FILED
AUG 26 2013
NOT FOR PUBLICATION
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50510
Plaintiff-Appellee, D.C. No. 2:07-cr-00914-GW-1
v.
MEMORANDUM*
XUE CHENG DONG,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Argued and Submitted October 12, 2012
Pasadena, California
Before: PREGERSON and W. FLETCHER, Circuit Judges, and PIERSOL, Senior
District Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Lawrence L. Piersol, Senior District Judge for the U.S.
District Court for South Dakota, sitting by designation.
Xue Cheng Dong appeals his conviction, pursuant to a conditional guilty
plea, for conspiracy in violation of 18 U.S.C. § 371. Dong reserved the right to
appeal the denial of his motion to dismiss for post-indictment delay in violation of
his Sixth Amendment right to a speedy trial. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
We review Sixth Amendment speedy trial claims de novo and factual
findings for clear error. United States v. Corona-Verbera, 509 F.3d 1105, 1114
(9th Cir. 2007). We evaluate such claims under the four-part inquiry announced by
the Supreme Court in Barker v. Wingo, 407 U.S. 514 (1972). Under the Barker
test, we balance (1) the length of the delay; (2) the reason for the delay; (3) the
defendant’s assertion of his right to a speedy trial; and (4) the prejudice to the
defendant. Id. at 530. None of these four factors, however, is “either a necessary or
sufficient condition to the finding of a deprivation of the right of speedy trial.” Id.
at 533. Rather, we must consider them “together with such other circumstances as
may be relevant” and “engage in a difficult and sensitive balancing process.” Id.
When considering whether the length of delay will trigger a Barker speedy
trial inquiry, we must first find the delay passed the one-year threshold point for
being presumptively prejudicial. See United States v. Beamon, 992 F.2d 1009,
1012 (9th Cir. 1993). Here, the nearly three-year delay between Dong’s indictment
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and his arrest is sufficient to trigger our Barker inquiry. Therefore, we must
consider the extent to which the delay exceeded the threshold point in light of the
degree of diligence exercised by the government and the prejudice to Dong. Id.
After reviewing the record, we conclude that the government was negligent
in causing the delay because, three weeks before Dong was indicted, the
government deported him to China, a country with no extradition treaty with the
United States. Furthermore, the government made no effort to locate Dong in
China. We have held that “where the government is negligent . . . prejudice will be
presumed and its weight in defendant's favor will depend on the length of the
delay.” United States v. Aguirre, 994 F.2d 1454, 1456 (9th Cir. 1993) (citing
Doggett v. United States, 505 U.S. 647, 657 (1992)). “While such presumptive
prejudice cannot alone carry a Sixth Amendment claim without regard to the other
Barker criteria, it is part of the mix of relevant facts, and its importance increases
with the length of delay.” Doggett, 505 U.S. at 655-56 (internal citation omitted).
“Accordingly, under the fourth Barker factor, when the delay is excessive, the
weight we assign to official negligence compounds over time as the presumption of
evidentiary prejudice grows, and our toleration of . . . negligence varies inversely
with its protractedness and its consequent threat to the fairness of the accused’s
trial.” United States v. Erenas-Lunas, 560 F.3d 772, 779 (9th Cir. 2009) (quoting
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Doggett, 505 U.S. at 657) (internal quotation marks omitted).
Despite the presumption of prejudice, we hold that the district court did not
err when it found that the post-indictment delay suffered by Dong did not violate
the Sixth Amendment. The delay was only negligently brought on by the
government and was not of such substantial length and severity as to necessitate a
dismissal. It is unlikely that Dong would have voluntarily returned to the United
States to be subjected to a criminal trial had he been made aware of the indictment.
In addition, there is no suggestion that the delay prejudiced Dong’s ability to
mount a defense to the charges. Furthermore, Dong does not name any witnesses
who were lost to him or allege there was some evidence he was unable to offer to
rebut the charges against him.
After examining the four Barker factors, we do not find a violation of
Dong’s Sixth Amendment right to a speedy trial.
AFFIRMED.
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