02/08/2023 Page: 8
firearm’s chain-of-custody transfers; and (3) the charges were not complex because
the facts surrounding the July 3 incident are straightforward.
The government argues Defendant’s state and federal charges significantly
overlapped because the first count—possession of a firearm by a felon—included
Defendant’s possession of the firearm on July 5 when he fired at the police officers,
the event underlying Colorado’s case. And the government notes that if the state had
prosecuted Defendant for illegal gun possession, the United States likely would not
have needed to bring its own gun-possession charge. The government also contends
that concurrent state and federal proceedings would have caused logistical difficulties
due to the possibility of competing hearings, trials, and demands for witnesses and
custody of Defendant, along with chain-of-custody issues with the firearm and the
potential for inconsistent testimony. Last, the government asserts that Defendant’s
attempted murder charge in the state case was complex because murder cases are
inherently complex. See Nixon, 919 F.3d at 1272. And attempt crimes add the
requirement of proving a substantial step “strongly corroborative of the firmness of
the actor’s purpose to complete the commission of the offense,” Colo. Rev. Stat.
Ann. § 18-2-101(1), making an attempted-murder charge arguably more complex.
The district court erred in finding minimal overlap between the federal and
state cases against Defendant. It detailed that, because the federal charges relate only
to the July 3 shoplifting incident and the state charges involve only the July 5
shooting-at-law-enforcement incident, the two cases have little in common. But
count one of the federal indictment charges Defendant with unlawfully possessing a
8
Appellate Case: 20-1386 Document: 010110810027 Date Filed: 02/08/2023 Page: 9
firearm in violation of 18 U.S.C. § 922(g)(1) from July 3, 2017, up to and including
July 5, 2017. So the district court incorrectly determined that the federal charges did
not involve the July 5 firearm possession.
The district court also gave insufficient weight to the difficulties that
prosecuting Defendant’s federal and state cases simultaneously would place on the
state and federal governments. In this Circuit, the undue burden inquiry has focused
on varying factors, including the avoidance of jurisdictional conflicts and the burden
of transporting the defendant to federal court. So, where dual court proceedings will
require “ping-ponging [the defendant] between state and federal custody,” we have
held that the government could permissibly delay proceedings. Nixon, 919 F.3d at
1270. Similarly, where concurrent proceedings will pose a “logistical ordeal”
because the defendant is in state custody many miles from the federal courthouse, we
have upheld a delay in proceedings. Medina, 918 F.3d at 789. But where the state is
holding a defendant only five blocks from the federal courthouse, we have found the
burden of making a defendant appear in federal court less compelling. Seltzer, 595
F.3d at 1178.
In this case, the state held Defendant twenty-four miles from the federal
courthouse. So, if the government sought to justify the delay based upon the
difficulty of transport from state custody to the federal courthouse, it might be a close
call. But the government’s justification in this case rests more on jurisdictional
conflicts, issues of comity, and the logistical ordeal of transporting not only
9
Appellate Case: 20-1386 Document: 010110810027 Date Filed: 02/08/2023 Page: 10
defendant, but evidence critical to both cases.3 And that argument makes the case
more akin to Nixon, where the state defendant resided within one and a half miles of
the federal courthouse, but the “federal authorities weren’t waiting on the state case
to save on mileage or time; they were waiting in order to avoid jurisdictional
conflicts over custody.” Nixon, 919 F.3d at 1271. Thus, like we did in Nixon, we
conclude the delay caused by the government’s decision to wait until the state
prosecution finished to avoid jurisdictional conflicts was permissible.
And the district court also erred in finding the charges against Defendant were
not complex. Our authorities demonstrate that determining whether charges are
complex can require a detailed inquiry. In Seltzer, we determined the defendant’s
charges—“felon in possession of a firearm and four counts of counterfeiting (all of
which arose out of a single incident)”—lacked complexity. Medina, 918 F.3d at 789
(citing Seltzer, 595 F.3d at 1173, 1175, 1178). But in Medina, which involved
“multiple and different federal financial crimes that occurred in several states,”
including bank fraud, mail theft, identify theft, and possession of a firearm by a
felon, we held the charges were complex. Id. at 778, 789. And we have generally
recognized that state murder cases are inherently complex and can support the federal
government deferring to the state proceeding. Nixon, 919 F.3d at 1272.
3
Physical possession of the firearm would have been necessary for both
prosecutions; and transporting the firearm between jurisdictions would lead to chain-
of-custody issues and an increased logistical burden on both sovereigns. True,
custody logs could mitigate the potential for harm stemming from the transfers. But
the fact that a burden can be, in part, mitigated, does not undermine its legitimacy.
10
Appellate Case: 20-1386 Document: 010110810027 Date Filed: 02/08/2023 Page: 11
The district court distinguished Nixon because the state charged Defendant
with attempted murder (as opposed to murder) and Defendant ultimately pleaded
guilty to assault. But the crime to which Defendant pleaded is not relevant to the
complexity inquiry in this case because his plea did not take place until twenty-one
months into the twenty-three-month delay. During the delay, the government could
not have known that either the state or Defendant would agree to Defendant pleading
to assault. So, for purposes of our inquiry, we must analyze the complexity issue
based upon the crime with which the state charged him: attempted murder.
Though attempted murder does not fall squarely within Nixon’s categorization
of murder charges as complex, we conclude the charge at least minimally meets the
definition of complex as described in Nixon. Indeed, attempted murder is arguably
more complex because to prove an attempt crime, the government must show the
intent to commit the substantive offense plus the “commission of an act which
constitutes a substantial step towards commission of the substantive offense.” United
States v. Vigil, 523 F.3d 1258, 1267 (10th Cir. 2008) (quoting United States v.
Smith, 264 F.3d 1012, 1015 (10th Cir. 2001)); see also Colo. Rev. Stat. Ann. § 18-2-
101(1). Thus, we hold the second factor weighs in the government’s favor.
C.
The district court also erred when it determined the assertion-of-his-right
factor favors Defendant. “Under the third Barker factor, we look to ‘whether the
defendant has actively asserted his right to a speedy trial.’” Black, 830 F.3d at 1120(quoting Batie, 433 F.3d at 1291). While it matters that a defendant asserted the
11
Appellate Case: 20-1386 Document: 010110810027 Date Filed: 02/08/2023 Page: 12
right, we also consider “the frequency and force of the objections.” Id. (quoting
United States v. Latimer, 511 F.2d 498, 501 (10th Cir. 1975)). “The third Barker
factor weighs against a defendant who weakly asserts his speedy-trial right long after
he could have, but the factor weighs in favor of a defendant who early, frequently,
and forcefully asserts his right.” Id.Frias illustrates the type of assertion that results in weighing this factor in
favor of the defendant. There, the defendant’s federal indictment remained sealed for
two years after her state-court sentencing and she moved to dismiss the indictment
less than two months after her initial appearance in federal court. We held this factor
slightly favored the defendant because we doubted she could have asserted her
speedy-trial rights earlier. Frias, 893 F.3d at 1271, 1273. But in Nixon, we held this
factor favored the government, even though it waited nearly a year to arraign the
defendant, because he knew within two weeks of his federal indictment that the
federal government was charging him but waited almost a year after indictment to
invoke his right to a speedy trial. 919 F.3d at 1269, 1272–73.
In this case, though the federal grand jury indicted Defendant on September
27, 2017, the federal indictment remained sealed until August 20, 2019, while
Colorado’s case against Defendant proceeded in state court. But Defendant’s
attorney in the state-court proceedings contacted the U.S. Attorney’s Office
(“USAO”) on May 17, 2019 to inquire about the existence of a federal case. The
USAO did not provide any details about the substance of the federal charges, but it
explained that the federal case would begin when the state court case ended. Still,
12
Appellate Case: 20-1386 Document: 010110810027 Date Filed: 02/08/2023 Page: 13
Defendant did not move to dismiss the federal indictment against him for violation of
his speedy-trial rights until nearly a year after the discussion—and eight months after
his initial appearance in federal court.
The district court determined this factor favored Defendant because he only
had a general impression that he could face federal charges and he could not have
gained any additional information because the indictment was sealed. But the
government does not challenge Defendant’s decision not to file a speedy-trial motion
before the district court arraigned him in August 2019. Rather, the government
argues that this factor favors it because, after appearing in federal court, Defendant
waited eight months to file his speedy-trial motion and filed three continuances
seeking to exclude 210 days from the speedy-trial clock.
At bottom, the third “factor weighs against a defendant who requests
continuances and waits for months to assert his speedy trial right.” United States v.
Larson, 627 F.3d 1198, 1208 (10th Cir. 2010) (citing United States v. Toombs, 574
F.3d 1262, 1274–75 (10th Cir. 2009)). And, as in Nixon, where the defendant waited
nearly a year to file his speedy-trial motion even though the indictment was available
to him, Defendant waited eight months and requested three continuances before filing
his motion after the court unsealed the indictment. Thus, we conclude the third
Barker factor weighs in favor of the government.
13
Appellate Case: 20-1386 Document: 010110810027 Date Filed: 02/08/2023 Page: 14
D.
Finally, the district court erred in determining that the fourth Barker factor
weighed in Defendant’s favor. As the individual claiming the Sixth Amendment
violation, Defendant must prove the delay prejudiced him. See Black, 830 F.3d at
1121 (citing Seltzer, 595 F.3d at 1179). Most of the time, failing to specify prejudice
will “eviscerate the defendant’s claim.” United States v. Margheim, 770 F.3d 1312,
1329 (10th Cir. 2014). We evaluate prejudice by considering the interests that the
speedy-trial right protects: (i) preventing oppressive pretrial incarceration; (ii)
minimizing the accused’s anxiety and concern; and (iii) minimizing the possibility of
impairing the defense. Seltzer, 595 F.3d at 1179 (citing Toombs, 574 F.3d at 1275).
The third interest—impairing the defense—is the most serious “because the
inability of a defendant to adequately prepare his case skews the fairness of the entire
system.” Id. at 1179–80. And “[b]ecause the seriousness of a post-accusation delay
worsens when the wait is accompanied by pretrial incarceration, oppressive pretrial
incarceration is the second most important factor.” Id. at 1180 (quoting Jackson, 390
F.3d at 1264). Some cases of extreme delay excuse the defendant’s obligation under
this factor to show specific evidence of prejudice, but generally the court requires at
least a six-year delay before allowing the delay itself to constitute prejudice. Id. at
1180 n.3 (citing Jackson, 390 F.3d at 1263).
The district court determined that Defendant suffered prejudice because:
(1) the delay caused the loss of relevant evidence; and (2) Defendant experienced an
14
Appellate Case: 20-1386 Document: 010110810027 Date Filed: 02/08/2023 Page: 15
unnecessarily prolonged period of pretrial incarceration. We conclude that neither
determination was correct.
1.
The district court determined that the government’s delay caused the loss of
video evidence because the Kmart where the shoplifting incident occurred closed
during the two years that the federal indictment was sealed. We evaluate whether the
loss of evidence during a delay amounts to prejudice by considering “(1) the
defendant’s ability to demonstrate with specificity how the evidence would have
aided his defense; (2) whether the government’s delay in bringing the defendant to
trial caused the evidence to be actually lost; and (3) whether the defendant took
appropriate steps to preserve the evidence.” Medina, 918 F.3d at 781–82 (citing
Jackson, 390 F.3d at 1264–66).
Here, Defendant fails to carry his burden at the second element: “whether the
government’s delay . . . caused the evidence to be actually lost.” Id. at 781 (citing
Jackson, 390 F.3d at 1264–66). To satisfy the second element, “the defendant must
show the government’s delay caused evidence to be unavailable” and that “the
evidence was actually irretrievable for trial.” Id. at 782 (citing Jackson, 390 F.3d at
1266; United States v. Vaughan, 643 F. App’x 726, 732 (10th Cir. 2016)). “This
showing can include the defendant’s efforts to locate the evidence and why those
efforts were unsuccessful.” Id.The Kmart where the incident took place closed approximately four months
after the July 3 incident. And, based in part on this fact, the district court presumed
15
Appellate Case: 20-1386 Document: 010110810027 Date Filed: 02/08/2023 Page: 16
(and ultimately determined) that the loss was attributable to the government’s delay
because of the likelihood the video recordings would have been available as evidence
if this case had been prosecuted promptly.
But Defendant never put forth evidence showing the video evidence would
have been available at any time, even if the Kmart had not closed—and this was his
burden. See Black, 830 F.3d at 1122. Contrary to the manner in which the district
court considered the issue, it was not the government’s burden to disprove the loss of
video evidence. Relatedly, Defendant makes no assertion that the lost footage would
have been available if the government did not violate the speedy trial clock. The
only assertion he makes is how the evidence—if available—could have helped his
case. Those are distinct claims. As our case law makes clear, “the defendant must
show the government’s delay caused evidence to be unavailable.” Medina, 918 F.3d
at 782 (citing Jackson, 390 F.3d at 1266). Defendant did not make that showing.4
2.
The district court also determined that Defendant experienced an unnecessarily
prolonged period of incarceration because the federal detainer prevented him from
bonding out in his state case. According to the district court, Defendant presented
4
Indeed, neither side presented evidence to the district court on the motion to
dismiss regarding the availability of the video footage. Then, on the motion for
reconsideration of the district court’s grant of the motion to dismiss, the only
evidence before the district court suggested that Defendant could not show the
government’s delay caused the evidence to be unavailable, because the video
evidence was deleted thirty-six days after the July 3 incident and before the federal
grand jury returned the indictment.
16
Appellate Case: 20-1386 Document: 010110810027 Date Filed: 02/08/2023 Page: 17
compelling evidence that his family started gathering funds to post bond when they
learned that the federal detainer prevented him from bonding out of state custody.
Thus, by waiting for the state case to conclude before beginning the federal
prosecution and placing a federal detainer on him, the government assured that
Defendant would be in custody until he was brought into federal custody. Relying on
Seltzer and our recognition that “prolonged pretrial incarceration is a well-
established type of prejudice that a defendant may rely upon,” the district court
determined the fourth Barker factor weighed heavily in Defendant’s favor. Seltzer,
595 F.3d at 1180. We disagree.
In our view, the district court’s determination overlooks two key items that
distinguish this case from Seltzer: (1) a twenty-three-month delay does not constitute
presumptively extreme delay, see Toombs, 574 F.3d at 1275; and (2) the state court
gave Defendant credit for his pretrial incarceration against his twenty-three-year state
sentence, thus mitigating the potential oppressive effects of incarceration, see, e.g.,
Hakeem v. Beyer, 990 F.2d 750, 762 (3d Cir. 1993) (“Credit for time served cannot
cure every unexcused delay but where the defendant has not pointed to any evidence
of additional, specific prejudice flowing from the delay, we are unwilling to infer
prejudice based on incarceration that the defendant would ultimately have had to
serve solely because fourteen and one-half months had elapsed between arrest and
trial.”); Gray v. King, 724 F.2d 1199, 1204 (5th Cir. 1984) (explaining “credit for the
time so served” “mitigate[s] the potential oppressive effects of this incarceration”).
17
Appellate Case: 20-1386 Document: 010110810027 Date Filed: 02/08/2023 Page: 18
Moreover, as in Toombs, “[e]ven assuming . . . prevention of oppressive
pretrial incarceration and minimization of the accused’s anxiety and concern[] weigh
in [Defendant’s] favor, the third, and most important [interest (impairing the
defense)], does not.” 574 F.3d at 1275. That is, pretrial detainment alone (that is not
presumptively extreme) is insufficient proof of prejudice. Under these
circumstances, without evidence that the defense was hindered as a result of the
delay, the fourth Barker factor simply cannot weigh in Defendant’s favor.
E.
In sum, the parties concede that the first factor, the length of the delay, favors
Defendant. But the second factor, reason for the delay, and third factor, assertion of
the speedy-trial right, favor the government because the government justified the
delay and Defendant waited eight months and requested three continuances before
moving to dismiss the indictment for violation of his Sixth Amendment speedy-trial
right. The fourth factor, prejudice, also favors the government because Defendant
failed to carry his burden of showing that evidence was lost because of the delay.
Although no single factor is dispositive, “[a]bsent extraordinary circumstances,
Barker counsels us not to find a violation of the right to a speedy trial when the
defendant’s actions indicate he had no desire for a speedy trial.” Larson, 627 F.3d at
1211 (quoting Toombs, 574 F.3d at 1276); see also Jumaev, 20 F.4th at 545–46
(holding that the defendant’s speedy-trial claim fails where factors one and four
weigh in his favor and factors two and three weigh against him because “with the
third factor weighing against Jumaev, his speedy trial claim fails”). Here, the
18
Appellate Case: 20-1386 Document: 010110810027 Date Filed: 02/08/2023 Page: 19
balance of factors favors the government and—more importantly—we echo the
Supreme Court’s reluctance to find a constitutional speedy-trial-right violation when
the defendant failed to adequately assert that right. See Barker, 407 U.S. at 536.
Thus, we hold that the delay did not violate Defendant’s speedy-trial right and the
district court improperly dismissed his indictment.
V.
The other issue on appeal is whether the district court erred in denying the
government’s motion for reconsideration of the grant of Defendant’s motion to
dismiss. But because we reverse and remand on the grant of the motion to dismiss in
the first instance, we do not reach the government’s appeal of the denial of its motion
for reconsideration.
For these reasons, we REVERSE the district court’s decision dismissing
Defendant’s indictment and REMAND for further proceedings consistent with this
opinion.
19