           Case: 16-14290    Date Filed: 09/21/2017   Page: 1 of 8


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-14290
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 8:00-cr-00442-JDW-AEP-1

UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

versus

ANTHONY WAYNE MORRISON LAZZARA,
a.k.a. Wayne Douglas Shevi,
a.k.a. Wayne Shevchuck,
a.k.a. Gregory Gibson,
a.k.a. William Jay Woolston,

                                                          Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________

                            (September 21, 2017)

Before TJOFLAT, WILLIAM PRYOR and BLACK, Circuit Judges.

PER CURIAM:
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       Anthony Wayne Morrison Lazzara appeals his convictions for making a

false statement on an application for a U.S. passport and perjury. Lazzara asserts

the district court clearly erred in denying his motion to dismiss the indictment

based on a finding his pre-indictment use of multiple aliases, rather than the

Government’s negligence in investigating his case, was the primary cause for an

approximately 15-year delay in his prosecution. After review,1 we affirm the

district court.

       The Sixth Amendment provides “[i]n all criminal prosecutions, the accused

shall enjoy the right to a speedy . . . trial.” U.S. Const. amend. VI. “Because of

the unique policies underlying this right, a court must set aside any judgment of

conviction, vacate any sentence imposed, and dismiss the indictment if it finds a

violation of the defendant’s right to a speedy trial.” United States v. Villarreal,

613 F.3d 1344, 1349 (11th Cir. 2010). In reviewing a motion to dismiss under the

Sixth Amendment, we employ the four-part Barker test, weighing: “(1) the length

of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his right

to a speedy trial; and (4) the actual prejudice borne by the defendant.” Id. at 1350;

see also Barker v. Wingo, 407 U.S. 514, 530 (1972).



       1
           Whether the government deprived a defendant of his constitutional right to a speedy
trial is a mixed question of law and fact. United States v. Villarreal, 613 F.3d 1344, 1349 (11th
Cir. 2010). “We review the district court’s legal conclusions de novo and its factual findings for
clear error.” Id.

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      The first Barker factor serves a triggering function; unless the length of the

delay is presumptively prejudicial, we need not consider the remaining factors.

United States v. Dunn, 345 F.3d 1285, 1296 (11th Cir. 2003). A delay of one year

is considered presumptively prejudicial for purposes of the first Barker factor. Id.

Because the delay in Lazzara’s case was greater than one year, the first Barker

factor weighs heavily against the Government.

      Under the second Barker factor, different reasons for delay are accorded

different weights. Barker, 407 U.S. at 531. Negligence is a more neutral act that

should not be weighed as heavily as acts done in bad faith. Id. We have indicated

that, absent evidence establishing the defendant knew of the indictment and

intentionally evaded prosecution, a defendant cannot be held culpable for the

delay. United States v. Ingram, 446 F.3d 1332, 1337-38 (11th Cir. 2006) (holding

a district court erred in holding a defendant culpable where there was no evidence

he knew of the indictment or warrant but also noting there was no evidence he was

aware law enforcement was looking for him); see also Doggett v. United States,

505 U.S. 647, 653-54 (1992) (holding a defendant could not be faulted for post-

indictment delay because there was no evidence he was aware of the indictment or

the police had been looking for him).

      The Government provided a sufficient explanation for the delay. See

Ingram, 446 F.3d at 1337 (stating the burden is on the government to explain the


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cause of any pretrial delay). First, the district court did not clearly err in finding

Lazzara was culpable for the delay. Although it was undisputed Lazzara was not

aware of the indictment in this case, the record showed he adopted the Gregory

Gibson and William Jay Woolston aliases in an attempt to evade law enforcement

in a different case. The fact Lazzara was unaware he was subsequently indicted for

making a false statement on a passport application and perjury does not excuse his

attempt to obscure his identity to avoid detection by law enforcement in a different

case. While both this Court and the Supreme Court have held defendants were not

culpable for post-indictment delay in cases where those defendants were not aware

of the indictment, those cases also involved defendants who, unlike Lazzara, had

no reason to believe they were being pursued by law enforcement at all. See

Doggett, 505 U.S. at 653-54; Ingram, 446 F.3d at 1337-38.

      Second, the district court did not clearly err in finding the Government acted

with reasonable diligence in its attempt to locate Lazzara. The Government took

reasonable and diligent steps to locate Lazzara, as evidenced by the agents finding

the true Gibson in 2004 or 2005 and determining the true Woolston was deceased.

Further, while Lazzara focuses on the Government’s failure to prove agents

searched law-enforcement databases, the evidence shows those searches would

have been futile, as there was nothing linking Lazzara’s Gibson and Woolston

identities to his Lazzara, Wayne Douglas Shevi, or Wayne Shevchuck identities


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until those aliases were added to Lazzara’s rap sheet after the arrest in this case.

While facial recognition may have been effective if agents had used it prior to

February 2015, Fernandez explained they were not permitted to use facial-

recognition technology due to privacy concerns. Accordingly, while the

Government may have been able to do more to locate Lazzara, its actions were, at

best, only negligent, and should not be weighed as heavily as acts done in bad

faith. See Barker, 407 U.S. at 531. Thus, the district court did not clearly err in

finding the second Barker factor weighed against Lazzara.

      As for the third Barker factor, a defendant’s assertion of his speedy trial

right is often “entitled to strong evidentiary weight in determining whether a

defendant is being deprived of the right,” because a timely demand for a speedy

trial often supports an inference the defendant was not at fault for the delay and the

delay prejudiced the defendant. Villarreal, 613 F.3d at 1353-54 (quotation

omitted). We have determined the third Barker factor weighed “heavily against

the Government” where the defendant asserted his right to a speedy trial soon after

learning of the indictment and arrest warrant. See Ingram, 446 F.3d at 1335, 1338.

We also have determined that, where a defendant moved for four continuances

prior to trial, the third Barker factor did not weigh heavily against the government.

See United States v. Register, 182 F.3d 820, 828 (11th Cir. 1999). Further, we

have noted that, where a defendant obtained a continuance to allow his initial


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counsel to withdraw and signed a waiver of his speedy-trial right to allow his new

counsel time to prepare for trial, the third Barker factor weighed heavily against

him. See United States v. Roggio, 863 F.2d 41, 42 (11th Cir. 1989).

      Neither the magistrate judge nor the district court made specific findings or

weighed the third factor. Lazzara filed his notice of the assertion of his speedy-

trial right approximately one month after his arrest. Thus, because the record

reflects that Lazzara did not learn of the indictment and arrest warrant until that

time, Lazzara asserted his speedy-trial right in a timely manner. See Ingram, 446

F.3d at 1335, 1338-40. However, like the defendants in Register and Roggio,

Lazzara signed a written waiver of his speedy-trial right and moved for a

continuance. See Register, 182 F.3d at 828; Roggio, 863 F.2d at 42. However,

even assuming the third Barker factor weighed heavily against the Government

based on his timely assertion of his speedy-trial right, Lazzara nevertheless was

required to show actual prejudice because the second Barker factor did not weigh

heavily against the Government. See Dunn, 345 F.3d at 1296 (stating if the first

three Barker factors weigh uniformly and heavily against the government, the

defendant need not demonstrate particularized proof of actual prejudice).

      In evaluating actual prejudice under the fourth Barker factor, we consider

three policy interests that the right to a speedy trial protects: (1) the prevention of

oppressive pretrial incarceration; (2) the minimization of the accused’s anxiety and


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concern; and (3) the limitation of any possible impairment of the defense. United

States v. Schlei, 122 F.3d 944, 988 (11th Cir. 1997). Additionally, in cases of

government negligence, the defendant must show actual prejudice, but his burden

decreases as the period of delay increases. United States v. Clark, 83 F.3d 1350,

1353 (11th Cir. 1996); see also Doggett, 505 U.S. at 657 (“[T]he weight we assign

to official negligence compounds over time as the presumption of evidentiary

prejudice grows.”). Government negligence and a substantial delay can compel

relief without any showing of particularized prejudice unless the resulting

prejudice either was extenuated, as by the defendant’s acquiescence, or

persuasively rebutted by the government. Clark, 83 F.3d at 1353. In Doggett, the

Supreme Court held that a delay of eight and a half years, caused solely by

government negligence, was long enough to eliminate the need for proof of

particularized prejudice. Doggett, 505 U.S. at 657-58.

      Lazzara failed to show actual prejudice. To the extent the delay was

substantial and the district court determined the Government was minimally

negligent, Lazzara’s actions extenuated the delay and the Government was able to

sufficiently rebut any presumption of prejudice that arose from the length of the

delay by showing that Lazzara’s use of aliases was the primary cause for the delay.

See Clark, 83 F.3d at 1353-54. As Lazzara concedes on appeal, he raised no

actual-prejudice argument before the district court, and we review for plain error.


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See United States v. Aguilar-Ibarra, 740 F.3d 587, 591-92 (11th Cir. 2014) (stating

when a party raises arguments that were not raised before the district court, we

review for plain error). Lazzara has not pointed to any on-point precedent from

this court or the Supreme Court showing the district court plainly erred in

determining he did not suffer actual prejudice in light of his inability to plead

guilty to the indictment in this case when he pled guilty in another case in 2002.

See United States v. Hoffman, 710 F.3d 1228, 1232 (11th Cir. 2013) (explaining an

error is plain if the error is contrary to an explicit statutory provision or on-point

precedent from our Court or the Supreme Court). Therefore, Lazzara failed to

meet his burden of showing actual prejudice for purposes of the fourth Barker

factor. Accordingly, we affirm the district court’s order denying Lazzara’s motion

to dismiss the indictment.

      AFFIRMED.




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