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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-15770
Non-Argument Calendar
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D.C. Docket No. 1:17-cr-20233-CMA-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GABRIELLE BARRAGAN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(October 11, 2018)
Before MARTIN, JILL PRYOR, and NEWSOM, Circuit Judges.
PER CURIAM:
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Gabrielle Barragan appeals her conviction under 18 U.S.C. § 1349 for one
count of conspiring to commit bank fraud and wire fraud affecting a financial
institution. Barragan argues that the district court abused its discretion in denying
her motion to dismiss the indictment for pre-indictment delay. In particular,
Barragan contends that the district court applied an incorrect legal standard that
required her to show both that the government’s delay caused her actual prejudice
and that the government used the delay to obtain a tactical advantage. Barragan
maintains that the district court should have instead balanced the government’s
justification for delaying her prosecution against any prejudice that she suffered as
a result. Under this balancing analysis, Barragan contends that she should prevail.
We disagree and hold that the district court properly applied the correct legal
standard.
We review a district court’s denial of a motion to dismiss an indictment for
abuse of discretion, United States v. Pendergraft,
297 F.3d 1198, 1204 (11th Cir.
2002), and review all required factual findings for clear error, United States v.
Foxman,
87 F.3d 1220, 1222–23 (11th Cir. 1996).
“The limit on pre-indictment delay is usually set by the statute of
limitations.”
Id. at 1222. The Due Process Clause of the Fifth Amendment may
bar an indictment, however, even when the indictment is brought within the
limitation period. See U.S. v. Lovasco,
431 U.S. 783, 788–91 (1977); United States
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v. Marion,
404 U.S. 307, 323–27 (1971). For a due process bar to apply, the
defendant must show that the pre-indictment delay (1) caused actual prejudice to
the conduct of her defense and (2) was the product of deliberate action by the
government taken in order to gain a tactical advantage. Stoner v. Graddick,
751
F.2d 1535, 1541-42 (11th Cir. 1985). 1
With regard to the first requirement, we have been clear that “[a] stringent
standard is employed when examining the issue of prejudice.” United States v.
LeQuire,
943 F.2d 1554, 1560 (11th Cir. 1991) (citation omitted). “[A]ctual
prejudice and not merely ‘the real possibility of prejudice inherent in any extended
delay,’ must be demonstrated.”
Stoner, 751 F.2d at 1544 (quoting United States v.
McGough,
510 F.2d 598, 604 (5th Cir. 1975)). Thus, a “general allegation of loss
of witnesses and failure of memories [is] insufficient to demonstrate the actual
prejudice required . . . .” United States v. Radue,
707 F.2d 493, 495 (11th Cir.
1983).
1
The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the
right to a speedy . . . trial.” U.S. Const. amend. VI. In Barker v. Wingo,
407 U.S. 514 (1972),
the Supreme Court established a four-factor test to determine when a defendant’s right to a
speedy trial had been violated. The four factors are: (1) the length of the delay, (2) the reason for
the delay, (3) the defendant’s assertion of his speedy trial right, and (4) the prejudice to the
defendant.
Id. at 530. But the right to a speedy trial—and the accompanying four-factor
analysis—applies only after an individual becomes an accused by arrest or indictment. See
Marion, 404 U.S. at 321 (“[W]e decline to extend [the] reach of the [Sixth] amendment to the
period prior to arrest.”); see also
Lovasco, 431 U.S. at 788 (“[A]s far as the Speedy Trial Clause
of the Sixth Amendment is concerned, such [pre-indictment] delay is wholly irrelevant.”).
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With regard to the second requirement, government inaction “standing
alone” cannot establish that the government’s actions were motivated by an
attempt to gain a tactical advantage. United States v. Butler,
792 F.2d 1528, 1534
(11th Cir. 1986). Nor is unintentional or negligent delay “deliberate.”
Foxman, 87
F.3d at 1223 n.2. We have also held that delays resulting from the government
undertaking additional investigation in good faith, see
Stoner, 751 F.2d at 1541, or
from the government directing its resources toward other cases, see
Butler, 792
F.2d at 1534, likewise do not demonstrate that the government delayed the
indictment in order to gain a tactical advantage. See also
Lovasco, 431 U.S. at
795.
Barragan argues that the district court should have set these precedents aside
in favor of a footnote in United States v. Brand,
556 F.2d 1312 (5th Cir. 1977).
The Brand Court—in what an en banc decision of the Fifth Circuit subsequently
characterized as “pure dicta,” United States v. Crouch,
84 F.3d 1497, 1509 (5th
Cir. 1996)—suggested that the validity of a claim alleging a violation of the Fifth
Amendment due to prosecutorial delay “depends on the due process balancing
between the extent of the actual prejudice and the governmental interests at stake.”
Brand, 556 F.2d at 1317 n.7. The problem for Barragan is that this balancing
analysis contradicts this Court’s consistent post-Brand precedent, see, e.g., United
States v. Hayes,
40 F.3d 362, 365 (11th Cir.1994); United States v. Benson, 846
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F.2d 1338, 1340 (11th Cir.1988);
Stoner, 751 F.2d at 1541, as well as that of the
Supreme Court in Marion, Lovasco, and Arizona v. Youngblood,
488 U.S. 51, 57
(1988).
The district court did not err in asking whether the pre-indictment delay
caused Barragan actual prejudice and was taken in order to gain a tactical
advantage. Nor did it err in finding that Barragan failed to satisfy either inquiry.
Barragan points to precisely the faulty memories—e.g., “his memory was
useless”—and lost witnesses—e.g., “[t]he other four lenders . . . were all out of
business”—that we have found “insufficient to demonstrate the actual prejudice
required.”
Radue, 707 F.2d at 495. Similarly, Barragan contends that the
government “had no satisfying reason” for its delay, but this argument mistakes the
burden of proof and misstates the nature of the testimony presented at Barragan’s
evidentiary hearing. See, e.g., Trial Tr. 167 at 21–25 (Aug. 22, 2017) (describing
government investigators and prosecutors as “inundated” with mortgage fraud
cases).
The district court therefore did not abuse its discretion by denying
Barragan’s motion to dismiss the indictment. Applying the correct legal standard,
it found that Barragan had neither proven actual prejudice nor shown that the
government’s delay was a deliberate attempt to gain a tactical advantage.
Accordingly, we affirm.
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AFFIRMED.
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