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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-14290
Non-Argument Calendar
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D.C. Docket No. 8:00-cr-00442-JDW-AEP-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY WAYNE MORRISON LAZZARA,
a.k.a. Wayne Douglas Shevi,
a.k.a. Wayne Shevchuck,
a.k.a. Gregory Gibson,
a.k.a. William Jay Woolston,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(September 21, 2017)
Before TJOFLAT, WILLIAM PRYOR and BLACK, Circuit Judges.
PER CURIAM:
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Anthony Wayne Morrison Lazzara appeals his convictions for making a
false statement on an application for a U.S. passport and perjury. Lazzara asserts
the district court clearly erred in denying his motion to dismiss the indictment
based on a finding his pre-indictment use of multiple aliases, rather than the
Government’s negligence in investigating his case, was the primary cause for an
approximately 15-year delay in his prosecution. After review,1 we affirm the
district court.
The Sixth Amendment provides “[i]n all criminal prosecutions, the accused
shall enjoy the right to a speedy . . . trial.” U.S. Const. amend. VI. “Because of
the unique policies underlying this right, a court must set aside any judgment of
conviction, vacate any sentence imposed, and dismiss the indictment if it finds a
violation of the defendant’s right to a speedy trial.” United States v. Villarreal,
613 F.3d 1344, 1349 (11th Cir. 2010). In reviewing a motion to dismiss under the
Sixth Amendment, we employ the four-part Barker test, weighing: “(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 actual prejudice borne by the defendant.” Id. at 1350;
see also Barker v. Wingo, 407 U.S. 514, 530 (1972).
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Whether the government deprived a defendant of his constitutional right to a speedy
trial is a mixed question of law and fact. United States v. Villarreal, 613 F.3d 1344, 1349 (11th
Cir. 2010). “We review the district court’s legal conclusions de novo and its factual findings for
clear error.” Id.
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The first Barker factor serves a triggering function; unless the length of the
delay is presumptively prejudicial, we need not consider the remaining factors.
United States v. Dunn, 345 F.3d 1285, 1296 (11th Cir. 2003). A delay of one year
is considered presumptively prejudicial for purposes of the first Barker factor. Id.
Because the delay in Lazzara’s case was greater than one year, the first Barker
factor weighs heavily against the Government.
Under the second Barker factor, different reasons for delay are accorded
different weights. Barker, 407 U.S. at 531. Negligence is a more neutral act that
should not be weighed as heavily as acts done in bad faith. Id. We have indicated
that, absent evidence establishing the defendant knew of the indictment and
intentionally evaded prosecution, a defendant cannot be held culpable for the
delay. United States v. Ingram, 446 F.3d 1332, 1337-38 (11th Cir. 2006) (holding
a district court erred in holding a defendant culpable where there was no evidence
he knew of the indictment or warrant but also noting there was no evidence he was
aware law enforcement was looking for him); see also Doggett v. United States,
505 U.S. 647, 653-54 (1992) (holding a defendant could not be faulted for post-
indictment delay because there was no evidence he was aware of the indictment or
the police had been looking for him).
The Government provided a sufficient explanation for the delay. See
Ingram, 446 F.3d at 1337 (stating the burden is on the government to explain the
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cause of any pretrial delay). First, the district court did not clearly err in finding
Lazzara was culpable for the delay. Although it was undisputed Lazzara was not
aware of the indictment in this case, the record showed he adopted the Gregory
Gibson and William Jay Woolston aliases in an attempt to evade law enforcement
in a different case. The fact Lazzara was unaware he was subsequently indicted for
making a false statement on a passport application and perjury does not excuse his
attempt to obscure his identity to avoid detection by law enforcement in a different
case. While both this Court and the Supreme Court have held defendants were not
culpable for post-indictment delay in cases where those defendants were not aware
of the indictment, those cases also involved defendants who, unlike Lazzara, had
no reason to believe they were being pursued by law enforcement at all. See
Doggett, 505 U.S. at 653-54; Ingram, 446 F.3d at 1337-38.
Second, the district court did not clearly err in finding the Government acted
with reasonable diligence in its attempt to locate Lazzara. The Government took
reasonable and diligent steps to locate Lazzara, as evidenced by the agents finding
the true Gibson in 2004 or 2005 and determining the true Woolston was deceased.
Further, while Lazzara focuses on the Government’s failure to prove agents
searched law-enforcement databases, the evidence shows those searches would
have been futile, as there was nothing linking Lazzara’s Gibson and Woolston
identities to his Lazzara, Wayne Douglas Shevi, or Wayne Shevchuck identities
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until those aliases were added to Lazzara’s rap sheet after the arrest in this case.
While facial recognition may have been effective if agents had used it prior to
February 2015, Fernandez explained they were not permitted to use facial-
recognition technology due to privacy concerns. Accordingly, while the
Government may have been able to do more to locate Lazzara, its actions were, at
best, only negligent, and should not be weighed as heavily as acts done in bad
faith. See Barker, 407 U.S. at 531. Thus, the district court did not clearly err in
finding the second Barker factor weighed against Lazzara.
As for the third Barker factor, a defendant’s assertion of his speedy trial
right is often “entitled to strong evidentiary weight in determining whether a
defendant is being deprived of the right,” because a timely demand for a speedy
trial often supports an inference the defendant was not at fault for the delay and the
delay prejudiced the defendant. Villarreal, 613 F.3d at 1353-54 (quotation
omitted). We have determined the third Barker factor weighed “heavily against
the Government” where the defendant asserted his right to a speedy trial soon after
learning of the indictment and arrest warrant. See Ingram, 446 F.3d at 1335, 1338.
We also have determined that, where a defendant moved for four continuances
prior to trial, the third Barker factor did not weigh heavily against the government.
See United States v. Register, 182 F.3d 820, 828 (11th Cir. 1999). Further, we
have noted that, where a defendant obtained a continuance to allow his initial
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counsel to withdraw and signed a waiver of his speedy-trial right to allow his new
counsel time to prepare for trial, the third Barker factor weighed heavily against
him. See United States v. Roggio, 863 F.2d 41, 42 (11th Cir. 1989).
Neither the magistrate judge nor the district court made specific findings or
weighed the third factor. Lazzara filed his notice of the assertion of his speedy-
trial right approximately one month after his arrest. Thus, because the record
reflects that Lazzara did not learn of the indictment and arrest warrant until that
time, Lazzara asserted his speedy-trial right in a timely manner. See Ingram, 446
F.3d at 1335, 1338-40. However, like the defendants in Register and Roggio,
Lazzara signed a written waiver of his speedy-trial right and moved for a
continuance. See Register, 182 F.3d at 828; Roggio, 863 F.2d at 42. However,
even assuming the third Barker factor weighed heavily against the Government
based on his timely assertion of his speedy-trial right, Lazzara nevertheless was
required to show actual prejudice because the second Barker factor did not weigh
heavily against the Government. See Dunn, 345 F.3d at 1296 (stating if the first
three Barker factors weigh uniformly and heavily against the government, the
defendant need not demonstrate particularized proof of actual prejudice).
In evaluating actual prejudice under the fourth Barker factor, we consider
three policy interests that the right to a speedy trial protects: (1) the prevention of
oppressive pretrial incarceration; (2) the minimization of the accused’s anxiety and
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concern; and (3) the limitation of any possible impairment of the defense. United
States v. Schlei, 122 F.3d 944, 988 (11th Cir. 1997). Additionally, in cases of
government negligence, the defendant must show actual prejudice, but his burden
decreases as the period of delay increases. United States v. Clark, 83 F.3d 1350,
1353 (11th Cir. 1996); see also Doggett, 505 U.S. at 657 (“[T]he weight we assign
to official negligence compounds over time as the presumption of evidentiary
prejudice grows.”). Government negligence and a substantial delay can compel
relief without any showing of particularized prejudice unless the resulting
prejudice either was extenuated, as by the defendant’s acquiescence, or
persuasively rebutted by the government. Clark, 83 F.3d at 1353. In Doggett, the
Supreme Court held that a delay of eight and a half years, caused solely by
government negligence, was long enough to eliminate the need for proof of
particularized prejudice. Doggett, 505 U.S. at 657-58.
Lazzara failed to show actual prejudice. To the extent the delay was
substantial and the district court determined the Government was minimally
negligent, Lazzara’s actions extenuated the delay and the Government was able to
sufficiently rebut any presumption of prejudice that arose from the length of the
delay by showing that Lazzara’s use of aliases was the primary cause for the delay.
See Clark, 83 F.3d at 1353-54. As Lazzara concedes on appeal, he raised no
actual-prejudice argument before the district court, and we review for plain error.
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See United States v. Aguilar-Ibarra, 740 F.3d 587, 591-92 (11th Cir. 2014) (stating
when a party raises arguments that were not raised before the district court, we
review for plain error). Lazzara has not pointed to any on-point precedent from
this court or the Supreme Court showing the district court plainly erred in
determining he did not suffer actual prejudice in light of his inability to plead
guilty to the indictment in this case when he pled guilty in another case in 2002.
See United States v. Hoffman, 710 F.3d 1228, 1232 (11th Cir. 2013) (explaining an
error is plain if the error is contrary to an explicit statutory provision or on-point
precedent from our Court or the Supreme Court). Therefore, Lazzara failed to
meet his burden of showing actual prejudice for purposes of the fourth Barker
factor. Accordingly, we affirm the district court’s order denying Lazzara’s motion
to dismiss the indictment.
AFFIRMED.
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