United States v. Irizarry-Colon

United States Court of Appeals
For the First Circuit

No. 15-1550

UNITED STATES OF AMERICA,

Appellee,

v.

EFRÉN IRIZARRY-COLÓN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Howard, Chief Judge,
Torruella and Kayatta, Circuit Judges.

Linda A. Backiel, with whom Efrén Irizarry-Colón, pro
se, was on brief, for appellant.
Juan Carlos Reyes-Ramos, Assistant United States
Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States
Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney,
Chief, Appellate Division, were on brief, for appellee.

February 8, 2017
 KAYATTA, Circuit Judge. The defendant, Efrén Irizarry-

Colón, pled guilty to participating in a conspiracy to defraud the

federal government in violation of 18 U.S.C. § 371. His plea

agreement reserved his right to appeal the district court's denial

of his motion to dismiss the indictment with prejudice based on

violations of the Speedy Trial Act, the Speedy Trial Clause of the

Sixth Amendment, and the Due Process Clause of the Fifth Amendment.

For the following reasons, we find that the district court was

misled by dicta in one of our prior opinions in calculating the

length of delay relevant to evaluating the alleged Sixth Amendment

violation. Consequently, we vacate the district court's denial of

Irizarry's Sixth Amendment claim and remand for reconsideration of

that claim. In all other respects, we affirm.

I. Background

Irizarry was a closing agent for the Farm Service Agency

(FSA) and an "attorney for emergency and operating loans disbursed

to farmers" after Hurricane Georges struck Puerto Rico in 1998.

Between September 1998 and September 2000, Irizarry participated

in a conspiracy to defraud the FSA. In the words of the version

of the facts incorporated into the plea agreement:

The essence of the conspiracy to defraud involved the
filing of applications for emergency loans for farmers
through the FSA . . . . The applications would contain
false information and would also be accompanied by false
documentation. The defendant . . . would not timely
present the mortgages for recording at the Property
Registrar, at the time of the disbursement of the loans,

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 contrary to his obligations as closing agent, thereby
deceiving FSA into believing that the loan had not yet
closed, and as a mechanism to delay the collection of
payments by the FSA from the particular Farmers.

The government first indicted Irizarry on July 28, 2005.

This indictment contained thirty-seven counts. Count one charged

that Irizarry participated in a conspiracy to defraud the

government in violation of 18 U.S.C. § 371. The other thirty-six

counts charged various specific instances of false statements

concerning the presentation of mortgage deeds in favor of FSA to

the registry of deeds, in violation of 18 U.S.C. § 1006, or

furnishing the government with false information (or failing to

disclose relevant information) in connection with the loans, in

violation of 18 U.S.C. § 1014. The indictment also sought

forfeiture.

On March 13, 2007, the court dismissed the indictment

pursuant to Federal Rule of Criminal Procedure 48(b) for violation

of the Speedy Trial Act, 18 U.S.C. §§ 3161-3162, on Irizarry's

motion. The district court found that 294 nonexcludable days had

passed between the indictment and the first tolling of the Speedy

Trial Act clock. See United States v. Irizarry Colón, 477 F. Supp.

2d 419, 421-22 (D.P.R. 2007). The district court also concluded

that there had been no bad faith on the part of the government in

allowing that time to elapse, that the parties were "immediately

ready to go to trial," and that Irizarry could have sought

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dismissal of the indictment much earlier "but waited to do so."

Id. at 423. For those reasons, the district court elected to

dismiss the indictment without prejudice. Id. at 422-23. Irizarry

did not appeal that order.

The government indicted Irizarry again on April 4, 2007.

The second indictment charged thirty-five of the thirty-seven

counts in the first indictment as well as seven new counts charging

bank fraud, in violation of 18 U.S.C. § 1344.

On August 10, 2009, and again on Irizarry's motion, the

court dismissed the second indictment pursuant to Rule 48(b) for

violation of the Speedy Trial Act. The district court found that

"approximately 140 or 148" nonexcludable days had passed since the

indictment. This time, the court found that the parties had agreed

to begin the trial on a date after the Speedy Trial Act clock

expired and that, when setting this date, the court had failed to

make any findings as to tolling. The court found that the parties

had acted "in good faith" and that defense counsel's acquiescence

to the late trial date "weighs heavily in favor of the without

prejudice [dismissal]." Accordingly, the district court once

again elected to dismiss the indictment without prejudice.

Irizarry also did not appeal that order.

The government indicted Irizarry for a third time on

January 27, 2010. The third indictment charged the same counts as

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the second but with the bank fraud counts removed (leaving thirty-

five counts and a request for forfeiture).

On May 12, 2010, Irizarry moved to dismiss the third

indictment on the ground that ninety nonexcludable days had passed

and that he had been prejudiced by the cumulative delay up to that

point. His motion sought to take advantage of a recent Supreme

Court decision, Bloate v. United States, 559 U.S. 196 (2010), that

had abrogated a prior rule in this circuit that automatically

excluded time for the parties to prepare pretrial motions from the

Speedy Trial Act clock. See United States v. Huete-Sandoval, 668

F.3d 1, 4 (1st Cir. 2011) (recognizing abrogation). The district

court dismissed the indictment, again without prejudice to

refiling. We discuss the precise details of how it did so in

Section II of this Opinion. Irizarry did not appeal that order.

The government indicted Irizarry for the fourth and

final time on June 17, 2011. The indictment was identical to the

third indictment.

On August 25, 2011, Irizarry filed a motion to dismiss

the fourth indictment for violation of the Speedy Trial Act and

the Fifth and Sixth Amendments to the United States Constitution.

On October 18, 2011, the district court denied the motion. See

United States v. Irizarry-Colón, 820 F. Supp. 2d 306, 317 (D.P.R.

2011). On October 22, 2014, Irizarry entered a conditional guilty

plea to count one, reserving his right to bring this appeal as to

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the denial of his motion to dismiss. On April 9, 2015, he was

sentenced to time served, one year of supervised release, $50,000

in restitution, and a special monetary assessment. On the

government's request, the remaining counts were dismissed. This

appeal followed.

II. Discussion

Irizarry argues that his fourth indictment should have

been dismissed because the government violated the Speedy Trial

Act, his Sixth Amendment right to a speedy trial, and his Fifth

Amendment right to due process. We address each argument in turn.

A. Speedy Trial Act

"This circuit reviews a denial of a statutory speedy

trial claim de novo as to legal rulings, and for clear error as to

factual findings." United States v. Carpenter, 781 F.3d 599, 616

(1st Cir.), cert. denied, 136 S. Ct. 196 (2015). Applying this

standard of review, we affirm the district court's application of

the Speedy Trial Act.

In the event that a defendant pleads not guilty, the

Speedy Trial Act requires that "the trial of a defendant charged

in an information or indictment with the commission of an offense

shall commence within seventy days from the filing date (and making

public) of the information or indictment, or from the date the

defendant has appeared before a judicial officer of the court in

which such charge is pending, whichever date last occurs." 18

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U.S.C. § 3161(c)(1). This Speedy Trial Act clock runs from the

indictment or appearance until the beginning of defendant's trial,

unless some other provision of the Speedy Trial Act resets or

pauses it.

The Speedy Trial Act issue raised on this appeal is

whether the seventy-day clock limiting the time between indictment

or appearance and trial reset to zero after dismissal of the third

indictment. If so, the district court properly rejected Irizarry's

motion to dismiss the fourth indictment under the Act. If not,

Irizarry was entitled to a fourth dismissal because any prosecution

on the subject of the third indictment would have necessarily

violated the Act on the day the defendant first appeared in court.1

The rules that govern resolution of this issue are well

understood. Relying on the express language of 18 U.S.C.

§ 3161(d)(1)2 and § 3161(h),3 on the plain negative inferences

1 He first appeared in court after the indictment was filed.
2 This statute reads, in relevant part: "If any indictment
or information is dismissed upon motion of the defendant . . . and
thereafter . . . an information or indictment is filed charging
such defendant with the same offense or an offense based on the
same conduct or arising from the same criminal episode, the
provisions of subsection[] . . . (c) of this section shall be
applicable with respect to such subsequent . . . indictment, or
information, as the case may be." Id. § 3161(d)(1).
3 This statute reads, in relevant part: "If the information
or indictment is dismissed upon motion of the attorney for the
Government and thereafter a charge is filed against the defendant
for the same offense, or any offense required to be joined with
that offense, any period of delay from the date the charge was
dismissed to the date the time limitation would commence to run as

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drawn from that language, and on "common sense," United States v.

Myers, 666 F.3d 402, 404 (6th Cir. 2012), courts differentiate

between cases dismissed at a defendant's behest and those dismissed

by motion of the government. When an indictment is dismissed on

a defendant's motion, the clock resets, but when it is dismissed

on the government's motion, it merely pauses until a new indictment

is filed. See United States v. Rojas-Contraras, 474 U.S. 231, 239

(1985) (Blackmun, J., concurring in the judgment); Myers, 666 F.3d

at 405 (collecting cases); cf. United States v. Colombo, 852 F.2d

19, 23–24 (1st Cir. 1988) (acknowledging this distinction in

dicta); United States v. Krynicki, 689 F.2d 289, 292–93 (1st Cir.

1982) (reaching similar conclusion with regard to thirty-day

period between arrest or service with summons and indictment).

The parties agree on the basic facts to which we apply

these rules. When the court dismissed the third indictment, ninety

nonexcludable days had passed since Irizarry's first appearance

before a judicial officer without commencement of trial. Hence,

the district court was required to dismiss the case upon Irizarry's

request, leaving open only the question as to whether the dismissal

was with or without prejudice to reindictment. 18 U.S.C.

§ 3162(a)(2). Irizarry made such a request and filed a memorandum

to the subsequent charge had there been no previous charge," id.
§ 3161(h)(5), is "excluded in computing the time within which . . .
the trial of any such offense must commence," id. § 3161(h).

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asking that the dismissal be with prejudice. The government filed

a responsive brief in which it contended that the factors listed

in 18 U.S.C. § 3162(a)(2), as well as additional miscellaneous

factors that this court has found relevant in Speedy Trial Act

cases, see United States v. Barnes, 159 F.3d 4, 16 (1st Cir. 1998),

required that the dismissal be without prejudice. The magistrate

judge concluded that the indictment "must be dismissed," but

recommended that it "be dismissed without prejudice." Irizarry

objected to this Report and Recommendation both because it

concluded that the dismissal under the Speedy Trial Act should be

without prejudice and because of the magistrate judge's "failure

to find that the government . . . affirmatively moved for dismissal

of the indictment" under Rule 48(a). The district court then

issued an order stating that the magistrate judge's "Report and

Recommendation is APPROVED and ADOPTED in its entirety," that

"defendant's Motion to Dismiss Indictment With Prejudice . . . is

DENIED," and that "the United States' request contained in its

response . . . for a dismissal of the indictment without prejudice

is GRANTED." The clerk issued a form Judgment of Discharge, on

which the deputy clerk (who signed the form) checked the box

indicating that "[t]he Court has granted the motion of the

government for dismissal pursuant to Rule 48(a) of the Federal

Rules of Criminal Procedure," rather than the box indicating that

"[t]he Court has dismissed the charges for unnecessary delay,

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pursuant to Rule 48(b)." As described above, the government then

filed a fourth indictment. Without including the nonexcludable

days that passed during the pendency of the third indictment, only

forty-five nonexcludable days passed between the filing of the

fourth indictment and the filing of the motion to dismiss that is

the subject of this appeal. See Irizarry-Colón, 820 F. Supp. 2d

at 312. On all this, the parties agree.

The pivotal question is whether the third indictment was

dismissed at the defendant's behest or at the government's. To

answer this question, both parties urge us to review as a whole

the record and docket in the third proceeding. Irizarry makes no

argument that we must limit our inquiry to the face of the form

Judgment of Discharge.4 Instead, Irizarry points to the Judgment,

the court's order, the magistrate judge's Report and

Recommendation, and the government's memoranda--all in the

proceedings under the third indictment--as collectively revealing

that the dismissal of that indictment was at the government's

behest. Like the district court, we disagree.

The entire effort to dismiss the third indictment began

with a motion filed by Irizarry. That motion sought dismissal

with prejudice. On the record as it then stood, Irizarry was

4Presumably, he decided that such an argument, had he made
it in the district court, might well have led the prosecution to
seek a correction under Federal Rule of Criminal Procedure 32.

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entitled to dismissal by right. As the magistrate judge

recognized, "the parties agree, the indictment . . . must be

dismissed; the question remaining is whether to dismiss with or

without prejudice." In short, the only issue that was disputed

and required adjudication was whether the dismissal would be with

prejudice. The briefing, argument, and analysis then trained on

that question, which the magistrate judge and then the district

court expressly resolved against Irizarry, stating explicitly that

dismissal was without prejudice.

Read in the context of this plain record, the references

to the government requesting dismissal without prejudice, or the

district court "grant[ing]" the government's request, were

references not to a government motion to dismiss--there was no

such motion, as dismissal was a done deal--but rather to its

request that the dismissal be without prejudice. At no point in

the proceeding did Irizarry argue that the indictment should not

be dismissed unless it was dismissed with prejudice. And when he

objected to the magistrate judge's recommendation, he objected not

to dismissal itself, but to the decision to dismiss the indictment

without prejudice on Rule 48(b) grounds. In fact, his objection

clearly recognized that the magistrate judge did not find that the

government's request for dismissal without prejudice amounted to

a motion under Rule 48(a), and he argued that this was error.

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 To construe the record otherwise would defy common

sense. Under Irizarry's revamped view, the government moved to

dismiss the third indictment after the running of seventy

nonexcludable days. Thus, the Speedy Trial Act clock would not

have reset--because it would only do so on a motion by Irizarry--

and a fourth indictment would have been timed-out at the outset,

cf. Myers, 666 F.3d at 404, and so subject to dismissal at any

point Irizarry chose. Only if that fourth indictment was then

dismissed without prejudice could the government bring a

hypothetical fifth indictment with a reset clock.

It is unlikely that a prosecutor would take the obviously

self-defeating step of moving to dismiss an indictment after

seventy nonexcludable days, particularly where the defendant has

already filed a motion to dismiss. We do not read the record to

suggest that this prosecutor did so. Rather, the government

conceded a clear fact--that the Speedy Trial Act clock had run on

the third indictment--but disputed Irizarry's contention that the

indictment should be dismissed with prejudice. The government

could properly argue against dismissal with prejudice in its

opposition to Irizarry's motion without implicitly converting that

opposition into a motion to dismiss, and it did so. Therefore,

the district court did not err in treating the dismissal of the

third indictment as a dismissal on the defendant's motion that

reset the Speedy Trial Act clock. It follows that the denial of

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the motion to dismiss the fourth indictment forty-five

nonexcludable days after it was filed was correct.

B. Sixth Amendment Right to a Speedy Trial

The Sixth Amendment to the United States Constitution

also protects a defendant's interest in having a speedy trial, and

it does so in a manner that does not necessarily track that of the

more mechanistic statutory rules set forth in the Speedy Trial

Act. The Supreme Court has identified four factors that courts

should assess when considering whether a defendant has been

deprived of the right to a speedy trial. These are "[l]ength of

delay, the reason for the delay, the defendant's assertion of his

right, and prejudice to the defendant." Barker v. Wingo, 407 U.S.

514, 530 (1972).

The first factor--the length of delay--"is actually a

double enquiry. Simply to trigger a speedy trial analysis, an

accused must allege that the interval between accusation and trial

has crossed the threshold dividing ordinary from 'presumptively

prejudicial' delay . . . ." Dogget v. United States, 505 U.S.

647, 651-52 (1992). "If the accused makes this showing, 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." Id.; see also United States

v. Souza, 749 F.3d 74, 81 (1st Cir.), cert. denied, 135 S. Ct. 418

(2014). "There is no bright-line time limit dividing the lengths

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that trigger further Barker inquiry from those that do not.

Whether a particular delay will warrant further speedy trial

scrutiny 'is necessarily dependent upon the peculiar circumstances

of the case.'" United States v. Dowdell, 595 F.3d 50, 60 (1st

Cir. 2010) (quoting Barker, 407 U.S. at 530-31). However, "[d]elay

of around one year is considered presumptively prejudicial, and

the presumption that delay prejudices the defendant 'intensifies

over time.'" United States v. Carpenter, 781 F.3d 599, 610

(quoting Doggett, 505 U.S. at 652); see also Doggett, 505 U.S. at

652 n.1.

The dispute in this case concerns how a court should

measure the length of delay under the first Barker factor.

Irizarry argues that the court should consider the delay across

all four indictments, and not just the sixty-nine days that had

passed between when the government filed the fourth indictment and

when he filed his motion to dismiss. The district court ruled,

and the government argues on appeal, that the court should consider

only the sixty-nine-day delay after the fourth indictment was

filed. Both parties agree that if the length of delay is measured

across all four indictments, it was presumptively prejudicial and

therefore triggers the full Barker analysis.

The parties also disagree about the appropriate standard

of review. This circuit generally reviews district court rulings

on speedy trial motions for abuse of discretion. Carpenter, 781

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F.3d at 607; United States v. Salimonu, 182 F.3d 63, 69 (1st Cir.

1999); United States v. Santiago–Becerril, 130 F.3d 11, 21 (1st

Cir. 1997); United States v. Colombo, 852 F.2d 19, 21 (1st Cir.

1988). We noted in Carpenter, however, that applying an abuse of

discretion standard of review to constitutional speedy trial

claims is in tension with the rules of other circuits, as well as

this circuit's standard of review when considering other similar

issues (e.g., applying the Speedy Trial Act or the Eighth

Amendment). 781 F.3d at 607–08. Carpenter did not resolve this

tension because the defendant's claims failed under any standard

of review. We need not resolve it in this case, either. Rather,

for reasons we will explain, we find that the district court

committed a type of error--applying an incorrect legal

interpretation of the first Barker factor--that must be set aside

even under an abuse of discretion test. See United States v.

Bater, 594 F.3d 51, 54 n.1 (1st Cir. 2010) ("Although suggesting

great latitude, 'abuse of discretion' has this meaning only where

the issue invites it--usually in applying a general standard to

specific facts (the test being essentially one of reasonableness);

but (confusingly) 'abuse of discretion' is used as well to embrace

mistakes on abstract issues of law (reviewed de novo) and errors

of fact (for which clear error is the customary test)." (citing

Roger Edwards, LLC v. Fiddes & Son Ltd., 427 F.3d 129, 132 (1st

Cir. 2005))).

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 The district court was led astray by our statement in

Colombo that it "makes sense" that "[t]he courts have implicitly

assumed that if an indictment is dismissed on motion of a

defendant, and the defendant is subsequently reindicted for the

same offense, only the delay in prosecution of the second

indictment is relevant for Sixth Amendment speedy trial purposes."

852 F.2d at 23 (citations omitted). That statement was plainly

dicta, as the holding of Colombo concerned an indictment dismissed

on the motion of the government (and concluded, in that instance,

that the time elapsed under prior indictments is included). See

id. at 23–24.5

Instead, this case is controlled by United States v.

Loud Hawk, 474 U.S. 302 (1986), which both the Colombo dicta and

the district court's application of that dicta contradict. There,

the Court treated the entire ninety-month period6 between the

initial indictment and the dismissal just prior to trial as the

period of delay under the first factor, triggering the full Barker

5The district court also relied on United States v.
MacDonald, 456 U.S. 1 (1981). MacDonald held only that when
charges are dropped on a first indictment, "the speedy trial
guarantee is no longer applicable" until a second indictment is
filed. Id. at 8. This holding has no bearing on how a court
should calculate the length of delay for the first Barker factor.
6
The ninety-month period used by the Supreme Court in its
analysis of the first Barker factor spanned from the initial
indictment on November 25, 1975 to the order dismissing the
indictment on May 20, 1983, which the Supreme Court was reviewing.
Id. at 304-10.

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analysis. See id. at 304, 314. This ninety-month period included

both periods during which the defendants were "neither under

indictment nor subject to any restraint on their liberty," id. at

310, and periods during which either the government or the

defendants were pursuing interlocutory appeals, id. at 312-14,

316-17. In applying the second Barker factor, the Court gave

periods of the first type no weight under United States v.

MacDonald, 456 U.S. 1, 8–9 (1981), and periods of the second type

no weight under a new rule announced in Loud Hawk itself. See

Loud Hawk, 474 U.S. at 310-12, 314-16. The Court did so despite

the fact that, after a series of appeals and remands, some of the

counts against the defendant had been dismissed without prejudice

on the defendant's motion pursuant to Rule 48(b), and the

government had subsequently obtained a superseding indictment.

See United States v. Loud Hawk, 564 F. Supp. 691, 695 (D. Or. 1983)

(recounting procedural history); United States v. Loud Hawk, 628

F.2d 1139, 1151 (9th Cir. 1979) (reversing dismissal of those

counts insofar as they were with prejudice).

In a recent unpublished decision reviewing a California

state court case with a similar procedural history to this one,

the Ninth Circuit held that Loud Hawk constituted clearly

established federal law that the period of delay under the first

Barker factor included the entire period from initial indictment

to trial. See Carreon v. Long, 612 F. App'x 877, 878 (9th Cir.

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2015) ("[M]easur[ing] the delay as the time between the second

felony complaint and [the defendant's] trial . . . was 'an

unreasonable application of [] clearly established Federal law, as

determined by the Supreme Court of the United States.'" (citing 28

U.S.C. § 2254(d)(1) and Loud Hawk, 474 U.S. at 314)); People v.

Carreon, No. E052856, 2012 WL 5992736, at *2 (Cal. Ct. App. Nov.

29, 2012) (recounting that the first felony complaint was dismissed

without prejudice because of a violation of the statutory right to

a speedy trial after the defendant sought a "writ of mandate," and

that after the writ issued, "the district attorney immediately

filed a new felony complaint"); see also United States v. Sears,

Roebuck & Co., 877 F.2d 734, 739 (9th Cir. 1989) (noting that for

the first Barker factor, "[t]he delay is measured from the time of

the indictment to the time of trial, excluding periods during which

the indictment is dismissed").

While one might correctly argue that the Supreme Court

in Loud Hawk did not expressly rule that the manner in which it

measured the length of the delay was proper, such an argument would

provide a poor justification for a lower court to proceed

otherwise. See McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 19

(1st Cir. 1991) ("[F]ederal appellate courts are bound by the

Supreme Court's considered dicta almost as firmly as by the Court's

outright holdings."). Instead, like the Ninth Circuit did in

Carreon, we conclude that the district court should count the

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entire period of time since the first indictment when calculating

the length of delay for the first Barker factor.

Because the district court's opinion turned entirely on

the first factor, it made no findings regarding what portion of

the longer period of delay was attributable to the government,

whether Irizarry promptly asserted his speedy trial rights, or

whether Irizarry was prejudiced. It engaged in no weighing of

these factors against each other. Because we review factual

findings and judgmental weighings for abuse of discretion, see

Colombo, 852 F.2d at 21, we decline to make them ourselves in the

first instance as an alternative basis for affirmance. Rather, we

remand the case to the district court for proper application of

all four Barker factors.

C. Pre-Indictment Delay

Next, Irizarry argues that the delay before the first

indictment violated his right to due process.7 Reviewing the

district court's decision not to dismiss the indictment on this

ground for abuse of discretion, United States v. Bater, 594 F.3d

51, 53 (1st Cir. 2010), we reject that argument.

7 He also argued that if the Sixth Amendment analysis did not
include time prior to the fourth indictment, then he should be
entitled to argue that the total delay before the fourth indictment
violated his due process rights. Since we have agreed with him
about the Sixth Amendment, we do not consider this alternative
argument.

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 Even when an indictment is brought within the statute of

limitations, "excessive pre-indictment delay can sometimes, albeit

rarely, violate the Fifth Amendment's Due Process Clause if the

defendant shows both that the 'delay caused substantial prejudice

to his right to a fair trial' and that 'the [g]overnment

intentionally delayed indictment . . . to gain a tactical

advantage.'" Id. at 54 (alterations in original) (quoting United

States v. Picciandra, 788 F.2d 39, 42 (1st Cir. 1986)). "With

respect to prejudice, a defendant must do more than allege that

witnesses' memories had faded or that evidence had been lost that

might have been helpful to him." United States v. Muñoz-Franco,

487 F.3d 25, 58 (1st Cir. 2007). With respect to intentional delay

for tactical reasons, this court has indicated that such delay

violates the Due Process Clause when it is the product of "'bad

faith' reasons." United States v. Crooks, 766 F.2d 7, 11 (1st

Cir. 1985). For instance, pre-indictment delay for the purpose of

investigation, see United States v. Lovasco, 431 U.S. 783, 790–

92, 795–96 (1977), for the purpose of discovering all the

participants in a conspiracy so they could be tried together, see

id., and for the purpose of letting state authorities pursue their

own prosecution, see United States v. Marler, 756 F.2d 206, 214–

15 (1st Cir. 1985), is permissible. Delay in order to deprive the

defendant of witnesses, see Bater, 594 F.3d at 54, or impose the

burden of defending oneself in back-to-back trials, see United

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States v. Ramos-González, 775 F.3d 483, 491 (1st Cir. 2015), may

not be.

Irizarry cannot show substantial prejudice.8 He argues

that he was prejudiced in two ways. First, he claims that he was

"forced . . . to deplete his financial resources" so that "his

defense would be no match for [the government's] team of

prosecutors, investigators and co-operators." Even assuming that

this is the type of prejudice that could ground a due process

claim, Irizarry does not cite anything in the record establishing

his financial position immediately after the conspiracy or at the

time of the first indictment. Second, he asserts that the

prosecution's decision to indict him after it had already indicted

and reached plea agreements with several potential codefendants

deprived him of witnesses on his behalf. He does not, however,

cite anything in the record to explain why individuals who had

already pled guilty would be prevented from testifying at his trial

or to establish what testimony those individuals would have offered

otherwise.

8
Irizarry made a similar due process argument in his motions
to dismiss the first indictment and the third indictment, but he
elected not to appeal either dismissal without prejudice. Cf.
United States v. Worthy, 772 F.3d 42, 46-48 (1st Cir. 2014) (noting
that the decision to dismiss with prejudice rather than without is
appealable). The government does not argue that Irizarry has
thereby forfeited the opportunity to raise this issue in the
present appeal. Expressing no opinion as to whether such an
argument would be successful, we consider the merits of Irizarry's
due process argument.

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 Irizarry also may not be able to show an intentional

delay for improper reasons. He argues that it was improper for

the government to indict his co-conspirators first and strike plea

deals with many of them so that they could testify against him.

The Supreme Court has indicated that tactical decisions of this

sort may be permissible reasons to delay trial under the Sixth

Amendment. See Barker, 407 U.S. at 534 (noting that, under the

Sixth Amendment, "[p]erhaps some delay would have been permissible

under ordinary circumstances, so that [a co-conspirator] could be

utilized as a witness in [the defendant's] trial"). If the

Constitution permits some delay to try a co-conspirator after

indictment, it would be difficult to show that a delay for the

same reason before indictment was in bad faith. Ultimately, we

need not decide this issue, as Irizarry's due process claim falters

on the substantial prejudice prong.

III. Conclusion

We vacate the district court's decision on Irizarry's

Sixth Amendment claim and remand for the district court to apply

the full Barker analysis in analyzing that claim. If the district

court concludes that Irizarry's Sixth Amendment rights were

violated, it should vacate his conviction and sentence and grant

appropriate relief. Otherwise, it should reaffirm the conviction

and sentence. We affirm the district court's decision in all other

respects.

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