United States v. Clark

                   United States Court of Appeals,

                          Eleventh Circuit.

                            No. 95-6295.

         UNITED STATES of America, Plaintiff-Appellant,

                                 v.

          Alblunte Sabatini CLARK, Defendant-Appellee.

                            May 23, 1996.

Appeal from the United States District Court for the Middle
District of Alabama. (No. CR-93-240-N), Robert E. Varner, District
Judge.

Before ANDERSON and BLACK, Circuit Judges, and HENDERSON, Senior
Circuit Judge.

     PER CURIAM:

     The Government appeals the district court's dismissal of a

federal indictment returned against Appellee Alblunte Sabatini

Clark charging him with six counts relating to controlled substance

violations in contravention of 21 U.S.C. § 841(a)(1) and one count

relating to carrying firearms during and in relation to a drug

trafficking crime in violation of 18 U.S.C. § 924(c)(1).       The

district court dismissed the indictment with prejudice on the

ground that a 17-month delay in arresting Clark following the

return of the indictment violated his Sixth Amendment right to a

speedy trial.1   We reverse.

                            I. BACKGROUND

     Clark was initially arrested on July 1, 1993, for allegedly

selling narcotics to a confidential informant working with the


     1
      The Sixth Amendment provides, "[i]n all criminal
prosecutions, the accused shall enjoy the right to a speedy and
public trial...." U.S. Const. amend. VI.
Narcotics/Intelligence Bureau of the Montgomery Police Department.

Prior to Clark's appearance in state court, the charges were nol

prossed.    The case was accepted by the U.S. Attorney's Office for

prosecution, and a federal indictment was returned against Clark on

September 7, 1993. Clark was not arrested until February 22, 1995,

over 17 months after the indictment. Neither Clark nor his counsel

were aware of the federal indictment until the date of Clark's

arrest.

     Prior to the time of the indictment until his arrest, Clark

continuously resided in the same apartment listed on the arrest

warrant    and   attended    classes   at   Alabama   State   University    in

Montgomery.      The only attempt to locate Clark prior to the date of

his arrest was made by a city police officer who testified that no

one answered when he knocked on the door of Clark's apartment.             The

Montgomery Police Department suspended efforts to locate Clark

following this attempt, apparently under the impression that the

U.S. Marshal's office would take over.                Clark was ultimately

arrested while sitting in class at Alabama State University.

                            II. STANDARD OF REVIEW

      Determination of whether a defendant's constitutional right

to a speedy trial has been violated is a mixed question of law and

fact. Yapp v. Reno, 26 F.3d 1562, 1565 (11th Cir.1994).           Questions

of law are reviewed de novo, and findings of fact are reviewed

under the clearly erroneous standard.          Id.

                               III. DISCUSSION

      Speedy trial challenges are subject to a four-factor test

established by the Supreme Court in Barker v. Wingo, 407 U.S. 514,
92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).     The factors are:   (1) the

length of the delay;      (2) the reason for the delay;      (3) the

defendant's assertion of the speedy trial right; and (4) prejudice

to the defendant.     407 U.S. at 530, 92 S.Ct. at 2192.

A. Length of Delay

      To trigger a speedy trial analysis in the first instance, a

defendant must show that the length of the delay between indictment

and arrest was "presumptively prejudicial."       Doggett v. United

States, 505 U.S. 647, 651-52, 112 S.Ct. 2686, 2690-91, 120 L.Ed.2d

520 (1992).   Only if this threshold point is satisfied may the

court proceed with the final three factors in the Barker analysis.

Id.   Since delays exceeding one year are generally found to be

"presumptively prejudicial," id. at 652 n. 1, 112 S.Ct. at 2691 n.

1, we conclude that the 17-month delay in this case is sufficient

to entitle Clark to a presumption of prejudice.      Although he is

entitled to such a presumption, however, he retains the burden of

proving the remaining factors in the speedy trial inquiry under

Barker.

B. Reason for Delay

      During the entire duration of the delay, Clark continuously

resided in the same apartment listed on the arrest warrant and

attended classes at the same local university as he had prior to

his alleged illegal activities.     There is no evidence that Clark

attempted to elude the authorities in any way, nor that he or his

counsel were even aware of the indictment until his arrest.      The

district court found that "it appears clear ... that [Clark] was

well within the considerable reach of the Government during the
entire     17-month   period   between   his   indictment   and   eventual

capture.... In short, the Government's failure to arrest Clark was

due entirely to negligence."        We review this determination with

considerable deference, id. at 652, 112 S.Ct. at 2691, and reach

the same conclusion.

     The Government concedes that the reason for the delay was

solely attributable to its negligence, but argues it should be

excused.    The Government claims the police did not actively search

for Clark during the 17-month delay period because they erroneously

assumed the U.S. Marshal's office had the arrest warrant and

planned to serve him. Although the Government's negligence appears

to have been unintentional,2 attributable to the arrest warrant

having mistakenly "fallen through the cracks," the fact still

remains that only one feeble attempt was made to locate Clark prior

to the date of his arrest.        We therefore conclude the district

court did not err in finding the Government failed to act with

appropriate diligence in pursuing Clark.

C. Assertion of Speedy Trial Right

     The district court found that neither Clark nor his counsel

knew of the federal indictment until the date of Clark's arrest.

Since Clark duly asserted his right to a speedy trial as soon as he

learned he had been indicted, he cannot be faulted for contributing

to the delay.    Thus, this factor weighs in Clark's favor.

D. Prejudice


     2
      The district court hinted that the Government acted with
specific intent to delay prosecution in converting two original
suspects in the case into Government witnesses. There is no
evidence to support such a conclusion.
     We now must determine whether Clark should be required to

demonstrate actual prejudice resulting from the delay.                               This

requires us to revisit the reasons for and the extent of the delay.

See id. at 657-58, 112 S.Ct. at 2693-94.            In the absence of proof

of   particularized        prejudice,    government        negligence          and      a

substantial delay will compel relief unless the presumption of

prejudice        is   either    "extenuated,   as     by     the     defendant's

acquiescence, [ ]or persuasively rebutted" by the Government.                         Id.

at 658, 112 S.Ct. at 2694.

      In cases of government negligence or bad faith, the reasons

for the delay are critical and must be examined closely.                       See id.

at 656-57, 112 S.Ct. at 2693.         Deliberate intent to delay a trial

in order to impair the defense is weighted more heavily against the

Government than delay resulting from mere negligence.                Barker, 407

U.S. at 531, 92 S.Ct. at 2192.            That is, where the Government

engages in bad-faith delay, our concerns regarding the length of

the delay and substantiating prejudice are much reduced, thereby

bolstering a defendant's chance for relief.               As discussed above,

the Government concedes that it was negligent in pursuing Clark,

but maintains that its lack of diligence was due to its erroneous

assumption that the U.S. Marshal's office had taken over the case.

Finding     no    evidence     demonstrating   deliberate         delay        by     the

Government, we proceed with our analysis.

     In     cases     of   government    negligence,        our    concern           for

substantiating        prejudice   decreases    as   the     period        of        delay

increases.        Doggett, 505 U.S. at 657-58, 112 S.Ct. at 2693-94.

Indeed, in Doggett, an 81/2-year delay caused solely by government
negligence was considered by the Supreme Court to be long enough

that    affirmative     proof   of     particularized       prejudice       was   not

essential.       Id. at 655, 657-58, 112 S.Ct. at 2692, 2694.                 Citing

Robinson v. Whitley, 2 F.3d 562 (5th Cir.1993), cert. denied, ---

U.S. ----, 114 S.Ct. 1197, 127 L.Ed.2d 546 (1994), the Government

argues that because the 17-month delay in this case was not nearly

as long as the 81/2-year delay in Doggett, Clark should be required

to show actual prejudice.         In       Robinson, the length of the delay

between the defendant's arrest and trial was 421/2 months.                    2 F.3d

at 568.      The court noted the defendant caused the majority of the

delay by fleeing and changing his name, but found that 141/2 months

of it was attributable to negligence on the part of the Government.

Id.    at   569-70.     Finding      the    delay   "not   even     close    to   the

eight-and-one-half year delay in Doggett," the court held the

defendant was required to demonstrate prejudice.                  Id. at 570.

       The Supreme Court noted in Doggett that the toleration of

negligence varies inversely with the length of the delay caused by

that negligence.        Doggett, 505 U.S. at 657, 112 S.Ct. at 2693.

Keeping this dictate in mind, we suggest that the outer parameters

guiding this part of our inquiry have been set.               On one end of the

spectrum, the Supreme Court has held that an 81/2-year delay caused

solely      by   government   negligence      is    long   enough    to   excuse    a

defendant from having to show particularized prejudice.                      Id. at

655, 658, 112 S.Ct. at 2692, 2694.            On the other end, we agree with

the Robinson court that a 141/2-month delay caused by government

negligence is insufficient to excuse a defendant from making such

a showing.       Robinson, 2 F.3d at 570.
      Although the defendant was responsible for a majority of the

delay in Robinson, the 141/2-month delay attributable to the

Government was much less than the 81/2-year delay in Doggett.      The

17-month delay in this case, less than three months longer than

that attributable to the Government in Robinson, is likewise not

very great when measured by Doggett.      Unfortunately, there is no

hard and fast rule to apply here, and each case must be decided on

its own facts.   In light of the foregoing, however, we conclude the

district court erred in failing to require that Clark show actual

prejudice resulting from the delay.     See United States v. Beamon,

992 F.2d 1009, 1015 (9th Cir.1993) (holding delay of 17 to 20

months solely attributable to government negligence insufficient to

excuse defendants from showing actual prejudice).

       Actual prejudice can be shown in three ways:   (1) oppressive

pretrial incarceration, (2) anxiety and concern of the accused, and

(3) possibility that the accused's defense will be impaired.

Doggett, 505 U.S. at 654, 112 S.Ct. at 2692.     Since Clark was not

in custody nor aware of the federal charges against him during the

delay, the first two forms of prejudice identified in Doggett are

inapplicable.    Thus, only the third form of prejudice, impairment

of   the   defense, is at issue here.   Citing     Doggett   for   the

proposition that this form of prejudice is the most difficult to

prove, id., Clark nevertheless claims that his defense was impaired

as a result of his counsel's alleged inability to locate two

Government witnesses.

      Finding Clark had an adequate opportunity to demonstrate

impairment at the hearing on his motion to dismiss the indictment,
we agree with the district court's conclusion that Clark's showing

of prejudice was "weak."    At the hearing, the district court heard

testimony from the private detective allegedly hired by Clark to

locate the two Government witnesses.         This testimony was both

unclear and unpersuasive, and Clark's mere conclusory allegations

of impairment are insufficient to constitute proof of actual

prejudice.   See United States v. Hayes, 40 F.3d 362, 366 (11th

Cir.1994), cert. denied, --- U.S. ----, 116 S.Ct. 62, 133 L.Ed.2d

24 (1995).   On balance, in light of the Government's unintentional

delay of less than two times the one-year benchmark and Clark's

minimal   showing   of   prejudice,   the   district   court   erred   in

dismissing the indictment on Sixth Amendment grounds.

                            IV. CONCLUSION

     The 17-month delay between the federal indictment and Clark's

arrest did not violate his Sixth Amendment right to a speedy trial.

We conclude the district court improperly dismissed the indictment

with prejudice.

     REVERSED and REMANDED.