[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-11342 ELEVENTH CIRCUIT
APRIL 14, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 03-80056-CR-WPD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KARLTON SPAULDING,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 14, 2009)
Before BIRCH, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Karlton Spaulding (“Spaulding”), a federal prisoner, appeals his convictions
for cocaine offenses and carrying a firearm during a drug trafficking crime.
Spaulding argues that the district court erred in denying his motion to dismiss the
indictment on grounds that the four-year and eight-month delay between his
indictment and trial violated his Sixth Amendment right to a speedy trial. We find
no reversible error and AFFIRM his convictions.
I. BACKGROUND
On 5 September 2002, Spaulding and Marlon Shanahan (“Shanahan”) were
arrested after purchasing seven kilograms of cocaine for $81,000 from an
undercover officer in West Palm Beach, Florida. R10 at 116-117, 120-122, 124.
The transaction was recorded on audio and videotape, as were previous
negotiations. Id. at 118-23; R9 at 63-122. Agents recovered a loaded handgun,
which Spaulding had purchased, from an automobile used during the exchange.
R10 at 56, 60-61, 131. In order to preserve the undercover officer’s identity for
other investigations, authorities pretended to arrest the undercover officer and
released Spaulding and Shanahan. Id. at 122-23; R3 at 45, 84.
On 22 April 2003, a federal grand jury in the Southern District of Florida
indicted Spaulding and Shanahan for (1) conspiracy to possess with intent to
distribute cocaine and (2) attempted possession with intent to distribute cocaine,
both in violation of 21 U.S.C. §§ 841 and 846. R1-3 at 1-2. Spaulding was
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charged in a third count with possessing a firearm during a drug trafficking
offense, in violation of 18 U.S.C. § 924(c)(1)(A)(i). Id. at 2-3. The indictment was
sealed until Spaulding’s arrest pursuant to the government’s motion. R1-1; R1-2.
Because authorities were unable to locate either Spaulding or Shanahan, both men
were deemed fugitives in July 2003. R1-6.
Authorities finally arrested Spaulding in DeKalb County, Georgia on 12
October 2007, at which time his indictment was unsealed. R1-8; R1-23 at 2; R3 at
86-87. Spaulding was arraigned on 14 November 2007 and pled not guilty. R1-
15. On 7 December 2007, Spaulding filed a motion to dismiss the indictment on
grounds that he had been deprived of his Sixth Amendment right to a speedy trial.
R1-23.
Several federal agents testified at a two-day hearing about their efforts to
locate Spaulding. After Spaulding’s 2002 arrest and release, the undercover agent
involved in the drug sale twice called Spaulding to see if he would come back to
Florida. R3 at 84-85. FBI Agent Vincent Dreaden then began looking for
Spaulding at his last known residence in McRae, Georgia, located in Telfair
County. Id. at 4. After several weeks of investigation, Agent Dreaden met with
the Telfair County Sheriff and with Spaulding’s father, a deputy sheriff in Telfair
County. Id. at 5-6. Although Spaulding’s father had no idea where his son was, he
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promised to assist the FBI. Id. Agent Dreaden then tracked down Shanahan’s wife
and searched her house, her mother’s house, and her grandmother’s house in hopes
of finding Shanahan and Spaulding. Id. at 7. He and FBI Agent Brett Racine also
investigated a residence in Warner Robbins, Georgia, after receiving information
that Spaulding might be living there. Id. at 12, 32. Agent Racine spent several
months surveilling a house in Warner Robbins and showed Spaulding’s
photograph to residents and local law enforcement officers. Id. at 33-35.
Meanwhile, Agent Dreaden continued to keep in contact with the police in McRae
and periodically drove by Spaulding’s listed residence to see if the car Spaulding
used to drive was there. Id. at 18-19, 23. He also sent Spaulding’s photographs to
the FBI office in West Palm Beach. Id. at 12.
In addition to the FBI agents in the Atlanta Division, the Miami Division
assisted in the hunt for Spaulding. Id. at 42, 49. Special Agent Michael Donohoe
searched public databases for credit cards using Spaulding’s social security
number. Id. at 46-47. Those databases indicated that Spaulding’s address in
McRae had not changed since 2002. Id. at 47. Agent Donohoe also obtained
Spaulding’s driver’s license through the Georgia Department of Motor Vehicles
but it only listed a post office box as his address. Id. The FBI conducted “mail
covers” in 2004 and 2006 where the front covers of all mail sent to various
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addresses associated with Spaulding were copied and forwarded to the FBI. Id. at
48, 51, 71-72. Moreover, Agent Donohoe subpoenaed phone records to ascertain a
phone number for Spaulding and placed his name in the NCIC database, a national
computer system that would alert police officers to Spaulding’s outstanding arrest
warrant. Id. at 49, 52. He continued to run Spaulding’s name through computer
databases at least twice a year. Id. at 67. Although Agent Donohoe obtained
records for Spaulding’s 1999 conviction for aggravated assault, he did not contact
Spaulding’s probation officer because he determined that Spaulding had been
released early from probation in February 2001.1 R3 at 62-64.
In October 2007, a DeKalb County police officer arrested Spaulding for
failing to yield to a pedestrian. Id. at 86-87. After Spaulding was fingerprinted,
authorities discovered he had an outstanding arrest warrant. Id. at 87. Spaulding
told police he was living in Decatur, Georgia. Id. at 82. The police called the
residence and learned that Spaulding had been living there sporadically for the last
five years with his mother and grandmother. Id. at 83. The car that Spaulding was
driving was registered to his wife, Kelly Melvin, whom Spaulding had married in
November 2002. Id. at 77-78, 80, 87-88.
The district court denied Spaulding’s motion to dismiss the indictment. R1-
1
Court records indicate that Spaulding’s probation ended in February 2004, however.
R4-34.
5
31 at 5. The court found there was no presumption of prejudice and that Spaulding
had not shown actual prejudice. Id. A jury convicted Spaulding on all charges and
he was sentenced to a total of 181 months of imprisonment and five years of
supervised release. R1-72 at 1-3. This appeal followed.
II. DISCUSSION
“Determination of whether a defendant’s constitutional right to a speedy trial
has been violated is a mixed question of law and fact.” United States v. Ingram,
446 F.3d 1332, 1336 (11th Cir. 2006) (quotation marks and citation omitted). We
review the district court’s legal conclusions de novo and its factual findings for
clear error. See id.
A defendant’s Sixth Amendment right to a speedy trial cannot be quantified
into a specific number of days or months. See Vermont v. Brillon, ___ U.S. ___,
___ S. Ct. ___, No. 08-88, 2009 WL 578642, at *6 (U.S. Mar. 9, 2009). The right
must be evaluated under the particular circumstances of each case using a
balancing test which weighs the conduct of both the government and the defendant.
See id. Relevant factors include the “‘[l]ength of delay, the reason for the delay,
the defendant’s assertion of his right, and prejudice to the defendant.’” Id.
(quoting Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192 (1972)). The
defendant must prove actual prejudice unless the first three factors all weigh
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heavily against the government. See Ingram, 446 F.3d at 1336.
We first evaluate the length of the delay between the date of the indictment
and the trial date. See id. at 1337 n.3. Any delay beyond one year is
“presumptively prejudicial” and triggers further analysis under the Barker test. See
id. at 1336 (quotation marks and citation omitted). The district court correctly
found, and the government concedes, that the length of the four-year, eight-month
delay weighs in Spaulding’s favor and warrants consideration of the remaining
factors.
Spaulding maintains that the district court erred in concluding that the reason
for the delay, the second Barker factor, only weighed slightly in his favor.
Spaulding agrees with the district court’s finding that he did not actively evade
apprehension. He contends that government agents were not diligent in searching
for him, however, because: (1) they did not contact his mother, grandmother, or
probation officer; (2) they did not check tax records using his social security
number, which would have revealed his employment with an auto dealership in
Decatur, Georgia and his Decatur address2 ; (3) they did not investigate whether he
was married or contact his wife; and (4) they did not search the internet, which
2
Although Spaulding apparently did not file any income tax returns from 2002 to 2007,
his employer filed 1099 forms in 2004 and 2005 that listed Spaulding as an employee and listed
Spaulding’s Decatur address. R4 at 15-16, 37-38.
7
would have shown that Spaulding had been fighting professionally under the name
of “Carlton Spaulding” in Atlanta since December 2004 (R4-45).
The government bears the burden of explaining the reason for the delay. See
Ingram, 446 F.3d at 1337. Invalid reasons include “[g]overnment actions which
are tangential, frivolous, dilatory, or taken in bad faith.” United States v. Schlei,
122 F.3d 944, 987 (11th Cir. 1997) (citation omitted). For example, the
government may not deliberately delay a trial in order to weaken a defendant’s
case. See Barker, 407 U.S. at 531, 92 S. Ct. at 2192. On the other hand, a missing
witness is a valid reason justifying a delay. See id., 92 S. Ct. at 2192. Where the
missing individual is the defendant, “the government is not required to exhaust all
conceivable avenues” in finding him. United States v. Bagga, 782 F.2d 1541, 1543
(11th Cir. 1986). The Sixth Amendment mandates only a “diligent, good-faith
effort” on behalf of the government to find the defendant and bring him to trial. Id.
(quotation marks and citation omitted). Accordingly, if the government pursues a
missing defendant with reasonable diligence from his indictment to his arrest, then
no speedy trial violation exists. See Doggett v. United States, 505 U.S. 647, 656,
112 S. Ct. 2686, 2693 (1992). This conclusion generally holds no matter how
great the delay, so long as the defendant cannot show specific prejudice to his
defense. See id., 112 S. Ct. at 2693.
8
Government negligence falls somewhere in between diligent prosecution
and bad faith delay. See id. at 656-57, 112 S. Ct. at 2693. Negligence is a “more
neutral reason” that counts less heavily against the government. See Barker, 407
U.S. at 531, 92 S. Ct. at 2192. The longer the delay, the more heavily the
government’s negligence weighs against it. See Doggett, 505 U.S. at 657-58, 112
S. Ct. at 2693-94 (concluding that eight-and-a-half year delay between indictment
and trial, six years of which was attributable to the government’s negligence,
violated defendant’s speedy trial right). If the defendant is free and residing
outside the jurisdiction where the indictment was returned, however, the
government’s negligence “does not necessarily tip the scale” in the defendant’s
favor. Bagga, 782 F.2d at 1543.
The record supports the district court’s finding that the government’s actions
lay “in the middle ground between diligence and bad faith; but closer to diligence
than bad faith.” R1-31 at 4. The evidence established that government agents
consulted with law enforcement agencies in Georgia and Florida; enlisted the help
of Spalding’s father; searched public and law enforcement databases; surveilled
suspected residences; interviewed witnesses and showed them photographs of
Spaulding; monitored mail sent to relatives; subpoenaed telephone records;
contacted the Georgia Department of Motor Vehicles; utilized the NCIC database;
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and attempted to lure Spaulding back to Florida after his arrest. Based on this
evidence, the district court found that “the [g]overnment continued to periodically
monitor the situation in an effort to locate Spaulding” and “consistently pursued
Spaulding from indictment to arrest.” Id. The district court also found “no
evidence that the government intentionally held back its prosecution to gain some
impermissible advantage at trial.” Id. As for the seven-month delay in indicting
Spaulding, the district court likewise found that no bad faith had been shown
because the government was protecting on-going investigations involving the
undercover agent. Id. at 5. None of these findings are clearly erroneous.
It is true the government may have been able to do more. Yet its failure to
do so was not egregious given its continuous, good-faith efforts to locate
Spaulding coupled with the fact that Spaulding was living in a different state than
where the indictment was returned. Thus, although the post-indictment delay here
was longer than the two-year delay in Ingram, the government’s concerted efforts
to locate Spaulding greatly exceeded the “less than weak” attempts of the single
law enforcement agent pursuing Ingram. Ingram, 446 F.3d at 1339-40 (concluding
that the government’s negligence weighed heavily against it where the arresting
agent knew where the defendant lived and worked, failed to contact his brother
who was a policeman, and did not refer the case to any other law enforcement
10
agency).3 We therefore conclude that the second factor does not weigh heavily
against the government.
The third factor is the defendant’s assertion of his right to a speedy trial.
See id. at 1336. If the defendant knew of the indictment years before his arrest but
waited until he was arrested to invoke his right to a speedy trial, then this factor
weighs heavily against him. See Doggett, 505 U.S. at 653, 112 S. Ct. at 2691.
However, if the defendant did not learn about the indictment until his arrest, and
afterwards promptly asserted his speedy trial right, then this factor weighs heavily
against the government. See Ingram, 446 F.3d at 1335, 1340.
The district court found that Spaulding invoked his speedy trial right within
a month of his initial appearance. R1-31 at 4. Nevertheless, the district court
concluded that this factor did not weigh heavily in his favor because Spaulding
knew of the possible criminal charges before his 2007 arrest. Id. Spaulding
disputes this finding as clearly erroneous. He emphasizes that the indictment
remained sealed until after his 2007 arrest, and insists that he was never informed
that he would be charged or that there were pending charges against him when he
was released in September 2002.
We need not determine whether the district court clearly erred in finding that
3
The two-year post-indictment delay also weighed more heavily against the government
in Ingram because of the added two-and-a-half-year pre-indictment delay. See id. at 1339.
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Spaulding knew of the possible criminal charges. Even assuming that Spaulding is
correct and that the third factor weighed heavily in his favor, Spaulding would still
be required to show actual prejudice because the reason for the delay did not weigh
heavily against the government. See Ingram, 446 F.3d at 1336 (noting that only if
“all three of these factors weigh heavily against the Government, the defendant
need not show actual prejudice”); see also Schlei, 122 F.3d at 988 (concluding that
the defendant must establish actual prejudice because the reasons for the delay
weighed in the government’s favor).
In order to prove actual prejudice, the accused must demonstrate one of the
following: (1) oppressive pretrial incarceration, (2) anxiety and concern, or
(3) possible impairment of his defense. See Barker, 407 U.S. at 532, 92 S. Ct. at
2193. Spaulding contends that only the third element, his ability to prepare his
case, was affected by the delay. Prejudice may be shown where a witness dies,
disappears, or is unable to recall distant events. See id., 92 S. Ct. at 2193. On the
other hand, a defendant must proffer more than “conclusory assertions of
prejudice” or “unsubstantiated allegations of witnesses’ faded memories.” United
States v. Hayes, 40 F.3d 362, 366 (11th Cir. 1994).
No actual prejudice has been shown here. Spaulding submits the delay
hampered his entrapment defense because he could not properly investigate
12
whether two drug dealers, Shanahan and Jose “Primo” Castillo, influenced him to
commit the crimes. Yet Spaulding did not call these (or any) individuals as
witnesses at trial. R11 at 86. Nor does he claim that they were unavailable to
testify or that their memories had faded. It is also unclear how these drug dealers
could have supported an entrapment defense given that neither men were working
for the government or were aware of the undercover agent’s identity. See United
States v. Padron, 527 F.3d 1156, 1160 (11th Cir. 2008) (noting that a successful
entrapment defense requires both government inducement of the crime and the
defendant’s lack of predisposition). In any event, the jury heard the tape
recordings of the September 2002 drug transaction as well as previous
conversations leading up to that incident. Spaulding’s bare assertion of prejudice,
without more, is insufficient to establish actual prejudice. Accordingly, his claim
of a speedy trial violation fails. The district court properly denied his motion to
dismiss the indictment on this basis.
III. CONCLUSION
The record in this case does not establish that Spaulding was deprived of his
Sixth Amendment right to a speedy trial. Although there was a substantial pre-trial
delay, the government made numerous efforts to locate Spaulding in good faith.
The reason for the delay thus did not weigh heavily against the government.
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Furthermore, Spaulding failed to produce any evidence that the delay impaired his
defense. In the absence of any evidence showing actual prejudice, the district court
correctly concluded that Spaulding’s speedy trial right was not violated and denied
his motion to dismiss the indictment. Finding no error, we AFFIRM Spaulding’s
convictions.
AFFIRMED.
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