                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT           FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                           December 10, 2008
                             No. 07-12074
                                                          THOMAS K. KAHN
                       ________________________
                                                               CLERK

                  D. C. Docket No. 04-60317-CR-DTKH

UNITED STATES OF AMERICA,

                                               Plaintiff-Appellee,

                                  versus

CURLEY VIGILLE,

                                               Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________
                            (December 10, 2008)




Before DUBINA, BLACK and FAY, Circuit Judges.

PER CURIAM:
       In May 2006, the Government charged Appellant Curley Vigille (“Vigille”),

in a superseding federal indictment, along with three codefendants,1 with one

count of conspiracy to possess with the intent to distribute 5 kilograms or more of

a substance containing a detectable amount of cocaine and 1,000 kilograms or

more of a substance containing a detectable amount of marijuana, in violation of

21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A)(ii), (vii) (“Count One”); one count of

conspiracy to engage in financial transactions designed to conceal or disguise the

proceeds of an unlawful activity, in violation of 18 U.S.C. § 1956(a)(1)(B)(i), (h)

(“Count Two”); and one count of engaging in a financial transaction designed to

conceal or disguise the proceeds of an unlawful activity, in violation of 18 U.S.C.

§§ 1956(a)(1)(B)(i) and 2 (“Count Three”). The superseding indictment further

charged Vigille and one codefendant with conspiracy to carry and possess a

firearm in relation to and in furtherance of a drug trafficking crime, in violation of

18 U.S.C. § 924(o), (c) (“Count Four”).

       Following trial, the jury returned guilty verdicts against Vigille on Counts

One, Two and Four; the jury acquitted Vigille on Count Three.2

       The issues presented on appeal are:

       1
           The codefendants disappeared and remain fugitives.
       2
        The district court sentenced Vigille to 235 months’ imprisonment and five years of
supervised release. He is presently incarcerated.

                                                 2
      1. Whether the district court erred in denying Vigille’s motion to dismiss

the indictment for a violation of his right to a speedy trial based on a delay of 16

months between the indictment and the date of Vigille’s arrest, and on a delay of

25 months between the indictment and the start of Vigille’s trial.

      2. Whether the district court erred in failing to suppress evidence in this

case that was previously ruled inadmissible in a prior state court proceeding.

      3. Whether the district court erred in delivering a second Allen charge.3

      4. Whether the record reflects that ethnic bias tainted the jury’s

deliberations and verdict.

      5. Whether the district court imposed an unreasonable sentence.

      “Determination of whether a defendant’s constitutional right to a speedy

trial has been violated is a mixed question of law and fact. Questions of law are

reviewed de novo, and findings of fact are reviewed under the clearly erroneous

standard.” United States v. Clark, 83 F.3d 1350, 1352 (11th Cir. 1996) (internal

citation omitted) (quoted in United States v. Ingram, 446 F.3d 1332, 1336 (11th

Cir. 2006)). However, to the extent Vigille has predicated his claim upon an

argument not presented in the district court, his claim will be reviewed for plain

error. See United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005).


      3
          Allen v. United States, 164 U.S. 492, 17 S. Ct. 154 (1896).

                                                  3
      “We review the district court’s determination that res judicata and collateral

estoppel do not apply de novo.” Lops v. Lops, 140 F.3d 927, 937 n.10 (11th Cir.

1998).

      “We review the legal correctness of a jury instruction de novo but defer to

the district court on questions of phrasing absent an abuse of discretion.” United

States v. Mintmire, 507 F.3d 1273, 1292-93 (11th Cir. 2007). If an Allen charge is

given, appellate review is limited to evaluating the coercive impact of the charge.

United States v. Beasley, 72 F.3d 1518, 1525 (11th Cir. 1996).

      The denial of a motion for mistrial is reviewed for an abuse of discretion.

See United States v. Heller, 785 F.2d 1524, 1527-28 (11th Cir. 1986).

      After the United States Supreme Court decided United States v. Booker, 543

U.S. 220, 125 S. Ct. 738 (2005), this court reviews a defendant’s sentence for

reasonableness. United States v. Williams, 435 F.3d 1350, 1353 (11th Cir. 2006).

      As to the first issue, Vigille argued in the district court that the delay of 16

months between his indictment and arrest was a violation of his speedy trial right.

In Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192 (1972):

the Supreme Court established a four-factor test to determine when a defendant’s
constitutional right to a speedy trial has been violated. The four 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) the prejudice to the defendant.



                                           4
Ingram, 446 F.3d at 1336. “Delays exceeding one year are generally found

‘presumptive prejudicial.’” Id. (citing Doggett v. United States, 505 U.S. 647, 652

n.1, 112 S. Ct. 2686, 2692 n.1 (1992)). If the threshold inquiry is satisfied and the

second and third factors weigh heavily against the government, the defendant need

not show actual prejudice to succeed in showing a violation of his right to a

speedy trial. Id.

      Vigille satisfies the first factor as the length of the delay was 16 months. As

to the second factor, law enforcement diligently attempted to locate Vigille for the

two months after indictment, and continued to monitor the situation until it handed

its apprehension efforts over to the U.S. Marshals Service in May of 2005. Thus,

similar to United States v. Clark, 83 F.3d 1350, 1352 (11th Cir. 1996), the second

and third factors do not weigh heavily against the Government and Vigille is

required to show actual prejudice. We conclude the district court did not err in

determining Vigille failed to show actual prejudice in the 16-month delay between

indictment and arrest.

      As to Vigille’s contention raised for the first time on appeal, that his speedy

trial right was violated in the 25-month delay between indictment and trial, we

find no plain error. As stated previously, Vigille is unable to show his speedy trial

right was violated in the 16-month delay between indictment and arrest. The extra

                                          5
nine months between arrest and trial was needed because the trial was continued

twice on Vigille’s own request, and Vigille did not oppose the Government’s

request for a continuance.

      As to the other issues on appeal, after reading the briefs, reviewing the

record, and having the benefit of oral argument, we conclude they do not warrant

discussion as they are without merit. Accordingly, we affirm Vigille’s convictions

and sentences.

      AFFIRMED.




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