Lead Opinion
OPINION
Wе consider whether the right to a speedy trial guaranteed in the Sixth Amendment is violated when, after an initial effort to apprehend the defendant, the government’s effort for nearly five years consists only of running the defendant’s name a handful of times through the National Crime Information Center (“NCIC”) database, despite other available leads. Although the authorities in this case revived their efforts after the five-year lull, the defendant happened to be caught when he was arrested on an unrelated matter. Applying the four-factor test from Barker v. Wingo,
I.
We recount the basic facts of the investigation, drawing from the testimony and reports before the district court detailing efforts to bring defendant Sergio Velazquez to trial.
A. The drug investigation
The Drug Enforcement Administration (“DEA”) began investigating Velazquez in June 2005, after receiving a tip that he was
The DEA monitored the informant’s calls with Velazquez. Id. On July 27, 2005, they tracked Curiel as he met with the informant and then met co-defendant Nelkis Gutierrez-Gainza at a truck stop. App. 152a-54a. Gutierrez-Gainza gave Curiel a sack and Curiel drove away. When agents then stopped Curiel they recovered the sack and determined it contained nine kilograms of cocaine. Id. They arrested the two co-defendants.
B. The initial search for Velazquez and Deputy Began’s report
The co-defendants were indicted on August 2, 2005; a complaint and arrest warrant issued for Velazquez the next day. David Pedrini, a DEA special agent in Philadelphia, testified before the district court that he had a fellow agent from Los Angeles, Steve Pascoe, go to 6340 Woodward Avenue, Bell, California (“Woodward Avenue address”), an address that Pedrini had learned was “associated with” Velazquez. App. 155a-56a.
In addition to searching for credit applications, department of motor vehicle reports, and records for any property or vehicle purchases by Velazquez, Degan entered the warrant into the NCIC database,
Degan then prepared a collateral request, which is a request for investigative assistance from a Marshals Service office in another jurisdiction. App. 175a-76a. The request, dated October 7, 2005, sought help from the Marshals Service taskforce in the Los Angeles area, which consisted of marshals and local law enforcement officers. See App. 284a-85a, 385a. Degan’s request noted the unfruitful trip to the Woodward Avenue address, mentioned that DEA agents from Los Angeles “also checked a number of other addresses”— without identifying the addresses — and then offered a number of leads in the form of past addresses for Velazquez, as listed in databases:
—Velazquez’s mother’s name and a possible address for her in Pico Rivera, CA
—The Box 2901 address
—The address of a home in Bell Gardens, CA, that Velazquez appeared to have bought in 1999, and the name of a woman who bought it with him
—The phone number Velazquez used during the DEA investigation, with an indication that Velazquez’s calls may have been made from a calling card
—An address in Paramount, CA
—The Woodward Avenue address and its possible tie to Velazquez’s brother, Elias
—A Huntington Park, CA address associated with Cecilio Vasquez (relationship to Velаzquez unknown)
—A further address in Bell, CA, associated with Velazquez’s mother
App. 385-86a. The report concluded with this request, in relevant part: “Contact DEA [Special Agent] Scott Pascoe” — the officer who had checked on the Woodward Avenue home — “regarding their efforts in Los Angeles to locate [Velazquez]” and “if all leads ... are exhausted, please interview his parents” at the Pico Rivera address, “and his brother, Elias Velasquez.” App. 386a.
C. Deputy Degan’s testimony about the response to his report
Began transferred from his position at the Marshals Service in the Eastern District of Pennsylvania in late November 2005, about seven weeks after he sent his report. App. 290a. At the district court’s hearing, Began testified that, based on an exhibit showing that an officer at the Los Angeles Police Department ran a check for Velazquez through NCIC on October 31, 2005, it appeared that his collateral request was received. App. 289a, 403a. According to Began, this NCIC check would have been “the first thing I would do before I’d go out and attempt to find him.” App. 289a. Began agreed that the exhibit did “not indicate that they went out and talked to anybody.”
D. Communication with Velazquez’s attorney; superseding indictment
On November 1, 2005, an assistant U.S. attorney in Philadelphia sent a copy of the complaint and warrant to Velazquez’s counsel in California, Jerome Kaplan, and both sides stipulated below that Kaplan received these documents.
E. Marshals Service and DEA efforts from November 2005 to November 2010
From November 2005 until November 2010, authorities checked the NCIC eight times to see if any law enforcement agency had encountered Velazquez. App. 384a, 392a-403a. At the Marshals Service, someone in the Philadelphia office or the headquarters in Arlington, Virginia, checked the NCIC four of those eight times — in November 2007, January 2008, February 2008, and September 2009. Id For his part, DEA Agent Pedrini in Philadelphia, one of the agents who had worked on the initial investigation, checked with the U.S. Attorney’s Office each year to make sure the office was still willing to prosecute. He also made sure the warrant was still active in the NCIC, and he contacted the Marshals Service to ask if they had any new information. App. 158a-61a.
There was no testimony or documentation before the district court to show any further steps taken to find Velazquez in this five-year period. No law enforcement agency tried to visit the addresses Deputy Degan identified in his October 2005 collateral request for assistance; no one returned to the Woodward Avenue address where Velazquez’s brother lived; no one contacted his parents; no one contacted Agent Pascoe, the agent in Los Angeles who first cheeked the Woodward Avenue address, to find out what investigative steps had been taken; no one contacted Kaplan, Velazquez’s attorney, despite his conversation with a prosecutor before the indictment was issued; and no one conducted searches of commercial databases or other governmental databases beyond the NCIC. Those other databases could have been particularly helpful. They would have shown, for example, any new property records, traffic tickets, birth records, any records from the armed forces, or any immigration changes. See App. 164a-68a (admission of Agent Pedrini that such records and databases were available); see also App. 230a (Deputy Marshal Enrico Ilagan’s similar testimony with respect to automobile records).
Degan testified that it was “standard practice” for an officer working on a case to make a written record of steps taken, but that it was not unusual that he had received no written response from the Marshals taskforce in Los Angeles before he transferred. App. 298a-99a. He suggested that the absence of a written response could mean that someone was still working on the investigation. Id. Nevertheless, there is no evidence that anyone on the Marshals taskforce in Los Angeles wrote a response to Degan’s report after Degan’s departure in November 2005. It is not clear who had responsibility for the investigation after Degan until November 2010, when Deputy Marshal Ilagan, also of the Philadelphia office of the Marshals Service, began working on the case. App. 173a. Degan testified that “these cases are considered a priority and it would have been reassigned to somebody.” App. 290a. Ilagan stated that he thought Deputy Marshal Cardinal, presumably in the same Philadelphia office,
F. Efforts from November 2010 to June 2011; new collateral request
Ilagan’s first step was to run an NCIC check, along with a search of a Lexis-Nexis database that compiles information from public and commercial records. App. 174a-75a, 194a-95a. That search turned up Velazquez’s application to renew his California driver’s license, with a postal box address of Box 2037 (“Box 2037”) in Bell Gardens, CA, as well as a possible job for Velazquez at an auto repair shop in California. App. 174a.
G. Investigative steps in the summer of 2011
Ilagan’s request was received by the Marshals Service taskforce and assigned to Deputy David Dominguez in Los Ange-les.
llagan then suggested to Dominguez that he “might have to sit and do surveillance” at the Woodward Avenue address. Id. Dominguez did not testify before the district court, but he did take notes of the steps he took. App. 314a-15a, 414a. Those notes reflect that he “sat surveillance” at the Woodward Avenue address on the afternoon of July 15, 2011, noted license plate numbers for two vehicles in the driveway, but did not find Velazquez. App. 414a. He contacted Velazquez’s post office and learned that employees there recognized Velazquez, that Velazquez came often to collect his mail, but did not do so at a particular time. Id. At some point that summer Dominguez performed surveillance for half a day at the post office, without finding Velazquez. Id. He also surveilled the Norwalk address on July 20, 2011, and went to an address in Baldwin Park, CA, that he thought might be connected to Velazquez. Id. None of these steps taken in the summer of 2011 was fruitful, nor was a search for payroll tax records for Velazquez. App. 412a-13a, 323a-26a.
H. December 2011 apprehension and subsequent guilty plea
Velazquez was apprehended on December 9, 2011, after police in Glendale, CA, arrested him on an unrelated narcotics charge. App. 384a, 393a. The DEA in Philadelphia confirmed that the government remained willing to prosecute Velazquez for the 2005 charges. App. 161a-62a. Velazquez was then served with the arrest warrant and extradited to the Eastern District of Pennsylvania. Id.
On March 28, 2012, Velazquez filed a motion to dismiss the indictment on the basis of a speedy trial violation. App. 62a. The district court denied the motion, Velazquez,
To support its finding of reasonable government diligence, the court explained that the failed efforts to find Velazquez at the Woodward Avenue address in August 2005 and July of 2011 meant that “the government was unlikely to find defendant based on the information available to it as of November 2005,” and thus “the government reasonably elected to conserve its resources and wait for new information or a change in circumstances.” Id. at *11. The court also stated that the government’s' reasonable efforts would have found Velazquez earlier if not for his “transient” lifestyle. Id. at *10 (citing United States v. Mundt,
Velazquez pleaded guilty on June 29, 2012, pursuant to a plea agreement in which he reserved his right to appeal the speedy trial issue. He was sentenced in October 2012 to 80 months in prison, with five years of supervised release. Velazquez then filed this timely appeal.
Barker established a four-factor test for evaluating whether the constitutional right to a speedy trial has been violated. The inquiry focuses on: (1) the length of the delay before trial; (2) the reason for the delay and, specifically, whether the government or the defendant is more to blame; (3) the extent to which the defendant asserted his speedy trial right; and (4) the prejudice suffered by the defendant.
A. Length of delay
The first factor is actually “a double enquiry,” Doggett,
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, since, by definition, he cannot complain that the government has denied him a “speedy” trial if it has, in fact, prosecuted his case with customary promptness. 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. This latter enquiry is significant to the speedy trial analysis because ... the presumption that pretrial delay has prejudiced the accused intensifies over time.
Id. (citations omitted). In other words, a court first decides whether the delay is long enough that it should trigger analysis of other Barker factors. Id. If it is, the length of the delay is also separately weighed in the court’s analysis of the remaining factors. Id. The Supreme Court has noted that “the lower courts have generally found ‘postaccusation delay’ ” long enough to trigger further review of Barker factors “at least as that delay approaches one year.” Id. at 652 n. 1. This Circuit has concluded that a delay of fourteen months is “sufficient to trigger review of the remaining Barker factors,” Battis,
The district court correctly found here that the delay between the November 2005 superseding indictment and Velazquez’s scheduled trial date of July 2012 crossed the threshold of prejudicial delay to justify analysis of the remaining Barker factors. The government concedes this point, Gov. Br. 25, and understandably so. The Supreme Court has characterized delays on this scale as “extraordinary.” See Barker,
This factor, the “flag all litigants seek to capture,” United States v. Loud Hawk,
Negligence over a sufficiently long period can establish a general presumption that the defendant’s ability to present a defense is impaired, meaning that a defendant can prevail on his claim despite not having shown specific prejudice. See Doggett,
This general presumption may be rebutted, but it is difficult to do so. The prosecution is essentially put to the test of proving a negative — the absence of any prejudice to a defense from the passage of years. See id. at 658 n. 4,
[T]he weight we assign to official negligence compounds over time as the presumption of evidentiary prejudice grows. Thus, our toleration of such negligence varies inversely with its protractedness, and its consequent threat to the fairness of the accused’s trial. Condoning prolonged and unjustifiable delays in prosecution would both penalize many defendants for the state’s fault and simply encourage the government to gamble with the interests of criminal suspects assigned a low prosecutorial priority. The Government, indeed, can hardly complain too loudly, for persistent ne-gleet in concluding a criminal prosecution indicates an uncommonly feeble interest in bringing an accused to justice; the more weight the Government attaches to securing a conviction, the harder it will try to get it.
Id. at 657,
With these teachings in mind, we examine the two primary factual justifications for the district court’s “reasonable diligence” finding: (1) that the unfruitful trip to the Woodward Avenue address in 2005 and the investigative efforts in 2011 show that government inaction in the intervening years was a reasonable choice to “conserve [] resources,” Velazquez,
1. Reasonable choice
In its factual recitation, the district court stated that the Marshals Service and the DEA efforts to find Velazquez between November 2005 and November 2010 “were limited to periodic checks of the NCIC Wanted Persоns database and the commercial databases.” Velazquez,
There are two related findings from the district court here: first, that there was a tactical choice not to pursue Velazquez; and second, even if there was no tactical choice, the inaction was effectively “harmless” because later investigation shows that any earlier effort would have been fruitless. As an initial matter, we question the pertinence of either finding to the “reasonable diligence” inquiry here. The Supreme Court observed in Doggett that even if law enforcement inaction “may have reflected no more than [defendant’s] relative unimportance in the world of drug trafficking, it was still findable negligence.”
Furthermore, we find no evidence in the record to support a finding that investigators made an actual “choice” not to pursue Velazquez or that the failure to pursue him was in any event harmless. Importantly, the government did not offer the tactical choice justification in the district court. See App. 94a-95a (contending that Velazquez was evasive and fled). The district court cited Deputy Hagan’s testimony that his database checks in 2010 “came up with the same things that we already had” as the apparent reason the Marshals Service took no action from November 2005 to November 2010 beyond checks in the NCIC. Velazquez,
With respect to that five-year period from November 2005 to November 2010, llagan testified only that he worked with another deputy (Cardinal) when he took over. But he did not know how long Cardinal had been handling the case or if anyone else had been in charge for any period since Degan. Degan testified that “these cases are considered a priority and it would have been reassigned to somebody,” App. 290a, but the record does not support a finding that any particular individual — including Deputy Cardinal — was that somebody. Consequently, there is no evidence of a decision by anyone to forgo pursuit of Velazquez to conserve resources. Indeed, given the priority status that De-gan said would ordinarily have been given to such a case, the five years of inaction are more indicative of inattention than an affirmative judgment about resources.
The district court’s finding that attentive pursuit would have been fruitless was similarly in error. Degan’s collateral request to the Los Angeles Marshals Service taskforce in 2005 set out
We thus cannot uphold the district court’s “reasonable diligence” conclusion based either on its finding that the law enforcement authorities made a reasonable tactical choice to limit their efforts to find Velazquez or its finding that the authorities’ limited effort was sufficient because more ambitious pursuit also would have been unsuccessful. We therefore consider whether the court’s other articulated rationale — Velazquez’s lifestyle — adequately supports the finding of reasonable diligence during the period from 2005 to 2011.
2. Defendant’s conduct
The government seeks to attribute the delay in apprehending Velazquez to his own conduct — which it characterizes as evasive — rather than to the lack of effort by law enforcement authorities. At one point in its analysis, the district court appeared to agree that the evidence would support a finding of evasion. The court reasoned that the government’s inability to find Velazquez at the Woodward Avenue address, his lack of employment history, and his “ability to avoid apprehension until his arrest on unrelated charges, even after the government intensified its efforts in 2011” all “strongly supports the inference that defendant did hide.” Velazquez,
The court refrained from actually finding “evasion,” however, in favor of characterizing Velazquez’s lifestyle as “transient.” Velazquez,
“[WJhether or not defendant was intentionally evading authorities, his lifestyle made it difficult for authorities to track him down. If defendant had not been so transient and if he had lived at his mailing address instead of using post office boxes, he would have been found much earlier as the [government] used conventional search methods in a reasonably diligent manner.”
Id. (quoting Mundt,
Although the district court ultimately refrained from finding “evasion,” we nonetheless believe we should assess that char
With respect to evasion, the factors cited by the district court do not support the inference of bad motive that the government urged and the court almost drew. A lack of verifiable employment, without more, does not signify an attempt to evade capture, and an individual’s choice to receive mail at a post office box or a relative’s home does not fill the gap. Velazquez had used his brother’s address and Box 2901 for years before the DEA investigation began, including when he sought to enlist in the United States Naval Reserve in 2002-03. Indeed, he used the same addresses in his 1998 application for a replacement Alien Registration Card. App. 75a. The duration of this usage negates any inference that these alternatives to a traditional home address were designed to protect him from a law enforcement manhunt.
Other evidence also undermines the inference of a furtive life. Various documents from 2010 onward show that Velazquez consistently listed Box 2037 as his address, and he went to retrieve his mail at the post office so frequently that postal employees recognized him. See, e.g., App. 130a (motorcycle title); App. 387a (driver’s license renewal). Velazquez listed the long-used Woodward Avenue address in paperwork for this postal box. See App. 388a. In addition, other public documents submitted during the period he was being sought also contained Velazquez’s name and identifying information. See, e.g., App. 122a-27a (application in 2011 to replace alien registration card); App. 78a-82a (birth records for three children born between October 2005 and February 2007). In brief, we see no correlation between Velazquez’s lifestyle and an intention to hide. Most significantly, there were no changes in his behavior over time that could be attributed to a deliberate effort after 2005 to evade detection.
We note that, as the government argues, the record would support a finding that Velazquez was aware that he was being sought in connection with the July 27, 2005 drug transaction in Philadelphia. Indeed, his lawyer was in touch with the United States Attorney’s Office in the fall of 2005 — before Velazquez’s indictment— to discuss surrender. Velazquez had no duty to bring on his own trial, however, and his lawyer’s inquiry does not diminish any governmental negligence in failing to pursue him, or to even contaсt his lawyer again. See Barker,
As for justifying the government’s inaction based on Velazquez’s “transient” life, we have serious doubts that this characterization is helpful in the reasonable diligence inquiry. To be sure, the government can only pursue reasonably available
We thus conclude that neither premise for the district court’s finding that the government did not act negligently — a supposed alternative allocation of resources and the defendant’s way of life— withstands scrutiny. Hence, the court clearly erred to the extent it relied on those findings to hold that the government satisfied the “reasonable diligence” prong of the Barker test, and we therefore afford no deference to the court’s determination on negligence. Nevertheless, we must still consider whether the record supports the adequacy of the government’s efforts. See Burkett,
3. The reasonable diligence determination
To satisfy the requirement of reasonable diligence, the government does not need to make “heroic efforts” to pursue a suspect, Rayborn v. Scully,
Although we doubt that such negligible effort could be deemed “serious” in any circumstances, we need not speculate in this case about how far short of the mark it fell. Deputy Degan’s collateral request in 2005 detailed the measures he thought advisable in tracking down Velazquez, and we believe his prescription for the investigation is a helpful guidepost in assessing whether the government met the standard
Nor did authorities attempt to reach Velazquez during this period. They could have sent mail to his PO box or the Woodward Avenue address or sought out a relative to relay a request that Velazquez turn himself in. Cf. Mendoza,
On this record, we think it plain that the government was not reasonably diligent in its pursuit of Velazquez. For the reasons we have explained, the district court’s contrary determination was clearly erroneous.
C. Defendant’s assertion of the right
The third Barker factor requires a court to examine “[w]hether and how a
The Supreme Court noted in Barker that the fundamental “right to a speedy trial is unique in its uncertainty as to when and under what circumstances it must be asserted or may be deemed waived.” Id. at 529,
The Barker Court also rejected the notion that “the defendant has no responsibility to assert his right.” Id. at 528,
Barkers teachings necessarily left uncertainty about when a defendant would be obligated to assert his speedy-trial right if the defendant is at large. In considering this issue in Doggett, the Court observed that an at-large defendant’s knowledge of a pending indictment could weigh heavily against him on this Barker factor, even if he was not evading capture.
This proposition is evident from the Court’s examination of the scope of a Sixth Amendment speedy trial claim in United States v. Marion,
It is thus well established that the constitutional speedy trial clock does not start for an individual who has not yet been arrested until an indictment has issued. See id. at 320,
We note that, in its discussion of the underlying events in Doggett, the Supreme Court observed that there was no evidence the defendant was aware of the pre-indictment charges against him. See
Having identified knowledge of the indictment as the appropriate measure for the timely assertion of the speedy trial right, we turn to the evidence in the record, keeping in mind the government’s burden to demonstrate Velazquez’s knowledge. See Barker,
D. Prejudice suffered by the defendant
As noted, the district court found that the government was reasonably diligent in рursuing Velazquez, and it thus required Velazquez to show specific prejudice to his defense from the lengthy delay before trial, or as it happens here, his conditional guilty plea. Velazquez,
The government contends that, even if the general presumption of prejudice applies, it has met its burden of rebuttal by affirmatively showing that Velazquez’s defense is unimpaired. The government notes that the critical meetings and phones calls in the case were all recorded and that Velazquez’s co-defendants have previously testified about the pertinent events — leaving the evidence intact, and without the risk of fabrication, despite the trial delay. App. 163a. The district court accepted the government’s contentions and held, as part of its discussion of specific prejudice, that the government had rebutted any showing of general prejudice. Velazquez,
The government’s reasoning is flawed in two ways. First, it equates the preservation of evidence the government would rely on with the materials Velazquez might need to challenge the government’s case. The Court in Doggett recognized that “impairment of one’s defense is the most difficult form of speedy trial prejudice to prove because time’s erosion of exculpatory evidence and testimony can rarely be shown.”
Second, the government’s argument in effect turns its burden to disprove general prejudice on its head by suggesting that its rebuttal effort must be found successful unless Velazquez can identify prejudice. In Doggett, the Court noted that the government “ably countered] Doggett’s efforts to demonstrate particularized trial prejudice [but] it has not, and probably could not have, affirmatively proved that the delay left his ability to defend himself unimpaired.”
III.
We recognize the significance of our decision. A defendant who pleaded guilty to serious drug charges will no longer have to answer those charges. But we accept such rare outcomes as the necessary cost for the protection of the speedy trial right set forth in the Constitution. Here, with respect to the first factor in the Barker analysis, the length of the delay in bringing Velazquez to trial was extraordinary by any measure. Contrary to the conclusion of the district court, the government was not reasonably diligent in pursuing the defendant. Indeed, its pursuit of the defendant was strikingly inattentive for five years. Hence, the reason for the delay, the second and most important factor in the speedy trial analysis, strongly favors the defendant. The third factor— the timely assertion of the speedy-trial right — benefits the defendant. As to the fourth factor, the government did not overcome the presumption of general prejudice that applies with considerable force in a case of such extraordinary delay. Under these circumstances, all of the Barker factors support the defendant’s claim of a violation of his speedy trial right. We must therefore reverse the district court’s judgment of conviction and the related sentence. The indictment against Velazquez must be dismissed with prejudice. We remand for that purpose.
Notes
. We borrow the general organization of the district court’s thorough fаctual recitation.
. It appears this link was based on registration paperwork for the postal box. See App. 388a (stating that the Woodward Avenue address was "[t]he address listed for" Velazquez's postal box).
. The NCIC is an "electronic clearinghouse of crime data that can be tapped into by virtually every criminal justice agency nationwide, 24 hours a day, 365 days a year.” FBI— National Crime Information Center, http://www.fbi.gov/about-us/cjis/ncic (last visited Jan. 23, 2014). The database is organized by "files” that contain sets of records. For example, Deputy Degan entered Velazquez’s information into the "Wanted Persons File," which consists of records on individuals with outstanding warrants. FBI — NCIC Files, http://www.fbi.gov/about-us/cjis/ncic/ncic_files (last visited Jan. 23, 2014).
.The report states that Velazquez was also known as Sergio Velazquez-Payan and Sergio Payan. App. 385a. These are permutations of his surname from his father (Velazquez) and from his mother (Payan). The government does not contend that these aliases are misleading. They are, in fact, a common
. The district court stated that Began "believed that work was underway on the request” because of the October 31 NCIC check, United States v. Velazquez, No. 05-432-03,
.The parties did not explore whether Kaplan told Velazquez about these documents because they agreed such testimony would implicate the attorney-client privilege.
. The record does not disclose when Velazquez hired Kaplan for this purpose. Kap-lan is also Velazquez’s attorney on appeal.
. The district court stated that the efforts of the Marshals Service and DEA from November 2005 to November 2010 included periodic checks of commercial databases (such as those that might reveal vehicle purchases). Velazquez,
. It is not clear at what point Pedrini took this step.
. It appears Deputy Marshal Cardinal was in the Philadelphia office, as there is no indication in the record that someone outside that office was ever in charge of the case.
. llagan did not recall where in California the shop was located. App. 174a-75a. The record shows that Velazquez began using the Box 2037 address at least by 2010. See, e.g., App. 129a-31a, 136a. Velazquez has represented that Box 2037 and Box 2901 were in the same post office, Appellant’s Br. 12 n.2, and the government does not contest this point. At some point Ilagan determined that both postal boxes were connected to the Woodward Avenue address that Velazquez at times listed for his home, and that turned out to be his brother’s house. Aрp. 189a; see also App. 388a.
. It appears that Ilagan found the phone number Velazquez provided on the registration form for his postal box, and then searched phone records for any residence connected to that phone number. See App. 388a. This phone was different from the one Velazquez was said to have used during the DEA invéstigation. Compare id. with App. 386a.
.The record is silent on which law enforcement agency employed Deputy. Dominguez. This is the first time in the record that a Marshals Service taskforce officer in Los An-geles is identified by name as having responded to a collateral request for help in finding Velazquez.
. The district court had jurisdiction over this case under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291.
. Our dissenting colleague would affirm the district court because the court "heard the law enforcement witnesses and evidently believed that the limited investigative activity undertaken from 2005 to 2010 was the product of informed discretion.” The district court did not hear from any witness who worked on the case during the five-year lull, nor did it hear from any witness who even claimed to be able to speak to decisions taken during that period. Indeed, the government never advanced a conservation-of-resources argument before the district court, contending instead that "at no point did the Government cease in its attempts to locate” Velazquez, App. 247a. Just as it did for the "transient lifestyle” argument, see Section II. B.2, the government now adopts the district court's reasoning on appeal. Our colleague further contends that "[i]t is not beyond the pale to believe that the person responsible for the case was making decisions about how to work it.” Respectfully, we hold the view that such a belief requires some foundatiоn in the evidence. To the extent our colleague credits a possibility that Deputy Cardinal was the decision maker, this is an unsupported possibility that the district court did not even mention in its opinion. To affirm the reasonable diligence finding of the district court on the facts of this case would, effectively ignore the burden on the government to justify the lengthy delay, and would reduce clear error review to a mere formality. Deferential review is still review.
. We note that the "transient" lifestyle comment in Mundt on which the district court relied added little to the analysis in that case. The government periodically checked for the defendant at two motels and had verified that he occasionally stayed at each one. See
. Our dissenting colleague disagrees with our use of Deputy Degan’s collateral request as guidance in the reasonable diligence analysis, contending that we turn each suggestion into a ''requirement ].” We do no such thing. The pertinent point here is not that the taskforce missed a particular suggestion on Degan’s list, but rather that — as the government explicitly acknowledges — there is no evidence that anyone from the Los Angeles Marshals taskforce visited any of the addresses linked to Velazquez’s close relatives that were identified in Degan’s 2005 request. See Appellee’s Br. 43.
. We recognize, as did the district court, that speedy-trial cases are intensely fact-bound and thus of limited value as precedent. Velazquez,
.Courts have also examined speedy trial claims by assigning responsibility for specific periods of the delay, and then weighing the delay attributable to the government. See Battis,
.However, as we previously noted, supra at 177, a defendant’s knowledge of the investigation or charges, apart from knowledge of the indictment, might bear on the second Barker fаctor, the reason for the lengthy delay, as this knowledge might inform a finding that the defendant was evading authorities. This overlap has been noted in the case law. Justice Brennan combined what later became the second and third Barker factors in a concurrence in Dickey, reasoning that consideration of the defendant's assertion of the speedy-trial right overlaps with consideration of who was responsible for the delay.
. The government argued that he must have known of the charges. The court, however, made no findings on knowledge of the indictment.
. Doggett identified three types of harm caused by "unreasonable delay between formal accusation and trial”: oppressive incarceration, the accused's increased anxiety, and "the possibility that the accused’s defense will be impaired by dimming memories and loss of exculpatory evidence.”
. In the passage of Professor Uviller's article that the Doggett Court cited as sufficiently analogous to lend support, Uviller recognized that this burden on the prosecution to prove a negative could be "unfair since it may require proof by facts inaccessible to the state." Uvil-ler, supra at 1394. He nonetheless argued for such a burden:
How can the state prove that no evidence for the defense was lost or impaired? ... Proof of a negative is always difficult and in this instance, it may be contended, the task is impossible since the critical facts areknown only to the defendant. Further, the argument would run, where the prosecutor must demonstrate harmless error at trial, he may do so from the record; but since he cannot show lack of prejudice by record citations, a parallel burden would be inappropriate to impose.
The argument is not without merit. Realistically, prejudice lies beyond the capacity of either side to prove or disprove, except in the rare instance where a known defense witness of known competence actually disappears or reports a recent impairment of memory, and no prior testimony from him ■ is available. Therefore, the shift of burden actually permits the presumption of prejudice to prevail on the issue. Since that presumption is well-founded, however, justice is served. The establishment of prejudice, albeit presumptively, does not end the inquiry; it merely focuses attention on other elements wherein impropriety or justification may be more meaningfully discerned.
Id. at 1394-95 (emphasis added). We need not resolve in this case whether general prejudice is irrebuttable when the period of delay is extraordinarily long. We simply note that, in citing the above passage for support, the Doggett Court was keenly aware of the practical difficulties for the prosecution in making such a rebuttal.
Dissenting Opinion
dissenting.
Whether Sergio Velazquez’s constitutional right to a speedy trial was violated is a close question, and, as my colleagues in the Majority point out, the answer hinges largely on the reasons for the delay in bringing him to trial. The primary issue is whether the government exercised reasonable diligence to find him, or, to phrase it differently, whether the government was negligent in its investigation. My colleagues reject the District Court’s determination that the government was not negligent, although that Court held an evi-dentiary hearing, carefully considered all of the evidence, and thoughtfully explored the factual and legal disputes. I think the Majority is mistaken. While the government’s investigative efforts fell well short of praiseworthy, they were not so lacking that, on this record, the District Court’s decision should be seen as reversible error. Given that conclusion, and the Dis
I.
Considering the government’s obligation to exercise reasonable diligence in bringing a defendant to trial is an intensely fact-specific inquiry. “[T]he precise amount of effort that is required is apt to vary depending on the circumstances of the case,” Rayborn v. Scully,
The Majority takes issue with two conclusions of the District Court: that the few investigative steps taken by the government between 2005 and 2010 may be excused in light of the more intense but fruitless efforts that preceded and followed that period, and that Velazquez’s off-the-grid lifestyle contributed to the delay. While I acknowledge that fair-minded people can differ about inferences and conclusions to be drawn from the record, I do not have a definite and firm conviction that the District Court erred in its handling of
My colleagues begin by asserting that “law enforcement priorities have little role to play in the negligence calculus.” (Maj. Op. at 177.) I disagree and think it plainly relevant to consider the likelihood that an investigative step will bear fruit when considering what actions constitute reasonable diligence. The concept of “reasonableness” is itself dependent upon circumstances. “Reasonable diligence” necessarily incorporates the notion that specific circumstances, including but not limited to the constraints operating on the government, factor into what constitutes a reasonable investigative effort. The Majority relies on the Supreme Court’s statement in Doggett that “even if law enforcement inaction ‘may have reflected no more than [defendant’s] relative unimportance in the world of drug trafficking, it was still findable negligence.’ ” (Id. at 176 (quoting Doggett,
The Majority claims that there is “no evidence in the record to support a finding that investigators made an actual ‘choice’ not to pursue Velazquez.” (Maj. Op. at 177.) That is not entirely true. Notably, the District Court found that, after Deputy Degan’s departure, someone continued to work the case, and the Majority acknowledges that that person may have been Deputy Cardinal. It is not beyond the pale to believe that the person responsible for the case was making decisions about how to work it. To the extent my colleagues demand a clearer record that some “particular individual” made the decision “to forgo pursuit of Velazquez” (id. at 177), they miss the mark. Government decision-making at its best is the product of a deliberative process in which costs and benefits are weighed and reflected in a well-kept record. But decision-making is not always as carefully done or as clearly preserved as we would like, and yet we do not assume that government actions are random. The District Court heard the law enforcement witnesses and evidently believed that the limited investigative activity undertaken from 2005 to 2010 was the
The Majority makes too much of the fact that there is no record of the government taking all of the investigative steps suggested by Deputy Degan in 2005. The District Court was well aware that there was “no direct evidence that authorities in California exhausted the leads in Deputy Degan’s collateral request.” (App. at 20a.) However, it found that the additional leads were “far more speculative than [Velazquez’s] connection to the Woodward Avenue address” (id.), and it credited Deputy Degan’s “belie[f] that work was underway on [his] request” (id. at 7a). In other words, the Court accepted the deputy’s understanding of how the Marshals Service works, and it was entitled to do so.
There is no dispute that, between August and November 2005, the government entered information about the charges against Velazquez into NCIC,
My colleagues in the Majority also reject the District Court’s determination that, purposefully or not, Velazquez’s decisions made it difficult for the government to find him. The Majority does acknowledge that “the absence of a paper trail for a defendant might leave the government with fewer avenues for investigation” (Maj. Op. at 180), but it gives that fact short shrift and instead expresses concern that taking account of a fugitive’s “transient” lifestyle “would likely be felt disproportionately by those in more limited economic circumstances” (id.). That concern is more a matter of speculation than proof at this point, but, assuming it is true, that does not address the investigative reality confronting the government both generally and in this case specifically. First, as a general matter, law enforcement decisions made under budgetary constraints and without any hint of improper motivation should not be overturned because of a vague concern that being hard to find is peculiar to the poor.
In sum, while law enforcement officers certainly could have done more to search for Velazquez, particularly between 2005 and late 2010, they were not obligated to take every possible action and chase every lead. See Rayborn, 858 F.2d at 90 (noting that the government must exercise only “due diligence” and not “heroic efforts”).
II.
Because the government sufficiently demonstrated reasonable diligence, the District Court required Velazquez to show that he would suffer specific prejudice, not just general prejudice, from the passage of time in order to prevail on his speedy trial claim. That decision was in keeping with the Supreme Court’s instruction in Doggett, in which the Court held that, when the government has been negligent in its investigation and the delay is excessively long, “consideration of prejudice is not limited to the specifically demonstrable,” and defendants may claim prejudice without providing “affirmative proof of particularized prejudice.” Doggett,
The Majority rightly notes that in general there are three types of prejudice that can result from delay: (1) oppressive pretrial incarceration; (2) the defendant’s anxiety and concern over the outcome of the litigation; and (3) impairment of the defense. Battis,
“[T]he possibility that the ... defense will be impaired by dimming memories and loss of exculpatory evidence” is the most important form of prejudice faced by a defendant when his right to speedy trial is denied. Doggett,
As the District Court observed, Velazquez “relies almost exclusively on the general assertion that he is prejudiced by the passage of time because witnesses to his whereabouts and involvements may be impossible to locate and those witnesses that are available will have impaired memories.” (App. at 25a (internal quotation marks omitted).) I agree with the District Court that Velazquez’s claims in this regаrd are “too general and too speculative” to demonstrate specific prejudice. (Id.)
Velazquez also argues that his ability to investigate an entrapment defense has been impaired. As the Court pointed out, however, the informant’s conversations with Velazquez on July 3, 2005 and those that took place over the phone were recorded, and the testimony from co-defendants Pedro Curiel and Nelson Gutierrez-Gainza at Gutierrez-Gainza’s trial is avail
Because Velazquez did not carry his burden of proving particularized prejudice, the District Court correctly determined that, under the circumstances of the case, he did not demonstrate a right to relief.
III.
This case presents a serious question regarding the unusual delay between indictment and trial, but I believe the District Court handled the matter wisely and well, and I would therefore affirm its decision that Velazquez’s constitutional right to a speedy trial was not violated. I thus respectfully dissent.
. There is a persuasive argument that the “considerable deference” standard for the reasonable diligence determination is simply another way of saying “clearly erroneous review.” In referencing "considerable deference,” the Supreme Court in Doggett,
. We review legal conclusions regarding a speedy trial claim, including the balancing of the Barker factors, de novo. See Battis,
. I recognize the Supreme Court's concern that "[cjondoning prolonged and unjustifiable delays in prosecution would both penalize many defendants for the state's fault and simply encourage the government to gamble with the interests of criminal suspects assigned a low prosecutorial priority.” Doggett,
.Although, as my colleagues point out, the District Court did not hear directly from any law enforcement officer who worked on the case between 2005 and 2010, there was certainly circumstantial evidence that somebody worked on it after Deputy Degan’s departure. For example, Deputy Degan testified that someone in the Marshals Service would have been assigned to the case, and somebody in the Marshals Service did indeed run period NCIC checks between 2005 and 2010. In addition, DEA Agent Pedrini made sure that Velazquez's warrant remained active in the NCIC during that time and was in contact with the Marshals Service to see if there was any new information on the case. The Majority seems to think that the level of deference I believe should be given to the District Court’s "reasonable diligence” ruling amounts to no review at all. (See Maj. Op. at 177 n. 15.) That is a basic disagreement. I believe a reasonable inference that someone was assigned and working the case can be drawn from the record, and, again, under clear error review, I am not left with a definite and firm conviction that, in light of the totality of the circumstances, the District Court erred in concluding that the work done was sufficient to constitute reasonable diligence.
. I note parenthetically my disagreement with any implication in the Majority opinion that Deputy Degan’s suggested list of investigative steps should be viewed as the measure of reasonable diligence. (Maj. Op. at 180.) Though my colleagues disclaim relying оn it (see id. at 181 n. 17), a reader might nonetheless conclude that the references to that list are meant to give it weight. One officer’s investigative suggestions to another on the opposite side of the country, however, may vary from what the receiving officer’s local experience tells him will and will not be worthwhile. That difference of opinion does not make the receiving officer a slacker. Moreover, we risk building a perverse incentive into the system if we turn suggestions into requirements. There may be fewer suggestions committed to paper if deputy marshals believe that courts will turn unfollowed leads into “stay out of jail free” cards for fugitives.
. "NCIC,” as the Majority notes, is the acronym for the National Crime Information Center, a database of criminal justice information.
. Velazquez relies on United States v. Fernandes,
. There may be significant challenges tracking people at the other end of the economic scale too, since a person of means who is constantly traveling or moving among multiple addresses may be as difficult to find as someone who is not well-rooted in society.