                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                      F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                        March 15, 2007

                                                                  Charles R. Fulbruge III
                                                                          Clerk
                                No. 05-41864



UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

versus

JUAN CARDENAS CASTANEDA,

                                           Defendant-Appellant.

                          ______________________

            Appeal from the United States District Court
                 for the Southern District of Texas
                       USDC No. 1:00-CR-514-2
                       ______________________

Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.

PER CURIAM:*

      A jury convicted defendant Juan Cardenas Castaneda for robbing

a bank in 1996.       Cardenas appeals, arguing that the Government

violated his Sixth Amendment right to a speedy trial by indicting

him in December of 2000 and trying him in August of 2005, that the

district court erred in admitting under Federal Rule of Evidence

404(b) eye-witness testimony from an uncharged 1995 bank robbery,

and   that insufficient evidence supported the verdict.             We affirm.

                                       I



      *
        Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
     Between 1994 and 1996, in Brownsville, Texas, small groups of

armed hispanic men robbed several banks and armored cars outside of

banks.   One of those robberies occurred around 9:30 a.m. on May 4,

1995, during which at least four men, some armed with M-16s, drove

to an armored car in front of First Bank Sunrise, robbed the car

after disarming     the    guards      at       gunpoint,      then   drove    away   and

abandoned    the   getaway      car.            Soon   after    that    robbery,      two

eyewitnesses - a bank employee named Diana Perez and a FedEx driver

named Kevin Saenz - identified Cardenas from photo line-up as a

back-seat    passenger     in   the    getaway         car.      Another      eyewitness

identified Cardenas’s brother as a man who stood beside her car,

pointing a gun at her and her child, angry that she had warned

someone leaving the bank of the robbery.                 A day later, an FBI agent

interviewed Cardenas where he lived in Matamoros, Mexico; Cardenas

named four alleged conspirators - Julio Torres, Rafael Guerrero,

Oscar Venegas, and Hector Corbian - but denied his own involvement,

and he was not arrested.

     Another robbery occurred on January 22, 1996.                      At about 5:20

p.m., several armed man wearing ski-masks robbed the Texas Bank &

Trust Company after commandeering the entire bank (instead of

silently slipping     a    note   to    the        teller)     and    assaulting      some

employees.    They sped away in a car after removing their masks and

later abandoned the car.        One eyewitness, Maria Castillo, saw some

of the robbers run to the car, which she later described precisely,

including    the   plate   number      to       within   one     correct      character;

                                            2
Cardenas’s brother had purchased the car in Mexico.                    Castillo also

described in detail three of the robbers.                Soon after the robbery,

she picked Cardenas out of a photo line-up as one of the robbers.

She picked out Venegas as well, but she could not identify the

third robber. Another witness also identified Venegas from a photo

line-up.    One robber dropped his ski mask before leaving the bank;

DNA from that mask was definitively matched to Guerrero, a Mexican

narcotics officer whose brother worked at the Texas Bank & Trust

Company.     The other three masks were found in the abandoned car;

these were tested against a sample from Cardenas in 2005, but there

was insufficient genetic material for testing.

     A Texas Ranger showed a 48-photo line-up to Castillo and Perez

on January 3, 1997 and Saenz on April 11, 1997.                      Perez and Saenz

identified       Cardenas    as   the    back-seat      passenger      during   their

robbery;    Castillo       identified     Cardenas      and    two    other    men   as

“resembling” the right front passenger in hers.

     A    grand    jury     indicted    Cardenas   for    the    1996    robbery     on

December 5, 2000.         The indictment and arrest warrant were sealed.

Cardenas and Guerrero were charged with the crime by superseding

indictment on July 31, 2001. That indictment and warrant were also

sealed.    Guerrero was convicted of the robbery in 2001, having

already been convicted of a similar 1994 robbery.1                            Cardenas

entered    the    United     States     from   Mexico    and    committed     traffic


      1
        See United States v. Guerrero, No. 01-41115 (5th Cir. Apr. 3, 2003)
(unpublished) (affirming conviction).

                                           3
violations several times during the early 2000s, but he was never

arrested for the robbery.          He was eventually arrested on March 25,

2005, while crossing the border, and the Government unsealed the

indictment three days later.

      The issue at trial was whodunit.           Castillo testified that she

identified Cardenas on the day of the 1996 robbery but that she

couldn’t identify him in court, almost 10 years later.                      Over

objection, the Government introduced under Rule 404(b) evidence of

the ostensibly similar 1995 robbery, which Cardenas allegedly

perpetrated,       to   establish     identity    for   the    1996   robbery.

Specifically, Perez and Saenz testified, like Castillo, that they

identified Cardenas on the day of their robbery but couldn’t

identify him in court.           The jury convicted Cardenas.

      Cardenas moved for a new trial, asserting, inter alia, the

right to a speedy trial.2             The court denied the motion after

balancing the factors announced by the Supreme Court in Barker v.

Wingo.3

                                        II

      Cardenas first claims that the delay between indictment and




      2
        Cardenas had earlier filed, and the court had denied as untimely, a
motion to dismiss based on this claim. However, speedy trial claims are best
analyzed after the facts have been developed, see United States v. Frye, 372 F.3d
729, 737 (5th Cir. 2004), hence the court properly analyzed the claim post-trial.
      3
          505 U.S. 647 (1992).

                                         4
trial violated his Sixth Amendment right to a speedy trial.4                   We

review the district court’s balancing of the Barker factors for

clear error.5

      In analyzing a Sixth Amendment speedy trial claim, this court

considers the four Barker factors: 1) the length of the delay; 2)

the reason for the delay; 3) the defendant’s diligence in asserting

his Sixth Amendment right; and 4) prejudice to the defendant

resulting from the delay.6           The Supreme Court clarified in Doggett

v. United States7 that there is a “threshold inquiry [of] whether

the delay was long enough to trigger a speedy trial analysis;” only

if that threshold, which is generally one year, is met, do we

proceed weighing the factors.8          If the first three factors strongly

favor the defendant, prejudice is presumed; if they do not, the

defendant must show actual prejudice.9          This court “generally ha[s]

found presumed prejudice only in cases in which the post-indictment




      4
        Any delay between the crime and indictment is irrelevant.   See Frye, 372
F.3d at 736-37.
      5
        There is an argument that although we should review findings of fact for
clear error, we should review the balancing of those facts de novo. Frye, 372
at 735-36. As in Frye, we decline to decide the issue because the court’s order
survives review under either standard.
      6
          See United States v. Bergfield, 280 F.3d 486, 488 (5th Cir. 2002).
      7
          505 U.S. 647, 651 (1992)
      8
        Bergfield, 280 F.3d at 488; see also Doggett, 505 at 652 n.1 (stating one
year number); Bergfield, 280 F.3d at 488 (same).
      9
          Bergfield, 280 F.3d at 488.

                                         5
delay lasted at least five years.”10

     Here, the delay between indictment and trial was about four

years and nine months. This satisfies the threshold inquiry, so we

proceed to weigh the first three factors, including the length of

delay.     The reason for the delay appears to be the Government’s

negligence      in   arresting     Cardenas:   he    crossed   the   border    and

received traffic tickets several times.               Moreover, officers most

likely knew       his   location    given    that   they   interviewed   him    in

Matamoros and there is no indication that Cardenas was on the run.

And even if he were, there is no indication that officers attempted

to glean from Guerrero, who was imprisoned, where Cardenas was. In

sum, we can’t credit the Government’s assertion that the reason for

delay was Cardenas’s living in Mexico.              The Government argues that

Cardenas wasn’t diligent in asserting his right because he didn’t

assert it until a fortnight before trial, but that only renders

Cardenas passive during the few months after arrest; he didn’t know

about the indictment or warrant before his arrest, so we can’t say

he should’ve asserted the right then.

     Although these factors favor Cardenas, they do not warrant a

finding of presumptive prejudice.              First, the delay was a few

months shy of our general five-year cutoff; it was not the eight-

and-a-half years about which the Court in Doggett was focused in

finding presumed prejudice.          Second, the delay here was the result


     10
          See United States v. Serna-Villareal, 352 F.3d 225, 232 (5th Cir. 2003).

                                         6
of negligence, which, although inappropriate and supportive of

presumed prejudice if the delay is sufficiently long, is not as

damning as official bad faith.11          In short, this isn’t the Doggett-

type case where there is serious concern about the defendant’s

inability to prove (or even identify) prejudice.

      Looking to whether Cardenas suffered actual prejudice, it’s

clear he wasn’t subject to two of the three harms of delay

identified by the Supreme Court - oppressive pretrial incarceration

and anxiety and concern - because he was unarrested and unaware of

his indictment during the delay.12            As the court held in Doggett,

however, the third harm - prejudice stemming from dimmed memories

and loss of exculpatory evidence - is most important.13              And here

the passage of time favored Cardenas.           As the Government notes, the

witnesses testified that they identified Cardenas at the time of

the crimes, but they testified that they could not identify him in

the courtroom; an earlier trial would’ve increased the likelihood

of the witnesses’ identifying Cardenas in court.            Cardenas states

that the dimmed memories harmed him, but his conclusory allegation

is unfounded.14          Cardenas also alleges that hair and DNA samples


      11
           Doggett, 505 U.S. at 656-57.
      12
           Id. at 654.
      13
           Id.
      14
         The Government, in defending the witnesses’ credibility, argued that
they couldn’t be expected to remember clearly almost ten years after the crime.
This argument merely attempted to limit damage to the Government; it did not
render the dimmed memories helpful to the Government.

                                          7
could’ve been tested and could’ve exonerated him had the trial been

earlier; if true,15 this allegation would have some legs, but in the

end it’s insufficient because the lack of a DNA and hair match at

trial was noted, helping Cardenas. Excluding Cardenas as a suspect

through DNA and hair would have required positive matches for a

specific number of other robbers, a speculative proposition given

disagreement over exactly how many robbers were involved and the

probability that not all would have left samples.

                                            III

      Cardenas       next   claims    that        the   district     court    erred    in

admitting       under    Federal     Rule        of   Evidence     404(b)    eyewitness

testimony from the uncharged 1995 armored-car robbery.                               Such

evidence of extraneous acts is admissible under Rule 404(b) to

prove identity if the circumstances of the extraneous act “were so

similar to the offense in question that they evince a signature

quality, marking         the   extraneous         act   as   the   handiwork    of    the

accused.”16       Two factors are relevant in unpacking the government’s

modus operandi theory.           The first is the distinctiveness of the



      15
        According to the record, the FBI would not test a DNA sample - here, the
mask allegedly worn by Cardenas - without an exemplar against which to compare
it. An exemplar from Cardenas was sent in 2005 after his arrest, and there was
no match. The record is unclear as to whether “no match” meant that the mask
always had insufficient genetic material for testing or whether sufficient
material existed initially but degraded by 2005.       And even if the sample
degraded, it’s unclear if it degraded soon after the crime, making testing
unavailable even just a year or so later. The record is unclear as to whether
Cardenas’s fingerprints were tested against any left at the scene or whether
there was a match. The Government doesn’t address either point.
      16
           United States v. Guerrero, 169 F.3d 933, 939 (5th Cir. 1999).

                                             8
crimes and the second is the proximity of the crimes in space and

time.17

      We are satisfied of the geographic and temporal proximity of

the two robberies. Both were in Brownsville, Texas, and were seven

months apart.        A juror might reasonably connect two such crimes.18

This is not a case, like Carroll, where an entire decade separated

the government from its evidence.19

      The      distinctiveness     of    the      crimes   is   a   more   difficult

question.       The government argues that the facts of the crimes were

“remarkably similar.”          The robbers were all hispanic; they struck

when few people were near the bank (or the armored car); they

brandished guns to threaten bank employees (or drivers); they

approached the scene in one vehicle, in which they fled and

promptly abandoned.

      That’s no Great Brinks Robbery.              Yet we must affirm the 404(b)

ruling, bound by our prior decision in Guerrero, a case which

approved of the use of 404(b) evidence based on modus operandi

facts      nearly    identical    to    ours.20      Indeed,    Guerrero’s    appeal

      17
           See id.; see also United States v. Carroll,     207 F.3d 465, 469 (8th Cir.
2000).
      18
        See Smith, 103 F.3d at 603 (one month apart) and Moore, 115 F.3d at 1355
(“a few months” apart).
      19
           United States v. Carroll,   207 F.3d at 470.
      20
         United States v. Guerrero, 169 F.3d 933, 939 (5th Cir. 1999).         In
Guerrero, “(1) all three robberies occurred in Brownsville within a relatively
short period of time; (2) each occurred during times of minimal bank traffic; (3)
in each, a vehicle suddenly pulled up; (4) the robbers were wearing dress-casual
clothes, but not masks; (5) the robbers in the first two robberies wore

                                           9
involved the same men on the same crime spree, and Guerrero was

later Cardenas’s co-defendant, in the present case.

                                      IV

      Finally,    Cardenas     challenges     the     sufficiency     of     the

government’s     evidence.     He   notes   that    the   second   time    Maria

Castillo was shown a photo line-up, she identified him, as well as

two other strangers to this case, as men “resembling” one of the

robbers. No reasonable jury, he urges, could have found him guilty

beyond a reasonable doubt.

      Yet as we have explained, the government properly introduced

two more eye witnesses under 404(b).            We will not re-weigh the

credibility of these witnesses, especially when their credibility

was already challenged at trial. There was sufficient evidence for

a reasonable jury to convict.

      The judgment of conviction is AFFIRMED.




sunglasses, as did the driver in the last; (6) each occurred outside the bank
while funds were being transferred; (7) the only witnesses were bank or armored
car employees; (8) the employee in control of the money was the one assaulted;
and (9) the getaway vehicle was found abandoned near each bank.” Id.

                                      10
