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.