     Case: 16-51340      Document: 00514318192         Page: 1    Date Filed: 01/23/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 16-51340
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         January 23, 2018
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

WILLIAM DANIEL SCHLOSSER,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:06-CR-12-1


Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       William Daniel Schlosser appeals his conviction for possession with
intent to deliver five or more kilograms of cocaine. He contends that the
district court erred by denying his motion to dismiss the indictment under the
Speedy Trial Clause following a 10-year delay between his indictment and
arrest on the charge.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 16-51340

      The Sixth Amendment determination requires consideration of four
factors: (1) the extent of the delay; (2) “whether the government or the criminal
defendant is more to blame for that delay”; (3) whether the defendant was
diligent in asserting the right to a speedy trial; and (4) any prejudice resulting
from the delay. Doggett v. United States, 505 U.S. 647, 651 (1992) (describing
the factors announced in Barker v. Wingo, 407 U.S. 514, 530 (1972)). We review
the district court’s factual findings for clear error and its application of the
Barker factors de novo. United States v. Molina-Solorio, 577 F.3d 300, 303-04
(5th Cir. 2009).
      While the extent of the 10-year delay here weighs heavily in Schlosser’s
favor, see Molina-Solorio, 577 F.3d at 305, he does not dispute the finding by
the district court that he precipitated the delay by absconding to Mexico to
avoid prosecution. Instead, relying on Doggett and Molina-Solorio, Schlosser
asserts that the Government was negligent in pursuing him and that the
second Barker factor thus weighs in his favor. According to Schlosser, the
Government should have interviewed the individuals on his cell phone’s
contact list, which agents examined when he was detained in 2005; contacted
his father-in-law in Mexico; followed up with the woman who drove Schlosser
to the Ysleta Port of Entry in 2007; called the telephone number on a business
card for a carwash owned by Schlosser in Mexico; and interviewed his wife
when she crossed the border. Asserting that he was unaware during his 10-
year stay in Mexico that he had been indicted, Schlosser asserts that he
diligently asserted the right to a speedy trial under the third factor because he
moved to dismiss the indictment three months after his arrest in 2015. Finally,
Schlosser contends that prejudice should be presumed because the first three
factors weigh heavily in his favor.




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                                 No. 16-51340

      The record here reflects that Schlosser remained beyond the
Government’s jurisdiction throughout the 10-year delay between his
indictment and arrest. The Government diligently monitored the border and
identified him as a fugitive on both occasions that he attempted to reenter the
country.      It also made regular efforts to search domestic databases to
determine whether he could be living in the United States. The caselaw cited
by Schlosser is distinguishable and does not support his claim that the
Government was negligent or that its negligence was the principal cause of the
10-year delay. Further, there is no evidence that the Government purposefully
delayed his prosecution to cause him prejudice.        The second factor “cuts
strongly against [Schlosser].” United States v. Harris, 566 F.3d 422, 432 (5th
Cir. 2009).
      The Government contends that the third factor is neutral or weighs
against Schlosser because he knew that a charge was inevitable and waited
more than 10 years to assert his desire for a speedy trial. On the facts of this
case, we conclude he should not be taxed for failing to request a speedy trial
prior to his arrest. See Doggett, 505 U.S. at 653-54; Molina-Solorio, 577 F.3d
at 306.
      Under the fourth Barker factor, Schlosser is not entitled to a
presumption of prejudice because all of the first three factors do not weigh in
his favor. See Harris, 566 F.3d at 432. He does not dispute the district court’s
finding that any prejudice was slight. Indeed, the evidence of Schlosser’s guilt,
which included his voluntary confession following his arrest while in
possession of drugs, remained compelling at the time of his conviction despite
the passage of time. Any unknowable prejudice that may have accrued during
the delay is balanced against the weight that must be given to the necessity of
tracking him down after he absconded. See Doggett, 505 U.S. at 656.



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                               No. 16-51340

     For these reasons, we find no error by the district court in its
undertaking of this “difficult and sensitive balancing process.” Barker, 407
U.S. at 533. The judgment of the district court is AFFIRMED.




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